Leyba v. NV Energy, Inc.

Filing 20

ORDER denying 13 Motion to Dismiss; granting 19 Motion for Leave to File Amended Complaint. Signed by Judge James C. Mahan on 4/21/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SAM LEBYA,

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Plaintiff(s),

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Case No. 2:16-CV-1122 JCM (CWH)
ORDER

v.
NV ENERGY, INC.,

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Defendant(s).

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Presently before the court is plaintiff Sam Lebya’s motion to amend his complaint. (ECF

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No. 19). Defendant NV Energy, Inc. (“NV Energy”), has not filed a response. By not filing a

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response to Lebya’s motion, NV Energy has effectively consented to the motion under Local Rule

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7-2(d).1

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Lebya originally alleged three claims against NV Energy. (ECF No. 1). First, Lebya

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claimed that NV Energy violated Title VII of the Civil Rights Act and Nevada law by subjecting

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him to frequent acts of discrimination, harassment, and intimidation based on, inter alia, his

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ethnicity. Id. Second, Lebya claimed that NV Energy was negligent in its supervision of its agents,

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which caused harm to Lebya. Id. Third, Lebya claimed that NV Energy wrongfully terminated

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him. Id.

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NV Energy filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (ECF

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No. 13). In its motion to dismiss, NV Energy contended that Lebya did not allege sufficient facts

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to support his conclusory allegations; therefore, his cause of action did not meet the pleading

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Local Rule 7-2(d) indicates that “[t]he failure of an opposing party to file points and
authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for
attorney’s fees, constitutes a consent to the granting of the motion.”
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James C. Mahan
U.S. District Judge

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standard under Iqbal and Twombly. Id. Further, NV Energy contends that Lebya did not exhaust

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his administrative remedies because he failed to file a claim with the U.S. Equal Employment

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Opportunity Commission (“EEOC”) before filing suit. Id. Lebya filed a response to this motion

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(ECF No. 15), to which NV Energy replied (ECF No. 17).

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In order to rectify the deficiencies in his initial complaint, Lebya moves to amend his

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complaint. (ECF No. 19). Lebya submitted his proposed amended complaint, which does not

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include his negligent supervision and wrong termination claims.

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Additionally, Lebya’s proposed amended complaint adds facts that are intended to support his

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conclusory allegations including the fact indicating that he filed his claim with the EEOC before

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See (ECF No. 19-1).

filing his complaint with this court. Id.

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Federal Rule of Civil Procedure 15(a)(2) states: “[A] party may amend its pleading only

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with the opposing party’s written consent or the court’s leave. The court should freely give leave

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when justice so requires.” Moreover, “[a] district court determines the propriety of a motion to

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amend by ascertaining the presence of any of four factors: bad faith, undue delay, prejudice to the

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opposing party, and/or futility.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).

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Indeed, “this determination should be performed with all inferences in favor of granting the

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motion.” Id. “Where there is a lack of prejudice to the opposing party and the amended complaint

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is obviously not frivolous, or made as a dilatory maneuver in bad faith, it is an abuse of discretion

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to deny [a motion to amend].” Howey v. United States, 481 F.2d 1187, 1190–91 (9th Cir. 1973).

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Here, there is no indication that there is any bad faith, undue delay, prejudice to the

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opposing party, or futility by allowing Lebya to amend his complaint. Lebya’s motion to amend

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attempts to rectify the issues with his first complaint by alleging more facts to support his

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remaining claim. Further, by not responding to the motion, NV Energy has expressed its consent

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to grant the motion under Local Rule 7-2(d). Given these circumstances, the court will grant leave

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to amend the complaint. Because Lebya’s motion to amend will be granted, NV Energy’s motion

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to dismiss as to the first complaint will become moot.

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...

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...

James C. Mahan
U.S. District Judge

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to

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amend his complaint (ECF No. 19) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that NV Energy’s motion to dismiss (ECF No. 13) be, and

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the same hereby is, DENIED as moot.

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DATED April 21, 2017.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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