Banks v. Lombardo et al, No. 2:2020cv00556 - Document 81 (D. Nev. 2022)
Court Description: ORDER Granting 80 Stipulation to Extend Discovery Deadlines. Discovery due by 9/23/2022. Motions due by 10/24/2022. Proposed Joint Pretrial Order due by 11/23/2022. Signed by Magistrate Judge Nancy J. Koppe on 7/19/2022. (Copies have been distributed pursuant to the NEF - TRW)
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Banks v. Lombardo et al Doc. 81 C 1 2 3 4 5 6 7 8 LYSSA S. ANDERSON Nevada Bar No. 5781 KRISTOPHER J. KALKOWSKI Nevada Bar No. 14892 KAEMPFER CROWELL 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135 Telephone: (702) 792-7000 Fax: (702) 796-7181 landerson@kcnvlaw.com kkalkowski@kcnvlaw.com Attorneys for Defendants Daniel Holm, Russell Thompson, Ryan Heiss, Michael Riesepow, David Bryan and Parker Miller 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 JAMES VINCENT BANKS, 13 Case No. 2:20-cv-00556-MMD-NJK Plaintiff, 14 vs. 15 JOSEPH LOMBARDO, et al. STIPULATION TO EXTEND DISCOVERY DEADLINES (Fifth Request) [ECF No. 72] Defendants. 16 17 18 IT IS HEREBY STIPULATED AND AGREED between Defendants Daniel Holm, 19 Russell Thompson, Ryan Heiss, Michael Riesepow, David Bryan and Parker Miller (collectively 20 “LVMPD Defendants”1), by and through their counsel, Kaempfer Crowell, and Plaintiff James 21 V. Banks, appearing pro se, that discovery be continued for a period of sixty (60) days up to and 22 including a discovery cutoff date of September 23, 2022. 23 1 24 KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 Prior to June 29, 2022 the LVMPD Defendants referred to Holm, Thompson, Heiss and Riesepow. Beginning June 29, 2022, the LVMPD Defendants also include David Bryan and Miller. 3171538_1.docx 6943 250 Page 1 of 8 Dockets.Justia.com C 1 The requested extension is necessary because of a few remaining unresolved discovery 2 and dispositive issues in this case, and the anticipated service on and appearance of Defendant 3 Dr. Williamson. 4 Michael Riesepow served Requests for Production of Documents. The LVMPD Defendants 5 filed a Motion to Compel (ECF No. 62), which was partly granted by this Court in Order ECF 6 No. 73, and allowed Plaintiff until July 7, 2022 to serve his Responses. 7 Defendants’ Motion for Judgment on the Pleadings, (ECF No. 42), is pending before the Court, 8 and Plaintiff has not filed a response (though he has received multiple extensions of time to do 9 so)2. A ruling on that Motion would narrow at-issue claims in this case. The delays in this case 10 have prevented LVMPD Defendants from requesting and reviewing all medical records relevant 11 to Plaintiff’s claims as well as prevented LVMPD Defendants from fairly deposing Plaintiff 12 earlier on and obtaining an expert’s comprehensive report. Furthermore, Plaintiff’s deposition 13 took place July 1, 2022. Plaintiff will be allowed 30 days to read the deposition transcript and 14 submit the corrections/errata sheet to correct any errors in the transcript. For these reasons, the 15 parties respectfully request an extension of current discovery deadlines by 60 days. 16 I. LVMPD Defendants Daniel Holm, Russell Thompson, Ryan Heiss, and Next, LVMPD BACKGROUND Procedural History 17 18 The Court issued a Scheduling Order on July 12, 2021, giving the parties ninety days to 19 conduct discovery, (ECF No. 17). On October 5, 2021, the Court granted LVMPD Defendants’ 20 Motion to Extend Discovery (First Request) through an Order, (ECF No. 36). On November 22, 21 2021, LVMPD Defendants and Plaintiff filed a Stipulation to Extend Expert Disclosure 22 Deadlines (First Request), (ECF No. 37). The Court granted this Stipulation to Extend Expert 23 2 24 KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 Plaintiff’s last request for an extension was filed April 27, 2022, which requested until May 3, 2022 to file his Opposition, however Plaintiff did not file an Opposition and has made no further extension requests. 3171538_1.docx 6943 250 Page 2 of 8 C 1 Disclosure Deadlines on November 23, 2021, (ECF No. 38). A second Stipulation to Extend 2 Discovery was filed on December 6, 2021, (ECF No. 39), and, on December 7, 2021, the Court 3 granted the stipulation, (ECF No. 40). On February 22, 2022, LVMPD Defendants filed a 4 Motion to Extend Discovery (Third Request), (ECF No. 47), which the Court granted on 5 February 24, 2022. (Order, ECF No. 48).3 6 On May 19, 2022, the Plaintiff and LVMPD Defendants filed a Stipulation to Extend 7 Discovery (Fourth Request), (ECF No. 71), which the Court granted on May 20, 2022. (Order, 8 ECF No. 72), creating the following deadlines that now govern: Amend Pleadings/Add Parties: Closed 10 Initial Experts: Closed 11 Rebuttal Experts: Closed 12 Discovery Cutoff: July 25, 2022 13 Discovery Motions: August 8, 2022 14 Dispositive Motions Deadline: August 24, 2022 15 Joint Pretrial Order Deadline: September 23, 2022 9 Discovery Completed to Date 16 17 LVMPD Defendants Daniel Holm, Russell Thompson, Ryan Heiss, Michael Riesepow 18 have voluntarily made three Rule 26 Disclosures (consisting of 1,565 pages of records). 