Lang-Black v. AAA Life Insurance Company, No. 2:2023cv00117 - Document 20 (D. Nev. 2023)
Court Description: ORDER granting 19 Stipulation for Extension of Discovery Deadlines. Discovery due by 10/23/2023. Motions due by 11/21/2023. Proposed Joint Pretrial Order due by 12/21/2023. Signed by Magistrate Judge Daniel J. Albregts on 5/9/2023. (Copies have been distributed pursuant to the NEF - CAH)
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Lang-Black v. AAA Life Insurance Company 1 2 Doc. 20 RILEY A. CLAYTON Nevada Bar No. 005260 rclayton@lawhjc.com 3 4 5 HALL JAFFE & CLAYTON, LLP 7425 Peak Drive Las Vegas, Nevada 89128 (702) 316-4111 Fax (702) 316-4114 6 7 Attorneys for Defendant, AAA Life Insurance Company 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 BIANCA LANG-BLACK, an individual, Case No. 2:23-cv-00117-GMN-DJA 11 Plaintiff, 12 STIPULATION AND ORDER FOR EXTENSION OF DISCOVERY DEADLINES (FIRST REQUEST) vs. 13 14 15 AAA LIFE INSURANCE COMPANY; a foreign corporation; and DOES I through V, and ROE CORPORATIONS I through V, inclusive, 16 Defendants. 17 18 Plaintiff, Bianca Lang-Black, and Defendant, AAA Life Insurance Company (“AAA” 19 or “Defendant”), by and through their respective counsel of record, hereby submit the following 20 Stipulation pursuant to Local Rule II 26-3. This is the Parties’ First Request for an extension of 21 discovery deadlines and is not being made for improper purposes nor for needlessly delaying 22 these proceedings. Rather, this request is made in good faith. Further, this request to extend 23 the deadlines, including the expert deadlines, is predicated in good cause and excusable neglect 24 as the parties have been diligently working together to set no less than 22 depositions and 25 respond to written discovery. 26 Based upon the following, the Parties request that this Court extend the current discovery 27 deadlines by ninety (90) days. This extension will not affect the trial date, as no trial date has 28 yet been set. 1 Dockets.Justia.com 1 I. BRIEF STATEMENT OF FACTS 2 This matter involves Plaintiff’s allegations of breach of contract, violation of unfair 3 practices in settling claims, bad faith/breach of the covenant of good faith and fair dealing, and 4 declaratory relief arising from AAA’s denial of a life insurance claim that occurred during the 5 contestability period of the life insurance policy. In essence, the crux of the issue in this case is 6 whether AAA properly investigated the claim prior to its denial based on its supposition that 7 Plaintiff misrepresented information in his life insurance application concerning his use/non- 8 use of nicotine-based products and in turn, whether AAA had a reasonable basis for denying 9 the claim. In support of the life insurance claim, among other things, Plaintiff submitted to 10 AAA the affidavits of some 16 third-party witnesses, who purportedly never saw the Decedent 11 use nicotine-based products prior to his passing. It is the parties’ efforts to depose these 12 witnesses that is primarily the basis for the instant request for an extension. 13 Plaintiff filed her Complaint in the Clark County Eighth Judicial District Court on 14 October 25, 2022. On January 23, 2023, Defendant removed this case to Federal Court. On 15 January 30, 2023, Defendant filed its Answer. The parties conducted the Fed. R. Civ. P. 26(f) 16 Conference on February 13, 2023, and filed the Stipulated Discovery Plan and Scheduling 17 Order on March 1, 2023. The parties have been moving forward with discovery since that time. 18 II. 19 20 21 DISCOVERY COMPLETED The parties have completed the following discovery: a. Defendant propounded First Sets of Interrogatories, Requests for Admission, and Requests for Production were served on Plaintiff on February 27, 2023; 22 b. Defendant’s Initial Disclosures were served on March 7, 2023; 23 c. Defendant’s First Supplemental Disclosures were served on March 13, 2023 24 d. Plaintiff’s Initial Disclosures were served on March 16, 2023; 25 e. Plaintiff provided her Responses to