Bushar v. Albertsons, LLC

1 LEW BRANDON, JR., ESQ. Nevada Bar No. 5880 2 || JUSTIN SMERBER, ESQ. 3 Nevada Bar No. 10761 KRISTEN MOLLOY, ESQ. 4 Nevada Bar No. 14927 BRANDON | SMERBER LAW FIRM 5 139 E. Warm Springs Road = 6 Las Vegas, Nevada 89119 (702) 380-0007 2k 7 (702) 380-2964 — facsimile ae 8 L brandon@bsnv.law 8 || ismerber@bsnv.law _ || &-mollov@bsnv.law = Attorneys for Defendant, = § % 10 || ALBERTSONS, LLC < 11 UNITED STATES DISTRICT COURT "2 DISTRICT OF NEVADA — 13 — DANIEL BUSHAR, CASE NO.: 2:24-cv-00804-CDS-MDC — 14 — Plaintiff, — 15 — == « |\ vs NE 7 17 || ALBERTSONS, LLC; DOE SECURITY COMPANY; DOES I through XX, inclusive O -) 8 and ROE BUSINESS ENTITIES I through 19 XX, inclusive, 7. 20 Defendants. 21 DEFENDANT, ALBERTSONS, LLC’S MOTION TO AMEND ANSWER TO 2 PLAINTIFF’S COMPLAINT AND ASSERT A THIRD-PARTY COMPLAINT AGAINST BLACKSTONE SECURITY SERVICES OF NEVADA INC — 23 — 34 Defendant, ALBERTSONS, LLC, by and through its undersigned attorney, LE’ 95 || BRANDON, JR., ESQ., JUSTIN SMERBER, ESQ., and KRISTEN MOLLOY, ESQ., | 26 || BRANDON | SMERBER LAW FIRM hereby submits this Motion to Amend its Answer 27 |! Plaintiff's Complaint and assert a Third-Party Complaint against Blackstone Security Services | — 28 — Nevada Inc. 1 This Motion is based upon the following Points and Authorities, together with the pape 2 and pleadings on file herein, and oral arguments at the time of hearing. DATED this 4th day of September 2024. BRANDON | SMERBER LAW FIRM = 6 /s/ Justin W_Smerber, Esq. LEW BRANDON, JR., ESQ. 2k 7 Nevada Bar No. 5880 = JUSTIN SMERBER, ESQ. Ske 8 Nevada Bar No. 10761 = ~ 9 KRISTEN MOLLOY, ESQ. Nevada Bar No. 14927 10 BRANDON | SMERBER LAW FIRM 139 E. Warm Springs Road 22. U Las Vegas, Nevada 89119 D Attorneys for Defendant, ~ ALBERTSONS, LLC — 13 — — 14 — = 15 = 16 NE — 7 17 1s a 19 7. 20 S 21 pe 22 — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 1. INTRODUCTION This matter arises from an alleged battery that occurred on January 25, 2022. At the tin = 6 of the incident, Albertsons LLC (“Defendant”) contracted with a third-party, Blackstone Securi 7 Services of Nevada Inc. (“Blackstone”) to provide security services for the subject propert 8 Defendant originally filed its Motion to Amend its Answer and Assert a Third-Party Complat : on May 17, 2024. On May 20, 2024, Plaintiff's counsel reached out via e-mail stating that if stipulation and order to amend the initial pleadings to bring in Blackstone was prepared, he wou b sign it and also add Blackstone as a defendant. The Court granted Defendant’s Motion on June 13. || 2024. 14 However, for judicial economy and based upon the correspondence received t = > 'S || Plaintiffs counsel, Defendant did not file its Amended Answer and Third-Party Complaint, b Yr = instead prepared a Stipulation and Order to Amend Plaintiff's Complaint and Amend Defendant 7 13 Answer and Assert a Cross-Claim against Blackstone. The Stipulation and Order was sent x ~ 19 || Plaintiff's counsel and Defendant continued to follow up regarding the status of the Amend 7. 20 Complaint. However, Defendant was informed that Plaintiff's counsel’s server was down so ¢ 21 |! Amended Complaint could not be drafted. After Plaintiffs deposition, Defendant asked abo ” the status of the Amended Complaint so the Stipulation and Order could be submitted. It was this time that Defendant was informed that Plaintiff no longer wished to bring in Blackstone as 5 || direct Defendant. As such, since Plaintiff no longer agrees to bring Blackstone in as a dire 26 || defendant, Defendant is respectfully requesting that this Court grant its Motion so that Blacksto1 27 |\\ can be added as a Third-Party Defendant. 8 /// 1 Il. FACTS Daniel Bushar (“Plaintiff”) alleges he was at the Albertsons located at 1760 Ea Charleston Boulevard, Las Vegas, Nevada when he was attacked by a non-party individual on tl = 6 subject premises, which caused him severe injuries. On February 6, 2023, Defendant sent its fir 7 tender of defense to Blackstone. See Tender dated February 6, 2023, attached hereto as Exhib a 8 A. A response was received stating that because a lawsuit had not been filed, it was not in 2 position to accept or deny the tender. See Response dated March I, 2024, attached hereto | £52 10 = ES Exhibit B. Plaintiff filed his Complaint on January 16, 2024, asserting claims against □□□□□□□□□ WU b and DOE Security Company. Plaintiff alleges negligence for failing to provide adequate securi 13. || and safety measures as well as respondeat superior and negligent hiring, training, retentio 14 || supervision, and policies/procedures. On April 15, 2024, Defendant sent a second tender | = IS defense of this matter to Blackstone. See Tender dated April 15, 2024, attached hereto as Exhih = 16 Yr = C. No response was received. —F 13 At the time of the alleged incident, Albertsons hired Blackstone to provide securt x 19 || Services for the purpose of deterring undesirable activity, including patrolling the parking Ic 7. 