1 LYSSA S. ANDERSON Nevada Bar No. 5781 2 RYAN W. DANIELS Nevada Bar No. 13094 3 KAEMPFER CROWELL 1980 Festival Plaza Drive, Suite 650 4 Las Vegas, Nevada 89135 Telephone: (702) 792-7000 5 Fax: (702) 796-7181 landerson@kcnvlaw.com 6 rdaniels@kcnvlaw.com
7 Attorneys for Defendants Michael Rose, Jacqulyn Schumaker, 8 Cesar Esparza, Robert Burleson, Neldon Barrowes, Kevin Kegley, 9 Jeanette Dillon and Linda Buchanan
10 UNITED STATES DISTRICT COURT
11 DISTRICT OF NEVADA
12 JUSTIN L. TRIPP, CASE NO.: 2:17-cv-01964-JCM-PAL
13 Plaintiff, vs. DEFENDANTS’ MOTION TO EXTEND 14 DISCOVERY CLARK COUNTY, et al. 15 (2nd Request) Defendants. 16
17 18 Defendants Michael Rose, Jacqulyn Schumaker, Cesar Esparza, Robert Burleson, Neldon 19 Barrowes, Jeanette Dillon and Linda Buchanan (“LVMPD Defendants”), hereby move for an 20 Order extending the expert disclosure deadline only for an additional thirty (30) days. This 21 Motion is based on Federal Rule of Civil Procedure 26, Local Rule 26-4, the pleadings and 22 papers on file herein, the following memorandum of points and authorities and any such oral 23 argument as may be set. 24 / / / 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. PROCEDURAL HISTORY 3 Plaintiff Justin Tripp (“Plaintiff”) filed his First Amended Complaint (“FAC”) on January 4 7, 2019. [ECF No. 14]. Plaintiff is representing himself in proper person and is currently
5 incarcerated. Plaintiff alleges that during his arrest Las Vegas Metropolitan Police Department 6 (“LVMPD”) Officers used excessive force against him. Plaintiff also alleges that his rights were 7 violated by various Corrections Officers of Clark County Detention Center (“CCDC”) and that 8 he received inadequate medical care and treatment while he was a pre-trial detainee at CCDC. 9 Defendant Rose was served with the FAC on February 6, 2019. Rose filed an Answer on 10 February 27, 2019. [ECF No. 27]. Defendants Esparza and Schumaker then filed their Answer 11 on April 8, 2019. [ECF No. 50]. 12 Plaintiff filed a Motion to Appoint Counsel, [ECF No. 53], which LVMPD Defendants 13 opposed. [ECF No. 56]. Plaintiff filed a Motion to Amend Complaint, [ECF No. 44], which 14 LVMPD Defendants opposed. [ECF No. 47]. The LVMPD Defendants previously filed a
15 Motion to Extend Discovery, [ECF No. 70], which Plaintiff opposed, [ECF no. 73]. Plaintiff 16 filed a Motion to Substitute DOE Defendants which identified Defendants Robert Burleson, 17 Neldon Barrowes, Kevin Kegley, Jeanette Dillon and Linda Buchanan. [ECF No. 75]. 18 On December 2, 2019 this Court issued an Order on the multiple Motions above. [ECF 19 No. 110]. The Court granted Plaintiff’s Motion to Appoint Counsel and submitted this case to 20 the Court’s Pro Bono Pilot Program. No Counsel has appeared for Plaintiff as of the date of 21 filing this Motion. The Court denied Plaintiff’s Motion to Amend Complaint but did grant 22 Plaintiff’s Motion to Substitute DOE Defendants and the newly named Defendants were served 23 and filed their Answer on January 13, 2020, [ECF No. 119]. Finally, the Court granted the
24 Motion to Extend with the following deadlines: 1 Close of Discovery: May 30, 2020 2 Amend Pleadings: March 1, 2020 3 Expert Disclosures: March 31, 2020 4 Rebuttal Expert Disclosures: April 30, 2020
5 Dispositive Motions: June 29, 2020 6 Interim Status Report: March 31, 2020 7 Joint Pre-Trial Order: July 29, 2020 8 Recently, Plaintiff filed a Motion to Extend the Deadline to Amend Pleadings. [ECF 9 Nos. 123 and 126]. NaphCare opposed the Motion and the LVMPD Defendants filed a Joinder 10 to the Opposition. [ECF Nos. 124 and 125]. 11 II. AN EXTENSION IS WARRANTED 12 A brief extension of the current deadline to disclose expert reports is warranted. The five 13 (5) new LVMPD Defendants (previously identified as DOEs) referenced above recently 14 appeared in this matter. All are Corrections Sergeants at Clark County Detention Center
