1 Marjorie L. Hauf, Esq. Nevada Bar No.: 8111 || Matthew G. Pfau, Esq. 3 Nevada Bar No.: 11439 Bre’Ahn Williams, Esq. 4 || Nevada Bar No. 15672 5 H&P LAW 8950 W Tropicana Ave., #1 6 || Las Vegas, NV 89147 7 702 598 4529 TEL Attorneys for Plaintiff 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 | ANGELO EROLES, Case No.: 2:21-cv-01163-GMN-BNW 12 Plaintiff, 13 VS.
|BIOLIFE PLASMA LLC, A FOREIGN 15 LIMITED LIABILITY COMPANY; BIOLIFE 16 PLASMA SERVICES LP, A FOREIGN LIMITED PARTNERSHIP; TAKEDA . 17 ||PHARMACEUTICALS AMERICA, INC., A Plaintiff eee Amend 18 FOREIGN CORPORATION: EMPLOYEE DOE: DOES | THROUGH X: AND ROE 19 | CORPORATIONS I THROUGH xX, 0 INCLUSIVE 21 Defendant. 22 COMES NOW, Petitioner, Angelo Eroles, by and through his counsel at the law firm 23 of H&P Law, and hereby files this Motion to Amend. This Motion is based upon the 24 papers and pleadings on file herein, the attached Memorandum of Points and 25 26 27 28 -lofl-
1 Authorities, and any oral argument entertained by the Court on this matter. 2 3 DATED this 23 day of August 2021. 4 H&P LAW 5 /s/ Marjorie Hauf 6 5 Marjorie L. Hauf, Esq. Nevada Bar No.: 8111 8 Matthew G. Pfau, Esq. 9 Nevada Bar No.: 11439 Bre’Ahn Williams, Esq. 10 Nevada Bar No. 15672 11 12 MEMORANDUM OF POINTS AND AUTHORITIES 13 I. FACTUAL BACKGROUND 14 On or about July 12, 2020, Plaintiff visited Biolife Plasma Services, L.P., in order to 15 donate Plasma. Plaintiff presented his left arm to the Biolife representative, who set 16 everything up to remove the plasma and entered into Plaintiff's left arm with the
needle. Plaintiff immediately felt an excruciating pulse of pain going from his arm
18 through his thumb. 19 Plasma then shot out of the tube and needle. The employee commented that that 20 was “odd” and proceeded to move the needle around and left the needle inserted in 21 his arm for a while. Plaintiff was the told that a vein in his left arm was “clipped” and 22 he should ice it and it would resolve within two days. As a result of the incident 23 Plaintiff suffered severe injuries. 24 On October 12, 2020, Marjorie Hauf, Esq., on behalf of Plaintiff contacted Biolife 25 to confirm representation and to request all evidence regarding the incident 26 including the incident report, names and identities of the phlebotomists or 27 employees involved, video or surveillance footage and records. The facility did not 28 -2o0f2-
1 provide this information and instead responded by requesting HIPAA Complaint 2 Authorization. Despite the fact that Plaintiff provided an authorization, Plaintiff's 3 request for documents went ignored. A On March 17, 2021, Plaintiff filed a petition to Perpetuate Testimony by 5 Deposition Before Action. This state court granted the petition, without requiring a 6 hearing. On April 2, 2021, BioLife Plasma Services, L.P., filed their Motion for 7 Reconsideration of Order granting Plaintiff's Petition to Perpetuate testimony by 8 Deposition Before Action. 9 While the motion for reconsideration was pending, on April 16, 2021, Plaintiff 10 visited BioLife Plasma Services, located at 2882 S. Maryland Pkwy, Las Vegas, NV 11 89109, to personally request any and all records pertaining to his incident that 12 occurred on July 12, 2020. Not only did the employees refuse to provide Plaintiff with 13 any documentation, but they also called the manager on him. When the manager 14 appeared, Plaintiff realized that this was the manager who had incorrectly withdrawn 15 the blood from his arm on July 12, 2020. As such, Plaintiff requested that the 16 manager provide his name, and the manager refused. 17 On April 16, 2021, Raimundo Leon, M.D.’s office, Plaintiff’s treating physician, 18 contacted BioLife Plasma Services to again request any and all records pertaining to 19 his incident that occurred on July 12, 2020. From April 16, 2021, through April 21, 20 2021, Dr. Leon’s office made repeated attempts to contact BioLife Plasma Services 21 to request these records, but their efforts were unsuccessful. 