Defendant’s First Sets of Interrogatories, 26 27 28 Requests for Admission, and Requests for Production on Defendant on April 18, 2023; f. Plaintiff’s propounded First Sets of Interrogatories, Requests for Admission, and Requests for Production were served on Defendant on April 24, 2023; these responses are 2 1 presently due on May 23, 2023; 2 3 g. Plaintiff’s First Supplemental Initial Disclosures were served on April 20, 2023; h. In Exhibit 4 of Plaintiff’s Complaint, in 2019 Plaintiff provided Affidavits of 16 and 4 5 people who would testify as to the decedent’s non-use of nicotine products. The parties are 6 working at this time to get depositions set for each of the 16 affiants, of which eight are presently 7 noticed and set with counsel. The parties are working to set the depositions of the remaining 8 eight affiants but are delayed due to bad or expired addresses and contact information for these 9 affiants, which will require the use of private investigators to locate and serve them with 10 subpoenas. 11 III. 12 DISCOVERY THAT REMAINS TO BE COMPLETED a. Service of Defendant’s Responses to Plaintiff’s First Sets of Interrogatories, Requests 13 for Admission, and Requests for Production which are presently due on May 24, 14 15 16 17 2023; b. Deposition of Plaintiff, which is presently set for May 23, 2023 at 9:00 a.m.; c. Depositions of Plaintiff’s Affiant Witnesses as follows: 1) Robert Brian Bixby, deposition presently set for May 12, 2023 at 9:00 a.m. 18 2) Robert Delgado, deposition presently set for May 18, 2023 at 9:00 a.m., and he 19 has been served with the deposition subpoena. 20 3) Barry Evans, deposition date has been agreed-upon by the parties for May 18, 2023 21 at 1:00 p.m., however, the process server advised that the address provided does not 22 exist. Accordingly, Defendant will have to locate this witness through the use of a 23 private investigator. 24 4) Joanna Farrimond, deposition date has been agreed-upon by the parties for May 25 24, 2023 at 9:00 a.m.; however, this deposition has not been formally noticed due to 26 lack of an address of the witness. Accordingly, Defendant will have to locate this 27 witness through the use of a private investigator. 28 5) Brittnee Deel, deposition presently set for May 24, 2023 at 1:00 p.m., and she has 3 1 been served with the deposition subpoena. 2 6) Brian Curcio, deposition presently set for May 25, 2023 at 11:00 a.m. This witness 3 has agreed to this date. A subpoena will be served upon him in the near future. 4 7) Morris Gray, Jr., deposition date has been agreed-upon by the parties for May 26, 5 2023 at 1:00 p.m., however, this deposition has not been formally noticed nor has a 6 7 8 9 subpoena yet been issued. 8) Clayton Johnson, deposition date has been agreed-upon by the parties for May 30, 2023 at 9:00 a.m., however, this deposition has not been formally noticed nor has a subpoena yet been issued. 9) Paul Appelloff, deposition date presently set for May 30, 2023 at 1:00 p.m. and he 10 has been served with the deposition subpoena. 11 12 13 14 10) Vanessa Nix, deposition date set for June 1, 2023 at 9:00 a.m., however, this deposition has not been formally noticed nor has a subpoena yet been issued. 11) Beatriz Perez, deposition date set for June 1, 2023 at 1:00 p.m., however, this deposition has not been formally noticed nor has a subpoena yet been issued. 15 12) Renee Wisek, deposition date set for June 6, 2023 at 9;00 a.m., however, this 16 deposition has not been formally noticed nor has a subpoena yet been issued. 17 13) Oxana Vaskevich, deposition date presently set for June 6, 2023 at 1:00 p.m., has 18 been noticed, and she has been in contact to coordinate this date which she stated 19 does work for her. 20 14) Frederick Foisia, Jr., deposition date set for June 7, 2023 at 9:00 a.m., but not 21 noticed due to lack of address of Affiant. Accordingly, Defendant will have to locate 22 this witness through the use of a private investigator. 