Peck v. City of Henderson et al

Filing 31

RESPONSE to 29 Emergency MOTION to Stay Discovery, filed by Plaintiff Mary Kay Peck. Replies due by 8/18/2009. (Kirshman, Norman)

Peck v. City of Henderson et al

Doc. 31

NORMAN H. KlRSHMAN, P.c.
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Nevada Bar Number: 2733 3800 Howard Hughes Parkway, Ste. 500
Las Vegas, NV 89169 Telephone: [phone] Facsimile: [phone] Attorney for PlainTiffs

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UNITED STATES DISTRICT COURT
DISTRlCT OF NEVADA

CASE NO. 2:09-cv-00872

8 MARY KAY PECK, an individual,

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v.

Plaintiff,

11 THE CITY OF HENDERSON, a municipality; 12 JAMES B. GIBSON, an individual; JACK CLARK, an individual; ANDY HAFEN, an 13 individual; STEVE KIRK, an individual; GERRl SCHRODER, an individual; and DOES 14 1 through 25.
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PLAINTIFF'S RESPONSE TO DEFENDANTS' SECOND EMERGENCY MOTION TO STAY DISCOVERY and REQUEST FOR SANCTIONS

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18 19 20 21 22 23 24 25 26 27 28 Defendants' First Motion was stricken by this Court because Defendants' counsel failed to comply with Local Rule 26-7(c)(2) and (3). Shortly after counsel's compliance with the above-cited Local Rule, the attached letter, incorporated herein as Exhibit A, was hand delivered to Defendants' counsel on July 31, 2009. The Motion Defendants' counsel characterizes "Emergency" was received on August 3, 2009 at 4:33 p.m., citing numerous cases 1 have not had time to read. The following depositions have been noticed by Plaintiff: Mark Calhoun Steve Hanson Cindy Herman Shauna Hughes Lori Grossman Gerri Schroder City Manager Finance Director COH Information Officer City Attorney Executive Office Manager Councilmember August 24, August 24, August 25, August 25, August 25, August 26, 2009 at 9:00 a.m. 2009 at 1:00 p.m. 2009 at 9:00 a.m. 2009 at 1:00 p.m. 2009 at 3:30 p.m. 2009 at 9:00 a.m

Dockets.Justia.com

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Andy Hafen Steve Kirk Jack Clark James Gibson

Councilmember Councilmember Councilmember Mayor

August 26, August 27, August 27, August 28,

2009 2009 2009 2009

at 1:00 p.m. at 9:00 a.m. at 1:00 p.m. at I :00 p.m.

These depositions will address the "Qualified Immunity" issue raised by the Motion as

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well as related § 1983 issues. Significant by its absence from the Motion is a contention that

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Mayor Gibson and the Councilmembers were engaged in activity covered by the "Absolute 6 Privilege." 7 The prejudice that Plaintiff, currently unemployed, would experience by delaying 8 discovery would exceed Defendants' prejudice, if any, by orders of magnitude. Defendants' Reply on the Rule 12 (c) Motion is due August 13,2009, and no hearing has been scheduled. In

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addition, ENE before Magistrate Judge Leavitt is scheduled for October 20, 2009, with briefs due 11 October 13,2009. 12 Plaintiff reserves the right to supplement this Response on or before August 10, 2009. 13
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Suffice at this time to note resolution of the Qualified Immunity issue, an affinnative defense which Defendants have the burden of proving, implicates issues of fact. See Plaintiff s Response

15 to Rule 12(c) Motion. 16 17 Dated: August 18 19 20 21

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Respectfully submitted, NORMAN H. KJRSHMAN, P.C.

Jb..--: /J-;~
Attorney f o r Plaintiff

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Nonnan H. KifSh1l1al1(2733) 3800 Howard Hughes Parkway, Ste 500 Las Vegas, NY 89169

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CERTIFICATE OF MAILING
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I hereby certify that on the

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day of August, 2009, I served a true and correct copy of

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"PLAINTIFF'S RESPONSE TO DEFENDANTS' SECOND EMERGENCY MOTION TO
STAY ALL DISCOVERY and REQUEST FOR SANCTIONS" by:

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serving the following parties electronically through CMlECF as set forth below; faxing a copy to the numbers below; depositing a copy in the United States mail, first class postage fully prepaid to the persons and addresses listed below:

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William E. Cooper, Esq.
William E. Cooper Law Offices
601 E. Bridger Avenue
Las Vegas, NY 89101
w cooper(q,william 'ooperlaw.com

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MEmployee of N o r m a n H. Kirshman, P.C.

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EXHIBIT A

LAW OFFICE OF

NORMAN H. KIRSHMAN, P.C.
ATTORNEY AND COUNSELOR AT LAW

3800 Howard Hughes Parkway, Suite 500
Las Vegas, NY 89169

TELEPHONE:
CELLULAR:

[phone]
[phone]

Licensed in: Nevada, California
and New York [e-mail]

FACSlMlLE: [phone]

July 30, 2009

HAND DELIVERY
Mr. William E.Cooper
Cooper Law Office 601 E. Bridger Ave. Las Vegas, NV 89101 RE: Mary Kay Peck v. City of Henderson

Dear Bill: Attached please fmd Deposition Notices for the following: Mark Calhoun, Steve Hanson, Cindy Hennan, Shauna Hughes, Lori Grossman, Gerri Schroder, Andy Hafen, Steve Kirk, Jack Clark, and Jim Gibson. lfthe dates are not compatible with yours or deponents' schedule, we can try to accorrunodate calendars.

In order to make the ENE conference scheduled for October 20, 2009 more meaningful, the depositions should be taken as early as possible in advance of t h a t date.
As I see this case, whatever the Court decides on the qualified immunity issue will not dispose o f the entire case. Given t h e fact the d e c i s i o n t o terminate P l a i n t i f f is the decision of the City, Plaintiffs constitutional rights remain to be litigated, and depositions are appropriate to . probe the Councilmembers' motives in voting to tenninate her employment for cause, plus a plethora of Ulaterial issues of fact, i.e. due process, when the termination decision was made, the ambiguities you referred to during our July 29th conversation, and others we both know will have to be addressed by the trier of fact.

W.E. Cooper July 30, 2009 Page 2 Bill, because I respect your ethical standards and skills, you are one of the few lawyers with whom I would infonnally share these thoughts. My concern is the pressures that may be applied to make this case so expensive for my client that she will accept a settlement proposal that falls far below what is fair and equitable. For the record, if a point is reached when my client can no longer afford the cost of litigation, I will not abandon her.

Unless you disagree with my analysis, you might reconsider your chances of convincing the Court that as a matter of law another Motion to Stay Discovery would be appropriate re Rule

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Very truly yours,

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Norman H. Kirshman NHK:1av cc: M.K. Peck