Opinion
2:20-cv-01484-RFB-VCF
01-06-2022
RSUI INDEMNITY COMPANY, a New Hampshire Stock Company; and EVANSTON INSURANCE COMPANY, an Illinois corporation Plaintiffs, v. SPORTSMAN'S ROYAL MANOR, LLC, a Nevada Limited Liability Company; DOMONIQUE BROWNING-PALMER, individually; GARY BRENNAN, individually; Defendants. SPORTSMAN'S ROYAL MANOR, LLC; GARY BRENNAN; Counter-claimants, v. RSUI INDEMNITY COMPANY; EVANSTON INSURANCE COMPANY; KAERCHER CAMPBELL & ASSOCIATES INSURANCE BROKERAGE OF NEVADA, LLC; KAERCHER INSURANCE, AN ALERA GROUP AGENCY, LLC; and DOE DEFENDANTS 1-10; ROE DEFENDANTS 11-20; Counter-defendants.
ARMSTRONG TEASDALE LLP CHRISTIAN, KRAVITZ, DICHTER, JOHNSON & SLUGA, PLLC KEVIN R. STOLWORTHY, ESQ. MICHELLE D. ALARIE, ESQ. TYLER J. WATSON, ESQ. CLYDE & CO U.S. LLP LIPSON NEILSON P.C. PETER J. WHALEN, ESQ. JOSEPH P. GARIN, ESQ. JENNIFER D. MCKEE, ESQ. AMANDA A. EBERT, ESQ. MATTHEW L. SHARP, LTD. MATTHEW L. SHARP, ESQ.
ARMSTRONG TEASDALE LLP
CHRISTIAN, KRAVITZ, DICHTER,
JOHNSON & SLUGA, PLLC
KEVIN R. STOLWORTHY, ESQ.
MICHELLE D. ALARIE, ESQ.
TYLER J. WATSON, ESQ.
CLYDE & CO U.S. LLP
LIPSON NEILSON P.C.
PETER J. WHALEN, ESQ.
JOSEPH P. GARIN, ESQ.
JENNIFER D. MCKEE, ESQ.
AMANDA A. EBERT, ESQ.
MATTHEW L. SHARP, LTD.
MATTHEW L. SHARP, ESQ.
STIPULATION AND [PROPOSED] ORDER TO EXTEND DISCOVERY DEADLINES AND AMEND SCHEDULING ORDER (ECF NO. 83)
[SECOND REQUEST]
The parties, RSUI Indemnity Company (“RSUI”), Evanston Insurance Company (“Evanston”), Sportsman's Royal Manor, LLC (“SRM”), Gary Brennan (“Brennan”), Domonique Browning-Palmer (“Browning-Palmer”), Kaercher Campbell & Associates Insurance Brokerage of Nevada, LLC (“Kaercher Campbell”), and Kaercher Insurance, an Alera Group Agency, LLC (“Kaercher Insurance, ” and with Kaercher Campbell, “Kaercher”), by and among the undersigned counsel, hereby submit this stipulation requesting that this Court extend all deadlines within the Joint Discovery Plan and Scheduling Order (ECF No. 56) as amended by the Stipulation and Order to Extend Discovery Deadlines Within Joint Discovery Plan and Scheduling Order (ECF No. 83) by an additional 180 days. This is the parties' second request to extend discovery deadlines in this case. This stipulation is entered into in good faith and not for purposes of undue delay.
The current Scheduling Order provides the following discovery deadlines: Discovery Cut-Off: April 11, 2022; Amend Pleadings/Add Parties: January 11, 2022; Initial Expert: February 10, 2022; Rebuttal Expert: March 14, 2022; Dispositive Motions: May 11, 2022; Pre-Trial Order: June 10, 2022 (subject to LR 26-1(b)(5)). (ECF No. 83.)
A new development has occurred in the instant action. Several parties to this instant action and the Underlying Action have reached an agreement in principal to settle amongst themselves, and a term sheet was recently circulated amongst the settling parties and other interested parties including insurance carriers. One of the settlement terms requires that this Court approve a good faith settlement motion. Accordingly, a discovery extension is requested.
