-RJJ Alliance of Nonprofits for Insurance, Risk Retention Group v. Brett J. Barratt, Commissioner of Insurance of the State of Nevada et al, No. 2:2010cv01749 - Document 47 (D. Nev. 2011)
Court Description: ORDER Granting 44 Motion for District Judge to Reconsider Order. IT IS FURTHER ODERED that 41 MOTION for Leave to File A Supplement To Its Reply To Defendant's Response To Plaintiff's Motion For Summary Judgment filed by Alliance of Nonprofits for Insurance, Risk Retention Group is GRANTED. Signed by Judge James C. Mahan on 4/18/11. (Copies have been distributed pursuant to the NEF - EDS)
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-RJJ Alliance of Nonprofits for Insurance, Risk Retention Group ...nce of the State of Nevada et al Doc. 47 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 8 ALLIANCE OF NONPROFITS FOR INSURANCE, RISK RETENTION GROUP, 9 2:10-CV-1749 JCM (RJJ) Plaintiff, 7 10 v. 11 12 13 BRETT J. BARRATT, et al., Defendants. 14 15 ORDER 16 Presently before the court is defendants Brett J. Barratt, Commissioner of Insurance of the 17 State of Nevada (hereinafter “commissioner”), the Department of Business and Industry Division 18 of Insurance, and the State of Nevada’s motion for reconsideration. (Doc. #44). Plaintiff Alliance 19 of Nonprofits for Insurance, Risk Retention Group (hereinafter “Alliance”) filed a non-opposition 20 to the motion. (Doc. #45). 21 On March 21, 2011, plaintiff filed a motion for leave to file a supplement to its reply in 22 support of its summary judgment motion. (Doc. #41). Since the motion was labeled “motion for 23 leave,” the motion was ripe on March 21, 2011, as evidenced by the docket (doc. #41). In an effort 24 to manage its docket and to promote judicial efficiency, the court addressed the motion (doc. #41) 25 on the day it became ripe. However, after the court ruled on the motion, but prior to the order being 26 docketed by the clerk, defendants filed an opposition to the motion (doc. #42). 27 Subsequently, the court’s order granting the plaintiff’s motion was filed by the clerk. (Doc. 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 #43). Since the order made no mention of the defendants’ opposition (doc. #42), yet was docketed 2 after the opposition was filed, defendants filed the present motion for reconsideration (doc. #44). 3 Motion For Reconsideration 4 “Reconsideration is appropriate if the district court (1) is presented with newly discovered 5 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an 6 intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th 7 Cir. 1993); see Fed. R. Civ. P. 59(e); see also Fed. R. Civ. P. 60(b). 8 In the defendants’ motion for reconsideration (doc. #44), they assert that the court should 9 reconsider granting the plaintiff’s request to file a supplement, because it did not consider the 10 defendants’ opposition (doc. #42) before ruling on the motion. Plaintiff filed a non-opposition (doc. 11 #45), and stated that it did not oppose the reconsideration if it were able to file a reply in support of 12 its motion to file a supplement. 13 The court has not been presented with any newly discovered evidence or controlling law, and 14 did not commit clear error, as it ruled on the motion upon it becoming ripe. Id. However, as it is 15 always the court’s goal to be fully informed on any issue, the court will allow the filing of the reply 16 and will consider all of the submitted pleadings in making its ruling. 17 Motion To File Supplement 18 As previously stated in the original order (doc. #43), the plaintiff’s complaint (doc. #1) stems 19 from a cease and desist order issued by the commissioner, that ordered plaintiff to stop writing first 20 dollar automobile liability insurance in Nevada. The cease and desist order stated that Alliance “is 21 not an authorized insurer as defined by NRS 679A.030 since it does not hold a certificate of authority 22 as a foreign domiciled [risk retention group]” and “...cannot participate in the [Nevada Insurance 23 Guaranty Association].” 24 Plaintiff argues that the commissioner’s interpretation and application of Nevada law as set 25 forth in the cease and desist order violates the Liability Retention Act of 1986, 15 U.S.C. § § 3901- 26 3906, “in that it impermissibly discriminates against foreign [r]isk [r]etention [g]roups.” Plaintiff 27 asserts that the commissioner violated the law in concluding that in order to first write dollar liability 28 James C. Mahan U.S. District Judge -2- 1 insurance, the insurer must have a certificate of authority and be a member of the Nevada Insurance 2 Guaranty Association, when in fact risk retention groups are excluded from joining and/or 3 contributing to state insurance guaranty associations like the Nevada Insurance Guaranty 4 Association. 5 Plaintiff argues that despite the plain language of the cease and desist order, defendants assert 6 in their motion for summary judgment that risk retention groups “do not need to be members of 7 [Nevada Insurance Guaranty Association] in order to obtain a certificate of authority and thereby 8 write first dollar motor vehicle liability coverage.” 9 In the present motion for leave to file a supplement (doc. #41), plaintiff asks this court to 10 grant it leave to file an article (doc. #41- Exhibit A) written by the commissioner, where he states 11 the reasons why foreign risk retention groups cannot write first dollar automobile insurance in 12 Nevada. Plaintiff asserts that this article relates to this case because it “unambiguously 13 demonstrate[s] the ...clear position that foreign [risk retention groups] cannot write first dollar 14 automobile liability insurance in Nevada because they cannot join [Nevada Insurance Guaranty 15 Association].” Further, plaintiff asserts that it had no opportunity to include the article as an exhibit 16 to its reply, because it was not published until seven days after the reply deadline passed. 17 Under Federal Rule of Civil Procedure 15(d), a party may supplement a prior pleading with 18 “any transaction, occurrence, or event that happened after the date of the pleading.” (Emphasis 19 added). Here, plaintiff filed its reply brief on March 11, 2011. (Doc. #40). Subsequently, on March 20 18, 2011, after the filing of the pleading, plaintiff became aware of the commissioner’s article 21 published in the Insurance Journal (doc. #41- Exhibit A). 22 In defendants’ opposition (doc. #42), they assert that the article is “irrelevant as to any of the 23 issues before the [c]ourt,” and is therefore inadmissible. Alternatively, defendants assert that in the 24 event the court is inclined to allow plaintiff to file the article, it submitted Exhibit A, the affidavit 25 of the commissioner, to “unequivocally rebut any inferences asserted by the [p]laintiff,” and to 26 “clarify any ambiguities.” (Doc. #42). 27 In the affidavit (doc. #42 Exhibit A), the commissioner asserts that his “[o]rders and various 28 James C. Mahan U.S. District Judge -3- 1 statements...have been misinterpreted.” Further, he reasserts defendants’ position in the case and 2 states that “nothing in [his] [o]rders should be interpreted as prohibiting a Risk Retention Group 3 from qualifying as an ‘authorized user’...if it has obtained a certificate of authority in Nevada as set 4 forth in NRS 695 E and NRS Chapter 694C.” Id. More specifically, he asserts that “nothing in [his] 5 orders should be interpreted as precluding [Alliance] from writing first dollar motor vehicle liability 6 coverage due to the fact that it is not a ‘member insurer’ of the Nevada Insurance Guaranty 7 Association.” Id. 8 Further, defendants assert in their opposition (doc. #42) that since the article purports to 9 quote statements made by the commissioner, it is hearsay and inadmissible. See Larex v. City of Los 10 Angeles, 946 F.2d 630 (9th Cir. 1991); See also American Civil Liberties Union of Nevada v. City 11 of Las Vegas, 13 F. Supp. 2d 1064, 1070 (1998). Defendants proceed to assert that the article is 12 irrelevant, and then argue that plaintiff should have pursued a judicial review of the cease and desist 13 order, and that Nat’l Warranty Ins. Co. RRG v. Greenfield, 214 F.3d 1073, 1077 (9th Cir. 2000) is 14 distinguishable. (Doc. #42). However, the court does not find these arguments relevant to the issue 15 of whether the article may be submitted to the court to support plaintiff’s position. 16 In the plaintiff’s reply in support of its motion (doc. #46), it rebuts the defendants’ legal 17 arguments about the Nat’l Warranty case, and provides support for its position that the interpretation 18 and application of the laws by the commissioner was discriminatory. Further, plaintiff asserts that 19 the defendants are attempting to file a sur-reply when they addressed Nat’l Warranty in their 20 opposition (doc. #42), as that was beyond the scope of the motion (doc. #41). This court agrees with 21 the plaintiff that these arguments serve no other purpose than “to provide [d]efendants with an 22 additional opportunity to argue their opposition” and do not address the motion to file the article 23 (doc. #41). 24 Additionally, plaintiff asserts that the commissioner’s affidavit should be stricken, as 25 defendants did not seek leave to file the supplement, and its contents address the cease and desist 26 order that occurred prior to the date of the initial pleading. Id. The court acknowledges that 27 defendants did not seek leave, but recognizes that the affidavit does address the alleged 28 James C. Mahan U.S. District Judge -4- 1 “misinterpretations” of his statements, i.e. the statements in the article. As the article is the topic of 2 the motion to file the supplement (doc. #41), the affidavit is permitted to support the defendants’ 3 opposition. 4 Upon the court’s review of the article (doc. #41 Exhibit A), it appears that it is an article 5 written regarding the present case, and quotes the commissioner as saying “[f]oreign [Risk Retention 6 Groups] don’t have certificate of authority; they have a certificate of registration,” and that his 7 department “didn’t provide a list of those that have a certificate of registration — only certificates 8 of authority.” Further, the article states that the department “then asked [Risk Retention Groups] like 9 [Alliance] writing first dollar coverage to cease.” 10 The court does not find that these statements are irrelevant to the issue at hand, as they are 11 directly related to the issues in the motions for summary judgment (doc. #21 and #22). As the 12 defendants have submitted the affidavit of the commissioner (doc. #42 Exhibit A) to support their 13 position that the statements are misinterpreted, the admission of the article is not unfairly prejudicial 14 to the defendants. Further, as the article is not being offered to prove the truth of the matters asserted, 15 it is not hearsay. Federal Rule of Evidence 801. Any issue regarding the article goes more to its 16 weight than its admissibility. 17 In light of the fact that the article was not published until after the reply was submitted, and 18 upon determination of the relevance and non-prejudicial nature of the article, this court is inclined 19 to grant the plaintiff leave to file the article as an exhibit to its reply. 20 Accordingly, 21 IT IS HEREBY ORDERED ADJUDGED AND DECREED that defendants’ motion for 22 reconsideration (doc. #44) be, and the same hereby is, GRANTED. 23 ... 24 ... 25 ... 26 ... 27 ... 28 James C. Mahan U.S. District Judge -5- 1 IT IS FURTHER ORDERED that plaintiff Alliance of Nonprofits for Insurance, Risk 2 Retention Group’s motion for leave to file a supplement to its reply (doc. #41), be and the same 3 hereby is, GRANTED. 4 DATED April 18, 2011. 5 6 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-
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