20 || perimeter, and interior of the store to assist in deterring undesirable activity and in providit 71 protection to customers, employees, and their assets as well as Albertsons’s assets. S — 22 — Agreement, attached hereto as Exhibit D. In addition, the Agreement states as follows: — 23 — 4. Indemnification. Supplier (including its successors and assigns) 24 will defend, indemnity and hold Customer . . . harmless from and against 25 any and all claims. . ., lawsuits, and judgments (collectively referred to in this section as “Claims”) which arise or which are alleged to have arisen 26 out of, or in connection with: (a) any alleged or actual acts, failures to act, conduct or presence of Supplier. . . while performing any work or services 27 under this Agreement for Customer irrespective of location. . . — 28 — 1 4.1. ...Such Claims include, but are not limited to, allegations of 5 ..., personal or bodily injury. . . 3 4.2. Supplier further understands and agrees that its obligations to defend, indemnify and hold Customer harmless against Claims applies 4 in the absence of actual or alleged negligence. . . 5 As such, Defendant respectfully requests that this Court grant it Motion to Amend 1 =z 6 Answer and file a Third-Party Complaint against Blackstone. See Proposed Amended Answ — 7 — = and Third-Party Complaint, attached hereto as Exhibit E. — 8 — 9 Mm. = Z 10 LEGAL ARGUMENT 40 0 Federal Rule of Civil Procedure 14(a)(1) states: ~ "2 A defending party may, as third-party plaintiff, serve a summons and B3 complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the 14 court’s leave if it files the third-party complaint more than 14 days after 3 serving its original answer. = = 16 FRCP 14(a)(1). NE 7 17 ‘FRCP 14(a) was designed to promote judicial economy by eliminating need for defendant - >. 18 bring separate action against third party who may be secondarily or derivatively liable — 19 — 5 defendant for all or part of plaintiffs claim.” Rodolico v. Unisys Corp., 189 F.R.D. 245 , 1¢ — 20 — 41 L.R.R.M. (BNA) 2156 , 1999 U.S. Dist. LEXIS 13203 (E.D.N.Y. 1999). Claims for contributic 37 || or indemnity may be asserted by way of third party complaint. Jn re Oil Spill by Amoco Caa 23 || etc., 491 F. Supp 161 (N.D. IIL. 1979). 24 Here, at the time of the alleged incident, Albertsons and Blackstone had a contractu — 25 — agreement that included an indemnification clause in which Blackstone agreed to defen — 26 — indemnify, and hold Albertsons harmless from and against any and all claims, includir — 27 — 28 allegations of personal or bodily injury. Albertsons sent two tender letters to Blackstone and 1 date, Blackstone has not accepted the tender. As such, Blackstone has failed to indemnt 2 Albertsons pursuant to the Security Services Agreement dated October 6, 2021. Therefore, □□□□ upon the agreement between Albertsons and Blackstone, Albertsons respectfully requests that th Court grant its Motion to assert a Third-Party Complaint against Blackstone. z 6 IV. 7 CONCLUSION Z g Based upon the foregoing, Defendant, Albertsons, LLC respectfully requests that this Cou 5 9 || grant its Motion. 10 DATED this 4th day of September 2024. 225 4 BRANDON | SMERBER LAW 12 FIRM 13 /s/ Justin W. Smerber, Esq. po 14 LEW BRANDON, JR., ESQ. Nevada Bar No. 5880 15 JUSTIN SMERBER, ESQ. => s Nevada Bar No. 10761 KRISTEN MOLLOY, ESQ. Nevada Bar No. 14927 iS BRANDON | SMERBER LAW Z. <= 18 FIRM 139 E. Warm Springs Road © Las Vegas, Nevada 89119 19 Attorneys for Defendant, 7. 20 ALBERTSONS, LLC 4 IT IS SO ORDERED. Granted for good cause shown and per LR 7-2(d). pe ” Defendant has until October 8, 2024 to file its amended answer and third-party sf 3 complaint on the docket. if ff if a □ 24 yy . 25 A ff i i 26 / if If 27 □ Hon: Maxikitano Souvillier TI United Statés Magigtrate Judge 28 Dated: 10/f/24 1 CERTIFICATE OF SERVICE 2 Pursuant to FRCP 5(b), I certify that on September 4, 2024, I served a true and corre copy of the foregoing DEFENDANT, ALBERTSONS, LLC’S MOTION TO AMEN ANSWER _TO PLAINTIFF’S COMPLAINT AND ASSERT A THIRD-PART = 6 COMPLAINT AGAINST BLACKSTONE SECURITY SERVICES OF NEVADA INC. v 7 the Court’s electronic filing and service systems to all parties on the current service list. A 8 RAMZY PAUL LADAH, ESQ. 9 Nevada Bar No. 11405 = 2: MICHAEL T. NIXON, ESQ. = = Z 10 || Nevada Bar No. 012839 a LADAH LAW FIRM = =. Ill || 517 South Third Street b Las Vegas, Nevada 89101 ~ 702-252-0055 13 Facsimile — 702-256-6280 Attorneys for Plaintiff, 14 || DANIEL BUSHAR — 15 — = = 16 /s/ Kristine Villeno Yr = An Employee of Brandon | Smerber Law Firm = 1s On a 19 7. 20 S 21 pe 22 — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —