Kroshus et al v. United States of America, et al

Filing 346

ORDER. IT IS HEREBY ORDERED that defendants 275 motion to dismiss for abstention and to stay proceedings and the 287 supplement to motion to dismiss and motion to strike plaintiff's complaint are DENIED without prejudice. FURTHER ORDERED, plaintiffs shall have 60 days from the date of this order in which to file their response to the affidavit of merit argument raised by defendants, and defendants shall have 30 days from the date of plaintiffs' response in which to file a reply. Signed by Judge Lloyd D. George on 3/30/2012. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JUDY KROSHUS, et al.,

3:09-cv-0713-LDG-RAM

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Plaintiffs,
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v.
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UNITED STATES OF AMERICA, et al.,
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Defendants.
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On August 9, 2011, defendants TRC Engineers, Inc., fka VPOINT, Martin Ugalde, Robert

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Bidart, and Michael Bidart filed a motion to dismiss for abstention and to stay proceedings (#275,

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opposition #277, reply #278). Defendants pointed out that plaintiffs have filed a similar action in state

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court and argued that plaintiffs were seeking a double recovery, and the court should abstain under

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the Colorado River doctrine. Subsequently, on October 21, 2011, defendants filed their supplement

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to motion to dismiss and motion to strike plaintiffs’ complaint (#287). The supplement raised

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completely new arguments dealing with the requirement under NRS 11.258 and NRS 40.6884 for

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filing an affidavit of merit concurrently with service. The record, however, does not indicate that

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plaintiffs have filed a response to the affidavit-of-merit arguments raised by defendants. Under the

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rules, plaintiffs are not required to respond to a supplemental filing, and the motion to strike was not

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filed or docketed separately. In any event, the court deems it important in this instance that plaintiffs

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be allowed to address the affidavit-of-merit arguments before the court rules on the motions.

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Accordingly,

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THE COURT HEREBY ORDERS that defendants TRC Engineers, Inc., fka VPOINT, Martin

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Ugalde, Robert Bidart, and Michael Bidart’s motion to dismiss for absention and to stay proceedings

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(#275) and supplement to motion to dismiss and motion to strike plaintiffs’ complaint (#287) are

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DENIED without prejudice to their reinstatement by defendants after plaintiffs have had the

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opportunity to address the affidavit-of-merit argument raised by defendants in their supplement to the

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motion to dismiss and motion to strike plaintiffs’ complaint.

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THE COURT FURTHER ORDERS that plaintiffs shall have 60 days from the date of this

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order in which to file their response to the affidavit of merit argument raised by defendants, and

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defendants shall have 30 days from the date of plaintiffs’ response in which to file a reply.

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DATED this ______ day of March, 2012.

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______________________________
Lloyd D. George
United States District Judge

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