Zeigler v. Las Vegas Metropolitan Police Department et al
Filing
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ORDER Granting 30 MOTION to extend time to serve complaint filed by Susanne Zeigler. IT IS FURTHER ORDERED that, on or before 2/28/13, plaintiff must supplement 28 Notice of Compliance with a stamped copy of the order granting the application fo r appointment of special co-administrators and for issuance of letters of special administration and file proof of service of all summons and complaint for all defendants. Signed by Magistrate Judge Cam Ferenbach on 2/4/13. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SUSANNE ZIEGLER, et al,
2:11-cv-01301-PMP-VCF
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Plaintiffs,
ORDER
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vs.
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LAS VEGAS METROPOLITAN, et al.,
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(Motion to Extend Time to Serve Complaint
(#30))
Defendants.
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Before the court is plaintiffs’ Motion to Extend Time to Serve Complaint.
(#30).
No
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Opposition was filed. The court held a hearing on January 30, 2013. (#41).
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A.
Background
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Plaintiff filed her complaint on August 11, 2011. (#1). On September 12, 2011, defendant
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Naphcare, Inc. filed a motion to dismiss (#11), and on September 30, 2011, defendant Las Vegas
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Metropolitan Police Department (hereinafter “LVMPD”) filed a joinder (#14) thereto. On December
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15, 2011, the court issued an order granting the motion to dismiss (#11), and holding that “at this stage
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the Court lacks jurisdiction to consider the claims set forth in [p]laintiff’s [c]omplaint” because plaintiff
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is not the administrator of the estate. (#27). The court dismissed the complaint without prejudice for
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“the dully appointed Administrator or Co-Administrators of the Estate of Francesco Sanfilippo to bring
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appropriate claims for relief...if and when they are appointed.” Id. On December 16, 2011, plaintiff
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filed a notice of compliance with the court’s order (#27), providing the court with a copy of the order
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granting the application for appointment of special co-administrators and for issuance of letters of
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special administration filed with the State Court, and stating that plaintiff will supplement upon receipt
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of the file stamped copy. (#28).
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On November 5, 2012, the court issued a notice of intent to dismiss pursuant to Local Rule 415
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that the “instant [c]omplaint” was filed on June 25, 2012. (#30). As no entry on the court’s docket
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reflected the filing of any supplement to plaintiff’s notice of compliance (#28) or the filing of a
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complaint other than the original complaint filed on August 11, 2011 (#1), the court issued an order on
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November 26, 2012, holding “that, on or before December 10, 2012, plaintiff must file with the court
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her amended complaint and supplement to her notice of compliance (#28), and defendants must file any
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opposition to the motion to extend time to serve complaint (#30).” (#31).
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It came to the court’s attention that instead of filing an amended complaint in this action,
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plaintiff commenced an entirely new action Ziegler et al v. Las Vegas Metropolitan Police Department
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et al (Case No. 2:12-cv-01082-KJD -PAL)1. The complaint was filed on June 25, 2012 (#1), and the
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court issued a 4(m) notice of intent to dismiss on October 25, 2012 (#4). On November 26, 2012,
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plaintiff filed a motion to extend time to serve complaint. (#5). The court issued an order denying
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without prejudice the motion to extend time (#5), and stating that “Plaintiffs are ordered to show cause,
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in writing, no later than 4:00 p.m. on December 30, 2012, why this case should not be dismissed as
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identical to and duplicative of Ziegler v. Las Vegas Metropolitan Police Department,
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2:11-cv-01301-PMP-VCF.” (#6). Since plaintiffs did not comply with the court’s previous order (#6),
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on January 14, 2013, the court issued an order to show cause, stating that plaintiffs “shall show cause, in
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writing, no later than January 28, 2013, why sanctions should not be imposed for their failure to show
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cause and comply with this court’s Order,” and that “[f]ailure to comply with this Order will result in a
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recommendation to the district judge that this case be dismissed as identical to and duplicative of case
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No 2:11-cv-1301.” (#7).
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All docket entries in this paragraph refer to Case No. 2:12-cv-01082-KJD -PAL.
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On December 21, 2012, this court issued an order in the instant action scheduling a hearing for
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January 30, 2013, regarding the motion to extend time to serve complaint (#30). (#32). On January 2,
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2013, the plaintiffs Susanne ZIEGLER, individually, and ZIEGLER and Alexander M. Mazzola as Co5
Special Adminstrators of the Estate of Francesco Sanfilippo filed their first amended complaint in this
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action. (#33). The amended complaint names LVMPD, Carl Guilford, Naphcare, Inc., Doe Officers,
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and Doe Health Care Providers as defendants. Id. Plaintiffs allege the same causes of action as in the
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original complaint (#1), and only added the Co-Special Administrators to the list of parties. Id. On
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January 4, 2013, plaintiffs filed proposed summons to be issued to defendant Guilford (#35), LVMPD
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(#36), and Naphcare, Inc. (#39). Summons were issued to all defendants on the same day. (#38 and
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#40).
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B.
Motion to Extend Time for Service
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The court held a hearing on January 30, 2013. (#41). Plaintiffs’ counsel explained during the
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hearing that the failure to file the amended complaint in this action and instead commence an entirely
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new action (Case No. 2:12-cv-01082-KJD -PAL) was due to a clerical error. Id. Counsel stated that the
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statute of limitations does not run until July 29, 2013, and that plaintiffs would prefer to dismiss Case
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No. 2:12-cv-01082-KJD -PAL, the “mirror action,” and continue in the instant action. Id. Defense
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counsel agreed that dismissing the “mirror action” is appropriate and that the statute of limitations
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would not run until July of 2013. Id. The parties orally stipulated that the dismissal of the “mirror
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action” does not constitute a previous dismissal for purposes of Federal Rule of Civil Procedure
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41(a)(1)(B). Id.
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Plaintiff stated during the hearing that LVMPD and Guilford were served on January 29, 2013,
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and that plaintiff is currently attempting service on Naphcare’s resident agent in Carson City. Id.
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Plaintiff also represented to the court that he believes that his office has a file stamped copy of the order
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granting the application for appointment of special co-administrators and for issuance of letters of
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special administration.
On or before February 28, 2013, plaintiff must supplement the notice of
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compliance (#28) with a file stamped copy and file proof of service of the summons and complaint for
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all defendants.
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Accordingly and for good cause shown,
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IT IS ORDERED that plaintiffs’ Motion to Extend Time to Serve Complaint (#30) is
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GRANTED.
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IT IS THEREFORE ORDERED that, on or before February 28, 2013, plaintiff must supplement
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the notice of compliance (#28) with a file stamped copy of the order granting the application for
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appointment of special co-administrators and for issuance of letters of special administration and file
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proof of service of the summons and complaint for all defendants.
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DATED this 4th day of February, 2013.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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