15 (“CCDC”). The LVMPD Defendants’ Corrections Expert requires some additional time to 16 prepare his initial expert report due to the new issues specific to these Defendants and, more 17 importantly, unanticipated delays associated with COVID19. The LVMPD Defendants’ 18 Corrections Expert is the Chief of a Fire Department and has been inundated because of the 19 pandemic. 20 In addition, Nevada Governor Steve Sisolak ordered that all non-essential businesses in 21 the State of Nevada be closed for the next thirty (30) days due to the worldwide pandemic and 22 spread of COVID19. While Kaempfer Crowell, Counsel for the LVMPD Defendants continues 23 to operate during this state wide shutdown, most attorneys and support staff are working
24 / / / 1 remotely and all in-person meetings and depositions have been postponed to comply with the 2 CDC’s recommendations for social distancing. 3 LVMPD Defendants recognize that this request is not being made within twenty-one (21) 4 days of the current expert disclosure deadline, March 31, 2020 pursuant to LR 26-4; however
5 LVMPD Defendants submit that good cause and excusable neglect exists. 6 LR 26-4 states in relevant part: 7 A motion or stipulation to extend a deadline set forth in a discovery plan must be received by the court no later than 21 days before the expiration of the subject 8 deadline. A request made within 21 days of the subject deadline must be supported by a showing of good cause. A request made after the expiration of the 9 subject deadline will not be granted unless the movant also demonstrates that the failure to act was the result of excusable neglect. 10 11 In evaluating excusable neglect, the court considers the following factors: (1) the reason 12 for the delay and whether it was in the reasonable control of the moving party, (2) whether the 13 moving party acted in good faith, (3) the length of the delay and its potential impact on the 14 proceedings, and (4) the danger of prejudice to the nonmoving party. See Pioneer Inv. Servs. Co. 15 v. Brunswick Assocs., 507 U.S. 380, 395 S. Ct. 1489, 123 L.Ed.2d 74 (1993). 16 As stated, the five (5) newly named LVMPD Defendants recently appeared in this case. 17 The LVMPD Defendants’ Corrections Expert was working diligently to address the issues 18 associated with these new Defendants in his report but has recently advised that additional time 19 is needed to prepare the report. The additional time is necessary due to COVID19 related 20 complications. As the Court is aware, the COVID19 pandemic issues, related shut down of 21 businesses, and required social distancing began only a short time ago. The issues continue to 22 evolve in our community and across the world. In short, the LVMPD Defendants did not know 23 twenty-one (21) days ago that an extension of the expert disclosure deadline would be necessary. 24 / / / 1 A. DISCOVERY. 2 1. Discovery Completed To Date. 3 The LVMPD Defendants, NaphCare and Plaintiff have provided their initial Rule 26 4 Disclosures. The LVMPD Defendants have provided six (6) additional supplemental
5 disclosures. 6 The LVMPD Defendants have responded to two sets of Requests for Production of 7 Documents and Interrogatories from Plaintiff and one set of Requests for Admissions. The 8 LVMPD Defendants served two sets of Requests for Production of Documents and 9 Interrogatories on Plaintiff. Plaintiff has responded to one set of Requests of Production of 10 Documents. However, the remaining discovery responses are outstanding and Plaintiff has not 11 responded even after LVMPD Defendants requested Plaintiff do so. Plaintiff and NaphCare also 12 exchanged and responded to written discovery. 13 Finally, the LVMPD Defendants have served various third-party subpoenas.
