Carr v. Progress Rail Services

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 JASON E. CARR, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-01558-GMN-EJY 5 vs. ) 6 ) ORDER PROGRESS RAIL SERVICES, et al., ) 7 ) Defendants. ) 8 ) 9 By notice entered September 23, 2020, the U.S. Court of Appeals for the Ninth Circuit 10 referred this matter to the District Court for the limited purpose of determining whether in 11 forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken 12 in bad faith. See 28 U.S.C. § 1915(a)(3); see also Hooker v. American Airlines, 302 F.3d 1091, 13 1092 (9th Cir. 2002) (revocation of in forma pauperis status appropriate where the District 14 Court finds the appeal to be frivolous). 15 Plaintiff appeals the Court’s Order granting Motions to Dismiss, (ECF Nos. 14, 18, 26), 16 based on Plaintiff’s failure to respond, and following an analysis of the applicable Ghazali 17 factors. As stated in the Court’s previous order, Plaintiff’s deadline to respond to Defendant 18 Progress Rail’s Motion to Dismiss the Amended Complaint, (ECF No. 14), was January 31, 19 2020. Plaintiff’s deadline to respond to Defendant Progress Rail’s Motion to Dismiss the 20 Second Amended Complaint, (ECF No. 18), was February 19, 2020. Further, Plaintiff’s 21 deadline to respond to Defendant Eastridge’s Motion to Dismiss the Complaints, (ECF No. 26), 22 was March 26, 2020. “The failure of an opposing party to file points and authorities in 23 response to any motion . . . constitutes a consent to the granting of the motion.” D. Nev. LR 7- 24 2(d). Here, the Motions remained pending on the Court’s docket through August 2020. At no 25 point in time did Plaintiff respond to the Motions to Dismiss or seek an extension of the 1 response deadlines. Accordingly, the record clearly shows that Plaintiff’s appeal lacks any 2 legal or factual basis. 3 IT IS THEREFORE ORDERED that the Court certifies that Plaintiff’s appeal is 4 frivolous pursuant to 28 U.S.C. § 1915(a)(3). Plaintiff’s in forma pauperis status is revoked for 5 purposes of this appeal. 6 DATED this _2_4__ day of September, 2020. 7 ___________________________________ 8 Gloria M. Navarro, District Judge United States District Court 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25