Cogan v. Trabucco

• Court: District Court, D. Nevada
• Decided: February 23, 2022
• Docket: 2:21-cv-02087
• Status: Unknown

Opinion

1 Nevada Bar No.: 13382 2 KEMP & KEMP, ATTORNEYS AT LAW 7435 W. Azure Drive, Suite 110 3 Las Vegas, NV 89130 702-258-1183 ph /702-258-6983 fax 4 vneal@kemp-attorneys.com 5 Attorney for Defendant 6 Arnaldo Trabucco, M.D. 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 JEFFREY A. COGAN, an individual; and 10 JEFFREY A. COGAN, ESQ., LTD., a revoked Case No.: 2:21-cv-02087-APG-EJY Nevada corporation; 11 STIPULATION AND ORDER FOR Plaintiffs, PARTIAL STAY OF DISCOVERY 12 13 v. [FIRST REQUEST] ARNALDO TRABUCCO, M.D., an individual, 14 Defendant. 15 16 Pursuant to LR IA 6-1, LR IA 6-2, and LR 7-1, the parties by and through respective 17 counsel, hereby stipulate and agree, and respectfully request the Court grant a partial stay of 18 discovery pending the outcome of Plaintiff’s Motion to Dismiss filed at ECF No. 25. 1 This is 19 20 the parties’ first request for a partial stay of discovery and is being made in good faith and not 21 for the purposes of delay. 22 I. BRIEF NATURE OF THE CASE AND RELEVANT PROCEDURAL HISTORY 23 This case arises from the February 28, 2014, Complaint filed in the Superior Court of 24 Arizona, in and for the County of Mohave, by Dr. Trabucco. After the years of litigation, and 25 just prior to the beginning of trial, the parties reached an agreement to resolve the matter. Prior 26 27 28 1 The matter was fully briefed as of 02/11/22. ECF Nos. 25, 28, 30. 1 Court seeking Declaratory Relief and a determination of whether the Superior Court of Mohave 2 County, had subject matter jurisdiction to enter a Judgment against Defendants. ECF No. 1. 3 The Complaint was served on Defendant on December 9, 2021. ECF No. 20. In addition 4 5 to service of the Complaint on December 9, 2021, Plaintiffs served Defendant with their Motion 6 for Summary Judgment at ECF No. 8, their Motion for Temporary Restraining Order at ECF 7 No. 10, and their Motion for Preliminary Injunction at ECF No. 13. 8 On December 10, 2021, the Court heard oral argument on Plaintiffs’ Motion for 9 Temporary Restraining Order and denied the same. ECF No. 21 – Minutes of Proceeding. 10 The parties stipulated that Defendant would have up to and including January 21, 2022, 11 to answer or otherwise respond to the Complaint. ECF No. 24. On January 21, 2022, Defendant 12 13 filed a Motion to Dismiss. ECF No. 25. The matter was fully briefed as of February 11, 2022. 14 See ECF Nos. 25, 28, 30. 15 II. THE PARTIES’ DISCUSSIONS REGARDING DISCOVERY 16 Pursuant to Federal Rule of Civil Procedure 26(f) and LR-26-1(a), a telephonic meeting 17 was held on February 17, 2022, attended by Jeffrey A. Cogan, Esq., of Jeffrey Cogan, PLLC., 18 counsel for Plaintiffs, Victoria L. Neal, Esq., of Kemp and Kemp, local counsel for Defendant 19 Arnaldo Trabucco, M.D., and Ross Myer, Esq., of Wilenchik & Bartness Jack D. Wilenchik, 20 21 Esq., pro hac vice, not yet filed for Defendant Arnaldo Trabucco, M.D. The parties agreed that 22 it may be beneficial to exchange initial disclosures consisting of documents in the underlying 23 Mohave County case, but currently there is no utility in engaging in other discovery, given the 24 relief requested in the Complaint, until the trial court rules on Defendant’s Motion to Dismiss 25 and depending on what is encompassed by that ruling. 