Balubhai G. Patel, et al. v. City of Henderson, et al.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 Balubhai G. Patel, et al., Case No. 2:24-cv-01772-BNW 5 Plaintiffs, ORDER 6 v. 7 City of Henderson, et al., 8 Defendants. [9] 10 Plaintiffs filed a notice of their intent to stand on their first amended complaint and not 11 amend (ECF No. 67) as well as a notice of their inability to locate new local counsel (ECF No. 12 68). Defendants did not oppose. For the reasons discussed below, the Court grants Plaintiffs’ 13 motions/notices and dismisses this case with prejudice. 14 I. BACKGROUND 15 Counsel for Plaintiffs, Mr. Weiser, is appearing in this case pro hac vice. ECF No. 37. He 16 designated Neil Beller as local counsel in accordance with this district’s local rules. Id. On 17 November 12, 2025, Mr. Beller moved to withdraw from the case due to lack of communication 18 and payment. ECF No. 61. The Court granted his request and directed Mr. Weiser to promptly 19 locate new counsel no later than December 4, 2025. ECF No. 62. That same day, the Court 20 entered an order granting Defendants’ motion to dismiss with leave to amend certain claims. ECF 21 No. 63. The Court ordered Plaintiffs to file a second amended complaint no later than December 22 29, 2025. Id. 23 Approximately one week later, Plaintiffs filed a notice of intent to stand on their first 24 amended complaint and not amend. ECF No. 64 (citing Edwards v. Marin Park, 356 F.3d 1058 25 (9th Cir. 2004)). Plaintiffs also filed a notice of inability to locate new counsel. ECF No. 68. They 26 stated that filing an appeal in the Ninth Circuit is not contingent on pro hac vice status in district 27 court, and regardless, the Court has discretion to waive the local counsel requirement under Local 1 II. DISCUSSION 2 In Lopez v. City of Needles, the Ninth Circuit stated that “[u]nless a plaintiff files in 3 writing a notice of intent not to file an amended complaint, such dismissal order is not an 4 appealable final decision.” 95 F.3d 20, 22 (9th Cir. 1996). “[F]iling of such notice gives the 5 district court an opportunity to reconsider, if appropriate, but more importantly, to enter an order 6 dismissing the action, one that is clearly appealable.” Id. One year later, the Ninth Circuit 7 clarified as follows: 8 We now specifically rule that a plaintiff, who has been given leave to amend, may not file a notice of appeal simply because he does not choose to file an amended complaint. A 9 further district court determination must be obtained. To the extent that any of our cases may suggest a different rule, we now overrule them. [10] 11 WMX Techs., Inc. v. Miller, 104 F.3d 1133 , 1336 (9th Cir. 1997). The Ninth Circuit reaffirmed 12 WMX Techs some years later in Edwards v. Marin Park, Inc., 356 F.3d 1058 , 1064 (9th Cir. 13 2004). It explained that the plaintiff properly filed an election to stand on the sufficiency of her 14 amended complaint in order to appeal the district judge’s dismissal order, and that the district 15 judge should have entered a final judgment dismissing all claims with prejudice to allow the case 16 to come to the Ninth Circuit on appeal in that posture. Id. 17 Here, Plaintiffs followed the correct procedure by filing an intent to stand on their first 18 amended complaint and not amend. Therefore, in accordance with Ninth Circuit law, the Court 19 enters a final judgment in this case dismissing all claims with prejudice so that Plaintiffs may 20 appeal. In addition, the Court will exercise its discretion and order that Mr. Weiser does not need 21 to associate local counsel pending his appeal. See Local Rule IA 11-2(d) (explaining that an 22 attorney who is granted permission to practice under this rule must associate a resident member of 23 the bar of this court as local counsel “[u]nless the court orders otherwise.”). Should the case be 24 remanded, however, the Court may order him to retain local counsel. 25 III. CONCLUSION 26 IT IS ORDERED that Plaintiffs’ motions at ECF Nos. 67 and 68 are GRANTED. 27 IT IS FURTHER ORDERED that Plaintiffs’ claims are dismissed with prejudice. ] IT IS FURTHER ORDERED that the Clerk’s Office enter final judgment in favor of 2 || Defendants and close this case. [3] 4 DATED: December 18, 2025 [5] 6 gn le WC feo, BRENDA WEKSLER □ 7 UNITED STATES MAGISTRATE JUDGE