In compliance with LR IA 6-1 and 26-3, the parties submit that good cause exists to extend the above-referenced discovery deadlines by 180 days.
1. Discovery completed
On August 10, 2020, RSUI and Evanston filed a Complaint against SRM, Brennan, and Browning-Palmer seeking declaratory relief concerning the insurers' rights and obligations under certain polices of excess insurance that RSUI and Evanston issued to SRM and Brennan for policy period March 13, 2015, to March 13, 2016, with respect to a claim for personal injury damages made by Browning-Palmer arising out of a 2015 shooting at SRM's property. (ECF No. 1.) Browning-Palmer also filed a lawsuit against SRM relating to the above-referenced claim that is currently pending in the Eighth Judicial District Court, Clark County, Nevada, entitled Browning-Palmer v. Hines, et al., No. A-17-755668-C (the “Underlying Action”). (Id.)
On October 13, 2020, SRM and Brennan filed a Counterclaim against RSUI, Evanston, and new parties Kaercher arising out of the insurers' and insurance brokers' alleged conduct with respect to their handling of the Browning-Palmer claim and the Underlying Action as well as the sale of certain general liability and excess insurance policies to SRM and Brennan. (ECF No. 14.)
Thereafter, RSUI, Evanston, and Kaercher filed a No. of motions to dismiss and to strike the Counterclaim. (ECF Nos. 21 - 22, 25 - 27, 32 - 34, 38, and 41 - 43.) On November 24, 2020, SRM and Brennan filed a First Amended Counterclaim. (ECF No. 46.) RSUI, Evanston, and Kaercher again filed a No. of motions to dismiss and to strike the First Amended Counterclaim. (ECF Nos. 58 - 62.) The motions were fully briefed as of February 12, 2021. On August 24, 2021, the Court issued a Minute Order denying the pending motions without prejudice based on the parties joint representations that they were attending a global mediation on September 11, 2021. (ECF No. 88.) The Court further stated that if the case did not settle, the motions could be re-filed, but cautioned that “the arguments raised in these motions are more appropriate as arguments in a summary judgment motion than in a motion to dismiss and should therefore be brought in that procedural context if the case does not settle.” (Id.) On October 8, 2021, the parties submitted a Joint Status Report advising this Court that although the case did not settle at the September 11, 2021, global mediation, some of the parties were continuing to discuss a settlement framework that may result in a settlement or partial settlement. (ECF No. 89.)
Counsel for the parties attended a FRCP 26(f) conference on December 16, 2020. A Joint Discovery Plan and Scheduling Order was submitted by the parties on December 18, 2020 (ECF No. 55), which was entered by this Court on December 21, 2020. (ECF No. 56).
RSUI served its Initial Disclosures on January 15, 2021, including producing more than 250 pages of documents. SRM and Brennan served their Initial Disclosures on January 15, 2021. Browning-Palmer served her Initial Disclosures on January 15, 2021. Kaercher served their Initial Disclosures on January 15, 2021. Evanston served its Initial Disclosures on January 15, 2021, including producing approximately 153 pages of documents.
On March 8, 2021, RSUI served written discovery on Evanston, SRM, and Kaercher. Such discovery included a First Set of Requests for Production to Evanston and Kaercher and a First Set of Interrogatories and First Set of Requests for Production to SRM.
On March 8, 2021, RSUI also served two Notices of Issuance of Subpoena Duces Tecum to Swett & Crawford and James River Insurance Company.
On March 30, 2021, SRM served written discovery on RSUI, Evanston, and Kaercher. Such discovery included a First Set of Interrogatories and First Set of Requests for Production to RSUI and Evanston, and First Set of Interrogatories, First Set of Requests for Production, and First Set of Requests for Admission to Kaercher.
