Tripp v. Clark County

1 LYSSA S. ANDERSON Nevada Bar No. 5781 RYAN W. DANIELS Nevada Bar No. 13094 KAEMPFER CROWELL 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135 Telephone: (702) 792-7000 Fax: (702) 796-7181 [email protected] [email protected] Attorneys for Defendants Michael Rose, Jacqulyn Schumaker, Cesar Esparza, Robert Burleson, Neldon Barrowes, Kevin Kegley, Jeanette Dillon and Linda Buchanan 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA JUSTIN L. TRIPP, CASE NO.: 2:17-cv-01964-JCM-PAL 13 Plaintiff, vs. DEFENDANTS’ MOTION TO EXTEND 14 DISCOVERY CLARK COUNTY, et al.

15 (2nd Request) Defendants.

18 Defendants Michael Rose, Jacqulyn Schumaker, Cesar Esparza, Robert Burleson, Neldon Barrowes, Jeanette Dillon and Linda Buchanan (“LVMPD Defendants”), hereby move for an Order extending the expert disclosure deadline only for an additional thirty (30) days. This Motion is based on Federal Rule of Civil Procedure 26, Local Rule 26-4, the pleadings and papers on file herein, the following memorandum of points and authorities and any such oral argument as may be set.

24 / / / 1 MEMORANDUM OF POINTS AND AUTHORITIES I. PROCEDURAL HISTORY 3 Plaintiff Justin Tripp (“Plaintiff”) filed his First Amended Complaint (“FAC”) on January 7, 2019. [ECF No. 14]. Plaintiff is representing himself in proper person and is currently incarcerated. Plaintiff alleges that during his arrest Las Vegas Metropolitan Police Department (“LVMPD”) Officers used excessive force against him. Plaintiff also alleges that his rights were violated by various Corrections Officers of Clark County Detention Center (“CCDC”) and that he received inadequate medical care and treatment while he was a pre-trial detainee at CCDC.

9 Defendant Rose was served with the FAC on February 6, 2019. Rose filed an Answer on February 27, 2019. [ECF No. 27]. Defendants Esparza and Schumaker then filed their Answer on April 8, 2019. [ECF No. 50].

12 Plaintiff filed a Motion to Appoint Counsel, [ECF No. 53], which LVMPD Defendants opposed. [ECF No. 56]. Plaintiff filed a Motion to Amend Complaint, [ECF No. 44], which LVMPD Defendants opposed. [ECF No. 47]. The LVMPD Defendants previously filed a Motion to Extend Discovery, [ECF No. 70], which Plaintiff opposed, [ECF no. 73]. Plaintiff filed a Motion to Substitute DOE Defendants which identified Defendants Robert Burleson, Neldon Barrowes, Kevin Kegley, Jeanette Dillon and Linda Buchanan. [ECF No. 75].

18 On December 2, 2019 this Court issued an Order on the multiple Motions above. [ECF No. 110]. The Court granted Plaintiff’s Motion to Appoint Counsel and submitted this case to the Court’s Pro Bono Pilot Program. No Counsel has appeared for Plaintiff as of the date of filing this Motion. The Court denied Plaintiff’s Motion to Amend Complaint but did grant Plaintiff’s Motion to Substitute DOE Defendants and the newly named Defendants were served and filed their Answer on January 13, 2020, [ECF No. 119]. Finally, the Court granted the Motion to Extend with the following deadlines: 1 Close of Discovery: May 30, 2020 2 Amend Pleadings: March 1, 2020 3 Expert Disclosures: March 31, 2020 4 Rebuttal Expert Disclosures: April 30, 2020 5 Dispositive Motions: June 29, 2020 6 Interim Status Report: March 31, 2020 7 Joint Pre-Trial Order: July 29, 2020 8 Recently, Plaintiff filed a Motion to Extend the Deadline to Amend Pleadings. [ECF Nos. 123 and 126]. NaphCare opposed the Motion and the LVMPD Defendants filed a Joinder to the Opposition. [ECF Nos. 124 and 125].

11 II. AN EXTENSION IS WARRANTED 12 A brief extension of the current deadline to disclose expert reports is warranted. The five (5) new LVMPD Defendants (previously identified as DOEs) referenced above recently appeared in this matter. All are Corrections Sergeants at Clark County Detention Center (“CCDC”). The LVMPD Defendants’ Corrections Expert requires some additional time to prepare his initial expert report due to the new issues specific to these Defendants and, more importantly, unanticipated delays associated with COVID19. The LVMPD Defendants’ Corrections Expert is the Chief of a Fire Department and has been inundated because of the pandemic.

20 In addition, Nevada Governor Steve Sisolak ordered that all non-essential businesses in the State of Nevada be closed for the next thirty (30) days due to the worldwide pandemic and spread of COVID19. While Kaempfer Crowell, Counsel for the LVMPD Defendants continues to operate during this state wide shutdown, most attorneys and support staff are working / / / remotely and all in-person meetings and depositions have been postponed to comply with the CDC’s recommendations for social distancing.

3 LVMPD Defendants recognize that this request is not being made within twenty-one (21) days of the current expert disclosure deadline, March 31, 2020 pursuant to LR 26-4; however LVMPD Defendants submit that good cause and excusable neglect exists.

6 LR 26-4 states in relevant part: 7 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 8 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 9 subject deadline will not be granted unless the movant also demonstrates that the failure to act was the result of excusable neglect.

