Sommer v. City of Las Vegas, et al

Filing 24

ORDER granting 23 Stipulation to Extend Discovery Deadlines. Discovery due by 10/7/2024. Motions due by 11/3/2024. Proposed Joint Pretrial Order due by 12/3/2024. No Further Extensions Will Be Granted. Signed by Magistrate Judge Nancy J. Koppe on 7/8/2024. (Copies have been distributed pursuant to the NEF - MAM)

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10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 1 Marquis Aurbach Craig R. Anderson, Esq. 2 Nevada Bar No. 6882 10001 Park Run Drive 3 Las Vegas, Nevada 89145 Telephone: (702) 382-0711 4 Facsimile: (702) 382-5816 canderson@maclaw.com 5 Attorneys for Defendants LVMPD, Sheriff Kevin McMahill, Sgt. Bagaporo, Sgt. Blum, Ofc. Garcia and Ofc. Ortega 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 TAYLOR SOMMER, individually; Case Number: 9 TAYLOR SOMMER, as the Administrator of 2:23-cv-01682 the ESTATE OF REINER SHAWN 10 SOMMER, deceased, STIPULATION AND ORDER TO 11 Plaintiff, EXTEND DISCOVERY DEADLINES (SECOND REQUEST) 12 vs. 13 CITY OF LAS VEGAS, NEVADA a political subdivision of the State of Nevada; LAS 14 VEGAS METROPOLITAN POLICE DEPARTMENT, a political subdivision of 15 the State of Nevada; KEVIN MCMAHILL, individually and as a policy maker and Sheriff 16 of LAS VEGAS METROPOLITAN POLICE DEPARTMENT; SERGEANT GERALD 17 BAGAPORO, individually and in his official capacity; SERGEANT JEFFREY BLUM, 18 individually and in his official capacity; OFFICER ANDREW GARCIA, individually 19 and in his official capacity; OFFICER JOSEPH ORTEGA, individually and in his 20 official capacity; DOE LAS VEGAS METROPOLITAN POLICE DEPARTMENT 21 SUPERVISORS I through X, inclusive and ROE LAS VEGAS METROPOLITAN 22 POLICE DEPARTMENT OFFICERS XII through XX, inclusive, 23 Defendants. 24 25 26 27 28 MAC:14687-411 5529444_1 1 Plaintiff Taylor Sommer, individually and as the Administrator of the Estate of 2 Reiner Shawn Sommer, deceased (“Plaintiffs”), and Defendants Las Vegas Metropolitan 3 Police Department (“LVMPD”), Sheriff Kevin McMahill, Sgt. Bagaporo, Sgt. Blum, Ofc. 4 Garcia and Ofc. Ortega (“LVMPD Defendants”), by and through the undersigned counsel, 5 and hereby present this stipulation pursuant to LR 26-3, requesting the court extend the close 6 of discovery by approximately sixty (60) days. This is the parties’ second request for an 7 extension of the current discovery deadlines. 8 I. INTRODUCTION 9 1. On January 2, 2024, the parties submitted a Proposed Joint Discovery Plan 10 and Scheduling Order which requested an extended discovery period of 270 days [ECF 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 11 #16]. 12 2. On January 3, 2024, the Court entered an Order denying the Proposed Joint 13 Discovery Plan and Scheduling Order [ECF #17]. The Court’s Order rejected the parties 14 request for 270-days and set the following deadlines: 15  Initial Disclosures: January 10, 2024 16  Add/Amend Pleadings: February 6, 2024 17  Initial Experts: March 7, 2024 18  Rebuttal Experts: April 8, 2024 19  Discovery Cut-off: May 6, 2024 20 3. On February 8, 2024, the parties submitted a Stipulation to Extend the 21 Discovery Deadlines and to Allow Additional Depositions [ECF #19]. 22 4. On February 9, 2024, the Court denied the Stipulation [ECF #20]. 23 5. On February 12, 2024, the parties submitted a Stipulation to Extend 24 Discovery Deadlines and to Allow Additional Depositions [ECF #21]. 25 6. On February 13, 2024, the Court granted the Stipulation [ECF #22]. 26 7. The Order provided for the following deadlines: 27  Initial Experts: 28  Rebuttal Experts: June 5, 2024 July 8, 2024 Page 1 of 7 MAC:14687-411 5529444_1 1  Discovery Cut-Off August 5, 2024 2  Dispositive Motions: September 3, 2024 3  Joint Pretrial Order: October 3, 2024 4 In the extension the Court stated it “is not inclined to further extend discovery 5 deadlines” and that “the parties must diligently conduct discovery.” (ECF No. 22 at 2:1-3.) 