Assurance Company of America et al v. National Fire & Marine Insurance Company

Filing 118

ORDER Denying 115 Emergency Motion for Hearing. (Joint Pretrial Order due by 8/28/2011.) Signed by Magistrate Judge Peggy A. Leen on 8/12/2011. (Copies have been distributed pursuant to the NEF - DXS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ASSURANCE COMPANY OF AMERICA, et al., )
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Plaintiffs,
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vs.
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NATIONAL FIRE & MARINE INSURANCE
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COMPANY,
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Defendant.
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__________________________________________)

Case No. 2:09-cv-01182-JCM-PAL
ORDER
(Exp. Mot. Pretrial Conf - Dkt. #115)

Before the court is Plaintiffs’ Motion re: Scheduling a Pre-Trial Conference Pursuant to Local

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Rule 16-2 (Expedited Hearing Requested) (Dkt. #115), filed August 5, 2011. The court has considered

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the Motion, and Defendant’s Response (Dkt. #116).

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The Complaint (Dkt. #1) in this action was filed July 1, 2009, and involves an action for

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declaratory relief and monetary damages. The District Judge entered an Order (Dkt. #15) September

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22, 2009, granting Defendant’s Emergency Motion for a Stay of Discovery and Summary Judgment

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Briefing Due to Pending Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt. #11). The

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motion to dismiss was ultimately denied, and Defendant filed an Answer (Dkt. #27) December 17,

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2009. A Discovery Plan and Scheduling Order (Dkt. #29) was entered December 30, 2009, which

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established a June 16, 2010 discovery cutoff, and other deadlines consistent with the requirements of

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LR 26-1(e). Defendant filed a Motion to Extend the Discovery Cutoff and Related Case Management

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Deadlines (Dkt. #30) which the court set for hearing April 27, 2010. The motion was granted and the

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parties were given a 90-day extension of the Discovery Plan and Scheduling Order deadlines. The

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parties applied for and received an additional extension of the discovery cutoff and related case

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management deadlines in an Order (Dkt. #58) entered August 23, 2010. The court conducted a

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scheduling conference November 16, 2010, to review the parties’ Joint Memorandum Concerning

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Pretrial Motion Protocol (Dkt. #63). The court heard from counsel for both sides and directed the

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parties to meet and confer to schedule the two remaining depositions in this case on or before January

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28, 2011, and gave the parties thirty days thereafter to file any dispositive motions indicating discovery

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would then be closed. The parties applied for and received extensions of the deadline to file dispositive

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motions.

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On July 28, 2011, the District Judge entered an order granting in part and denying in part

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various motions for partial summary judgment. Pursuant to LR 26-1(e)(5) the Pretrial Order was due

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thirty days from decision of the dispositive motions. In the current emergency motion, Plaintiffs seek a

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pretrial conference on an expedited basis “given the proximity of the pending deadline to submit a

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pretrial order.” Plaintiffs suggest that the court should require a phased approach to additional briefing

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of legal issues. Specifically, Plaintiffs propose that Phase 1 would consist of briefing associated with

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the duty to defend. Once completed, Phase 2 would address allocation as to those matters in which a

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duty to defend was held to exist. Because of the court’s order adjudicating dispositive motions, twenty-

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six underlying matters remain in this case and Plaintiffs assert that additional briefing would streamline

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adjudication of the balance of the claims remaining in this case.

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Defendant filed a response (Dkt. #116) indicating they do not oppose participating in a pretrial

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conference, and so advised opposing counsel before this motion was filed. However, Defendant does

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object to the motion to the extent it seeks entry of an order providing Plaintiffs with a “do over on

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summary judgment motion.” Defendant rejected Plaintiffs’ proposal for an additional two-phase

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briefing schedule to adjudicate remaining issues as “fundamentally flawed.”

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Having reviewed and considered the matter, the court will deny Plaintiff’s request to be relieved

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of the obligation to initiate preparation and file a Joint Pretrial Order as required by LR26-1(e)(5). The

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parties requested and received multiple extensions of the discovery plan and scheduling order deadlines.

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The deadline for filing dispositive motions has now run. Plaintiff elected to file a single dispositive

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motion which has now been decided, and the case must now be set for trial on the claims surviving

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summary judgment. The district judge will set the matter for trial once the Joint Pretrial Order is filed.

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Plaintiff is not entitled to another two rounds of “phased briefing” after decision of its dispositive

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motion. Accordingly,
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IT IS ORDERED that the motion (Dkt. #115) is DENIED to the extent it requests relief from

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the obligation to initiate preparation of a Joint Pretrial Order. Plaintiff shall initiate preparation of the

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Joint Pretrial Order as required by LR 16-3, in the form required by LR 16-4 which shall be filed no later

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than August 28, 2011.

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Dated this 12th day of August, 2011.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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