19 LVMPD Defendants mailed their First Set of Interrogatories, Requests for Production of 20 Documents, and Requests for Admissions to Plaintiff on September 9, 2021. Plaintiff provided 21 responses to the Requests for Admissions and Interrogatories, on or about December 17, 2021. 22 LVMPD Defendants disclosed their expert, Dr. Mark E. McKenzie. Dr. McKenzie provided a 23 3 24 KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 The parties acknowledge that this Order stated “While the Court fines good cause to allow an extension, it provides that extension with the admonition that it is not inclined to grant any further extensions.” (ECF 48 at 1:14-18). 3171538_1.docx 6943 250 Page 3 of 8 C 1 preliminary report, though the report recognized significant limitations due to outstanding 2 discovery requests and a need for more comprehensive medical records than that already 3 exchanged between the parties. LVMPD Defendants have sent more than a dozen subpoenas out 4 for service to obtain Plaintiff’s medical records from various jails and prisons. The LVMPD 5 Defendants served a second set of Interrogatories and Requests for Admissions on Plaintiff on 6 June 23, 2022.4 Plaintiff’s deposition occurred July 1, 2022. Discovery that Remains to be Completed 7 8 Plaintiff still needs to respond to LVMPD Defendants’ Requests for Production of 9 Documents—including completing an Authorization to Disclose Information regarding medical 10 records. The LVMPD Defendants filed a Motion to Compel (ECF No. 62), which was partly 11 granted by this Court in Order ECF No. 73, and gives Plaintiff until July 7, 2022 to serve his 12 Responses.5 13 Because Plaintiff has not provided Authorizations regarding release of his medical 14 records, LVMPD Defendants served subpoenas on multiple entities and anticipate serving 15 several more. LVMPD Defendants will then need to disclose the records received pursuant to 16 these subpoenas. The newly appearing LVMPD Defendants, Miller and Bryan, will be joining 17 the remaining LVMPD Defendants in filing another Rule 26 Disclosure. 18 During the subpoenaing process, LVMPD Defendants were advised by the U.S. 19 Attorney’s Office that it cannot release Plaintiff’s medical records from the federal prisons 20 unless they receive either Plaintiff’s Authorization or a Court Order to do so. 21 Defendants are awaiting Plaintiff’s Responses to their Requests for Production of Documents, as 22 23 LVMPD 4 LVMPD Defendants agreed to Plaintiff’s request that the due date for his responses to the pending Second Set of Interrogatories and Requests for Admissions be extended from July 28, 2022, to August 12, 2022. 5 24 KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 LVMPD Defendants agreed to Plaintiff’s request that the due date for his responses to the Request for Production of Documents be extended from July 7, 2022, to July 15, 2022. 3171538_1.docx 6943 250 Page 4 of 8 C 1 Ordered by this Court, to determine if he will be providing a signed Authorization to Disclose 2 Information regarding medical records, or if the LVMPD Defendants will need to file another 3 Motion to Compel, or in the alternative an Order from the Court to disclose plaintiff’s medical 4 records from the federal prisons. 5 II. 6 7 8 9 10 11 GROUNDS FOR AN EXTENSION Local Rule 26-3 governs this Stipulation requesting an extension of expert disclosure deadlines. This Local Rule imposes a good cause standard to earn the extension: A motion or stipulation to extend a deadline set forth in a discovery plan must be received by the court no later than 21 days before the expiration of the subject deadline. A request made within 21 days of the subject deadline must be supported by a showing of good cause. A request made after the expiration of the subject deadline will not be granted unless the movant also demonstrates that the failure to act was the result of excusable neglect. 12 Here, good cause supports extending the discovery cutoff deadline, dispositive motions deadline, 13 and pretrial order deadline. Reasons for the Extension 14 15 Discovery in this case has progressed much slower than anticipated because of Plaintiff’s 16 detention conditions, still outstanding responses owed by Plaintiff to LVMPD Defendants’ 17 written discovery requests, and Plaintiff’s deferrals on completing an Authorization to Disclose 18 Information about medical records. 