Breck v. Roger Doyle et al

Filing 227

ORDER - The Court will not consider Plaintiff's Opposition/Motion referenced herein. It is further ordered that the Clerk of the Court docket Plaintiff's Opposition/Motion, which was sent directly to the undersigned's chambers, and include a notation that the document is filed pursuant to this order. Signed by Chief Judge Miranda M. Du on 4/23/2020. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:12-cv-00649-MMD-CLB Document 227 Filed 04/23/20 Page 1 of 3

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

WILLIAM BRECK,

Case No. 3:12-cv-00649-MMD-CLB
Plaintiff,

7
v.

ORDER

8
ROGER DOYLE, et al.,
9
Defendants.
10
11

Over a month and a half ago, on March 3, 2020, this Court issued an order

12

granting the remaining Defendants’1 three motions to dismiss (“MTDs”) (ECF Nos. 208,

13

210, 213) and joinder (ECF No. 214) under Local Rule 7-2(d) based on pro se Plaintiff

14

William Breck’s failure to file opposing points and authorities. (ECF Nos. 222, 223.) The

15

MTDs were filed in early January 2020, after the Court of Appeals for the Ninth Circuit

16

had, on November 12, 2019, affirmed in part and reversed in part this Court’s order

17

granting dismissal on Plaintiff’s Second Amended Complaint (“SAC”) (ECF No.124) and

18

remanded for further proceedings. (See ECF Nos. 197, 198.) On April 20, 2020, the

19

undersigned received a document from Plaintiff, directly in the mail sent to her

20

chambers, which is represented to be an opposition to the MTDs and a motion for partial

21

summary judgment (“Opposition/Motion”). 2 The Court, of course, will not consider

22

Plaintiff’s Opposition/Motion.

23

///

24
25
26
27
28

1Defendants

collectively refer to David Clark, Kimberly Farmer, Laura Peters,
Patrick King, J. Thomas Susich, Caren Cafferata-Jenkins, Kathleen Breckenridge
(“Individual Defendants” in the Court’s prior orders) and Monica Caffaratti, and Roger
Doyle.
2So

the record is clear as to what document the Court is referencing here, the
Court will direct the Clerk of the Court to docket the Opposition/Motion. The Clerk is
directed to include a notation that the document is filed pursuant to this order to reflect
that Plaintiff did not file the document.

Case 3:12-cv-00649-MMD-CLB Document 227 Filed 04/23/20 Page 2 of 3

1

The Court provides the below reasons for not considering the Opposition/Motion,

2

largely for Plaintiff’s benefit. First, Plaintiff is reflected in the Court’s system as an

3

electronic filer (“E-filer”). This means that Plaintiff receives filings electronically through

4

the Court’s electronic service, CM/ECF. This is notable for two reasons. One, it means

5

that Plaintiff certainly received, via his email account on file with the Court, the following:

6

the Ninth Circuit’s memorandum decision upon appeal (ECF No. 197); the Court’s

7

subsequent order directing Individual Defendants to respond to the SAC (ECF No.

8

201)—filed on December 16, 2019; and the MTDs—the last of which was filed on

9

January 15, 2020 (ECF Nos. 213, 214). See LR 4-1(a) (“Participation in the court’s

10

electronic filing system by registration and receipt of a login and password constitutes

11

consent of the electronic service of pleadings and other papers under applicable rules,

12

statutes, or court orders.”). Two, if Plaintiff did not receive the filings, it is because he

13

failed to comply with the Court’s applicable Local Rule IC 2-1(g). This court rule requires

14

a party registered as an E-filer to update his or her account information, including email

15

address with the Court. 3 See LR IC 2-1(g); see also LR IC 2-1(j) (“Each filer is

16

responsible to monitor his or her email to ensure timely receipt of electronically filed and

17

served documents.”).

18

Second, by his own fault then, Plaintiff has failed to appropriately and timely

19

respond to the MTDs. To be sure, Local Court Rule (LCR) 12-1(a)(2) requires that

20

responses to pretrial motions be filed and served within 14 days from the date of service

21

of the motion. That means that Plaintiff’s Opposition/Motion to the last filed MTD was

22

due on January 29, 2020. However, the Opposition/Motion is dated April 10, 2020.

23

Clearly, this is wholly beyond the timeframe—about three months beyond—for opposing

24

the MTDs.

25
26
27
28

3Notably,

there is also no indication, beyond a reference in the Opposition/Motion
providing that it was executed in Mexico, that Plaintiff resides at a different location than
what is available on the Court’s docket. Local Rule IA 3-1 requires Plaintiff to
“immediately” update his address with the Court.
2

Case 3:12-cv-00649-MMD-CLB Document 227 Filed 04/23/20 Page 3 of 3

1

Third, to the extent that the Opposition/Motion does not actually respond to the

2

arguments made in the MTDs—appearing to substantively seek partial summary

3

judgment, dismissal pursuant to Local Rule 7-2(d) is still warranted. See LR 7-2(d)

4

(providing that “failure of an opposing party to file points and authorities in response to

5

any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney[s’] fees,

6

constitutes a consent to the granting of the motion”).

7

Finally, there is no obvious indication that Plaintiff has provided a copy of the

8

Opposition/Motion

to

Defendants.

Plaintiff’s

failure

to

do

so

renders

9

the

Opposition/Motion an ex parte communication in violation of Local Rule IA 7-2.

10

In sum, Plaintiff has egregiously circumvented the Court’s local rules. 4 A pro se

11

party is “not excused from following court rules,” Briones v. Riviera Hotel & Casino, 116

12

F.3d 379, 382 (9th Cir.1997), and must follow the same rules of procedure that govern

13

other litigants, United States v. Merrill, 746 F.2d 458, 465 (9th Cir.1984), cert.

14

denied, 469 U.S. 1165 (1985), overruling on other grounds recognized by United States

15

v. Hanna, 293 F.3d 1080 (9th Cir. 2002).

16
17

It is therefore ordered that, for the reasons stated herein, the Court will not
consider Plaintiff’s Opposition/Motion.

18

It is further ordered that the Clerk of the Court docket Plaintiff’s Opposition/Motion,

19

which was sent directly to the undersigned’s chambers, and include a notation that the

20

document is filed pursuant to this order.

21

DATED THIS 23rd day of April 2020.

22
23
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

24
25
26
27
28

4On

April 17, 2020, Chief Judge Du issued General Order 2020-07, adopting
amendments to the Local Rules of Practice for the United States District Court for the
District of Nevada. The general order became effective the same day. This order
therefore does not cite to the amended rules and references the older versions of the
rules, which are applicable to the instant matter.
3