Guerrero v. Wharton

Filing 38

ORDER. IT IS HEREBY ORDERED that 17 Defendant's Motion to Dismiss is DENIED as moot. Signed by Chief Judge Gloria M. Navarro on 4/13/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KELLY GUERRERO,
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Plaintiff,

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vs.

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VINCENT NEIL WHARTON,
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Defendant.

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Case No.: 2:16-cv-01667-GMN-NJK
ORDER

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Pending before the Court is the Motion to Dismiss, (ECF No. 17), filed by Defendant

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Vincent Neil Wharton (“Defendant”). For the reasons discussed below, the Court DENIES as

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moot Defendant’s Motion to Dismiss.

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I.

BACKGROUND
Plaintiff Kelly Guerrero (“Plaintiff”) originally filed this lawsuit on July 14, 2016.

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(Compl., ECF No. 1). On October 25, 2016, Defendant filed a Motion to Dismiss Plaintiff’s

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third cause of action for attorney’s fees. (ECF No. 17). Plaintiff did not file a response, and the

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deadline to do so has passed. Instead, Plaintiff filed an Amended Complaint, (ECF No. 18),

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removing as a cause of action the claim for attorney’s fees.

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II.

DISCUSSION
Local Rule 7-2(d) provides that “[t]he failure of an opposing party to file points and

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authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for

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attorney’s fees, constitutes a consent to the granting of the motion.” D. Nev. R. 7-2(d).

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Although Plaintiff failed to respond to the Motion to Dismiss, Plaintiff filed her Amended

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Complaint and removed the cause of action that Defendant sought to dismiss. As such,

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Plaintiff’s Amended Complaint consents to Defendant’s Motion to Dismiss, thereby rendering

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the Motion moot.

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III.

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CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, (ECF No. 17), is

DENIED as moot.

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DATED this _____ day of April, 2017.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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