Bailey v. Harris et al

Filing 22

REPORT AND RECOMMENDATION that Plaintiff's 1 Complaint be Dismissed. FURTHER RECOMMENDED that the Clerk of the Court be instructed to close this case and enter judgment according. Objections to R&R due by 6/14/2017. Signed by Magistrate Judge George Foley, Jr on 5/31/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VIANA B. BAILEY,

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Plaintiff,
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vs.
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WILLIAM OSCAR HARRIS, et al.,
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Defendants.
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__________________________________________)

Case No. 2:15-cv-02279-JAD-GWF
REPORT AND
RECOMMENDATION

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This matter is before the Court on the parties failure to show cause why this matter should
not be dismissed for lack of an actual dispute and lack of prosecution.

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BACKGROUND
On December 2, 2015, Plaintiff Viana B. Bailey filed her Complaint (ECF No. 1) setting

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forth her demand for arbitration pursuant to arbitration agreements between Plaintiff and

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Defendants William Oscar Harris, Robert David Neal, and Ralph Taylor. On September 7, 2016,

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Plaintiff filed Notices of Acceptance of Offer of Judgment (ECF No. 7, 8, 9) and her Motion for

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Final Judgment based on the offers of judgment (ECF No. 10). On October 5, 2016, a Motion for

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Modification of Deemed Final Judgment (ECF No. 11) was filed purportedly on behalf of

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Defendant Ralph Taylor.

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With the exception of Defendant Ralph Taylor, none of the Defendants have appeared in

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this matter. Mr. Kenneth Taylor is not a party to this action, but signed the Motion for

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Modification purportedly on behalf of Defendant Ralph Taylor. Mr. Kenneth Taylor signed the

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offer of judgment purportedly on behalf of Defendants William Oscar Harris, Robert David Neal,

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and Ralph Taylor. See ECF No. 10-2. Mr. Kenneth Taylor appeared for a status conference in this

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action on November 22, 2016 and represented that he was the power of attorney for the

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Defendants. See ECF No. 16.

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On January 13, 2017, the Court ordered the parties to show cause in writing by February

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10, 2017 why this matter should not be dismissed for lack of an actual dispute and lack of

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prosecution. The Court also instructed the parties to retain counsel who shall file an appearance

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according to the Local Rules of Practice or to file a notice with the Court that he or she will be

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appearing in this matter pro se. On January 31, 2017, Mr. Kenneth Taylor filed a notice (ECF No.

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18) purportedly on behalf of the Defendants informing the Court that he will file a response to the

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Court’s order to show cause on June 12, 2017. Mr. Kenneth Taylor represents that he is appearing

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on behalf of the Defendants as their power of attorney. See ECF No. 18. On February 9, 2017,

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Plaintiff filed her response. ECF No. 20. She stated that there is no longer a controversy before

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the Court because of her acceptance of offers of judgment and requests that final judgment be

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entered.

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DISCUSSION

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A.

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Although an individual is entitled to represent himself or herself, non-attorneys are not

Failure to Retain Counsel

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permitted to represent, or appear in court on behalf of, any other person. Handley v. Bank of Am.,

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N.A., 2010 WL 4607014, at *1 (D. Nev. Nov. 4, 2010) (citing Salman v. Newell, 110 Nev. 1333,

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885 P.2d 607, 608 (Nev.1994)). See also Jackson v. United Artists Theatre Circuit, Inc., 278

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F.R.D. 586, 596 (D. Nev. 2011). An individual does not have the right to be represented by an

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agent other than counsel in a court of law. Handley, 2010 WL 4607014, at *1. NRS § 7.285

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prohibits the unauthorized practice of law. Id.

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The Court instructed the parties to retain counsel or to file a notice with the Court that he

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or she will be appearing in this matter pro se by February 10, 2017. To date, Defendants have

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failed to do so. Mr. Kenneth Taylor is not an attorney and is not permitted to represent the

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Defendants in this action. Pursuant to NRS § 7.285, the Defendants cannot delegate representation

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to Mr. Kenneth Taylor. It does not appear that Defendants have filed anything in this matter on

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their own behalf. Defendants, therefore, failed to comply with this Court’s order.
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B.

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Article III of the Constitution limits the jurisdiction of the federal courts to cases or

Lack of Case or Controversy

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controversies. See U.S. Const. art. III, § 2, cl. 1. “The doctrine of mootness, which is embedded

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in Article III’s case or controversy requirement, requires that an actual, ongoing controversy exist

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at all stages of federal court proceedings.” Banks v. Robinson, 2011 WL 5877542, at *1 (D. Nev.

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Nov. 22, 2011) (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011)). A

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case becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally

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cognizable interest in the outcome” of the litigation. Pitts, 653 F.3d at 1086. Federal courts lack

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the constitutional authority to decide moot cases. Id. at 1087. If events subsequent to the filing of

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the case resolve the parties’ dispute, the court must dismiss the case as moot. Id.

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The Court instructed the parties to show cause in writing why this matter should not be

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dismissed for lack of an actual dispute and lack of prosecution. The parties have failed to present

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a discernible issue in dispute or that the parties have a legally cognizable interest in the outcome of

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the litigation. Plaintiff’s claims are unclear and she even represents that there is no longer a

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controversy before the Court. Further, the Court reiterates that the documents filed by both parties

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appear to be created from the same source and are similarly formatted. The Defendants have not

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filed any documents on their own behalf. As such, there does not appear to be an actual dispute

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between real parties. Accordingly,

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IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint (ECF No. 1) be
dismissed.

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IT IS FURTHER RECOMMENDED that the Clerk of the Court be instructed to close

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this case and enter judgment accordingly.

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be

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in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has

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held that the courts of appeal may determine that an appeal has been waived due to the failure to

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file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit

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has also held that (1) failure to file objections within the specified time and (2) failure to properly

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address and brief the objectionable issues waives the right to appeal the District Court’s order

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and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,

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1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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DATED this 31st day of May, 2017.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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