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)

Case 2:20-cv-00999-CDS-BNW Document 76 Filed 01/17/23 Page 1 of 3

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Reuben H. Cawley
Nevada Bar No. 9384
Utah Bar No. 10304
10040 W. Cheyenne Ave. Suite, 170-244
Las Vegas, NV 89129
Office: [phone]
Fax: [phone]
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JOHN SCOTT BURRIS, an individual,

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Plaintiff

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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

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Per LR IA 6-1, this is the first time Plaintiff has requested additional time to file a brief.

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Plaintiff’s reply is currently due the first business day after January 14, 2023, which is Tuesday,

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January 17, 2023. Plaintiff requests a new deadline of Monday, January 23, 2023 to file the reply

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to Defendant’s Response (ECF No. 71), which Defendant filed several days after its deadline.

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The local rule requires Plaintiff to “state the reasons” that additional time is needed, which

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the undersigned hesitates to explain in too much detail. Essentially, Defendant’s Response—which

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was filed passed its own deadline—includes a large quantity of improper and inaccurate material that

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should not have been included, which has been unfairly burdensome.

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First, the Response cites more than 50 cases, yet only one (1) of those 50 cases is from the 9th

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Circuit Court of Appeals after Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir.

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2011), which is burdensome in part because the Defendant failed to identify which cases should be

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persuasive to fill any gaps in Ninth Circuit law. Defendant’s Response also fails to identify which

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cases involved legal and medical standards applicable to CFS, which is critically important and has

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been for decades in the Ninth Circuit, i.e.:

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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.’”

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Friedrich v. Intel Corp., 181 F.3d 1105, 1112 (9th Cir.1999). Plaintiff submits that Defendant

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should not have copied and pasted string-cites from its years of multi-jurisdictional practice without

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sufficient explanations.

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Next, some of the 50-plus cases are unpublished but not identified as unpublished or Slip Op.
For example, Defendant cites at p.13:

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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])

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(ECF No. 71 at 13:13). However, the appellate court case cited above is unpublished, and the

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parenthetical appears nowhere in the appellate opinion. Other parentheticals are equally misleading

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for misstating the relevant point.

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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

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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.

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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.

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While this development limits Plaintiff’s Reply burden, it came too late to avoid wasted time on the
issue.
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This statement came later, in ECF No. 72, buried in a footnote, n8 (emphasis added).

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