Miller v. Johnson et al, No. 2:2022cv01150 - Document 21 (D. Nev. 2023)
Court Description: ORDER Granting 19 Stipulation to Extend Deadline to Answer 6 Amended Complaint. Longs Drug Stores California, LLC answer due 4/19/2023. Signed by Magistrate Judge Cam Ferenbach on 4/7/2023. (Copies have been distributed pursuant to the NEF - KF)
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Miller v. Johnson et al 1 2 3 4 5 6 7 8 Doc. 21 ETHAN D. THOMAS Bar No. 12874 ANDREW S. CLARK Bar No. 14854 LITTLER MENDELSON, P.C. 3960 Howard Hughes Parkway Suite 300 Las Vegas, Nevada 89169.5937 Telephone: 702.862.8800 Fax No.: 702.862.8811 Email: edthomas@littler.com Email: asclark@littler.com Attorneys for Defendant CAREMARK, L.L.C. 9 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MICHELE DANISE MILLER, Plaintiff, v. LONG DRUGS DBA CVS HEALTH, et al., Defendant Case No. 2:22-cv-01150-JAD-VCF STIPULATION AND [PROPOSED] ORDER TO EXTEND TIME FOR DEFENDANT TO FILE RESPONSE TO PLAINTIFF’S AMENDED COMPLAINT [FIRST REQUEST] Plaintiff, Michelle Danise Miller ("Ms. Miller"), and Defendant, Caremark, L.L.C. (incorrectly named in the Amended Complaint as Long Drugs DBA CVS Health) (hereinafter referred to as “Defendant”), by and through their respective counsel of record, hereby agree and stipulate to extend the time for Defendant to file a response to the Amended Complaint up to and including April 19, 2023. On or about February 18, 2023, Ms. Miller mailed to Defendant a package that included a copy of her Amended Complaint, a Notice of Lawsuit and Request to Waive Service of a Summons, and a Waiver of the Service of Summons form. On March 13, 2023, and before Defendant became aware that the Court appointed pro bono counsel for Ms. Miller, Defendant’s counsel signed and retuned to Ms. Miller a Waiver of the Service of Summons. The waiver and accompanying email to Ms. Miller is attached as Exhibit 1. Having signed and returned the Waiver, Defendant expected 28 LITTLER MENDELSON, P.C. 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169.5937 702.862.8800 Dockets.Justia.com 1 a sixty-day window to respond to the Amended Complaint, which would expire on April 19, 2023. 2 It was recently discovered that on March 10, 2023, Plaintiff filed a returned certificate of 3 service which indicated that the operative Amended Complaint had purportedly been personally 4 served on an agent for service of process for Defendant. [ECF No. 16]. For various reasons, 5 Defendant disputes that service was proper and effective as indicated in the Proof of Service filed 6 on March 10, 2023. To clarify the record and resolve any confusion related to these issues, the 7 parties now stipulate and agree that Defendant’s deadline to respond to the Amended Complaint 8 [ECF No. 6] shall be April 19, 2023. 9 The instant stipulation merely reflects the responsive-pleading deadline in the Waiver of 10 Service returned to Plaintiff by Defendant’s counsel. Had service been correct and effective as 11 indicated in the Return of Service filed by Plaintiff on March 10, 2023, the deadline would have 12 been March 29, 2022. While Defendant disputes that the deadline to respond to the Complaint has 13 expired, even if it had, the parties agree and stipulate that excusable neglect can be established by 14 the above referenced information and that good cause exists to extend the deadline in question. See 15 LR IA 6-1(a). Further, the requested stipulation clarifies the record and the extension will allow 16 Defendant’s counsel to sufficiently investigate Ms. Miller’s claims and prepare a sufficient 17 response to the Amended Complaint. To this end, Defendant will not be disputing the efficacy of 18 service of process. 19 /// 20 21 /// 22 23 /// 24 25 /// 26 27 /// 28 LITTLER MENDELSON, P.C. Attorneys at Law 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169.5937 2 1 2 3 This is the first request for an extension of time to respond to the Amended Complaint and is made in good faith and not for purposes of delay. Dated: April 4, 2023 Dated: April 4, 2023 5 Respectfully submitted, Respectfully submitted, 6 /s/ Tye S. Hanseen Tye S. Hanseen, Esq. Nicholas Crosby, Esq. Reagan Weber, Esq. William Reese Levins, Esq. MARQUIS AURBACH 4 7 8 9 10 11 /s/ Andrew S. Clark Ethan D. Thomas, Esq. Andrew S. Clark, Esq. LITTLER MENDELSON, P.C. Attorneys for Defendant, CAREMARK, L.L.C. Attorneys for Plaintiff, MICHELE DANISE MILLER 12 13 IT IS SO ORDERED. 