22 On May 19, 2021, after repeated efforts to obtain information regarding the 23 identity of Defendant Employee Doe, Plaintiff filed his Complaint in Eighth Judicial 24 District Court in and for the State of Nevada, County of Clark. 25 On June 8, 2021, Plaintiff's Counsel and Defendants’ Counsel participated in a 26 telephone conference to discuss this matter. During the call, Defendants’ Counsel 27 requested that Plaintiff dismiss Defendant Employee Doe, on the grounds that his 28 employer would be accepting responsibility for his actions. Defendants Counsel did -30f3-
1 not however provide this person's identity. Based on the fact that Plaintiff has been 2 repeatedly denied this information, Plaintiff did not see it appropriate and felt that 3 it would be highly prejudicial to dismiss Defendant Employee Doe, without knowing 4 the identity of this person. 5 On June 9, 2021, Defendant's Motion for Reconsideration of Order Granting 6 Plaintiff's Petition to Perpetuate Testimony by Deposition Before Action was granted. 7 The Court vacated the Order Granting Plaintiff's Petition to Perpetuate Testimony by 8 Deposition Before Action, thereby further preventing Plaintiff from obtaining 9 information regarding the identity of Defendant Employee Doe. 10 On June 18, 2021, Defendant Biolife Plasma Services, L.P. filed a Petition for 11 Removal pursuant to 28 U.S.C. 88 1332, 1441 and 1446. Defendants Biolife Plasma, 12 LLC and Takeda Pharmaceuticals America Inc.'s filed Joinders thereto. On that same 13 day, Defendants Biolife Plasma Services, L.P., Biolife Plasma, LLC and Takeda
14 Pharmaceuticals America Inc. each also filed a certificate of interested parties. None 15 of the certificates of interested parties mentioned Defendant Employee Doe and a 16 certificate of interested parties was not filed by Defendant Employee Doe. 17 On July 13, 2021, the parties participated in a FRCP 26(f) conference. On July 19, 18 2021, the parties filed a stipulated proposed discovery plan and scheduling order. 19 The discovery plan and scheduling order was signed by this Court on July 21, 2021. 20 On July 27, 2021, Defendants served their Initial Disclosures. For the first time, 21 Defendants identified Mr. Adam Green as a witness. In their disclosure, Defendants 22 identified Adam Green as follows: 23 c. Adam Green, Center Manager, BioLife Plasma Services L.P. c/o Worthe 24 Hanson & Worthe, 1851 East First Street, Suite 860, Santa Ana, CA 92705 (714) 25 285-9600. Percipient witness. 26 Defendant also listed other witnesses in their disclosure who were former 27 employees of BioLife and specifically identified that those employees no longer 28 -4o0f4-
1 worked for BioLife. For Adam Green however, they did not.' 2 On July 28, 2021, Plaintiff forwarded Defendants a draft of a stipulation and order 3 to amend his complaint to replace Defendant Employee Doe with Adam Green. 4 Plaintiff also provided a draft of his amended complaint.? 5 On August 5, 2021, Defendants responded and stated that they had not forgotten 6 about the stipulation and order and would provide a response the following day. 7 On August 11, 2021, after not hearing from Defendants’ counsel, Plaintiff's 8 counsel followed up via email regarding the stipulation and order. Defendants’ 9 counsel responded and stated that he would give Plaintiff's counsel a call the 10 following day. Currently, the stipulation has not been executed. 11 Il. LEGAL STANDARD 12 Pursuant to FRCP 15
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1 Marjorie L. Hauf, Esq. Nevada Bar No.: 8111 || Matthew G. Pfau, Esq. 3 Nevada Bar No.: 11439 Bre’Ahn Williams, Esq. 4 || Nevada Bar No. 15672 5 H&P LAW 8950 W Tropicana Ave., #1 6 || Las Vegas, NV 89147 7 702 598 4529 TEL Attorneys for Plaintiff 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 | ANGELO EROLES, Case No.: 2:21-cv-01163-GMN-BNW 12 Plaintiff, 13 VS.
