United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court
before the Court are the Objections, (ECF Nos. 166, 175, 193)
(collectively the “Objections”), to the Honorable
Magistrate Judge Nancy J. Koppe's Orders, (ECF Nos. 165,
174, 192), filed by Plaintiffs Jennifer Kwasniewsk, Estate of
Andrew A. Kwasniewski, Taylor L. Kwasniewski, and Dylan A.
Kwasniewski (collectively “Plaintiffs”).
Defendant Sanofi-Aventis U.S. LLC (“Defendant”)
filed Responses, (ECF Nos. 168, 176, 196), and Plaintiffs
filed a single Reply, (ECF No. 197), to one of its
Objections, (ECF No. 193).
pending before the Court is Defendant's Motion to
Dismiss, (ECF No. 210), to which Plaintiffs filed a Response,
(ECF No. 211). Defendant failed to file a reply, and the
time to do so has passed.
dispute arises out of the tragic passing of Andrew
Kwasniewski (“Decedent”), who had been prescribed
Ambien CR (“Ambien”) at the time of his death.
(See Second Am. Compl. (“SAC”), ECF No.
209). Defendant manufactures the prescription drug Ambien, a
sleep aid medication. (SAC ¶ 16). Plaintiffs assert that
Defendant had knowledge that Ambien may produce suicidal
thoughts, ideations, or actions. (Id. ¶¶
19, 21-22). Despite Defendant's awareness of these side
effects, Plaintiffs allege that Defendant marketed,
manufactured, sold, and distributed Ambien, but failed to
provide physicians and consumers with adequate warnings about
its suicide-related side effects. (Id. ¶¶
these consumers, Decedent, had been prescribed Ambien by his
physician for sleeplessness. (Id. ¶ 29, 60). On
March 8, 2010, Decedent took the medication as prescribed by
his physicians. (Id. ¶ 18). Plaintiffs assert
that because Decedent took Ambien, Decedent committed suicide
by a gunshot injury to his temple and died on March 9, 2010.
(Id. ¶ 64).
the surviving members of Decedent's family, initially
commenced the action in state court, (see Pet. For
Removal at 2, ECF No. 1), but on March 27, 2012, Defendant
removed the action to this Court, (id.). Plaintiffs
allege the following causes of action against Defendant: (1)
strict liability; (2) failure to warn; and (3) negligence.
(Id. ¶¶ 69-116).
April 25, 2016, the Court granted Plaintiffs' unopposed
Motion to Amend/Correct Complaint. (See Min. Order,
ECF No. 147). On April 25, 2016, Plaintiffs filed their First
Amended Complaint. (See First Am. Compl., ECF No.
148). On May 27, 2016, Plaintiffs filed an additional
unopposed Motion to Amend/Correct Complaint, (ECF No. 154),
which disposed of Plaintiffs' fourth cause of action for
punitive damages and instead included punitive damages in
Plaintiffs' prayer for relief. (See First Am.
Compl. ¶¶ 114-118, ECF No. 148); (see also
Mot. to Amend/Correct, Ex. 1 at 26, ECF No. 154-1).
Court granted Plaintiffs' second request to amend, and
Plaintiffs filed the current Second Amended Complaint.
(See Min. Order, ECF No. 205). In the instant Motion
to Dismiss, Defendant requests that the Court dismiss the
first and third count “for failure to state a cause of
action upon which relief can be granted.” (Mot. to
Dismiss 2:4-5, ECF No. 210).
on June 8, 2016, Plaintiffs filed a Second Motion to Stay
Discovery based on the assertion that discovery should not
continue while Plaintiffs were awaiting Defendant's
Answer to the First Amended Complaint and notice of
Defendant's affirmative defenses. (See Mot. to
Stay 2:19-22, ECF No.). On June 17, 2016, Judge Koppe denied
Plaintiffs' Second Motion to Stay Discovery.
(See Order, ECF No. 165). Plaintiffs filed an
Objection to the Court's Order seeking to reverse the
ruling and stay discovery pending the filing of
Defendant's Answer. (Id. 10:7-8, ECF No. 166).
After the Motion to Stay Discovery was denied, Plaintiffs
filed a Motion for Protective Order, (ECF No. 171),
requesting to stay subpoenas served by Defendant.
(See Mot. for Protective Order 6:8-9, ECF No. 171).
The Court denied the Motion for Protective Order for similar
reasons as the Order denying the Motion to Stay Discovery.
(See Order, ECF No. 174). On November 18, 2016,
Plaintiffs filed an Objection to the Court's Order
denying the Motion for Protective Order seeking reversal.
(See Obj. ECF No. 175).
Defendant filed a Motion for Protective Order objecting to
forty-one of the topics set forth in Plaintiffs' Rule
30(b)(6) deposition notice and moved the Court to limit or
quash the notice. (Mot. for Protective Order at 8-22, ECF No.
177). Judge Koppe granted in part and denied in part
Defendant's Motion for Protective Order, and Plaintiffs
filed an Objection to this Order seeking to reverse the
Court's holding. (See Order, ECF No. 192);
(see also Obj., ECF No. 193).
Objections to Magistrate Judge's Order
reviewing the order of a magistrate judge, the order should
only be set aside if the order is clearly erroneous or
contrary to law. Fed.R.Civ.P. 72(a); LR IB 3-1(a); 28 U.S.C.
§ 636(b)(1)(A); Laxalt v. McClatchy, 602
F.Supp. 214, 216 (D. Nev. 1985). A magistrate judge's
order is “clearly erroneous” if the court has
“a definite and firm conviction that a mistake has been
committed.” See United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); Burdick v. Comm'r
IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An
order is contrary to law when it fails to apply or misapplies
relevant statutes, case law or rules of procedure.”
UnitedHealth Grp., Inc. v. United Healthcare, Inc.,
No. 2:14-cv-00224-RCJ, 2014 WL 4635882, at *1 (D. Nev. Sept.
16, 2014). When reviewing the order, however, the magistrate
judge “is afforded broad discretion, which will be
overruled only if abused.” Columbia Pictures, Inc.
v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. ...