26 27 28 1 allow or deny discovery. See e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988); 2 see also Fed. R. Civ. P. 26(c)(1) (court may, for good cause, issue an order to protect a party or 3 person from annoyance, embarrassment, oppression, or undue burden or expense, including 4 5 forbidding disclosure or discovery). In evaluating the propriety of an order staying or limiting 6 discovery while a dispositive motion is pending, the court considers the goal of Federal Rule of 7 Civil Procedure 1, which provides that the Rules should “be construed, administered, and 8 employed by the court and the parties to secure the just, speedy, and inexpensive determination 9 of every action.” With Rule 1 as its prime directive, the court must decide whether it is more 10 just to speed the parties along in discovery while a dispositive motion is pending or to delay 11 discovery to accomplish the inexpensive determination of the case. See Turner Broadcasting 12 13 System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 1997). 14 While addressing motions to dismiss filed pursuant to Rule 12(b)(6), courts have noted 15 that they are “not ordinarily a situation that in and of itself would warrant a stay of discovery.” 16 See, e.g., Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 17 1989). However, courts in this district have noted the well-established exception to this general 18 rule that motions based on jurisdiction, venue, and immunity are exactly the type of motion that 19 “in and of itself” precisely warrant stays of discovery. Id.. 20 21 The motion to dismiss is based upon three different legal arguments: (1) an exception to 22 the Rooker-Feldman doctrine is not present; (2) the Arizona Supreme Court addressed this issue 23 and issue preclusion bars the relief; (3) subject matter jurisdiction was proper in the Arizona 24 Superior Court. This is the type of motion that warrants a stay of discovery. 25 26 27 28 1 March 9, 2022, but stipulate to stay all other discovery, upon approval by this Court, until the 2 trial court issues its ruling on Defendant’s Motion to Dismiss. 3 If the Court denies Defendant’s Motion to Dismiss, a Discovery Plan and Scheduling 4 5 Order will be filed within fourteen (14) days of the Order. If the Court grants Defendant’s 6 Motion to Dismiss with leave to amend, a Discovery Plan and Scheduling Order will be filed 7 within fourteen (14) days of the filing of Defendant’s Answer to the Complaint. If the Court 8 grants Defendants Motion to Dismiss without leave to amend, the Discovery Plan and 9 Scheduling Order will be moot. 10 ** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK** 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted this 22" day of February 2022. JEFFREY A. COGAN CHARTERED, KEMP & KEMP, ATTORNEYS AT 3 PLLC LAW 4 /s/ Jeffrey A. Cogan /s/ Victoria L. Neal 5 Jeffrey A. Cogan, Esq, Victoria L. Neal, Esq. Nevada Bar No.: 4569 Nevada Bar No.: 13382 6 1057 Whitney Ranch Drive, Suite 350 7435 W. Azure Drive, Suite 110 Henderson, NV 89014 Las Vegas, NV 89130 7 Tel: (702) 474-4220 Tel: 702-258-1183 Fax: (702) 474-4228 Fax: 258-6983 8 jeffrey@jeffreycogan.com veal@kemp-attorneys.com Attorney for Plaintiffs Attorney for Defendant 10 Jeffrey A. Cogan and Jeffrey A. Cogan, Arnaldo Trabucco, M.D. Esq., Ltd. 11 12 WILENCHIK & BARTNESS WILENCHIK & BARTNESS 13 _/s/ Jack D. Wilenchik /s/ Ross Myer Jack D. Wilenchik, Esq. Ross Myer, Esq. 14 Arizona Bar No.: 029353 Arizona Bar No.: 029353 The Wilenchik & Bartness Building The Wilenchik & Bartness Building 15 2810 North Third Street 2810 North Third Street Phoenix, Arizona 85004 Phoenix, Arizona 85004 16 Tele: 602-606-2810 Tele: 602-606-2810 Fax: 602-606-2811 Fax: 602-606-2811 17 JackW@wb-law.com JackW@wb-law.com 18 Pro Hac Vice Not Yet Filed Pro Hac Vice Not Yet Filed 19 for Defendant Arnaldo Trabucco, M.D. for Defendant Arnaldo Trabucco, □□□□ 20 ORDER 21 ITAS SO ORDERED: 22 23 - UNITED |STATES MAGISTRATE JUDGE 24 HONORABLE ELAYNA J. YOUCHAH 25 February 23, 2022 DATED: yee 26 27 28