Gallagher-Kaiser Corporation v. Liberty Duct, LLC, No. 2:2014cv00869 - Document 190 (D. Nev. 2024)
Court Description: ORDER Granting 189 Stipulation for Extension of Time re 188 Motion to Dismiss. Responses due by 2/14/2024. Signed by Judge Gloria M. Navarro on 1/31/2024. (Copies have been distributed pursuant to the NEF - RJDG)
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Gallagher-Kaiser Corporation v. Liberty Duct, LLC 1 2 3 4 5 6 7 8 Doc. 190 STEVEN D. MEACHAM, ESQ. Nevada Bar No. 9863 CARY B. DOMINA, ESQ. Nevada Bar No. 10567 PEEL BRIMLEY, LLP 3333 East Serene Avenue, Suite 200 Henderson, Nevada 89074 Phone: (702) 990-7272 smeacham@peelbrimley.com cdomina@peelbrimley.com Attorneys for Plaintiff Gallagher-Kaiser Corporation UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF NEVADA 9 PEEL BRIMLEY LLP 3333 E. SERENE AVENUE, STE. 200 HENDERSON, NEVADA 89074 (702) 990-7272 FAX (702) 990-7273 10 11 GALLAGHER-KAISER CORPORATION, a Michigan corporation, Plaintiff, vs. CASE NO. : 2:14-cv-00869 12 13 14 15 LIBERTY DUCT, LLC, a Nevada limited liability company; HARTFORD CASUALTY INSURANCE COMPANY, an Indiana insurance corporation; NGM INSURANCE COMPANY, a Florida corporation; and DOES 1-10 Insurance Company(ies), inclusive, 16 STIPULATION AND REQUEST FOR ORDER EXTENDING BRIEFING SCHEDULE TO DEFENDANT NGM INSURANCE COMPANY’S MOTION TO DISMISS FOURTH AMENDED COMPLAINT (First Request) Defendants. 17 18 Plaintiff, GALLAGHER-KAISER CORPORATION (“GK”), by and through its attorneys 19 of record, the law firm of PEEL BRIMLEY LLP, and Defendant, NGM INSURANCE COMPANY 20 (“NGM”), by and through its attorneys of record, the law firm of BARRETT & MATURA, P.C., 21 hereby stipulate and agree as follows: 22 23 24 25 26 27 28 WHEREAS, GK filed its Fourth Amended Complaint on December 20, 2024 [Doc. 184] (“Fourth Amended Complaint”); WHEREAS, NGM filed its Motion to Dismiss Fourth Amended Complaint on January 17, 2024 [Doc. 188] (“Motion”); WHEREAS, the original deadline for GK to file its Response Brief (“Response”) to the Motion is Wednesday, January 31, 2024; WHEREAS, due to scheduling conflicts, GK requested and received from NGM’s counsel Page 1 of 2 Dockets.Justia.com 1 2 3 THEREFORE, the parties agree and stipulate that GK shall have up to and including Wednesday, February 14, 2024 to file its Response to the Motion. 4 IT IS SO STIPULATED. 5 Dated this 24th day of January, 2024. 6 7 8 9 10 PEEL BRIMLEY LLP 3333 E. SERENE AVENUE, STE. 200 HENDERSON, NEVADA 89074 (702) 990-7272 FAX (702) 990-7273 an additional two weeks to file its Response to the Motion; 11 12 PEEL BRIMLEY LLP BARRETT | MATURA /s/ Cary Domina ___________________________________ STEVEN D. MEACHAM, ESQ. Nevada Bar No. 9863 CARY B. DOMINA, ESQ. Nevada Bar No. 10567 3333 E. Serene Ave, Suite 200 Henderson, NV 89074 Telephone: (702) 990-7272 Attorneys for Gallagher-Kaiser Corporation /s/ Kevin Barrett ___________________________________ KEVIN BARRETT, ESQ. Nevada Bar No. 8959 7575 Vegas Drive, Suite 150c Las Vegas, Nevada 89128 Direct: 602-792-5718 Fax: 602-792-5710 kbarrett@barrettmatura.com Attorney for NGM Insurance Company 13 14 IT IS SO ORDERED. 15 16 ____________________________ US District Court Judge 17 18 19 20 21 22 23 24 25 26 27 28 Page 2 of 2 From: To: Cc: Subject: Date: Attachments: Jennifer Bahling Cary Domina Kevin Barrett; Holly McGee; Steve Meacham RE: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Monday, January 29, 2024 3:53:16 PM image001.jpg image002.jpg image003.jpg image004.jpg image005.jpg image006.jpg image007.jpg image008.jpg image009.png Hi Cary. You may file. Thanks, Jennifer From: Cary Domina <cdomina@peelbrimley.com> Sent: Monday, January 29, 2024 4:11 PM To: Jennifer Bahling <jbahling@barrettmatura.com> Cc: Kevin Barrett <kbarrett@barrettmatura.com>; Holly McGee <HMcGee@barrettmatura.com>; Steve Meacham <smeacham@peelbrimley.com> Subject: RE: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Hi Jennifer: Please find attached for your review and approval, the draft SOA extending the deadline for GK to file its Response to the Motion to Dismiss. Thank you. Sincerely, Cary B. Domina, Esq. PARTNER NEVADA OFFICE: 3333 E. Serene Avenue - Suite 200 - Henderson - Nevada - 89074 NEVADA OFFICE PHONE: (702) 990-7272 NEVADA OFFICE FAX: (702) 990-7273 WASHINGTON OFFICE: 1700 7th Avenue, Suite 2100 - Seattle – Washington - 98101 WASHINGTON OFFICE PHONE: (206) 770-3339 WASHINGTON OFFICE FAX: (702) 990-7273 cdomina@peelbrimley.com MOBILE: (702) 806-4744 URL www.peelbrimley.com 2016 Peel Brimley 2015 MH (Attorneys licensed to practice in: Nevada ƒ Washington ƒ California ƒ Utah ƒ Arizona ƒ Hawaii ƒ North Dakota ƒ US Court of Federal Claims) This e-mail transmission is intended for the exclusive use of the individual or entity to whom it is addressed, and may contain privileged and confidential information that is protected by the Electronic Communications and Privacy Act (18 USC §§§§ 2510-2521), the Electronic Communications Privacy Act, 18 USC §§ 2701 et seq., and NRS §§§§ 179.410-179.515 and NRS 200.610-200.690, and may also be protected under the Attorney/Client Work Product or other privilege. If you are not the intended recipient of this communication, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone, fax or e-mail, and delete the original message and any attachments. From: Jennifer Bahling <jbahling@barrettmatura.com> Sent: Thursday, January 25, 2024 5:43 PM To: Cary Domina <cdomina@peelbrimley.com> Cc: Kevin Barrett <kbarrett@barrettmatura.com>; Holly McGee <HMcGee@barrettmatura.com> Subject: RE: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Cary: Of course. Go ahead and shoot over a draft stipulation. Jennifer From: Cary Domina <cdomina@peelbrimley.com> Sent: Thursday, January 25, 2024 4:46 PM To: Jennifer Bahling <jbahling@barrettmatura.com> Cc: Kevin Barrett <kbarrett@barrettmatura.com>; Holly McGee <HMcGee@barrettmatura.com> Subject: RE: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Jennifer and Kevin: I show that the Response to NGM’s Motion to Dismiss is due Wednesday, January 31st. Steve is in Hawaii for the next few weeks. Would it be possible to get a 2-week extension to file the Response, such that it would be due February 14, 2024? We would greatly appreciate it. Thanks. Sincerely, Cary B. Domina, Esq. PARTNER NEVADA OFFICE: 3333 E. Serene Avenue - Suite 200 - Henderson - Nevada - 89074 NEVADA OFFICE PHONE: (702) 990-7272 NEVADA OFFICE FAX: (702) 990-7273 WASHINGTON OFFICE: 1700 7th Avenue, Suite 2100 - Seattle – Washington - 98101 WASHINGTON OFFICE PHONE: (206) 770-3339 WASHINGTON OFFICE FAX: (702) 990-7273 cdomina@peelbrimley.com MOBILE: (702) 806-4744 URL www.peelbrimley.com 2016 Peel Brimley 2015 MH (Attorneys licensed to practice in: Nevada ƒ Washington ƒ California ƒ Utah ƒ Arizona ƒ Hawaii ƒ North Dakota ƒ US Court of Federal Claims) This e-mail transmission is intended for the exclusive use of the individual or entity to whom it is addressed, and may contain privileged and confidential information that is protected by the Electronic Communications and Privacy Act (18 USC §§§§ 2510-2521), the Electronic Communications Privacy Act, 18 USC §§ 2701 et seq., and