23 15) Bentley Corbett, deposition date set for June 7, 2023 at 1:00 p.m., however, this 24 deposition has not been formally noticed nor has a subpoena yet been issued. 25 26 27 16) Rodney Lee, no deposition date presently set, as this deposition has not been formally noticed nor has a subpoena yet been issued. Further, the date previously agreed upon between counsel for the deposition of Rodney Lee was taken to be used for the deposition of Paul Appelloff, as that date worked better for him. 28 4 1 d. Depositions of AAA personnel Margeurite Jenkins (Chief Claims Examiner) and 2 Danielle Bradley (Claims Examiner) and the FRCP 30(b)(6) Witness for Defendant. 3 These depositions were the subject of a Meet and Confer which was held on May 4, 4 2023 at 3:00 p.m. The parties are working on getting dates for these depositions and 5 Defendant is coordinating their availability for said depositons. e. Plaintiff is also seeking to take deposition of Jeff Olster, Esq., outside counsel for 6 AAA prior to suit being filed who is alleged to have been hired to investigate the 7 claim and alleged to have rendered a decision and Susan Grier (Investigator with 8 Covent Bridge Group), which was also the subject of a Meet and Confer held on May 9 4, 2023 at 3:00 p.m. and which will be discussed further in a continued Meet and 10 Confer set for May 11, 2023 at 9:30 a.m., at which time the discussion of the 30(b)(6) 11 topics will also be addressed. 12 f. Disclosure of expert reports; 13 g. Depositions of decedent’s treating physician(s) (i.e. Terrance Ballard, MD of 14 WELLTRAC, Dr. Sanford White of Ensign Family Medicine, as well as Leonardo 15 Roquero, MD, the Medical Examiner (Clark County Coroner). 16 h. Depositions of experts. 17 The Parties reserve the right to engage in additional discovery as indicated by the 18 foregoing discovery or otherwise that could lead to the discovery of other admissible evidence. 19 I. REASONS WHY REMAINING DISCOVERY WAS NOT COMPLETED 20 The parties are actively engaged in discovery for this matter with written discovery 21 nearly completed and have set the depositions of the Plaintiff and some of the third-party 22 witnesses. However, the parties have legitimately experienced difficulty in obtaining accurate 23 addresses and phone numbers for many of these third-party witnesses who provided affidavits 24 in 2019, which has delayed the process in getting subpoenas served on these individuals. Indeed, 25 the parties have used various resources to track down and locate some of these witnesses, only 26 to find that they no longer live in their prior locations and, therefore, have not been served. 27 These witnesses provided affidavits in support of Plaintiff’s claim, stating in essence that they 28 never observed the Decedent use nicotine. There are 16 persons who provided such affidavits. 5 1 As of the present time, eight have been located and depositions have been set for them. 2 However, eight witnesses still have not been located for purposes of serving subpoenas on them, 3 despite diligent efforts of counsel. Further, the parties have discussed what they believe is the 4 proper scope of the affiant depositions and disagree on the scope of the same. If necessary, 5 Plaintiff will file a motion for protective order regarding the same. 6 Plaintiff identified in her initial FRCP 16.1 disclosure 45 potential 30(b)(6) topics. In 7 response, Defendant has prepared a detailed objection letter with respect to the potential 30(b)(6) 8 topics as identified in the disclosure, and the parties will be conducting the “meet and confer” 9 regarding the scope of a 30(b)(6) deposition on May 11, 2023. To the extent that an agreement 10 on all potential topics is not achieved, the parties will file motions to compel/motions for 11 protective order regarding the scope of that examination, which will necessitate additional time 12 to obtain the ruling. 