|BIOLIFE PLASMA LLC, A FOREIGN 15 LIMITED LIABILITY COMPANY; BIOLIFE 16 PLASMA SERVICES LP, A FOREIGN LIMITED PARTNERSHIP; TAKEDA . 17 ||PHARMACEUTICALS AMERICA, INC., A Plaintiff eee Amend 18 FOREIGN CORPORATION: EMPLOYEE DOE: DOES | THROUGH X: AND ROE 19 | CORPORATIONS I THROUGH xX, 0 INCLUSIVE 21 Defendant. 22 COMES NOW, Petitioner, Angelo Eroles, by and through his counsel at the law firm 23 of H&P Law, and hereby files this Motion to Amend. This Motion is based upon the 24 papers and pleadings on file herein, the attached Memorandum of Points and 25 26 27 28 -lofl-
1 Authorities, and any oral argument entertained by the Court on this matter. 2 3 DATED this 23 day of August 2021. 4 H&P LAW 5 /s/ Marjorie Hauf 6 5 Marjorie L. Hauf, Esq. Nevada Bar No.: 8111 8 Matthew G. Pfau, Esq. 9 Nevada Bar No.: 11439 Bre’Ahn Williams, Esq. 10 Nevada Bar No. 15672 11 12 MEMORANDUM OF POINTS AND AUTHORITIES 13 I. FACTUAL BACKGROUND 14 On or about July 12, 2020, Plaintiff visited Biolife Plasma Services, L.P., in order to 15 donate Plasma. Plaintiff presented his left arm to the Biolife representative, who set 16 everything up to remove the plasma and entered into Plaintiff's left arm with the
needle. Plaintiff immediately felt an excruciating pulse of pain going from his arm
18 through his thumb. 19 Plasma then shot out of the tube and needle. The employee commented that that 20 was “odd” and proceeded to move the needle around and left the needle inserted in 21 his arm for a while. Plaintiff was the told that a vein in his left arm was “clipped” and 22 he should ice it and it would resolve within two days. As a result of the incident 23 Plaintiff suffered severe injuries. 24 On October 12, 2020, Marjorie Hauf, Esq., on behalf of Plaintiff contacted Biolife 25 to confirm representation and to request all evidence regarding the incident 26 including the incident report, names and identities of the phlebotomists or 27 employees involved, video or surveillance footage and records. The facility did not 28 -2o0f2-
1 provide this information and instead responded by requesting HIPAA Complaint 2 Authorization. Despite the fact that Plaintiff provided an authorization, Plaintiff's 3 request for documents went ignored. A On March 17, 2021, Plaintiff filed a petition to Perpetuate Testimony by 5 Deposition Before Action. This state court granted the petition, without requiring a 6 hearing. On April 2, 2021, BioLife Plasma Services, L.P., filed their Motion for 7 Reconsideration of Order granting Plaintiff's Petition to Perpetuate testimony by 8 Deposition Before Action. 9 While the motion for reconsideration was pending, on April 16, 2021, Plaintiff 10 visited BioLife Plasma Services, located at 2882 S. Maryland Pkwy, Las Vegas, NV 11 89109, to personally request any and all records pertaining to his incident that 12 occurred on July 12, 2020. Not only did the employees refuse to provide Plaintiff with 13 any documentation, but they also called the manager on him. When the manager 14 appeared, Plaintiff realized that this was the manager who had incorrectly withdrawn 15 the blood from his arm on July 12, 2020. As such, Plaintiff requested that the 16 manager provide his name, and the manager refused. 17 On April 16, 2021, Raimundo Leon, M.D.’s office, Plaintiff’s treating physician, 18 contacted BioLife Plasma Services to again request any and all records pertaining to 19 his incident that occurred on July 12, 2020. From April 16, 2021, through April 21, 20 2021, Dr. Leon’s office made repeated attempts to contact BioLife Plasma Services 21 to request these records, but their efforts were unsuccessful. 22 On May 19, 2021, after repeated efforts to obtain information regarding the 23 identity of Defendant Employee Doe, Plaintiff filed his Complaint in Eighth Judicial 24 District Court in and for the State of Nevada, County of Clark. 25 On June 8, 2021, Plaintiff's Counsel and Defendants’ Counsel participated in a 26 telephone conference to discuss this matter. During the call, Defendants’ Counsel 27 requested that Plaintiff dismiss Defendant Employee Doe, on the grounds that his 28 employer would be accepting responsibility for his actions. Defendants Counsel did -30f3-
1 not however provide this person's identity. Based on the fact that Plaintiff has been 2 repeatedly denied this information, Plaintiff did not see it appropriate and felt that 3 it would be highly prejudicial to dismiss Defendant Employee Doe, without knowing 4 the identity of this person. 5 On June 9, 2021, Defendant's Motion for Reconsideration of Order Granting 6 Plaintiff's Petition to Perpetuate Testimony by Deposition Before Action was granted. 7 The Court vacated the Order Granting Plaintiff's Petition to Perpetuate Testimony by 8 Deposition Before Action, thereby further preventing Plaintiff from obtaining 9 information regarding the identity of Defendant Employee Doe. 10 On June 18, 2021, Defendant Biolife Plasma Services, L.P. filed a Petition for 11 Removal pursuant to 28 U.S.C. 88 1332, 1441 and 1446. Defendants Biolife Plasma, 12 LLC and Takeda Pharmaceuticals America Inc.'s filed Joinders thereto. On that same 13 day, Defendants Biolife Plasma Services, L.P., Biolife Plasma, LLC and Takeda
14 Pharmaceuticals America Inc. each also filed a certificate of interested parties. None 15 of the certificates of interested parties mentioned Defendant Employee Doe and a 16 certificate of interested parties was not filed by Defendant Employee Doe. 17 On July 13, 2021, the parties participated in a FRCP 26(f) conference. On July 19, 18 2021, the parties filed a stipulated proposed discovery plan and scheduling order. 19 The discovery plan and scheduling order was signed by this Court on July 21, 2021. 20 On July 27, 2021, Defendants served their Initial Disclosures. For the first time, 21 Defendants identified Mr. Adam Green as a witness. In their disclosure, Defendants 22 identified Adam Green as follows: 23 c. Adam Green, Center Manager, BioLife Plasma Services L.P. c/o Worthe 24 Hanson & Worthe, 1851 East First Street, Suite 860, Santa Ana, CA 92705 (714) 25 285-9600. Percipient witness. 26 Defendant also listed other witnesses in their disclosure who were former 27 employees of BioLife and specifically identified that those employees no longer 28 -4o0f4-
1 worked for BioLife. For Adam Green however, they did not.' 2 On July 28, 2021, Plaintiff forwarded Defendants a draft of a stipulation and order 3 to amend his complaint to replace Defendant Employee Doe with Adam Green. 4 Plaintiff also provided a draft of his amended complaint.? 5 On August 5, 2021, Defendants responded and stated that they had not forgotten 6 about the stipulation and order and would provide a response the following day. 7 On August 11, 2021, after not hearing from Defendants’ counsel, Plaintiff's 8 counsel followed up via email regarding the stipulation and order. Defendants’ 9 counsel responded and stated that he would give Plaintiff's counsel a call the 10 following day. Currently, the stipulation has not been executed. 11 Il. LEGAL STANDARD 12 Pursuant to FRCP 15, a party may amend its pleading only with the opposing 13 party's written consent or the court's leave. The court should freely give leave when
14 justice so requires. A party has the right to amend its pleading to change the name 15 of a party defendant.? Changing the name of a Doe Defendant to a named defendant 16 is not an action to add a party.4 When the Doe procedure is used properly, 17 amendment stating the name is the type of matter contemplated by the rules of this 4g || court. 19 20 21 22 23 24 25 26 ' See Defendants’ Initial Disclosures, attached hereto as Exhibit 1. 2 See Correspondence dated July 28, 2021, attached hereto as Exhibit 2. 27 3 Hill v. Summa Corp., 90 Nev. 79, 79, 518 P.2d 1094, 1094, 1974 Nev. LEXIS 317, *1 28 | sig -5o0f5-
