Burris v. First Reliance Standard Life Insurance Company

• Court: District Court, D. Nevada
• Decided: January 17, 2023
• Docket: 2:20-cv-00999
• Status: Unknown

Opinion

1 Reuben H. Cawley Nevada Bar No. 9384 2 Utah Bar No. 10304 10040 W. Cheyenne Ave. Suite, 170-244 3 Las Vegas, NV 89129 4 Office: (702) 882-3363 Fax: (702) 964-1367 5 Attorneys for Plaintiff UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 JOHN SCOTT BURRIS, an individual, Case 2:20-cv-00999-CDS-BNW 8 Plaintiff [First Request By Plaintiff] 9 v. ORDER GRANTING [ECF NO. 73] LR IA 6-1 MOTION FOR EXTENTION 10 FIRST RELIANCE STANDARD LIFE OF DEADLINE FOR INSURANCE COMPANY, PLAINTIFF’S FINAL REPLY 11 Defendant Currently Due Jan. 17, 2023 12 13 Per LR IA 6-1, this is the first time Plaintiff has requested additional time to file a brief. 14 Plaintiff’s reply is currently due the first business day after January 14, 2023, which is Tuesday, 15 January 17, 2023. Plaintiff requests a new deadline of Monday, January 23, 2023 to file the reply 16 to Defendant’s Response (ECF No. 71), which Defendant filed several days after its deadline. 17 The local rule requires Plaintiff to “state the reasons” that additional time is needed, which 18 the undersigned hesitates to explain in too much detail. Essentially, Defendant’s Response—which 19 was filed passed its own deadline—includes a large quantity of improper and inaccurate material that 20 should not have been included, which has been unfairly burdensome. 21 First, the Response cites more than 50 cases, yet only one (1) of those 50 cases is from the 9th 22 Circuit Court of Appeals after Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 23 2011), which is burdensome in part because the Defendant failed to identify which cases should be 24 persuasive to fill any gaps in Ninth Circuit law. Defendant’s Response also fails to identify which 25 cases involved legal and medical standards applicable to CFS, which is critically important and has 26 been for decades in the Ninth Circuit, i.e.: 27 28 1 In cases involving chronic fatigue syndrome, the Ninth Circuit has held that subjective evidence is important because ‘CFS does not have a generally accepted ‘dipstick’ test.’” 2 3 Friedrich v. Intel Corp., 181 F.3d 1105, 1112 (9th Cir.1999). Plaintiff submits that Defendant 4 should not have copied and pasted string-cites from its years of multi-jurisdictional practice without 5 sufficient explanations. 6 Next, some of the 50-plus cases are unpublished but not identified as unpublished or Slip Op. 7 For example, Defendant cites at p.13: 8 Alvis v. AT&T Integrated Disability Serv. Ctr., No. 2:07-cv-00984-MCE-DAD, 2009 WL 9 1026030, *17 (E.D. Cal. Apr. 15, 2009) aff’d, 377 F. App’x 673 (9th Cir. 2010) ([parenthetical from lower court inserted here]) 10 (ECF No. 71 at 13:13). However, the appellate court case cited above is unpublished, and the 11 12 parenthetical appears nowhere in the appellate opinion. Other parentheticals are equally misleading 13 for misstating the relevant point. 14 Next, the Defendant continues to assert and rely on too many verifiably false facts, which is 15 unfairly time consuming. For example, Defendant’s Response newly (but falsely) questions the 16 veracity of Burris’s CFS symptoms, stating: “Similarly, the records contain no mention of sinus 17 issues ... until June 14, 2019.” This is wrong. Burris has been taking prescribed sinus medications 18 since June 2017—years earlier—as shown in the AR submitted by the Defendant. See, e.g., 19 20 FRSJBAR0001251. 21 Additionally, the Response thematically (but improperly) relies on the new phrase 22 “functional impairment,” stated 14 times despite the phrase appearing nowhere in the Policy, or the 23 Denials. Remarkably, however, FRSICO’s final Reply (ECF No. 72) concedes in a footnote that its 24 “words ‘functional impairment’” are merely “a matter of word choice, not meaning.”1 Truly. 25 While this development limits Plaintiff’s Reply burden, it came too late to avoid wasted time on the 26 issue. 27 l Moreover, and perhaps most unexpected, the Response confusingly offers a new (and 2 || erroneous) quasi-diagnosis of Burris by the author of the Response, which is materially different 3 || from opinions by FRSICO’s own mental-health experts (who made no diagnoses of Burris).2 This 4 || Mew issue constitutes an admission that defendant finds Burris at least “partially disabled,” which 5 || constitutes “total disability” under the Policy. Most notably, however, the improper new admission 6 || appears solely as an attempt to mislead the Court to preserve an argument that defendant waived as 7 || a matter of law. 8 Plaintiff has never encountered such a concentrated use of tactical devices that are □□□ for g || federal court briefings. Plaintiff respectfully submits that, if the Defendant had filed its Response by 10 || the deadline, and if it had omitted all verifiably false statements, and omitted all inapplicable multi- 11 || Jurisdictional cases, then this extension would likely be unnecessary. 12 For those reasons, the undersigned respectfully requests additional time to address the issues 13 || 1m his Reply more simply and concisely with a few more days. 14 15 16 17 ney) Ae IS IT IS SO ORDERED: we 4 Mee REUBEN H. CAWLE, ESQ. 19 / Nevada Bar No. 9384 Utah Bar No. 10304 20 U STATES DISTRICT JUDGE 10040 W. Cheyenne Ave, Ste. #170-244 Las Vegas, NV 89129 21 - January 17. 2023 Office: (702) 882-3363 DATED: Jaa Fax: 702-964-1367 22 Email: reawley.esq@gmail.com Attorney for Plaintiff 23 24 25 5 . . By citing to its own erroneous, impermissible, and self-serving supplement to the AR, FRSICO asserts 6 “Burris’s medical records suggest that he does suffer from both depression and anxiety,” which is disputed. As stated in response, Dr. Fales admitted he was mistaken, and Burris’s medical records suggest that Burris has never missed a 27 moment of work due to either depression or anxiety—which were incorrect “preliminary” diagnoses. But the word “suffer,” infers FRSICO does find Burris “partially disabled,” for “depression and anxiety,” for which FRSICO was obligated to pay Burris for up to two years and then separately litigate the dispute over whether FRSICO can limit Burris 28 to two years based on the law and the facts—which FRSICO waived.