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1 LYSSA S. ANDERSON Nevada Bar No. 5781 2 RYAN W. DANIELS Nevada Bar No. 13094 3 KAEMPFER CROWELL 1980 Festival Plaza Drive, Suite 650 4 Las Vegas, Nevada 89135 Telephone: (702) 792-7000 5 Fax: (702) 796-7181 landerson@kcnvlaw.com 6 rdaniels@kcnvlaw.com
7 Attorneys for Defendants Michael Rose, Jacqulyn Schumaker, 8 Cesar Esparza, Robert Burleson, Neldon Barrowes, Kevin Kegley, 9 Jeanette Dillon and Linda Buchanan
10 UNITED STATES DISTRICT COURT
11 DISTRICT OF NEVADA
12 JUSTIN L. TRIPP, CASE NO.: 2:17-cv-01964-JCM-PAL
13 Plaintiff, vs. DEFENDANTS’ MOTION TO EXTEND 14 DISCOVERY CLARK COUNTY, et al. 15 (2nd Request) Defendants. 16
17 18 Defendants Michael Rose, Jacqulyn Schumaker, Cesar Esparza, Robert Burleson, Neldon 19 Barrowes, Jeanette Dillon and Linda Buchanan (“LVMPD Defendants”), hereby move for an 20 Order extending the expert disclosure deadline only for an additional thirty (30) days. This 21 Motion is based on Federal Rule of Civil Procedure 26, Local Rule 26-4, the pleadings and 22 papers on file herein, the following memorandum of points and authorities and any such oral 23 argument as may be set. 24 / / / 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. PROCEDURAL HISTORY 3 Plaintiff Justin Tripp (“Plaintiff”) filed his First Amended Complaint (“FAC”) on January 4 7, 2019. [ECF No. 14]. Plaintiff is representing himself in proper person and is currently
5 incarcerated. Plaintiff alleges that during his arrest Las Vegas Metropolitan Police Department 6 (“LVMPD”) Officers used excessive force against him. Plaintiff also alleges that his rights were 7 violated by various Corrections Officers of Clark County Detention Center (“CCDC”) and that 8 he received inadequate medical care and treatment while he was a pre-trial detainee at CCDC. 9 Defendant Rose was served with the FAC on February 6, 2019. Rose filed an Answer on 10 February 27, 2019. [ECF No. 27]. Defendants Esparza and Schumaker then filed their Answer 11 on April 8, 2019. [ECF No. 50]. 12 Plaintiff filed a Motion to Appoint Counsel, [ECF No. 53], which LVMPD Defendants 13 opposed. [ECF No. 56]. Plaintiff filed a Motion to Amend Complaint, [ECF No. 44], which 14 LVMPD Defendants opposed. [ECF No. 47]. The LVMPD Defendants previously filed a
15 Motion to Extend Discovery, [ECF No. 70], which Plaintiff opposed, [ECF no. 73]. Plaintiff 16 filed a Motion to Substitute DOE Defendants which identified Defendants Robert Burleson, 17 Neldon Barrowes, Kevin Kegley, Jeanette Dillon and Linda Buchanan. [ECF No. 75]. 18 On December 2, 2019 this Court issued an Order on the multiple Motions above. [ECF 19 No. 110]. The Court granted Plaintiff’s Motion to Appoint Counsel and submitted this case to 20 the Court’s Pro Bono Pilot Program. No Counsel has appeared for Plaintiff as of the date of 21 filing this Motion. The Court denied Plaintiff’s Motion to Amend Complaint but did grant 22 Plaintiff’s Motion to Substitute DOE Defendants and the newly named Defendants were served 23 and filed their Answer on January 13, 2020, [ECF No. 119]. Finally, the Court granted the
24 Motion to Extend with the following deadlines: 1 Close of Discovery: May 30, 2020 2 Amend Pleadings: March 1, 2020 3 Expert Disclosures: March 31, 2020 4 Rebuttal Expert Disclosures: April 30, 2020
5 Dispositive Motions: June 29, 2020 6 Interim Status Report: March 31, 2020 7 Joint Pre-Trial Order: July 29, 2020 8 Recently, Plaintiff filed a Motion to Extend the Deadline to Amend Pleadings. [ECF 9 Nos. 123 and 126]. NaphCare opposed the Motion and the LVMPD Defendants filed a Joinder 10 to the Opposition. [ECF Nos. 124 and 125]. 11 II. AN EXTENSION IS WARRANTED 12 A brief extension of the current deadline to disclose expert reports is warranted. The five 13 (5) new LVMPD Defendants (previously identified as DOEs) referenced above recently 14 appeared in this matter. All are Corrections Sergeants at Clark County Detention Center
