Burris v. First Reliance Standard Life Insurance Company

Filing 76

ORDER Granting 73 Motion to Extend Time to Reply re 61 Motion for Judgment. Replies due by 1/23/2023. Signed by Judge Cristina D. Silva on 1/17/2023. (Copies have been distributed pursuant to the NEF - KF)

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Case 2:20-cv-00999-CDS-BNW Document 76 Filed 01/17/23 Page 1 of 3 1 6 Reuben H. Cawley Nevada Bar No. 9384 Utah Bar No. 10304 10040 W. Cheyenne Ave. Suite, 170-244 Las Vegas, NV 89129 Office: (702) 882-3363 Fax: (702) 964-1367 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 JOHN SCOTT BURRIS, an individual, 8 Plaintiff 2 3 4 5 9 10 11 12 v. FIRST RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant Case 2:20-cv-00999-CDS-BNW [First Request By Plaintiff] ORDER GRANTING [ECF NO. 73] LR IA 6-1 MOTION FOR EXTENTION OF DEADLINE FOR PLAINTIFF’S FINAL REPLY Currently Due Jan. 17, 2023 13 Per LR IA 6-1, this is the first time Plaintiff has requested additional time to file a brief. 14 Plaintiff’s reply is currently due the first business day after January 14, 2023, which is Tuesday, 15 January 17, 2023. Plaintiff requests a new deadline of Monday, January 23, 2023 to file the reply 16 to Defendant’s Response (ECF No. 71), which Defendant filed several days after its deadline. 17 The local rule requires Plaintiff to “state the reasons” that additional time is needed, which 18 the undersigned hesitates to explain in too much detail. Essentially, Defendant’s Response—which 19 was filed passed its own deadline—includes a large quantity of improper and inaccurate material that 20 should not have been included, which has been unfairly burdensome. 21 First, the Response cites more than 50 cases, yet only one (1) of those 50 cases is from the 9th 22 Circuit Court of Appeals after Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 23 2011), which is burdensome in part because the Defendant failed to identify which cases should be 24 persuasive to fill any gaps in Ninth Circuit law. Defendant’s Response also fails to identify which 25 cases involved legal and medical standards applicable to CFS, which is critically important and has 26 been for decades in the Ninth Circuit, i.e.: 27 28 Case 2:20-cv-00999-CDS-BNW Document 76 Filed 01/17/23 Page 2 of 3 In cases involving chronic fatigue syndrome, the Ninth Circuit has held that subjective evidence is important because ‘CFS does not have a generally accepted ‘dipstick’ test.’” 1 2 3 Friedrich v. Intel Corp., 181 F.3d 1105, 1112 (9th Cir.1999). Plaintiff submits that Defendant 4 should not have copied and pasted string-cites from its years of multi-jurisdictional practice without 5 sufficient explanations. 6 7 Next, some of the 50-plus cases are unpublished but not identified as unpublished or Slip Op. For example, Defendant cites at p.13: 8 Alvis v. AT&T Integrated Disability Serv. Ctr., No. 2:07-cv-00984-MCE-DAD, 2009 WL 1026030, *17 (E.D. Cal. Apr. 15, 2009) aff’d, 377 F. App’x 673 (9th Cir. 2010) ([parenthetical from lower court inserted here]) 9 10 11 (ECF No. 71 at 13:13). However, the appellate court case cited above is unpublished, and the 12 parenthetical appears nowhere in the appellate opinion. Other parentheticals are equally misleading 13 for misstating the relevant point. 14 15 16 Next, the Defendant continues to assert and rely on too many verifiably false facts, which is unfairly time consuming. For example, Defendant’s Response newly (but falsely) questions the veracity of Burris’s CFS symptoms, stating: “Similarly, the records contain no mention of sinus 17 18 19 20 issues ... until June 14, 2019.” This is wrong. Burris has been taking prescribed sinus medications since June 2017—years earlier—as shown in the AR submitted by the Defendant. See, e.g., FRSJBAR0001251. 21 22 23 24 Additionally, the Response thematically (but improperly) relies on the new phrase “functional impairment,” stated 14 times despite the phrase appearing nowhere in the Policy, or the Denials. Remarkably, however, FRSICO’s final Reply (ECF No. 72) concedes in a footnote that its “words ‘functional impairment’” are merely “a matter of word choice, not meaning.”1 Truly. 25 26 27 28 While this development limits Plaintiff’s Reply burden, it came too late to avoid wasted time on the issue. 1 This statement came later, in ECF No. 72, buried in a footnote, n8 (emphasis added). 2 Case 2:20-cv-00999-CDS-BNW Document 76 Filed 01/17/23 Page 3 of 3

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