11 In evaluating excusable neglect, the court considers the following factors: (1) the reason for the delay and whether it was in the reasonable control of the moving party, (2) whether the moving party acted in good faith, (3) the length of the delay and its potential impact on the proceedings, and (4) the danger of prejudice to the nonmoving party. See Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 S. Ct. 1489, 123 L.Ed.2d 74 (1993).

16 As stated, the five (5) newly named LVMPD Defendants recently appeared in this case.

17 The LVMPD Defendants’ Corrections Expert was working diligently to address the issues associated with these new Defendants in his report but has recently advised that additional time is needed to prepare the report. The additional time is necessary due to COVID19 related complications. As the Court is aware, the COVID19 pandemic issues, related shut down of businesses, and required social distancing began only a short time ago. The issues continue to evolve in our community and across the world. In short, the LVMPD Defendants did not know twenty-one (21) days ago that an extension of the expert disclosure deadline would be necessary.

24 / / / 1 A. DISCOVERY.

2 1. Discovery Completed To Date.

3 The LVMPD Defendants, NaphCare and Plaintiff have provided their initial Rule 26 Disclosures. The LVMPD Defendants have provided six (6) additional supplemental disclosures.

6 The LVMPD Defendants have responded to two sets of Requests for Production of Documents and Interrogatories from Plaintiff and one set of Requests for Admissions. The LVMPD Defendants served two sets of Requests for Production of Documents and Interrogatories on Plaintiff. Plaintiff has responded to one set of Requests of Production of Documents. However, the remaining discovery responses are outstanding and Plaintiff has not responded even after LVMPD Defendants requested Plaintiff do so. Plaintiff and NaphCare also exchanged and responded to written discovery.

13 Finally, the LVMPD Defendants have served various third-party subpoenas. The responses received have been provided. However, one third-party has not responded despite demands and the LVMPD Defendants anticipate they will need to file a Motion to Compel.

16 2. Discovery to Be Completed.

17 The LVMPD Defendants are currently preparing Requests for Admissions to Plaintiff.

18 As stated above, it is likely that the LVMPD Defendants will be filing a Motion to Compel against a third-party for failing to comply with a Subpoena. The LVMPD Defendants and NaphCare will take Plaintiff’s deposition.

21 3. Reasons Why Discovery is Incomplete.

22 The LVMPD Defendants have been diligent in completing discovery, however, there have been some delays and because of the rapid onset of COVID-19, a brief extension of the current expert disclosure deadline is necessary.

1 4. Proposed Dates.

2 LVMPD Defendants request that the Scheduling Order be amended to reflect the following:1 Activity Current Date Proposed Date Discovery Cut-Off May 30, 2020 May 30, 2020 Expert Disclosures March 31, 2020 April 30, 2020 Rebuttal Expert Disclosures April 30, 2020 May 30, 2020 Dispositive Motions June 29, 2020 June 29, 2020 Proposed Joint Pretrial Order July 29, 2020 July 29, 2020 Interim Status Report March 31, 2020 March 31, 2020 III. CONCLUSION 11 LVMPD Defendants are not attempting to delay the conclusion of this matter by way of trial or otherwise; rather they are requesting an extension to allow their corrections expert the time needed to complete his expert report. Based upon the foregoing, the LVMPD Defendants respectfully request that the Court enter a new Scheduling Order with the dates requested herein.

15 DATED this 24th day of March, 2020.

16 KAEMPFER CROWELL By: /s/ Lyssa S. Anderson 18 LYSSA S. ANDERSON (Nevada Bar No. 5781) RYAN W. DANIELS (Nevada Bar No. 13094) 19 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135 Attorneys for Defendants 21 Michael Rose, Jacqulyn Schumaker and Cesar Esparza LVMPD Defendants are requesting a thirty (30) day extension of the expert disclosure and corresponding rebuttal expert disclosure deadlines only.

Phle VAVENEY Ullal PUP ING. 120 IS GRANTED under LR 7-2(d).

1 || ITISSO ORDERED DATED: April 02, 2020 BRENDA WEKSLER 5 UNITED STATES MAGISTRATE JUDGE CERTIFICATE OF SERVICE I certify that I am an employee of KAEMPFER CROWELL, and that on the date below, I caused the foregoing DEFENDANTS’ MOTION TO EXTEND DISCOVERY (2™ Request) to be served via CM/ECF and/or First Class Mail (where indicated) addressed to the following: Justin Tripp, #40730-086 Chad C. Couchot || Nevada Southern Detention Center SCHUERING ZIMMERMAN & DOYLE 2190 East Mesquite Avenue 400 University Avenue |} Pahrump, Nevada 89060 Sacramento, California 95825-6502 (916) 567-0400 || Plaintiff, Pro Se Fax: 568-0400 (Via U.S., First Class Mail) Email: [email protected] Paul Cardinale Kim Mandelbaum |} LAAURIA TOKUNAGA GAATES & LINN, MANDELBAUM ELLERTON & ASSOC.

LLP. 2012 Hamilton Lane || 601 South Seventh Street Las Vegas, Nevada 89106 Las Vegas, NV 89101 (702) 367-1234 || (702) 387-8633 Email: [email protected] Email: [email protected] 17 Attorneys for Defendants NaphCare, Inc. Attorneys for Defendants NaphCare, Inc. Harry Duran, M.D., Eric Lopez, P.A. and || Harry Duran, M.D., Eric Lopez, P.A. and Rachel Rudd Rachel Rudd DATED this 24" day of March, 2020.

21 /s/ Bonnie Jacobs an employee of Kaempfer Crowell agg 22 33524