15 (“CCDC”). The LVMPD Defendants’ Corrections Expert requires some additional time to 16 prepare his initial expert report due to the new issues specific to these Defendants and, more 17 importantly, unanticipated delays associated with COVID19. The LVMPD Defendants’ 18 Corrections Expert is the Chief of a Fire Department and has been inundated because of the 19 pandemic. 20 In addition, Nevada Governor Steve Sisolak ordered that all non-essential businesses in 21 the State of Nevada be closed for the next thirty (30) days due to the worldwide pandemic and 22 spread of COVID19. While Kaempfer Crowell, Counsel for the LVMPD Defendants continues 23 to operate during this state wide shutdown, most attorneys and support staff are working
24 / / / 1 remotely and all in-person meetings and depositions have been postponed to comply with the 2 CDC’s recommendations for social distancing. 3 LVMPD Defendants recognize that this request is not being made within twenty-one (21) 4 days of the current expert disclosure deadline, March 31, 2020 pursuant to LR 26-4; however
5 LVMPD Defendants submit that good cause and excusable neglect exists. 6 LR 26-4 states in relevant part: 7 A motion or stipulation to extend a deadline set forth in a discovery plan must be received by the court no later than 21 days before the expiration of the subject 8 deadline. A request made within 21 days of the subject deadline must be supported by a showing of good cause. A request made after the expiration of the 9 subject deadline will not be granted unless the movant also demonstrates that the failure to act was the result of excusable neglect. 10 11 In evaluating excusable neglect, the court considers the following factors: (1) the reason 12 for the delay and whether it was in the reasonable control of the moving party, (2) whether the 13 moving party acted in good faith, (3) the length of the delay and its potential impact on the 14 proceedings, and (4) the danger of prejudice to the nonmoving party. See Pioneer Inv. Servs. Co. 15 v. Brunswick Assocs., 507 U.S. 380, 395 S. Ct. 1489, 123 L.Ed.2d 74 (1993). 16 As stated, the five (5) newly named LVMPD Defendants recently appeared in this case. 17 The LVMPD Defendants’ Corrections Expert was working diligently to address the issues 18 associated with these new Defendants in his report but has recently advised that additional time 19 is needed to prepare the report. The additional time is necessary due to COVID19 related 20 complications. As the Court is aware, the COVID19 pandemic issues, related shut down of 21 businesses, and required social distancing began only a short time ago. The issues continue to 22 evolve in our community and across the world. In short, the LVMPD Defendants did not know 23 twenty-one (21) days ago that an extension of the expert disclosure deadline would be necessary. 24 / / / 1 A. DISCOVERY. 2 1. Discovery Completed To Date. 3 The LVMPD Defendants, NaphCare and Plaintiff have provided their initial Rule 26 4 Disclosures. The LVMPD Defendants have provided six (6) additional supplemental
5 disclosures. 6 The LVMPD Defendants have responded to two sets of Requests for Production of 7 Documents and Interrogatories from Plaintiff and one set of Requests for Admissions. The 8 LVMPD Defendants served two sets of Requests for Production of Documents and 9 Interrogatories on Plaintiff. Plaintiff has responded to one set of Requests of Production of 10 Documents. However, the remaining discovery responses are outstanding and Plaintiff has not 11 responded even after LVMPD Defendants requested Plaintiff do so. Plaintiff and NaphCare also 12 exchanged and responded to written discovery. 13 Finally, the LVMPD Defendants have served various third-party subpoenas. The 14 responses received have been provided. However, one third-party has not responded despite