On April 27, 2021, Kaercher served its responses to RSUI's First Set of Requests for Production, including producing approximately 700 pages of documents with a First Supplement to Initial Disclosures. In April 29, 2021, Kaercher served its responses to SRM's First Set of Interrogatories and SRM's First Set of Requests for Admission. On May 7, 2021, Kaercher served its responses to SRM's First Set of Requests for Production. Kaercher served its Second Supplement to Initial Disclosures on May 18, 2021, including two new documents. Kaercher served its Third Supplement to Initial Disclosures on July 23, 2021, including approximately 20 additional pages of documents.
On or about June 14, 2021, SRM sent Kaercher a discovery meet-and-confer letter identifying several deficiencies with Kaercher discovery responses and document production. Counsel for SRM and Kaercher held a meet-and-confer telephonic conference in late July 2021, and exchanged a No. of emails. The parties are continuing to evaluate these deficiency issues.
The Underlying Action remains pending with continued documentation to be added to insurers' claims files as the Underlying Action progresses. Discovery activity in this action related to SRM, Brennan, RSUI, and Evanston is likely to involve disclosure of information, documents, and materials relevant to the evaluation of Browning-Palmer's claim and/or the ongoing strategy for the prosecution, defense, and resolution of the Underlying Action. As such, SRM, Brennan, RSUI, and Evanston spent a significant amount of time working out document production issues to alleviate concerns related to Browning-Palmer as a defendant in this action. This effort was required to ensure that no party gained an unfair competitive advantage in the Underlying Action through production of documents in the instant case. As a result, on June 9, 2021, the parties submitted a Stipulated Confidentiality and Protective Order, which this Court entered on June 10, 2021 (ECF No. 80). The parties also negotiated another stipulation to allow for the withholding of documents from Browning-Palmer related to SRM's, RSUI's, and Evanston's evaluation of the Browning-Palmer claim and/or the ongoing strategy for the prosecution, defense, and resolution of the Underlying Action. That Stipulation was submitted on August 2, 2021 (ECF No. 84), and entered by this Court on August 3, 2021 (ECF No. 85). Based on these ongoing discussions, RSUI and SRM provided each other and Evanston with multiple extensions to respond to written discovery.
On June 11, 2021, SRM served a Subpoena Duces Tecum on CRC Insurance Services, Inc. fka Swett & Crawford (“Swett & Crawford”), who SRM believes to be a wholesale insurance broker that procured insurance policies for SRM. On June 30, 2021, Swett & Crawford advised SRM that it would be producing responsive documents located in its central insurance files on or before July 12, 2021; however, Swett & Crawford advised that they did not undertake a search of its emails across the company based on cost and burden concerns. SRM received Swett & Crawford document production consisting of more than 11, 900 pages of documents in or about late July 2021. SRM produced Sweet & Crawford's entire document production to all parties in the case in its Third Supplement to Initial Disclosures served September 7, 2021, and Fourth Supplement to Initial Disclosures served November 30, 2021.
On June 23, 2021, RSUI served its responses to SRM's First Set of Interrogatories and SRM's First Set of Request for Production of Documents, including producing more than 400 pages of documents.
On June 23, 2021, Evanston served its responses to RSUI's First Set of Requests for Production of Documents, SRM's First Set of Interrogatories, and SRM's First Set of Request for Production of Documents. Evanston produced approximately 600 pages of documents on June 24, 2021.
On June 23, 2021, SRM served its responses to RSUI's First Set of Interrogatories and RSUI's First Set of Requests for Production of Documents, including producing more than 1, 600 pages of documents. On August 17, 2021, SRM served its Second Supplement to Initial disclosures producing another 1, 600 pages to all parties except Browning-Palmer pursuant to the Stipulation and Order governing documents related to the Underlying Action.
On June 24, 2021, RSUI served another Notice of Issuance of Subpoena Duces Tecum to CRC Insurance Services, Inc. f/k/a Swett & Crawford, notifying the parties that it would serve the subpoena on July 2, 2021.
James River Insurance Company has not yet responded to the Subpoena Duces Tecum issued by RSUI.