14 4-7-2023 Dated: _____________________ 15 16 ____________________________________ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. Attorneys at Law 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169.5937 3 1 2 3 INDEX OF EXHIBITS Exhibit 1 March 13, 2023 e-mail attaching Waiver of Service 4 5 6 7 8 9 4876-7201-2634.1 / 090142-1424 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON, P.C. Attorneys at Law 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169.5937 4 EXHIBIT 1 MARCH 13, 2023 EMAIL ATTACHING WAIVER OF SERVICE EXHIBIT 1 MARCH 13, 2023 EMAIL ATTACHING WAIVER OF SERVICE REDACTED From: Sent: To: Subject: Attachments: Reed, Todd M. Monday, March 13, 2023 8:30 AM mmiller143@hotmail.com Miller v. Longs Drugs Scanned from a Xerox Multifunction Printer.pdf Good morning, Ms. Miller. My firm and I are counsel to CVS Health and will be representing the defendant in the lawsuit referenced above that you filed in federal court in Nevada. I am in receipt of the Amended Complaint and the Notice of Lawsuit and Request for Waiver of Service of a Summons that you sent to my client on February 18, 2023. Attached please find the Waiver of the Service of Summons that I have signed on behalf of my client. I understand that my client’s response to your Amended Complaint must be filed within 60 days of February 18, 2023, which is April 19, 2023 (not April 18, 2023, as you had typed onto the waiver form). You will see that I have corrected the date on the waiver form. Thank you. Todd Reed Attorney at Law 401.824.2504 direct, 401.223.6408 fax TReed@littler.com Labor & Employment Law Solutions | Local Everywhere One Financial Plaza, Suite 2205, Providence, RI 02903 1 AP 3^) fD1709) Waiver of (he Servkc uf Sumriloes jcb United States District Court for the District of Nevada Michele. D_Mfller Wa|n< V. Long Drugs of California L|-C. DBA CVS Health et.al, Defendant ) ) ) ) ) Civil Action No. 2:22-CV-01 1 50-JAD-VCF WAIVER OF THE SERVICE OF SUMMONS To: Michele p Miller j__ (Name ofthe plaintiffs attorney or unrepresentedplaintiff) 1 1 have received your request to waive service ofa summons in tiiis action along with a copy of the complain^ two copies of this waiver f^rtn, anda prepaid means of returning one signed copy of the form to you. i I, or die entity I represent, agree tp save the expense of servmga summons and complaint in this case. I understand that or the entity I represent, will keep all defenses or objections to die lawsuit, the court’s jurisdiction, andthe venue of the action, but thatl waive any objection^ to the absence of a summons or of service. I also understand t/iat I, of the., emity entity II represent, represent, must must file file and and serve an answer or a motion under Rule 12 within flip date when this request was sent (or 90 days if it was sent outside the 60 days from United States), If I fail tocloso, a default judgniienf will be entered against, me or the..entity I represent Date: Oaa, | —* ^—.4 ? . .R . * — Signature ofthe attorney or unrepresentedparty TWiiita/ name ofparty Arniitr^ ofpat ivmving.ren'tce ofsmiunons s Oasl Printed name A Sv- Vt " V" Address i (2__ C^\ E-mail address t 4b £^4Telephone itwiber i i Duty to Avoid "Unnecessary Expenses of Serving a Summons Rule +ofth? Federal Rilles ofCivil Procedure requirescertain defendants to cooperatcin savinginineccssary expenses ofserving^ summons and complaint. A defendant who is located in the United Stales and who fails tp return a signed waiver ofservice requested by a plaintiff located in the United States Will be required to pay the expenses of service, unless the. defendant shows good cause for the failure. “Goodcause” docs not include a belief that the lawsuit- is groundless, orthat it has been brought in an improper venue, or (hat Wo court has no-jurisdiction aver this mutter of over the defendant -or the defendant's property. If the Waiver is signed and returned, you can still make these and allotlicr defenses and abjections, but you cannot object to thcabscnccof a summons dr of service. > Ifyouwaiveservice, thjsn you must, within the time specified on the waiver form, serve, an answer nr a motion under Rule J 2 on the plaintiff and file a copy with the court. By signing and returning die waiver form, you arc allowed more time to respond than if a summons had been served,
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