15 demands and the LVMPD Defendants anticipate they will need to file a Motion to Compel. 16 2. Discovery to Be Completed. 17 The LVMPD Defendants are currently preparing Requests for Admissions to Plaintiff. 18 As stated above, it is likely that the LVMPD Defendants will be filing a Motion to Compel 19 against a third-party for failing to comply with a Subpoena. The LVMPD Defendants and 20 NaphCare will take Plaintiff’s deposition. 21 3. Reasons Why Discovery is Incomplete. 22 The LVMPD Defendants have been diligent in completing discovery, however, there 23 have been some delays and because of the rapid onset of COVID-19, a brief extension of the
24 current expert disclosure deadline is necessary. 1 4. Proposed Dates. 2 LVMPD Defendants request that the Scheduling Order be amended to reflect the 3 following:1 4 Activity Current Date Proposed Date
5 Discovery Cut-Off May 30, 2020 May 30, 2020 Expert Disclosures March 31, 2020 April 30, 2020 6 Rebuttal Expert Disclosures April 30, 2020 May 30, 2020 7 Dispositive Motions June 29, 2020 June 29, 2020 8 Proposed Joint Pretrial Order July 29, 2020 July 29, 2020 9 Interim Status Report March 31, 2020 March 31, 2020
10 III. CONCLUSION 11 LVMPD Defendants are not attempting to delay the conclusion of this matter by way of 12 trial or otherwise; rather they are requesting an extension to allow their corrections expert the 13 time needed to complete his expert report. Based upon the foregoing, the LVMPD Defendants 14 respectfully request that the Court enter a new Scheduling Order with the dates requested herein. 15 DATED this 24th day of March, 2020. 16 KAEMPFER CROWELL
17 By: /s/ Lyssa S. Anderson 18 LYSSA S. ANDERSON (Nevada Bar No. 5781) RYAN W. DANIELS (Nevada Bar No. 13094) 19 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135 20 Attorneys for Defendants 21 Michael Rose, Jacqulyn Schumaker and Cesar Esparza 22 23 1 LVMPD Defendants are requesting a thirty (30) day extension of the expert disclosure and corresponding rebuttal 24 expert disclosure deadlines only. Phle VAVENEY Ullal PUP ING. 120 IS GRANTED under LR 7-2(d). 1 || ITISSO ORDERED 2 DATED: April 02, 2020
BRENDA WEKSLER 5 UNITED STATES MAGISTRATE JUDGE CERTIFICATE OF SERVICE I certify that I am an employee of KAEMPFER CROWELL, and that on the date below, I caused the foregoing DEFENDANTS’ MOTION TO EXTEND DISCOVERY (2™ Request) to be served via CM/ECF and/or First Class Mail (where indicated) addressed to the following: Justin Tripp, #40730-086 Chad C. Couchot 10 || Nevada Southern Detention Center SCHUERING ZIMMERMAN & DOYLE 2190 East Mesquite Avenue 400 University Avenue 11 |} Pahrump, Nevada 89060 Sacramento, California 95825-6502 (916) 567-0400 12 || Plaintiff, Pro Se Fax: 568-0400 (Via U.S., First Class Mail) Email: calendar@szs.com 13 Paul Cardinale Kim Mandelbaum 14 |} LAAURIA TOKUNAGA GAATES & LINN, MANDELBAUM ELLERTON & ASSOC. LLP. 2012 Hamilton Lane 15 || 601 South Seventh Street Las Vegas, Nevada 89106 Las Vegas, NV 89101 (702) 367-1234 16 || (702) 387-8633 Email: filing@memlaw.net Email: peardinale@ltglaw.net 17 Attorneys for Defendants NaphCare, Inc. Attorneys for Defendants NaphCare, Inc. Harry Duran, M.D., Eric Lopez, P.A. and 18 || Harry Duran, M.D., Eric Lopez, P.A. and Rachel Rudd Rachel Rudd 19 DATED this 24" day of March, 2020. 20 21 /s/ Bonnie Jacobs an employee of Kaempfer Crowell agg 22