On or about August 12, 2021, SRM served a deposition subpoena to Deborah Lopez, a former employee of Kaercher. Based on a No. of scheduling conflicts, SRM served a new deposition subpoena on Ms. Lopez re-scheduling her deposition for September 29, 2021. Ms. Lopez's deposition was ultimately cancelled. However, SRM has since learned that Ms. Lopez now resides in Washington state, so counsel will now have to coordinate travel when rescheduling Ms. Lopez' deposition.
On October 8, 2021, SRM served a second set of written discovery on Kaercher related to insurance issues, which Kaercher responded to on November 29, 2021. On December 3, 2021, SRM served a meet-and-confer letter to Kaercher outlining the deficiencies with Kaercher's responses. On December 17, 2021, Kaercher advised via email that it would be supplementing its responses. To date, nothing has been provided.
Given the current deadlines, the parties need to or have retained their respective experts.
2. Discovery that remains to be completed.
SRM is presently engaged in the meet-and-confer process with Kaercher concerning Kaercher's responses to SRM's first and second sets of written discovery, document production, and compliance with Fed.R.Civ.P. 26(a)(1)(A)(iv). Should the parties not be able to work out an agreement, a discovery motion will be necessary.
Based on SRM review of documents produced, SRM may also need to serve additional document subpoenas on other third parties.
RUSI is still waiting on James River Insurance Company to respond to the Subpoena Duces Tecum.
The parties still need to take the depositions of a No. of fact witnesses, including at a minimum the Fed.R.Civ.P. 30(b)(6) designee for each party as well as those individual personally involved in the procuring of the relevant insurance policies. The parties, however, reserve their right to take other depositions. These depositions need to occur after documents productions by the parties and third-parties are completed.
Expert discovery is also remaining. The parties will also need to take expert witness depositions, which cannot be taken until experts are disclosed and reports exchanged.
3. Reason why the remaining discovery cannot be completed within the time limits set by the Scheduling Order.
As demonstrated above, the parties have been actively engaged in discovery since attending the Fed.R.Civ.P. 26(f) conference, including propounding and responding to written discovery, document productions of thousands of pages of documents, conferring regarding the protective order and other document production issues, engaging in the meet-and-confer process, serving subpoena duces tecum and deposition subpoenas on third-parties, and retaining their respective experts.
Nevertheless, since September 2021, the parties have been actively engaged in settlement discussions with the hope of resolving this matter (either entirely or partially). As such, the parties have been putting substantial efforts into settlement. On September 11, 2021, the parties engaged in a full day global mediation before the Hon. Jennifer Togliatti (Ret.), and since that date, several parties have continued to negotiate a resolution through Judge Togliatti. Several parties to this instant action and the Underlying Action have reached an agreement in principal to settle amongst themselves, and a term sheet was recently circulated amongst the settling parties and other interested parties including insurance carriers. One of the settlement terms requires that this Court approve a good faith settlement motion. Based on the No. of parties involved in the settlement (including their insurance carriers) and that this Court's approval will be necessary, it is clear that the parties require additional time to get all this accomplished and the settlement finalized. As such, the parties request an additional 180 day extension of the current discovery schedule.
This is the parties' second request to extend discovery.
4. Proposed discovery schedule.
The parties agree and propose a 180-day extension of the discovery deadlines as follows:
a) Discovery Cut-off Dated: October 11, 2022 (formerly April 11, 2022)
b) Amend Pleadings/Add Parties: July 13, 2022 (formerly January 11, 2022)
c) FRCP 26(a)(2) Disclosure of Initial Expert: August 12, 2022 (formerly February 10, 2022)
d) FRCP 26(a)(2) Disclosure of Rebuttal Expert: September 12, 2022 (formerly March 14, 2022)
e) Dispositive Motions: November 10, 2022 (formerly May 11, 2022)
f) Pre-Trial Order: December 12, 2022 (formerly June 10, 2022), but if dispositive motions are filed, 30 days after decision on the dispositive motions or further order of the court.
The parties stipulate and request that the Court enter an order approving the proposed discovery schedule as set forth above.
ORDER
IT IS SO ORDERED.