LaGrange et al v. Hatcher et al

Filing 63

ORDER GRANTING Defendants' 55 Second MOTION to Dismiss; DENYING Plaintiff's 59 MOTION for Extension of Time. Amended Complaint due by 3/5/2013. Signed by Judge Larry R. Hicks on 02/23/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSIE GARCIA, and NANCY LaGRANGE, )
guardian ad litem of ALIZE MARTINEZ,
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Plaintiffs,
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v.
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STEVEN HATCHER, et al.,
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Defendants.
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3:09-CV-00681-LRH-WGC
ORDER

This is a tort case. Before the court is defendants Steven Hatcher and the Nevada State

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Gaming Control Board’s Motion to Dismiss Second Amended Complaint (#55). Plaintiffs Josie

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Garcia and Nancy LaGrange, as guardian ad litem of Alize Martinez, have not responded.

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However, they have submitted a request for additional time to respond (#59).

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I.

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Facts and Procedural History
This case arises out of the death of Santiago Ray Martinez. On January 7, 2008, Hatcher, an

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Enforcement Agent of the Board, shot and killed Martinez in Washoe County, Nevada. While off-

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duty and not in uniform, Hatcher commandeered a commercial vehicle to pursue the vehicle in

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which Martinez was riding. Hatcher subsequently caught up to Martinez’ vehicle, identified

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himself as a law enforcement officer and ordered the car in which Martinez was riding to stop.

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Although Hatcher had radioed for back-up from the Reno Police Department, he used his duty

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pistol to shoot and kill Martinez.

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Following an initial round of motions to dismiss, an appeal to and remand from the Ninth

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Circuit, the filing of Plaintiffs’ Amended Complaint (#35), dismissal of that Complaint with leave

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to amend (#51), and the filing of Plaintiffs’ Second Amended Complaint, only one claim remains: a

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claim for relief by LaGrange, as guardian ad litem of Martinez’s minor daughter Alize, against

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Hatcher for violation of the minor’s Fourteenth Amendment due process right to familial

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association with Martinez.

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Defendants filed their Second Motion to Dismiss on July 31, 2012. Plaintiffs’ response was

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originally due August 17, 2012. On August 20, 2012, Plaintiffs filed an unopposed motion to

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extend time for their response (#56), which the court granted (#57). Plaintiffs then had until

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September 11, 2012 to file their response. On September 17, 2012–having failed to file a timely

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response–Plaintiffs again moved to extend time for their response (#59). Defendants opposed this

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motion (#60).

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II.

Discussion

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Under Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities in

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response to any motion shall constitute a consent to the granting of the motion.” Failure to file such

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points and authorities is a proper ground for dismissal. Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995). However, before dismissing the action, the court must weigh “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases of their merits; and

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(5) the availability of less drastic sanctions.” Id. The first two factors generally weigh in favor of

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dismissal, while the fourth factor weighs against it. Wanderer v. Johnston, 910 F.2d 652, 656 (9th

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Cir. 1990). Therefore, courts focus on prejudice and the availability of lesser sanctions. Id. While

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dismissal is indeed a harsh penalty, it is appropriate when the plaintiff fails to prosecute the case

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with “reasonable diligence.” See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).

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Here, Plaintiffs’ counsel avers that he was “intense[ly] prepar[ing]” for a disciplinary
hearing in front of the Nevada State Bar that was to take place on September 13, 2012, and he
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“forgot to seek additional time . . . with the intensity of [his] focus on the Bar matter.” (Plaintiffs’

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Motion to Extend Time #59.) This constitutes “excusable neglect” under Local Rule 6-1 (governing

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motions to extend time after expiration of the specified period for such motions).

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On the other hand, Plaintiffs’ failure to file responsive points and authorities along with the

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motion to extend time–and the continuing failure to file such points and authorities up to the

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present–does not comport with “reasonable diligence.” Moreover, the third and fifth Ghazali

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factors, prejudice and the availability of lesser sanctions, are identical to those present in Ghazali

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itself. Thus, under Ghazali, dismissal is appropriate.

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Balancing Plaintiffs’ counsel’s excusable neglect with his failure to exercise reasonable

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diligence, the court finds that dismissal without prejudice is the appropriate remedy. This remedy

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penalizes further failures to prosecute while not entirely discounting the possibility of a decision on

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the merits.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (#55) is GRANTED.
Plaintiffs’ Second Amended Complaint (#52) is DISMISSED without prejudice.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Extension of Time (#59) is
DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff shall have ten (10) days in which to file an
amended complaint.

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IT IS SO ORDERED.

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DATED this 23rd day of February, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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