Opinion
3:21-cv-00502-ART-CSD
04-20-2023
RENAE JOY SWAIM, as Special Administrator of the Estate of Clinton Lee Swaim; RENAE JOY SWAIM, an individual; CLINTON THOMAS SWAIM, Jr., an individual; and RENAE JOY SWAIM, as parent and custodian of minor K.R.S.; collectively, Plaintiffs, v. DAVID ATHERTON, an individual; MATT BOWMAN, an individual; DAIKI “SAM” BRANCH, an individual; JAMES CAMERON, an individual; VIVIAN DAVIS, an individual; ISAAC FLORES, an individual; JOEL GOMEZ, an individual; CHRIS HENRY, an individual; SAMANTHA LYONS, an individual; ERICK MCBRIDE, an individual; RICK MEIER, an individual; BRAD MITCHELL, an individual; LUIS OROZCO, an individual; LACEY PATIGA, an individual; NICHOLAS PATIGA, an individual; BRANDON TAYLOR, an individual; TANNER TROUT, an individual; JOHN WEST, an individual; and DOES I to X, inclusive; collectively, Defendants.
GALLIAN WELKER & ASSOCIATES, L.C. NATHAN E. LAWRENCE, NBN 15060 Travis N. Barrick, NBN 9257 Michael I. Welker, NBN 7950 Attorney for Plaintiffs Aaron D. Ford, Attorney General Marni K. Watkins, NBN 9674 Bureau Chief, Complex Litigation Attorneys for Defendants
GALLIAN WELKER & ASSOCIATES, L.C. NATHAN E. LAWRENCE, NBN 15060
Travis N. Barrick, NBN 9257
Michael I. Welker, NBN 7950
Attorney for Plaintiffs
Aaron D. Ford, Attorney General Marni K. Watkins, NBN 9674 Bureau Chief, Complex Litigation
Attorneys for Defendants
JOINT STATUS REPORT
Plaintiffs RENAE JOY SWAIM, as (1) Special Administrator of the Estate of Clinton Lee Swaim, (2) individually, and (3) as parent and custodian of minor K.R.S, and CLINTON THOMAS SWAIM, Jr. (collectively, “Plaintiffs”), by and through their attorneys of the law firm of Gallian Welker & ASSOCIATES, L.C., and Defendants DAVID ATHERTON; MATT BOWMAN; DAIKI “SAM” BRANCH; JAMES CAMERON, VIVIAN DAVIS; ISAAC FLORES; JOEL GOMEZ; CHRIS HENRY; SAMANTHA LYONS; ERICK MCBRIDE; RICK MEIER; BRAD MITCHELL; LUIS OROZCO; LACEY PATIGA; NICHOLAS PATIGA; BRANDON TAYLOR; TANNER TROUT; and JOHN WEST (collectively, “Defendants”), by and through their counsel, AARON D. FORD, Attorney General, and First Assistant Attorney General Craig A. Newby, Esq., hereby submit this Joint Status Report.
Defendant State of Nevada ex rel. Nevada Department of Health and Human Services, Division of Public and Behavorial Health (“DPBH”) was dismissed pursuant to the Court's February 3, 2023, Order, for lack of subject matter jurisdiction. ECF No. 34.
I. PROCEDURAL HISTORY
1. On December 7, 2021, Plaintiffs filed their Complaint [ECF No. 1], initiating this action.
2. On January 7, 2022, DPBH filed its Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(1) [ECF No. 6], to which Plaintiffs' Response [ECF No. 7] and Defendants' Reply in Support [ECF No. 8] were each timely filed.
3. On March 14, 2022, nine (9) named Defendants filed their Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), to which Plaintiffs' Response [ECF No. 17] and Defendants' Reply in Support [ECF No. 18] were each timely filed.
4. On May 6, 2022, the Parties filed their Joint Conference Report and Stipulated Discovery Plan and Scheduling Order [ECF No. 22], which was accepted and ordered by the Court on May 9, 2022 [ECF No. 25], 5. On June 27, 2022, all remaining individual Defendants filed their joinder to the March 14, 2022, Motion to Dismiss [ECF No. 30], No response to the Joinder was filed.
6. On December 12,2022, the Parties stipulated to stay discovery pending resolution of the various above-referenced motions [ECF No. 32], which stipulation the Court granted and ordered on December 27, 2022 [ECF No. 33], 7. On February 3, 2023, the Court entered its Order [ECF No. 34] with respect to all pending motions, ordering that (1) Defendant STATE OF NEVADA ex rel. NEVADA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF PUBLIC AND BEHAVORIAL HEALTH (“DPBH”) be dismissed for lack of subject matter jurisdiction; (2) Plaintiffs' second, third, and fourth state claims for relief under applicable state law be dismissed for lack of subject matter jurisdiction; and (3) Plaintiffs' claims for damages under Article 1, § 8 of the Nevada Constitution be dismissed.
8. Specifically, in dismissing the State of Nevada second, third, and fourth claims for relief, namely, (1) Wrongful Death under NRS 41.085; (2) Negligence; and (3) Negligent Hiring, Training, Selection, and Supervision; the Court noted that Plaintiffs “must raise [their] state tort claims in state court.”
9. On February 13, 2023, Plaintiffs filed their complaint in the Second Judicial District Court, Washoe County, Nevada, initiating Case No. CV23-00275 against the State of Nevada ex rel. DPBH and all remaining Defendants in the instant matter (the “Washoe Litigation”), asserting such state claims for relief as were dismissed herein, namely, for (1) Deliberate Indifference to a Serious Medical Need, Pursuant to Nevada Constitution, Article 1, § 6; (2) Wrongful Death under NRS 41.085; (3) Negligence; and (4) Negligent Hiring, Training, Selection, and Supervision.
10. On March 29, 2023, the Attorney General accepted service on behalf of Defendants in the Washoe Litigation, further to which Acceptance of Service Defendants' answer or responsive pleading in the Washoe Litigation will be required on or before May 28, 2023.
11. Although the claims for relief and legal theories now differ, the facts and events giving rise to the Washoe Litigation arise from and are related to the same transaction and occurrence presently before the bar.
12. No answer has yet to be filed by any Defendant in this matter.
Further to the initiation of the Washoe Litigation and following colloquy between counsel, the Parties hereby submit this Joint Status Report and request that the Court continue its stay of discovery to allow further initial proceedings in and progression of the Washoe Litigation. As noted, the Washoe Litigation arises from and is related to the same transaction and occurrence presently before the bar, to wit, the death by suicide of Decedent Clinton Lee Swaim on December 10,2019. Defendants, through counsel, have indicated that they anticipate moving to dismiss the Washoe Litigation, asserting arguments related to the applicable statute of limitations.
Depending on the outcome of the anticipated motion practice in the Washoe Litigation, the case will either be dismissed or be required to proceed concurrently with the instant matter. Should the latter scenario eventuate, for the benefit and economy of the Parties, their respective counsel, and both courts, it will be desirable to attempt to coordinate, to the greatest degree feasible, particularly considering the large volume of involved Parties, contemporaneous discovery across both matters to avoid or reduce undue discovery burdens. Accommodating this possible contemporaneity of discovery cannot be scheduled absent a procedural determination of the Washoe Litigation.
Accordingly, the Parties request that the Court continue its stay in this matter until the resolution of the Washoe Litigation motion practice, with a status check herein to be scheduled at the Court's convenience, approximately ninety (90) days after this Joint Status Report.
ORDER
For good cause appearing, it is hereby ordered that the stay of discovery is continued. A status check is hereby set for Monday, July 24, 2023 at 10 a.m., to be conducted by videoconference.
IT IS SO ORDERED.