Pettie v. American Family Mutual Insurance Company
Filing
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ORDER Granting in Part and Denying in Part 16 Plaintiff's Motion to Stay. The 14 Scheduling Order is extended approximately four months. Discovery due by 1/27/2014. Motions due by 2/27/2014. Proposed Joint Pretrial Order due by 3/27/20 14. Time extended to 11/4/2013 for Plaintiff's counsel to file a motion to substitute the decedent's successor or representative in place of the Plaintiff. Signed by Magistrate Judge Cam Ferenbach on 8/7/2013. (Copies have been distributed pursuant to the NEF - SLD)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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JAMES PETTIE,
Plaintiff,
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2:13-cv-00340-GMN-VCF
vs.
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ORDER
AMERICAN FAMILY INSURANCE,
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[Plaintiff’s Motion to Stay #16]
Defendant.
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Before the Court is the James Pettie v. American Family Insurance, case no. 2:13-cv-0034011
GMN-VCF.
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BACKGROUND:
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This case stems from a car accident that resulted in personal injuries to Plaintiff James Pettie.
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On July 24, 2006, Plaintiff, was heading Southbound on Tenaya, when the adverse driver, Robert
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Carlson, pulled in front of Plaintiff’s vehicle causing a collision, resulting in injuries to Plaintiff. After
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filing and settling a claim against the adverse insurance company, Plaintiff made a claim against his own
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insurance company for underinsured benefits which resulted in this litigation. On or around March 4,
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2013, Plaintiff passed away. On July 9, 2013, Defendant filed Suggestion of Plaintiffs Death upon the
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record (#15). Plaintiff’s Counsel requests the Court stay this case for six months to allow time to create
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an estate and substitute it on Plaintiffs behalf pursuant to Fed. R. Civ. P. 25.
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Defendant opposes Plaintiff’s request, stating several reasons why the Court should deny this
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request. First, counsel is already required to perform these activities under Fed. R. Civ. P. 25. Fed. R.
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Civ. P. 25(a)( I) provides for ninety (90) days in which to substitute the proper parties after the filing of
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the Suggestion of Death on the record and further provides that the litigation will continue during this
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time period. There has been no demonstration of any type of special circumstances warranting a six
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month stay in this litigation in order to accomplish what is mandated under the rule to occur within the
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ninety (90) day time period. Second, Plaintiff has asserted claims for Breach of Contract, Bad Faith and
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Punitive Damages. Counsel can most certainly conduct discovery into the facts and circumstances
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regarding the alleged breach of contract and the nature of the handling of Plaintiff’s claim. Plaintiff’s
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presence is not necessary for this discovery save as to the measure of his damages which have now
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become fixed. There is no reason as to why this discovery cannot continue in this action if Mr. Pettie's
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parents elect to proceed with this lawsuit. Third, Counsel can most certainly contact Mr. Pettie's parents
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within a relatively short time to determine whether or not they wish to proceed with whatever claims are
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left after Mr. Pettie's passing. Finally, there is no service of judicial economy for this lawsuit to remain
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on the Court's docket for a six month time period.
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Discussion:
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A stay is not warranted under these circumstances. However, Plaintiff’s counsel will be allowed
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until November 4, 2013, to substitute the decedent’s successor or representative in place of the Plaintiff.
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Failure to meet this deadline may result in a report and recommendation that the case be dismissed.
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Dates set in the Discovery Plan and Scheduling Order (#14) entered on April 22, 2013, will be
extended approximately four months as set forth below.
IT IS HEREBY ORDERED that Plaintiff’s Motion for Stay (# 16) is GRANTED in part and
DENIED in part.
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IT IS FURTHER ORDERED that the time within which Plaintiff’s counsel must file a motion to
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substitute the decedent’s successor or representative in place of the Plaintiff is extended until November
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4, 2013.
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IT IS FURTHER ORDERED that the following deadlines set in the Court’s previously entered
Discovery Plan and Scheduling order are extended:
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A.
Discovery must be completed on or before January 27, 2014.
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B.
Amended Pleadings and Adding Parties:
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C.
Disclosure of Experts:
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Expert disclosures must be made on or before November 27, 2013 which is 60 days before
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discovery cut-off. Rebuttal expert disclosures must be made on or before December 27, 2013 which is
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30 days after Expert disclosures.
The time for filing has expired.
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D.
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The interim status report must be filed by the parties on or before November 27, 2013 which is
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Interim Status Report:
60 days before discovery cut-off.
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E.
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Dispositive motions must be filed and served on or before February 27, 2014 which is 30 days
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Dispositive Motions:
after discovery cut-off.
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F.
Joint Pre-Trial Order:
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The Joint Pre-trial Order must be filed on March 27, 2014, which is 30 days after the date set for
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filing of dispositive motions. In the event dispositive motions are filed, the date for filing the Joint Pre-
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trial Order must be suspended until 30 days after the decision on the dispositive motions or further order
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of the Court.
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G.
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The disclosures required by Fed. R. Civ. P. Rule 26(a)(3) must be made in the joint pre-trial
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Fed.R.Civ. P. Rule 26(a)(3) Disclosures:
order.
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H.
Later Appearing Parties:
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A copy of this discovery plan and scheduling order must be served on any person after it is
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entered or, in the alternative, if an additional defendant should appear, within five (5) days of their first
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appearance. This discovery plan and scheduling order will apply to such later-appearing parties, unless
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the Court, on motion and for good cause shown orders otherwise.
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I.
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Pursuant to Local Rule 26-4, any request to extend the dates set forth in this Discovery Plan and
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Scheduling Order must be filed with the Court no later than 21 days prior to the discovery cut-off
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Extension of Discovery Deadlines:
date or January 6, 2014.
DATED this 7th day of August, 2013.
_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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