Kerner v. U.S. Veteran Affairs Medical Center

Filing 41

ORDER granting 35 Motion to Extend Time to Respond to 29 Third Amended Complaint. The U.S. Veteran Affairs Medical Center and The United States of America answer due 2/19/2025. IT IS FURTHER ORDERED that 40 Motion for Sanctions is DENIED. IT IS FURTHER ORDERED that the plaintiff must file by 2/7/2025 proof of service of process. Signed by Judge Jennifer A. Dorsey on 1/28/2025. (Copies have been distributed pursuant to the NEF - MAM)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Robert Wayne Kerner, 4 5 v. Plaintiff 6 U.S. Veteran Affairs Medical Center, et al., Case No.: 2:23-cv-01872-JAD-MDC Order Granting Defendants’ Motion to Extend Deadline and Denying Plaintiff’s Motion for Sanctions [ECF Nos. 35, 40] 7 Defendants 8 Pro se plaintiff Robert Wayne Kerner filed this suit against the United States, the Veteran 9 Affairs Medical Center in North Las Vegas, and various other government agencies and officials 10 for medical malpractice, negligence, failure to obtain informed consent, and intentional infliction 11 of emotional distress. 1 This case got off to a slow start because Kerner’s effort to effectuate 12 service of process was deficient. 2 After a deadline extension, it appears that Kerner was able to 13 serve the United States of America and the U.S. Veteran Affairs Medical Center, and their 14 answer was due January 20, 2025. A few days before that deadline ran, those defendants filed a 15 request for a 30-day extension of that response deadline, explaining that they were working to 16 obtain information from the VA so they could prepare a proper response. 3 Kerner not only 17 opposes that request, he wants the court to sanction the defendants for what he perceives as “a 18 continuing pattern of undue delay, bad faith, and procedural manipulation.” 4 19 I first address Kerner’s request for sanctions because it reflects a misconception about the 20 litigation process and the limitations of the court’s sanction power. This case did not officially 21 1 22 2 ECF No. 12 at 3–4. ECF No. 26. 23 3 ECF No. 35. 4 ECF No. 40. 1 begin until Kerner effectuated service on any defendant, and that didn’t happen until last month. 2 The notion that the defendants have engaged in a pattern of delay and abuse is simply 3 unsupported by the record. The only thing they’ve done since being served 5 was file their 4 motion and reply asking for an extra 30 days to answer. 6 Although Kerner suggests that the 5 defendants have had an “awareness of [his] claims since August 2022,” 7 the law requires far 6 more than awareness for the court to impose sanctions. As the Ninth Circuit Court of Appeals 7 explained in B.K.B. v. Maui Police Department, bad faith is required. 8 Nothing that the 8 defendants have done in this litigation even hints at bad faith. So the request for sanctions is 9 denied. 10 Kerner’s refusal to afford the defendants a brief, 30-day extension of their answer 11 deadline also reflects a misunderstanding of the speed at which federal civil litigation moves and 12 the court’s expectations for common courtesies. Federal Rule of Civil Procedure 6(b)(1) permits 13 courts to extend deadlines, and the Ninth Circuit has instructed district courts that this rule 14 should “be liberally construed to effectuate the general purpose of seeing that cases are tried on 15 16 5 This is not a substantive finding that service was properly effectuated. The record is insufficient for the court to make that determination at this time because Kerner has not filed 17 proof of service. 18 6 ECF Nos. 35, 38. Kerner also contends that the defendants improperly included “dismissed entities as Defendants” in their filings. ECF No. 40 at 4. He does not explain who these entities 19 are. Kerner has filed without seeking leave of court a total of five versions of his complaint, see ECF Nos. 8, 10, 12, 29, 36, although Federal Rule of Civil Procedure 15(a) permits just one 20 amendment without leave of court or the opposing parties’ consent. See Fed. R. Civ. P. 15(a). At this point, it is not clear which of these pleadings is the operative one or who the operative 21 defendants are. So this court cannot fault the defendants for using a caption that does not comport with the one Kerner believes to be accurate. 22 7 ECF No. 40 at 2. 23 8 B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1108 (9th Cir. 2002). 2 1 the merits.” 9 So, “in absence of bad faith on the part of the party seeking relief or prejudice to 2 the adverse party,” requests for extensions before the applicable deadline has passed should 3 routinely be granted. 10 And in this district, they are. So the court also expects that parties extend 4 to one another the common courtesy of reasonable deadline extensions. 5 Defense counsel’s request for a 30-day extension of the answer deadline falls squarely 6 into the category of extension requests that the Ninth Circuit encourages the district courts to 7 grant liberally. In a motion filed before the response deadline ran, counsel represents that they 8 need the extra time to gather information required to properly respond to Kerner’s third-amended 9 complaint. Thirty additional days is a reasonable, non-abusive extension length. And Kerner 10 has not identified any true legal prejudice 11 he will suffer if the answer deadline is extended. So 11 the request for an extension of the response deadline is granted. The United States of America 12 and the U.S. Veteran Affairs Medical Center’s deadline to respond to the complaint that Kerner 13 served upon them is extended to February 19, 2025. Both sides are advised that the court 14 expects them to grant each other reasonable extension requests in the future and file 15 stipulations reflecting those agreements. 16 17 18 19 20 9 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258–59 (9th Cir. 2010). 21 10 Id. at 1259. 11 “‘Legal prejudice’ is a term of art: it means ‘prejudice to some legal interest, some legal claim, 22 some legal argument.’” Kamal v. Eden Creamery, LLC, 88 F.4th 1268, 1280 (9th Cir. 2023) (quoting Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996)). Further delay 23 in the resolution of a claim is not legal prejudice. Id. 3 1 IT IS THEREFORE ORDERED that the motion to extend the deadline to respond to the 2 third-amended complaint [ECF No. 35] is GRANTED. The United States of America and the 3 U.S. Veteran Affairs Medical Center have until February 19, 2025, to answer or otherwise 4 respond to the complaint served on them. 5 IT IS FURTHER ORDERED that the plaintiff’s motion for sanctions [ECF No. 40] is 6 DENIED. 7 Finally, IT IS FURTHER ORDERED that the plaintiff must file by February 7, 2025, 8 proof of service of process for any defendant who has been served. That proof of service must 9 identify what documents were served, on whom they were served, and when. The form for such 10 proof can be found on this court’s website at https://www.nvd.uscourts.gov/self-help-portal/self11 help-general-information/general-forms/ under the “Civil Summons” button. 12 13 _______________________________ U.S. District Judge Jennifer A. Dorsey January 28, 2025 14 15 16 17 18 19 20 21 22 23 4

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