Willis B. Smith and Amelia M. Smith v. City of Las Vegas

439 F.2d 706, 1971 U.S. App. LEXIS 11233

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 1971
• Docket: 24739_1
• Status: Published

Opinion

PER CURIAM:

The district court granted a motion to dismiss as to the City of Las Vegas, (1) for failure to prosecute under local rule 9(b) and (2) because no substantial federal question was presented.

Appellants, on September 7, 1967, filed their complaint. Summons was issued but process was not served. On December 1, 1967 appellants filed an amended complaint and on December 29, 1969, the City of Las Vegas was served with process.

Local Rule 9(b) of the District of Nevada, provides an action may be dismissed when it has been “pending * * * for more than twelve months without any proceeding having been taken therein during such period * * * ” The district court did not abuse its discretion in dismissing under the local rule.

The complaint alleged that the action arose under Amendment XIV, Sec. 1 of the United States Constitution; that appellants, as lessors, had leased a parking lot to a bus company for ten years; that the City of Las Vegas obtained a permanent injunction in the Nevada courts, enjoining the use of the property for parking of busses in violation of zoning restrictions; and that the bus company was thereby caused to break its lease with appellants, causing them monetary damage in loss of rentals.

Appellants had their day in court in the Nevada state proceedings and their contentions that the actions of the City of Las Vegas were arbitrary, capricious, discriminatory or malicious could have been raised and determined in that proceeding. There was clearly lacking a substantial federal question.

The judgment is affirmed.