13 The parties have also discussed the deposition of a lawyer, Jeffrey Olster, Esq., that AAA 14 retained prior to the filing of the instant lawsuit. Noting that “advice of counsel” has not been 15 asserted as an affirmative defense but that Jeffrey Olster, Esq. is alleged to have personal 16 knowledge of the claims investigation process as well as potential impeachment/credibility 17 challenges of the 30(b)(6) deponents, the parties will be conducting a further “meet and confer” 18 conference on that potential deposition on May 11, 2023, and again, if an agreement cannot be 19 achieved regarding that deposition, another motion to compel/protective order will be filed. 20 Additionally, the parties’ respective experts will need time to review the transcripts from 21 the Plaintiff, AAA’s employees, the 30(b)(6) witnesses, and the third-party witnesses who 22 provided the affidavits in support of the Plaintiff’s claim. Given the extent of discovery sought 23 in this matter and given the issues and problems in achieving these depositions by this stage of 24 the litigation, additional time is necessary for the foregoing steps to take place. 25 Respectfully, the parties have been diligent and active in moving this case forward. As 26 the record of this case demonstrates, reasonable and timely efforts have been undertaken to 27 accomplish much of the discovery needed in this case, however, with the multiple critical 28 depositions of the third-party witnesses and the scope of the testimony of the 30(b)(6) designee 6 1 and Jeff Olster, Esq., still undecided, additional time is necessary to serve these witnesses and 2 resolve the scope-type issues of these other witnesses via motion, if necessary. Accordingly, the 3 parties hereby respectfully request that discovery schedule deadlines be extended by 90 days to 4 accommodate the ongoing meet and confer process and anticipated motion practice. This 5 extension is not being made for improper purposes or for the needless delay of these 6 proceedings. Further, the efforts made by the parties in timely engaging in discovery as set forth 7 herein substantiates good cause and excusable neglect in seeking this first extension. Likewise, 8 no trial date has been set. 9 IV. PROPOSED SCHEDULE FOR COMPLETING REMAINING DISCOVERY 10 The Parties hereby stipulate to continue the discovery deadlines by a period of ninety 11 (90) days so that the Parties may complete the discovery outlined above and any additional 12 discovery warranted by the foregoing. Upon this Court’s Order, the discovery dates and 13 deadlines will be modified as follows: 14 Current deadline Proposed New Deadline 15 Last Day to File Motion to Amend/Add Parties 04/25/2023 08/23/2023 16 Initial Expert Reports 05/25/2023 08/23/2023 17 Rebuttal Expert Reports 06/26/2023 09/25/2023 18 Close of Discovery Dispositive Motions Pretrial Order (unless dispositive motions filed) 07/24/2023 10/23/2023 08/23/2023 11/21/2023 09/22/2023 12/21/2023 19 20 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 7 1 The Parties respectfully request that this Stipulation and Order to Extend Discovery 2 (First Request) be granted and that the Court adopt the proposed dates set forth above. This 3 Stipulation and Order is not timely under LR II 26-3 as less than 21 days remain before 4 expiration of the subject deadline but as previously stated, the extent of discovery in this matter 5 and the parties’ due diligence in executing the same amounts to excusable neglect. 6 7 Dated: May 8, 2023 Dated: May 8, 2023 8 HALL JAFFE & CLAYTON, LLP BROCK K. OHLSON, PLLC 9 /s/ Riley A. Clayton _____________________________ RILEY A. CLAYTON Nevada Bar No. 005260 7425 Peak Drive Las Vegas, Nevada 89128 Attorneys for Defendant, AAA Life Insurance Company /s/ Caitlin J. Lorelli _____________________________ BROCK K. OHLSON Nevada Bar No. 12262 JUSTIN A. CORNE Nevada Bar No. 14504 CAITLIN J. LORELLI Nevada Bar No. 14571 6060 Elton Avenue Las Vegas, NV 89107 Attorneys for Plaintiff, Bianca Lang-Black 10 11 12 13 14 15 16 17 ORDER 18 IT IS SO ORDERED. 19 20 21 22 _______________________________________ UNITED STATES MAGISTRATE JUDGE 23 24 25 May 9, 2023 Dated: _______________________ 26 27 28 8
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