Miyayama v. Ditech Financial LLC, et al

Filing 43

ORDER granting 39 Motion to Dismiss. The lone remaining claim in this case is DISMISSED with prejudice; the Clerk of Court is directed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 2/22/2017. (Copies have been distributed pursuant to the NEF - DC)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 YUICHI MIYAYAMA, 5 Plaintiff Case No.: 2:16-cv-00413-JAD-CWH Order Granting Motion to Dismiss and Closing Case 6 vs. 7 Quality Loan Service Corporation, a California Corporation; Ditech Financial LLC fka Green Tree Servicing LLC, 8 9 [ECF No. 39] Defendants 10 Plaintiff Yuichi Miyayama purchased property encumbered by Ditech Financial LLC’s first 11 12 deed of trust and brought this action to stop Ditech from foreclosing on that interest. On Ditech’s 13 motion, I dismissed all of Miyayama claims with leave to amend his claim for violation of NRS 14 107.080 by February 2, 2017, if he could truthfully plead that neither he nor Urawee Kaithong 15 received notice that Ditech was foreclosing. When the deadline for amendment came and went 16 without an amended complaint or a request for an extension, Ditech moved for an order converting 17 the dismissal of the NRS 107.080 claim into a with-prejudice dismissal and closing the case.1 The 18 deadline for opposing that motion passed without opposition or a request for an extension.2 19 Local Rule 7-2(d) states that the “failure of an opposing party to file points and authorities in 20 response to” a motion to dismiss “constitutes a consent to the granting of the motion.”3 I invoke LR 21 7-2(d), deem the plaintiff’s failure to file an amended complaint as a tacit admission that Miyayama 22 lacks the facts needed to support an NRS 107.080 claim, and deem his failure to oppose Ditech’s 23 most recent motion to dismiss as consent to granting this motion. Accordingly, 24 25 1 26 2 27 28 ECF No. 39. See ECF No. 42 (noting that the deadline for response was 2/17/17 and that no opposition was filed). 3 Nev. L.R. 7-2(d). Page 1 of 2 1 IT IS HEREBY ORDERED that Ditech’s Motion to Dismiss [ECF No. 39] is GRANTED. 2 The lone remaining claim in this case is DISMISSED with prejudice; the Clerk of Court is directed 3 to CLOSE THIS CASE. 4 5 6 DATED February 22, 2017 _________________________________ Jennifer A. Dorsey United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 of 2

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