NRS §§§§ 179.410-179.515 and NRS 200.610-200.690, and may also be protected under the Attorney/Client Work Product or other privilege. If you are not the intended recipient of this communication, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone, fax or e-mail, and delete the original message and any attachments. From: Jennifer Bahling <jbahling@barrettmatura.com> Sent: Tuesday, January 9, 2024 2:37 PM To: Cary Domina <cdomina@peelbrimley.com>; Steve Meacham <smeacham@peelbrimley.com> Cc: Kevin Barrett <kbarrett@barrettmatura.com>; Holly McGee <HMcGee@barrettmatura.com> Subject: RE: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Attached is a proposed draft. Please let us know if we have your permission to sign and file. Thank you for your courtesy. Jennifer From: Cary Domina <cdomina@peelbrimley.com> Sent: Tuesday, January 9, 2024 2:45 PM To: Jennifer Bahling <jbahling@barrettmatura.com>; Steve Meacham <smeacham@peelbrimley.com> Cc: Kevin Barrett <kbarrett@barrettmatura.com>; Holly McGee <HMcGee@barrettmatura.com> Subject: RE: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Jennifer/Kevin: Steve and I believe the issues raised in Kevin’s email below were largely raised in the prior Motion to Dismiss and have now been cured by the 4th Amended Complaint. Nevertheless, if you want to meet and confer, we are willing to discuss these points with you if you believe such an exercise would be beneficial. If you don’t think a meet and confer is beneficial, then we are fine considering this email correspondence as a meet and confer. In any event, we are also fine with your requested extension on the Motion to Dismiss—please prepare a Stip. and Order. Thanks. Sincerely, Cary B. Domina, Esq. PARTNER NEVADA OFFICE: 3333 E. Serene Avenue - Suite 200 - Henderson - Nevada - 89074 NEVADA OFFICE PHONE: (702) 990-7272 NEVADA OFFICE FAX: (702) 990-7273 WASHINGTON OFFICE: 1700 7th Avenue, Suite 2100 - Seattle – Washington - 98101 WASHINGTON OFFICE PHONE: (206) 770-3339 WASHINGTON OFFICE FAX: (702) 990-7273 cdomina@peelbrimley.com MOBILE: (702) 806-4744 URL www.peelbrimley.com 2016 Peel Brimley 2015 MH (Attorneys licensed to practice in: Nevada ƒ Washington ƒ California ƒ Utah ƒ Arizona ƒ Hawaii ƒ North Dakota ƒ US Court of Federal Claims) This e-mail transmission is intended for the exclusive use of the individual or entity to whom it is addressed, and may contain privileged and confidential information that is protected by the Electronic Communications and Privacy Act (18 USC §§§§ 2510-2521), the Electronic Communications Privacy Act, 18 USC §§ 2701 et seq., and NRS §§§§ 179.410-179.515 and NRS 200.610-200.690, and may also be protected under the Attorney/Client Work Product or other privilege. If you are not the intended recipient of this communication, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone, fax or e-mail, and delete the original message and any attachments. From: Jennifer Bahling <jbahling@barrettmatura.com> Sent: Tuesday, January 9, 2024 1:27 PM To: Steve Meacham <smeacham@peelbrimley.com>; Cary Domina <cdomina@peelbrimley.com> Cc: Kevin Barrett <kbarrett@barrettmatura.com>; Holly McGee <HMcGee@barrettmatura.com> Subject: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Hi guys. I just wanted to follow up on Kevin’s email correspondence from last Friday discussing the Motion to Dismiss the Fourth Amended Complaint. We have not heard back from you and just wanted to make sure you didn’t have any questions or comments or wanted to set up a time for further discussion. We need to set forth in the Motion that we have adequately met