6 Since the inception of discovery, the parties have diligently and aggressively 7 conducted discovery. However, for reasons stated below, the parties jointly request a 8 relatively brief additional period of time to complete discovery. As set forth herein, the 9 parties have not been reasonably able to complete all discovery despite significant effort and 10 diligence. Moreover, the parties have been unable to set expert depositions before the 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 11 August 5, 2024 discovery cut-off date, in large part, to the availability of the experts. 12 Therefore, the parties are requesting a 60-day discovery extension to complete all necessary 13 discovery and depositions. 14 II. DISCOVERY COMPLETED 15 To date, the parties have conducted the following discovery: 16 1. Prior to the filing of this action on October 16, 2023, the Estate of Reiner 17 Sommer subpoenaed documents from LVMPD and various health care providers. 18 2. Defendants served their initial disclosures on January 5, 2024, including a 19 large number of photographs and body cam videos. 20 3. Plaintiffs served their initial disclosures on January 9, 2024, including 21 voluminous medical records. 22 4. Plaintiffs served Defendants with their first set of written discovery on 23 January 6, 2024, and Defendants have responded. 24 5. Defendants served Plaintiffs with their first set of written discovery on 25 January 5, 2024, and Plaintiffs have responded. 26 6. Plaintiffs served Defendants with a second set of requests for production on 27 April 23, 2024, and Defendants have responded. 28 Page 2 of 7 MAC:14687-411 5529444_1 1 7. Plaintiffs served Defendants with a third set of requests for production on 2 May 9, 2024, and Defendants have responded. 3 8. Plaintiffs served Defendants with a second set of interrogatories on July 1, 4 2024, to which Defendants are required to respond. 5 9. Plaintiffs have retained and disclosed three expert witnesses. 6 10. Defendants have retained and disclosed two expert witnesses. 7 11. Both parties are prepared to serve rebuttal expert reports by the July 5, 2024 8 deadline. 9 12. Both parties have served several supplements to their Initial Rule 26 10 Disclosures. 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 11 13. Plaintiffs have taken the depositions of: (1) all four defendant police officers, 12 (2) three paramedics, (3) two Walgreen employees, (4) coroner Ben Murie, M.D., and (5) 13 have noticed LVMPD’s Rule 30(b)(6) deposition for July 9, 2024. 14 14. Defendants have taken the deposition of Plaintiff Taylor Sommer. 15 15. Defendants have subpoenaed, received, and produced records regarding the 16 Decedent’s medical history and criminal history. 17 16. Plaintiffs have subpoenaed documents and records from the San Diego 18 County Sheriff’s Office. A response to said subpoena is currently due prior to the close of 19 discovery. 20 17. Plaintiffs have subpoenaed documents and other materials, including tissue 21 samples, from the Clark County Coroner’s Office. A response to said subpoena is currently 22 due prior to the close of discovery. However, the nature of the requested materials 23 necessitates significantly more time and attention than a normal document subpoena might 24 require. 25 18. Plaintiffs have subpoenaed documents and other materials, including security 26 videos, from Walgreens. A deposition related to said subpoena is expected to take place 27 prior to the current close of discovery. 28 Page 3 of 7 MAC:14687-411 5529444_1 1 19. Plaintiffs have recently located a percipient witness, Jennifer Aguilar, who 2 was formerly employed as a paramedic in Las Vegas. Since the date of the Plaintiff’s death, 3 Ms. Aguilar moved to Florida. Ms. Aguilar was difficult to locate.. 4 20. 