19 Because of the slow pace of discovery, LVMPD Defendants will not have enough time 20 under the current deadlines to obtain relevant documents from Plaintiff’s medical providers at his 21 prior federal detention facilities, have LVMPD Defendants’ retained expert review such records 22 and provide a supplemental report, and disclose such records to Plaintiff. 23 In addition, Plaintiff recently received permission from the Court to extend the time he 24 has to serve Defendant Dr. Williamson, until August 1, 2022, which is after the current discovery KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 3171538_1.docx 6943 250 Page 5 of 8 C 1 cut off deadline. Finally, Plaintiff’s deposition took place July 1, 2022. Plaintiff will be allowed 2 30 days to read the deposition transcript and submit the corrections/errata sheet to correct any 3 errors in the transcript. For these reasons, the parties respectfully request an extension of current 4 discovery deadlines by 60 days. 5 Good Faith Efforts Supporting the Requested Extension 6 During discovery, LVMPD Defendants have been diligent. LVMPD Defendants have 7 produced over a thousand pages of records in their initial Rule 26 Disclosures, timely completed 8 written discovery requests to Plaintiff in the form of Interrogatories, Requests for Production of 9 Documents, and Requests for Admissions, then granted Plaintiff multiple extensions to of time to 10 provide answers. 11 Aside from exchanging relevant documents, LVMPD Defendants actively pursued 12 outside help through a medical expert. Dr. Mark E. McKenzie, M.D. agreed to assist with the 13 case and provided an initial report that LVMPD Defendants disclosed by the deadline of January 14 20, 2022. Dr. McKenzie’s report notes, however, a need for more comprehensive medical 15 records from Plaintiff’s prior treating physicians and other detention facilities. 16 Length of Delay and Potential Impact on the Proceedings 17 A trial date has not been set in this case. Accordingly, granting the Stipulation will not 18 create unnecessary delay in resolving this case on its merits. No Prejudice Would Arise 19 20 No party will be prejudiced if the requested extension occurs. LVMPD Defendants are 21 waiting for Plaintiff’s responses to written discovery and a Motion for Judgment on the 22 Pleadings, and the parties are still investigation the factual issues in this case. 23 III. 24 KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 PROPOSED EXTENDED DEADLINES The parties respectfully request that this Court enter an Order as follows: 3171538_1.docx 6943 250 Page 6 of 8 Deadline 1 Current Date Proposed New Date 2 Deadline to Amend/Add Parties closed same 3 Initial Deadline to Disclose Experts closed same 4 Deadline to Disclose Rebuttal Experts closed same 5 Discovery Cutoff Mon., July 25, 2022 Fri. Sept. 23, 2022 6 Discovery Motions Deadline Mon., Aug. 8, 2022 Fri., Oct. 7, 2022 7 Dispositive Motions Deadline Weds., Aug. 24, 2022 Mon., Oct. 24, 2022 8 Pretrial Memorandum Deadline Fri., Sept. 23, 2022 Weds., Nov. 23, 2022 9 Motions in Limine/Daubert Motions. 10 11 Under LR 16-3(b), any motions in limine, including Daubert motions, shall be filed and 12 served 30 days prior to the commencement of Trial. Oppositions shall be filed and served and 13 the motion submitted for decision 14 days thereafter. Reply briefs will be allowed only with 14 leave of the Court. 15 Extensions or Modification of the Discovery Plan and Scheduling Order. 16 In accordance with LR 26-3, applications to extend any date set by the discovery plan, 17 scheduling order, or other order must, in addition to satisfying the requirements of LR 26-1, be 18 supported by a showing of good cause for the extension. All motions or stipulations to extend a 19 deadline set forth in a discovery plan shall be received by the Court not later than 21 days before 20 the expiration of the subject deadline. A request made after the expiration of the subject deadline 21 shall not be granted unless the movant demonstrates that the failure to set was the result of 22 excusable neglect. Any motion or stipulation to extend a deadline or to reopen discovery shall 23 include: 24 KAEMPFER CROWELL 1980 Festival Plaza Drive Suite 650 Las Vegas, Nevada 89135 (a) A statement specifying the discovery completed; 3171538_1.docx 6943 250 Page 7 of 8
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