Safeco Insurance Company Of America v. RIP VAN 899, LLC, No. 2:2023cv01417 - Document 43 (D. Nev. 2024)
Court Description: SCHEDULING ORDER Granting 42 Discovery Plan and Scheduling Order. Discovery due by 9/16/2024. Motions due by 10/16/2024. Proposed Joint Pretrial Order due by 11/15/2024. Dismissal papers for the Legacy Third-Party Defendants must be filed by 3/20/24. Signed by Magistrate Judge Nancy J. Koppe on 3/7/2024. (Copies have been distributed pursuant to the NEF - JQC)
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Safeco Insurance Company Of America v. RIP VAN 899, LLC 1 2 3 4 5 6 Doc. 43 CLYDE & CO US LLP Amy M. Samberg (Nevada Bar No. 10212) Lee H. Gorlin (NV Bar No. 13879) 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 Telephone No.: 725-248-2900 Facsimile No.: 725-248-2907 E-Mail: amy.samberg@clydeco.us lee.gorlin@clydeco.us Attorneys for Safeco Insurance Company of America 7 UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF NEVADA 9 10 SAFECO INSURANCE COMPANY OF AMERICA, a foreign corporation, CLYDE & CO US LLP 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 11 Plaintiff, 12 13 14 15 16 17 18 19 v. RIP VAN 899, LLC, a Nevada limited liability company; ESTATE OF CHRISTOPHER ERIN BROWN, decedent and Nevada citizen; CHERI A. BROWN, individually and as Special Administrator of the ESTATE OF CHRISTOPHER ERIN BROWN, a Nevada citizen; and CHRISTOPHER DAVID KIRK BROWN, a minor and heir of the ESTATE OF CHRISTOPHER ERIN BROWN, a Nevada Citizen, by and through his paternal grandmother and legal guardian, CHERI A. BROWN, a Nevada Citizen. 20 21 Case No. 2:23-cv-01417-ART-NJK [PROPOSED] DISCOVERY PLAN AND SCHEDULING ORDER SPECIAL SCHEDULING REVIEW REQUESTED Defendants. RIP VAN 899, LLC, a Nevada limited liability company, 22 Counterclaimant, 23 vs. 24 SAFECO INSURANCE COMPANY OF AMERICA, a foreign corporation 25 Counterdefendant. 26 27 28 137272570.1 Dockets.Justia.com 1 RIP VAN 899, LLC, a Nevada limited liability company, 2 Third-Party Plaintiff, 3 vs. 4 MIKE PAYNE, an individual; LEGACY INSURANCE GROUP, a Nevada Domestic Corporation 5 CLYDE & CO US LLP 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 6 Third-Party Defendants. 7 Plaintiff and Counterdefendant SAFECO INSURANCE COMPANY OF AMERICA 8 (“Safeco”), Defendant, Counterclaimant, and Third-Party Plaintiff RIP VAN 899, LLC (“Rip 9 Van”), Defendants the ESTATE OF CHRISTOPHER ERIN BROWN, CHERI A. BROWN, and 10 CHRISTOPHER DAVID KIRK BROWN (the “Brown Defendants”), and Third-Party Defendants 11 MIKE PAYNE and LEGACY INSURANCE GROUP (the “Legacy Third-Party Defendants”) 12 (collectively the “parties”), by and through their respective counsel of record pursuant to Federal 13 Rule of Civil Procedure 26(f) and Local Rule 26-1, hereby agree to the following Joint Discovery 14 Plan and Scheduling Order for the Court’s approval as follows: 15 I. INTRODUCTION 16 This is an action for a declaration as to whether an insurance policy issued by Safeco 17 provides coverage for claims made against Rip Van by the Brown Defendants in an underlying 18 Nevada State court action in the Eighth Judicial District entitled Estate of Christopher Erin Brown, 19 et al. v. Compassionate Heart Services, LLC, et al, Case No. A-22-855307-C . Safeco believes that 20 the claims alleged therein against Rip Van are not covered, whereas Rip Van and the Brown 21 Defendants believe that they are. 22 In responding to Safeco’s Complaint, Rip Van asserted a number of joint counterclaims and 23 third-party claims against Safeco and the Legacy Third-Party Defendants. Rip Van also asserted 24 an additional individual counterclaim against Safeco. These Counterclaims and Third-Party Claims 25 arise out of Rip Van’s belief that the Landlord Protection Insurance Policy Safeco and/or the Legacy 26 Defendants issued to Dooley Tu was supposed to have insured Rip Van, rather than or in addition 27 to Dooley Tu (Rip Van’s sole member). 28 /// -2- CLYDE & CO US LLP 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 1 II. POSITION OF THE LEGACY THIRD-PARTY DEFENDANTS. 