Slagowski v. Cent. Wash. Asphalt
| Decision Date | 02 July 2013 |
| Docket Number | 2:11-cv-00142-MMD-VCF |
| Parties | CANDACE SLAGOWSKI, et al, Plaintiff, v. CENTRAL WASHINGTON ASPHALT, et al., Defendant. |
| Court | U.S. District Court — District of Nevada |
Before the court is defendants Central Washington Asphalt, Inc., Donald Hannon, James Wentland and Jerry Goldsmith's Motion to Stay Civil Proceedings Pending Anticipated Criminal Proceedings. (#73). Third-Party Defendant Mitchell Zemke filed an Opposition (#78) and plaintiffs Doreen Lea Law and Phillip Law (hereinafter "Law Plaintiffs") filed an Opposition (#79). Counter-Claimants Mitchell Zemke and Kathryn Zemke (#83), third-party defendants Chip Edward Fenton and Fenton Trucking, LLC (hereinafter "Fenton Defendants")(#84), plaintiffs Anika Slagowski, Candace Slagowski, Quentin Slagowski, Rowan Slagowski (hereinafter "Slagowski Plaintiffs") (#85), and the Law Plaintiffs (#87) filed Joinders to Zemke's Opposition. The defendants filed a Reply in Support of the Motion to Stay. (#89). Slagowski Plaintiffs filed a Supplemental Response (#116), and defendants filed a Reply (#122).
Also before the court is the Law Plaintiffs' Counter-Motion for Attorney Fees , Court Costs, and Sanctions. (#81). Defendants Opposed the Counter-Motion in their Reply in Support of their Motion to Stay (#89), and the Law Plaintiffs did not file a Reply.
Also before the court are the defendants' Motion for Sanctions Regarding Discovery AgainstThird-Party Defendant Chip Fenton for Failure to Appear for His Deposition (#98), and Emergency Motion for Protective Order (#99). Third-Party Defendant Zemke, Slagowski Plaintiffs, and the Fenton Defendants filed Oppositions to the Emergency Motion (#99). (#100, #104, and #107). Defendants filed a Supplement in Support of the Motion for Sanctions (#113) and a Notice of No Response to the Motion for Sanctions (#121).
Also before the court is Third-Party Defendants Mitchell Forest Zemke's Counter-Motion for Attorney Fees, Costs, and Sanctions. (#101). Slagowski Plaintiffs, the Law Plaintiffs, and the Fenton Defendants filed Joinders thereto. (#102, #106, and #109). Defendants filed an Opposition (#113), Third-Party Defendant Zemke filed a Reply (#118), and Counter-Claimant Mitchell Zemke and Plaintiff Kathryn Zemke filed a Joinder thereto (#120).
The court held a hearing on June 27, 2013. (#123).
On January 26, 2011, plaintiff Candace Slagowski filed a petition and order for appointment of guardian Ad Litem to initiate a wrongful death case (#1 and #2). Plaintiff Candace Slagowski alleges that her husband, and the father of her minor children, died in an automobile accident, and that the children have a cause of action for wrongful death. (#2-2). On January 27, 2011, the court issued an order granting the motion to appoint guardian Ad Litem. (#4). On January 28, 2011, Slagowski Plaintiffs and plaintiff Patricia Dean filed a motion to remove Candace Slagowski as guardian Ad Litem for Patricia Dean. (#5). The court denied the motion (#5) on May 31, 2011. (#29). On June 9, 2011, Slagowski Plaintiffs filed a complaint for damages against Central Washington Asphalt, Inc. (referred to herein as "CWA" or "Central Washington"), Donald Hannon, James Wentland, and Jerry Goldsmith alleging claims for (1) general negligence/wrongful death and (2) exemplary damages. (#30).
On July 22, 2011, defendants filed their answer, asserting seventeen affirmative defenses. (#32). The parties filed their proposed discovery plan and scheduling order on November 28, 2011 (#38), which the court signed on December 12, 2011 (#39). On May 1, 2012, defendants filed a motion forleave to file third-party complaint. (#40). Slagowski Plaintiffs filed a non-opposition to the motion (#40) on May 15, 2012. (#42). The court granted the defendants' motion on May 17, 2012. (#43). Defendants filed the third-party complaint (#44) on the same day. Third-party defendants Chip Edward Fenton and Fenton Trucking, LLC (hereinafter "Fenton Defendants") filed their answer on July 17, 2012. (#48). Third-party defendant Mitchell Forest Zemke filed an answer to the third-party complaint and a counterclaim against all defendants on August 8, 2012. (#53).
