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Lesofski v. Lash

United States District Court, Ninth Circuit

September 11, 2013

Edward G. Lesofski, Plaintiff,
Jarrod Lash, et al., Defendants.


DAVID C. BURY, District Judge.

On June 25, 2013, this Court denied in part and granted in part a Motion for Judgment on the Pleadings filed by the Arizona School of Acupuncture & Oriental Medicine (the School) and a Motion to Dismiss filed by the Accreditation Commission for Acupuncture & Oriental Medicine (the Commission). The Court set a deadline for the parties to complete discovery by October 1, 2013, to file dispositive motions by November 1, 2013, and file a pretrial order by December 1, 2013. (Order (Doc. 105) at 8.).

The Court directed the Plaintiff to file a Second Amended Complaint, nunc pro tunc, to change the caption of the Third Claim to Fraud by Misrepresentation, the only claim remaining against the Commission. The Court dismissed the Fourth Claim for bullying.

Since then, Defendant Don Lightener, filed a Motion for Summary Judgment, which explains that the Second Amended Complaint mentions him three times: ¶ 14) names him as the Academic Dean of the School and point contact for disabled students; ¶ 90) alleges he never contacted the Plaintiff to work with him; and ¶ 91) alleges the Plaintiff attempted to contact Lightner through email but never got a response. Defendant Lightener has attempted to get the Plaintiff to voluntarily dismiss him from this action because these three allegations fail to state a claim against him in the Second Amended Complaint.

Defendant Lightener has well grounded reasons for seeking summary judgment. Plaintiff has failed to file a Response.

Under Rule 7.2(i) of the Rules of Practice for the United States District Court, District of Arizona, a failure to file a responsive pleading may be deemed consent to the motion and this Court may dispose of the motion summarily.[1] "A motion for summary judgment cannot be granted simply because the opposing party violated a local rule." Marshall v. Gates, 44 F.3d 722, 725 (9th Cir. 1995) This is so because a party may oppose a motion for summary judgment without offering affidavits or any other materials in support of its opposition. "Summary judgment may be resisted and must be denied on no other grounds than that the movant has failed to meet its burden of demonstrating the absence of triable issues.'" Henry v. Gill Industries Inc., 983 F.2d 943, 950 (9th Cir. 1993).

Here the Court has reviewed the Complaint and considered the merits of the motion and the case. In light of these considerations, the Court finds that summarily granting the motion is warranted, pursuant to Rule 7.2(i).

In reviewing the case the Court discovered that the Plaintiff has failed to file the Second Amended Complaint, nunc pro tunc, as directed by the Court to correct the caption for the Third Claim to be Fraud by Misrepresentation.

It also appears that the Plaintiff has failed to respond to the Commission's Requests for Admissions because the Commission has filed a motion asking this Court to deem the Requests admitted. Plaintiff's response to the Motion for Court Order Deeming Request for Admissions Propounded to Plaintiff Admitted is due September 13, 2013. Any failure by the Plaintiff to file a Response shall be deemed his consent to summarily grant the Commission's motion, pursuant to LR Civ. 7.2(i).

The Commission has noticed the Plaintiff's deposition for September 16, 2013, at 9:00 a.m. in Phoenix, Arizona. Plaintiff has filed a Motion for a Protective Order seeking to have the deposition done telephonically or by electronic means in Montana where he resides. Plaintiff asserts that he has difficulty traveling because he has a service dog and that he is currently undergoing cancer treatment. The limited information provided by Plaintiff is insufficient for the Court to find that Plaintiff should not attend a deposition in this State where he has filed suit and invoked the legal protections of this forum. (Response to Motion for Protective Order (Doc. 121) at 3) (citations omitted). However, the Court is concerned that depositions not be any more burdensome than necessary. The Court anticipates that the School will also want to depose the Plaintiff, but that deposition has not yet been noticed.

The Commission has filed a motion requesting a Second Rule 16 Scheduling Conference, which was held prior to the Commission's appearance in the case. The Court will grant the request for a Scheduling Conference to afford the parties an opportunity to update the case management deadlines. The parties should discuss actual dates for the Plaintiff's deposition. Defendants should attempt to coordinate their depositions so that Plaintiff's travel is minimized. The parties should consider whether an electronic deposition might serve their needs for purposes of filing dispositive motions, if a subsequent in-person in Tucson, Arizona, deposition were conducted for purposes of trial, in the event the case is not resolved by dispositive motion.


IT IS ORDERED that the Motion for Summary Judgment (Doc. 109) is GRANTED, and the Clerk of the Court shall dismiss Defendant Lightener from the case.

IT IS FURTHER ORDERED that within 5 days of the filing date of this Order, the Plaintiff shall refile the Second Amended Complaint, with the caption of the Third ...

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