2 On February 28, 2024, the Legacy Third-Party Defendants filed a Motion to Dismiss Rip 3 Van’s Third-Party Complaint. The Legacy Third-Party Defendants believe Rip Van’s third-party 4 claims against them are wholly premature and unripe, since the Nevada state court action is still 5 pending and no judgment of liability has been entered against RIP Van, and Safeco’s declaratory 6 relief claim in the present action has not yet been adjudicated by this Court. As a result, the Legacy 7 Third-Party Defendants do not believe they are appropriate parties in the present action at this time 8 for all purposes, including discovery.1 Hence, the Legacy Third-Party Defendants do not believe 9 they should have to incur the costs of discovery to adjudicate professional liability claims, which 10 will include written discovery, depositions, and costly expert witnesses, where such claims are 11 premature and unripe, and such claims may never ripen depending on the outcome of the Nevada 12 state court action and Safeco’s declaratory relief claim in this Court. 13 III. ADDITIONAL TIME REQUESTED BY THE PARTIES. 14 Additional time is being requested by the parties due to the amount of motion practice 15 already undertaken, as well as the fact that the final parties, the Legacy Third-Party Defendants, 16 only just appeared, filing a Motion to Dismiss the Third-Party Claims. Counsel for the Legacy 17 Third-Party Defendants and counsel for Rip Van communicated by phone on March 6, 2024 18 concerning the Legacy Third-Party Defendants’ position noted above and have reached an 19 agreement to have the Legacy Third-Party Defendants dismissed without prejudice from the present 20 action. They are now in the process of working out a written agreement among themselves and 21 plan to submit dismissal paperwork to the Court. As a result of their agreement, they believe it 22 makes sense to allow for the Court to allow for additional time for discovery to allow Rip Van to 23 first resolve issues with the Legacy Third-Party Defendants. 24 Rip Van and the Legacy Third-Party Defendants are targeting to complete their written 25 agreement and then to submit dismissal paperwork to this Court by March 20, 2024. As such, the 26 27 28 1 Nothing herein serves as a waiver of any party’s rights to seek discovery from the “Legacy ThirdParty Defendants” as a non-party pursuant to the Federal Rules of Civil Procedure. -3- 1 parties believe that it makes most sense to impose the standard amount of time for discovery, but 2 that the time begin on March 20, 2024, to account for the issues noted above. 3 IV. 4 A. 5 On Tuesday, March 5, 2024, the parties held the conference to discuss issues required by 6 Federal Rule of Civil Procedure 26(f) and Local Rule 26-1. Lee Gorlin, Esq. of the law firm Clyde 7 & Co US LLP appeared for Safeco. Ngoc Phan, Esq. of the law firm Lin Law Group, P.C. appeared 8 for Rip Van. James Trummell, Esq. of the law firm Valiente Mott, Ltd. appeared for the Brown 9 Defendants. Marc Cwik, Esq. of the law firm Lewis Brisbois Bisgaard & Smith LLP appeared for CLYDE & CO US LLP 10 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 PROPOSED DISCOVERY PLAN Fed. R. Civ. P. 26(f) Conferences the Legacy Defendants. 11 B. 12 At the FRCP 26(a)(1) conference, the parties agreed that good cause existed for the 13 calculation of deadlines to begin from the date briefing is set to close on the Legacy Defendants’ 14 Motion to Dismiss Third Party Claims, which is March 20, 2024. The parties believe the calculation 15 of deadlines from the date the first defendant answered or otherwise appeared, as prescribed by LR 16 26(e)(1), is unworkable due to the fact that the parties have only all appeared as of February 28, 17 2024. Accordingly, the parties request all deadlines be entered as further detailed below. Statement of Reasons Why Longer Time Periods Should Apply to This Case: 18 C. 19 The parties propose to the Court the following discovery plan: 20 Discovery Plan: 1. Initial Disclosures: The Parties will make their disclosures on or before 21 April 3, 2024, fourteen (14) days following the opening of discovery and the closing of the briefing 22 on the Legacy Defendants’ Motion to Dismiss. 