and conferred before filing the Motion, so just want to double check to make sure we’re okay on that. Further, with the holidays and the craziness of the New Year, it’s been a bit hectic. We would appreciate an additional week to finalize and file our Motion. If you are agreeable, we’ll shoot over a quick Stipulation and Order so that we can get that on file by tomorrow. Thanks, Jennifer From: Kevin Barrett <kbarrett@barrettmatura.com> Sent: Friday, January 5, 2024 11:42 AM To: Steve Meacham <smeacham@peelbrimley.com> Cc: Jennifer Bahling <jbahling@barrettmatura.com>; Cary Domina <cdomina@peelbrimley.com> Subject: Gallagher-Kaiser v. Liberty Duct - MTD Meet and Confer Hi Guys, I hate to bombard you with emails, but this is a separate enough issue that it should be dealt with separately. As you know, the Court ordered us to respond to the Fourth Amended Complaint on or before January 10. We are in the process of preparing another Motion to Dismiss. Much of it will be along the same lines as our prior Motion and the issues we already have discussed on prior occasions. I think there is still a statute of limitations issue here; but more importantly, our position remains that there is no duty to indemnify (nor can there be a breach of contract, bad faith or any other related claim) because there was never a suit or judgment against GK to tender to NGM for a defense or indemnity. There was simply an administrative order that obligated GK to make certain repairs to the project. Moreover, the ultimate “tender” letter you refer to in the Complaint, demanding that NGM indemnify GK based on the ODRA decision, was never tendered to NGM until long after the fact. Therefore, even if there were some sort of duty on the part of NGM, it is negated by GK’s own breach of notice, breach of cooperation and breach of the voluntary payments clause. Finally, based on the allegations of the Amended Complaint and the factual information you have now provided, it is clear there is no coverage for this claim in any event. There is no property damage arising out of the work of Liberty Duct but, rather, simply the replacement of its own faulty work. In addition, if there is any damage, it occurred after the NGM policy period expired. We will therefore be arguing: 1) the claims are time-barred; 2) there was never a legitimate tender or duty to defend or indemnify anything and, therefore, can be no breach; 3) any potential duty or coverage is negated by the late notice, lack of cooperation and voluntary payment; and 4) there is no coverage under the policy for the alleged damages arising out of Liberty’s work. If you would like to discuss any of these issues further, please let us know and we’ll be happy to set up a time to further meet and confer. Kevin Kevin C. Barrett, Esq. <image001.jpg> Barrett & Matura, P.C. 7575 W. Vegas Drive Suite 150c Las Vegas, Nevada 89128 Main: 702.833.1033 Direct: 602.792.5715 Fax: 602.792.5710 Email: kbarrett@barrettmatura.com This electronic message and any attachments contain information that is or may be legally privileged, confidential, proprietary in nature, or otherwise protected by law from disclosure. The message is intended only for the addressee. If you are not the intended recipient, please contact me so that the error can be corrected and delete from your computer the message and any attachments. Thank you. In accordance with 31 C.F.R. Section 10.35(b)(4), this message has not been prepared and may not be relied upon by any person for protection against any federal tax penalty.
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