1 Hl. LEGAL ARGUMENT 2 3 A. Plaintiff should be permitted to amend his Complaint to add Adam Green. 4 5 1. Plaintiff filed his Complaint properly under NRCP 10(d). 6 Plaintiff's Complaint was filed in state court pursuant to the provisions outlined 7 in NRCP 10(d). NRCP 10(d) states that if the name of a defendant is unknown to the 8 pleader, the defendant may be designated by any name. When the defendant's true 9 name is discovered, the pleader should promptly substitute the actual defendant for 10 a fictitious party.® At the time of filing, despite Plaintiff's best efforts, the identity of 11 Defendant Employee Doe was concealed. Plaintiff then filed his Complaint in state 12 court, with the intent to amend to substitute the actual Defendant with Defendant 13 Employee Doe as soon as the identity of Defendant Doe was discovered. While the
14 removal of this action seemingly affected this process, it does not negate the fact 15 that Plaintiff is entitled to amend his Complaint to substitute the fictitious party 16 named in this matter. Adam Green has been identified as the true identity of 17 Defendant Employee Doe. Plaintiff has properly protected his right to name the 18 employee who was originally fictitiously identified. As such, Plaintiff filed his 19 Complaint correctly under NRCP 10(d) and should now be allowed to amend. 20 21 2. Justice requires that Plaintiff be permitted to amend his Complaint. 22 Pursuant to FRCP 15, “a party may amend its pleading only with...the court's leave. 23 The court should freely give leave when justice so requires.” At the time Plaintiff filed 24 his Complaint, he did not know the identity of Defendant Employee Doe and 25 therefore could not add him as a Defendant to this case from the start. Despite this, 26 Plaintiff performed extreme due diligence to identify this information prior to filing 27 28 || sweep. -6o0f6-
1 his complaint. It was not until initial disclosures, that was Plaintiff able to finally 2 identify Adam Green as Defendant Employee Doe. 3 Justice and judicial efficiency require allowing Plaintiff to amend his Complaint to A substitute Defendant Employee Doe for Adam Green. Currently, the deadline to 5 amend the pleadings and/or add parties is set for December 16, 2021. As the 6 deadline to amend the pleadings and/or add parties has not yet passed, this motion 7 is timely filed and justice requires that it be granted. 8 Lastly, and possibly most importantly, it must be noted that once Adam Green is 9 substituted in this matter, this case will be remanded back to state court as complete 10 diversity will be destroyed. Therefore, justice and judicial efficiency require Plaintiff 11 to amend his Complaint. 12 13 IV. CONCLUSION
14 Plaintiff respectfully requests that his Motion to Amend his Complaint to 15 substitute Defendant Employee Doe for Adam Green be granted. 16 i rd 17 DATED this 23™ day of August 2021. 8 H&P LAW "9 Order □ 20 IT IS ORDERED that ECF /s/ Marjorie Haut No. 24 is GRANTED as 21 unopposed under Local Rule Marjorie L. Hauf, Esq. 22 7-2(d). IT IS FURTHER Nevada Bar No.: 8111 ORDERED that Plaintiff must Matthew G. Pfau, Esq. 23 file an amended complaint as Nevada Bar No.: 11439 24 in ECF No. 24 by Bre’‘Ahn Williams, Esq. , Nevada Bar No. 15672 2 5 IT ISSO ORDERED DATED: 10:41 am, September 08, 2021
27 UNITED STATES MAGISTRATE JUDGE 28 -7of7-
1 CERTIFICATE OF SERVICE 2 | hereby certify that on the 23 day of August 2021, service of the foregoing 3 PLAINTIFF'S MOTION TO AMEND COMPLAINT was made by required electronic A service to the following individuals: 5 □ _x_ Electronic service through the CM/ECF system 6 __ U.S. mail 7 , ___ Facsimile 8 ___ Hand delivery 9 10 John Hanson, Esq. Worthe, Hanson & Worthe 11 1851 East First Street, Suite 860 Santa Ana, CA 92705 12 Facsimile: (714) 285-9700 13 Attorney for Defendants, BioLife Plasma Services, LP, BioLife 14 Plasma, L.L.C. and Takeda 15 Pharmaceuticals America, INC.
16 _ /BreAhn Williams An Employee of H&P LAW
18 19 20 21 22 23 24 25 26 27 28 - 8 of 8-