23 2. Discovery Cut-Off Date: The discovery cut-off will be Monday, 24 September 16, 2024. This date is one hundred and eighty days from the day that discovery opens 25 and the closing of the briefing on the Legacy Defendants’ Motion to Dismiss. This longer time is 26 requested to ensure that the parties who intend to file briefs related to the Legacy Defendants’ 27 Motion can focus their efforts there before beginning discovery in full once the briefing is closed. 28 -4- 1 pleadings or to add parties shall be filed not later than Tuesday, June 18, 2024, which is ninety 3 (90) days prior to the discovery cut-off date. 4. Fed. R. Civ. P. 26(a)(2) Disclosures (Experts): The parties shall disclose 5 expert witness(es) ninety (90) days prior to the discovery cut-off date, Tuesday, June 18, 2024. 6 The parties further agree that disclosure of their respective rebuttal experts will be no later than 7 Thursday, July 18, 2024, which is thirty (30) days after the initial disclosure of their experts. 8 9 10 CLYDE & CO US LLP Amending the Pleadings and Adding Parties: All motions to amend the 2 4 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 3. 5. Dispositive Motions: Dispositive motions shall be filed not later than thirty (30) days after the discovery cut-off date, or Wednesday, October 16, 2024. 6. Pre-Trial Order: The joint pretrial order shall be filed not later than thirty 11 (30) days after the dispositive motion deadline, which is Friday, November 15, 2024 . In the event 12 dispositive motions are filed, the date for filing the joint pretrial order shall be suspended until thirty 13 (30) days after decision of the dispositive motion or further order of the Court. 14 7. Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures: These disclosures and any 15 objections to them shall be made in the joint pretrial order. Unless the court orders otherwise, these 16 disclosures must be made at least thirty (30) days before trial. 17 8. Alternative Dispute Resolution: The parties certify that they met and 18 conferred about the possibility of using alternative dispute resolution processes and agree that 19 mediation or other early dispute resolution is not appropriate in this case at this time. However, the 20 parties remain open to further consider mediation or other early dispute resolution after some 21 further discovery into the allegations and defenses in this matter. 22 9. Alternative Form of Case Disposition: The parties certify that they 23 considered consent to trial by a magistrate judge under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73 24 and use of the Short Trial Program (General Order 2013-01). The parties are unable to consent to 25 either at this time and will proceed with the standard trial program as governed by the Federal Rules 26 of Civil Procedure and the Local Rules of the Court. 27 28 10. Electronic Evidence: The parties anticipate that electronic evidence may be used in this case and presented to a jury should the case proceed to trial. The parties have not -5- 1 identified any issues regarding the disclosure, discovery, or use of electronically stored information 2 (“ESI”) at a jury trial. The parties have agreed that electronic discovery should be produced in 3 electronic format searchable by all parties. As this matter progresses towards trial, the parties will 4 consult with appropriate court staff to ensure the seamless ability to present electronic evidence. 5 D. 6 1. CLYDE & CO US LLP Changes or Limitations: The parties will proceed to engage in discovery 7 as permitted under the Federal Rules of Civil Procedure and the Local Court Rules, including 8 deposition, interrogatories, requests for production of documents, and requests for admission, with 9 no anticipated changes or limitations identified at this time. 10 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 Stipulations Regarding Limitations or Conditions or Additional Discovery: 2. Other Order Under 26(c) or 16(b) or (c): None at this time, but the parties 11 reserve the right to submit a stipulated protective order in the event that confidential information 12 becomes subject to a discovery request. 