5 III. DESCRIPTION OF DISCOVERY THAT REMAINS TO BE COMPLETED 6 1. The parties are actively working to set expert depositions. Defendants need to serve their experts’ rebuttal reports. The reports are 7 expected to be ready to be served by the July 8, 2024 deadline. 8 2. To the extent necessary, Plaintiffs need to serve their experts’ rebuttal 9 reports. The reports are expected to be ready to be served by the July 8, 2024 deadline. 10 3. Plaintiffs are taking the deposition of LVMPD’s Rule 30(b)(6) witness on 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 11 July 9, 2024. 12 4. Plaintiffs are awaiting a response to the subpoena that has been issued to the 13 San Diego County Sheriff’s Office. 14 5. Plaintiffs are awaiting a response to a subpoena that has been issued to the 15 Clark County Coroner’s Office. Among the information that has been requested are tissue 16 samples. As set forth above, Dr. Murie recently advised that these tissue samples have not 17 yet been plated. This may delay the Coroner’s ability to timely respond to the subpoena. 18 Once the Coroner’s Office has responded, the Plaintiffs must utilize the appropriate methods 19 and chain of custody procedures to allow their medical expert to examine these tissue 20 samples and render his medical opinions. 21 6. Plaintiffs are awaiting a response to a subpoena that has been issued to 22 Walgreens and working to schedule a deposition of the person with knowledge regarding the 23 pertinent information. 24 7. Plaintiffs would like to take the out-of-state deposition of Jennifer Aguilar. 25 This has not been possible to date because Ms. Aguilar was only recently located in Florida. 26 8. Plaintiffs need to take the deposition of Defendants’ expert witnesses 27 (working on dates). 28 Page 4 of 7 MAC:14687-411 5529444_1 1 9. Defendants need to take the deposition of Plaintiffs’ expert witnesses 2 (working on dates). 3 IV. REASONS WHY DISCOVERY HAS NOT BEEN COMPLETED 4 As demonstrated above, the parties have worked diligently and aggressively at 5 completing discovery. Further, the parties have a strong working relationship and have been 6 able to work through numerous potential discovery disputes without seeking court 7 intervention. As a result, discovery in this case has moved smoothly. 8 With the foregoing said, the parties seek additional time to complete some discovery 9 that could not reasonably be completed to date. Plaintiffs have subpoenaed documents 10 related to the Plaintiff’s prior incarceration and medical condition from the San Diego 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 11 County Sheriff’s Office. Although a response is due prior to the close of discovery, it is not 12 known whether the Sheriff’s Office will meet the deadline. Once the response is received, 13 Plaintiffs must disclose the pertinent information. 14 Plaintiffs have also subpoenaed materials from the Clark County Coroner’s Office. 15 Again, a response is due prior to the close of discovery; however, among the requested 16 materials are tissue samples. During the course of Dr. Murie’s deposition in Utah, the parties 17 were advised that these samples have not yet been plated. This will likely result in the need 18 for additional time on the part of both the Coroner’s Office and the parties. Plaintiffs’ 19 medical expert (and perhaps the Defendant’s medical expert) need to examine these tissue 20 samples and render opinions. Chain of custody and medical protocols must be followed. 21 The parties were not aware of the existence or potential importance of these tissue samples 22 until the medical experts provided their reports. 23 Plaintiffs also seek to complete additional depositions of Walgreens and Ms. Aguilar. 