On August 31, 2012, defendants filed an answer to the counterclaim. (#55). The parties filed a proposed discovery plan on September 4, 2012 (#56), which the court signed on September 6, 2012 (#57). On September 24, 2012, third-party defendant Doreen Law filed her answer to the third-party complaint. (#59). On November 6, 2012, third-party defendant Law filed a motion to consolidate cases (#62), and on November 8, 2012, third-party defendant Zemke and Slagowski Plaintiffs filed non-oppositions (#63 and #64). On November 27, 2012, the court issued a minute order granting the motion to consolidate (#62). (#67). The consolidation order brought in Phillip Law and Kathryn Zemke. Id. On February 20, 2013, plaintiff Candace Slagowski filed a petition and order to substitute William Terrel as guardian Ad Litem (#69), and the court granted the motion on March 11, 2013 (#71).
On April 8, 2013, defendants filed a motion to stay civil proceedings pending anticipated criminal proceedings (#73) and an emergency motion for protective order regarding depositions of defendants Hannon, Wentland, and Goldsmith ("individual defendants") (#74). On April 9, 2013, third-party defendant Zemke filed an opposition to the emergency motion for protective order (#74). (#75).
Defendants asked this court to issue a protective order to prevent the depositions of the individual defendants currently scheduled for April 18 and April 19, 2013, from going forward until the court has considered the parties' full briefing on the defendants' motion to stay proceedings (#73). (#74). Defendants stated in the pending motion to stay proceedings, that they "seek a narrowly tailored stay of the depositions and testimonial discovery of Hannon, Wentland and Goldsmith pending the resolution of criminal proceedings that may arise from the accident." (#73).
Defendants asserted in the emergency motion for protective order that they have "recent reason to anticipate criminal indictment," as "[t]he Nye County District Attorney's office recently confirmed that, although no criminal charges have been filed yet, it is actively reviewing the Nevada Highway Patrol traffic accident report of the motor vehicle accident at the center of this civil case and Hannon's, Wentland's and Goldsmith's conduct in relation to the accident." (#74). Defendants argued that the depositions undermine the defendants' "Fifth Amendment right against self-incrimination and threaten to unjustly prevent [d]efendants from defending against liability in this action." Id. Defendants also asserted that without a protective order, they will "be faced with the impossible decision of either asserting their Fifth Amendment privilege against self incrimination or waiving the privilege and testifying, as required for [d]efendants to comprehensively defend against civil liability in this case." Id.
Third-party defendant Zemke argued in his opposition that defendant Hannon should be subject to deposition and assert the Fifth Amendment privilege "on a question by question basis consistent with Nevada and Federal law." (#75)(emphasis in original). Zemke also argued that Wentland and Goldsmith have no basis to assert the Fifth Amendment, and that there are no parallel criminal proceedings and thus no real threat of prosecution. Id.
The court issued an order on April 9, 2013, granting the emergency motion for protective order regarding the depositions (#74) and staying the depositions until resolution of the motion to stay (#73). (#77). The court held that "[t]emporarily staying the depositions until the court rules on the pending motion to stay (#73) will not prejudice any of the parties," and that "[r]equiring the defendants to testify at their depositions before the court rules on the motion to stay (#73), however, may hinder defendants' ability to defend this action." Id (emphasis in original).
Oppositions to the motion to stay and joinders thereto were filed (#78, #79, #85, and #87), and Slagowski Plaintiffs filed a countermotion for attorneys' fees (#81). Defendants' filed a reply in support of their motion to stay (#73) and an opposition to the countermotion (#81). (#89). On May 8,2013, the parties filed a stipulation to extend discovery (#92), which the court signed on May 10, 2013 (#93). On May 17, 2013, the court scheduled a hearing on the motion to stay (#73) and the countermotion for attorneys' fees (#81) for June 6, 2013. (#95). On May 28, 2013, defendants filed a motion for sanctions regarding Chip Fenton's failure to appear at his deposition (#98), and an emergency motion on order shortening time for protective order to stay the rogue deposition of Chip Fenton (#99). Third-Party defendant Zemke filed an opposition to the emergency motion (#100) and a countermotion for cost, fees, and sanctions (#101). On May 29, 2013, plaintiffs filed a joinder to Zemke's countermotion for costs, fees, and sanctions (#101). (#102).
The court entered a minute order on May 29, 2013, stating that "the deposition of Chip Fenton is stayed pending the resolution of Defendants' Emergency Motion (#99)," and scheduling a hearing on the emergency motion (#99), motion to stay (#73), and countermotion (#81) for June 6, 2013, at 1:30 p.m. (#103). On May 29, 2013, Slagowski Plaintiff filed an opposition to defendant's emergency motion for protective order regarding deposition of Chip Fenton (#99). (#104). On May 30, 2013, the Fenton Defendants filed an opposition to defendants' emergency motion for protective order (#99). (#107). The Zemkes filed a joinder in opposition to def...
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