13 E. 14 Local Rule 26-3 governs modifications or extension of this Discovery Plan and Scheduling 15 Order. Any stipulation or motion to extend a deadline set forth herein must be made not later than 16 twenty-one (21) days before the expiration of the subject deadline, otherwise any such request made 17 within twenty-one (21) days of the expiration of the subject deadline will be supported by good 18 cause. Extensions or Modifications of the Discovery Plan and Scheduling Order: 19 F. 20 In the event any party (the “Discloser”) produces material or documents without intending 21 to waive a claim of privilege or confidentiality, the Discloser does not waive any claim of privilege 22 or confidentiality if, within a reasonable amount of time after the Discloser actually discovers that 23 such material or documents were produced, the Discloser notifies all other parties (the 24 “Recipients”) of the inadvertent disclosure of privileged or confidential items, identifying the 25 material or documents produced and stating the privilege or confidentiality provision asserted. 26 Mere failure to diligently screen documents before producing them does not waive a claim of 27 privilege or confidentiality. Claw Back Agreement: 28 -6- CLYDE & CO US LLP 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 1 If the Discloser asserts that it inadvertently produced a privileged or confidential item in 2 accordance with this Claw Back Agreement, the Recipient(s) must return the specified material or 3 documents and any copies within ten days of the notification. Alternatively, the Recipient(s) must 4 attest that they have permanently destroyed any electronic copies of such specified material or 5 documents and affirm in writing to counsel for the Discloser of such destruction. 6 In the event that the Recipient(s) contends the documents are not subject to privilege or 7 confidentiality as asserted by the Discloser in accordance with the Claw Back Agreement, the 8 Recipient(s) may, following the return and/or destruction described in Paragraph 2 of this Claw 9 Back Agreement, challenge the privilege claim through a Motion to Compel or other pleading with 10 the Court in which the litigation is currently pending. The parties agree that any review of items by 11 the judge shall be an in camera review. 12 Should the Recipient(s) not challenge the Discloser’s claim of privilege or confidentiality 13 or should the presiding judge determine that the documents are in fact subject to privilege or 14 confidentiality, the documents, or information contained therein or derived therefrom, may not be 15 used in the Litigation or against Discloser in any future litigation or arbitration brought by the 16 Recipient(s). Nothing contained within this Claw Back Agreement shall be deemed to waive any 17 objection that any Party may wish to assert under applicable state or federal law. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Dismissal papers for the Legacy Third-Party Defendants must be filed by March 20, 2024. The case management deadlines proposed are adopted as the scheduling order. IT IS SO ORDERED. Dated: March 7, 2024 . . __________________________ Nancy J. Koppe United States Magistrate Judge -7- 1 Dated: March 6, 2024 2 CLYDE & CO US LLP LIN LAW GROUP 3 By: /s/ Lee H. Gorlin Amy M. Samberg (Nevada Bar No. 10212) Lee H. Gorlin (Nevada Bar No. 13879) 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 By: /s/ Michael M. Lin Michael M. Lin (Nevada Bar No. 10392) 5288 Spring Mountain Road, Suite 103 Las Vegas, Nevada 89146 Attorneys for Safeco Insurance Company of America Attorneys for Rip Van 899, LLC VALIENTE MOTT, LTD LEWIS BRISBOIS BISGAARD & SMITH LLP By: /s/ James A. Trummell James A. Trummell (Nevada Bar No. 14127) 700 South Seventh Street Las Vegas, Nevada 89101 By: /s/ Marc S. Cwik Marc S. Cwik (Nevada Bar No. 6946) 6385 South Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 Attorneys for the Estate of Christopher Erin Brown, Cheri A. Brown, and Christopher David Kirk Brown Attorneys for Mike Payne and Legacy Insurance Group 4 5 6 7 8 9 10 CLYDE & CO US LLP 7251 West Lake Mead Boulevard, Suite 430 Las Vegas, Nevada 89128 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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