24 Walgreens is not a party to this case. Plaintiffs have been attempted to amicably schedule 25 the deposition of a Walgreens 30(b)(6) witness with its corporate counsel for some time. 26 Unfortunately, it has been difficult. Plaintiffs also only recently located Ms. Aguilar, who 27 moved to Florida. Plaintiffs believe that this percipient witness may have additional 28 Page 5 of 7 MAC:14687-411 5529444_1 1 valuable information. However, because she was difficult to locate and because she now 2 resides in Florida, Plaintiffs have not been able to complete this deposition to date. 3 In addition, due to scheduling issues it has proven difficult for the parties to set 4 expert depositions within the current deadlines. This is due to:  5 6 Childress, et al. v. LVMPD, et al., 2:20-cv-01589-APG-NJK  7 8  10 Defendants’ police practices expert is unavailable during the month of July due to prior scheduled commitments.  11 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 Defendants are starting a two-week jury trial (expect to last July 29-August 12, 2024). See Estate of Gomez, et al. v. LVMPD, et al., 2:20-cv-01589-RFB-BNW. 9 MARQUIS AURBACH Defendants just completed a ten day (June 17-26, 2024) jury trial in Estate of 12 Plaintiffs’ experts have limited availability during the month of July and none of the dates match available dates for defense counsel. 13 The parties anticipate that expert depositions can be completed by the end of August 14 2024. However, the parties are requesting an additional thirty-days so deposition transcripts 15 can be obtained prior to the filing of dispositive motions. The parties further believe that 16 they can wrap up all other required discovery within the requested time frame. 17 V. PROPOSED SCHEDULE FOR COMPLETING ALL REMAINING DISCOVERY 18 1. Discovery Cut-Off: Monday, August 5, 2024 to October 7, 2024 2. Dispositive motions: Tuesday, September 3, 2024 to November 3, 2024 3. Joint Pretrial Order: Thursday, October 3, 2024 to December 3, 2024 (30 19 20 21 days after the resolution of dispositive motions, or further Court order) 22 The parties reiterate that this request is not due to lack of diligence or failure to plan. 23 Rather, in light of defense counsel’s two trials in June and July and the parties’ experts’ 24 schedules, it has been problematic to find expert deposition dates prior to the discovery cut25 off. Additional matters have been generally out of the control of the parties. As set forth 26 above, most of the remaining required discovery is currently scheduled to be completed. 27 However, the responses of certain parties are not within the control of the parties. As for the 28 Page 6 of 7 MAC:14687-411 5529444_1 1 Clark County Coroner’s Office, the parties were not aware of the existence of need for the 2 tissue samples until their medical experts provided their reports. Nor were they aware that 3 the tissue samples had not yet been plated. Although a response from the Coroner’s Office is 4 presently due by the current close of discovery, even if the Coroner timely responses, it is 5 unlikely that sufficient time will exist for the parties’ medical experts to conduct their 6 examination and testing, particularly given the chain of custody and medical protocols at 7 issue. Ideally, the medical experts will have the opportunity to examine the tissue samples 8 and render additional opinions before they are deposed. 9 Dated this 3rd day of July, 2024. 10 MARQUIS AURBACH ROGER P. CROTEAU & ASSOCIATES, LTD. 10001 Park Run Drive Las Vegas, Nevada 89145 (702) 382-0711 FAX: (702) 382-5816 MARQUIS AURBACH 11 12 By: s/Craig R. Anderson Craig R. Anderson, Esq. 13 Nevada Bar No. 6882 10001 Park Run Drive 14 Las Vegas, Nevada 89145 Attorneys for Defendants LVMPD, 15 Sheriff Kevin McMahill, Sgt. Bagaporo, Sgt. Blum, Ofc. Garcia and Ofc. Ortega 16 17 IT IS SO ORDERED: 18 NO FURTHER EXTENSIONS WILL BE GRANTED. 19 20 21 By: s/Timothy E. Rhoda Roger P. Croteau, Esq. Nevada Bar No. 4958 Timothy E. Rhoda, Esq. Nevada Bar No. 7878 2810 West Charleston Blvd., #67 Las Vegas, Nevada 89102 Attorney for Plaintiffs UNITED STATES MAGISTRATE JUDGE DATED: July 8, 2024 22 23 24 25 26 27 28 Page 7 of 7 MAC:14687-411 5529444_1

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