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)

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