Heath v. Tristar Products, Inc., No. 2:2017cv02869 - Document 60 (D. Nev. 2018)
Court Description: ORDER Granting 54 Unopposed Motion to Modify 8/2/2018 Pretrial Scheduling Order. Disclose experts deadline: 11/16/2018. Disclose rebuttal experts deadline: 12/17/2018. Signed by Magistrate Judge Peggy A. Leen on 10/17/2018. (Copies have been distributed pursuant to the NEF - SLD)
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Heath v. Tristar Products, Inc. Doc. 60 Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 1 of 6 1 2 3 4 5 6 7 8 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nev ada 89169 702.784 .5200 Snell & Wilmer 11 12 Vaughn A. Crawford Nevada Bar No. 7665 Alexandria L. Layton Nevada Bar No. 14228 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 vcrawford@swlaw.com alayton@swlaw.com Michael John Lopes (Admitted Pro Hac Vice) GORDON & REES One Battery Park Plaza, 28th Floor New York, NY 10004 (212) 453-0752 mlopes@grsm.com Attorneys for Defendant Tristar Products, Inc. 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 TAWNDRA L. HEATH, an individual, 16 Plaintiff, JOINT MOTION TO MODIFY AUGUST 2, 2018 PRETRIAL SCHEDULING ORDER 17 vs. 18 TRISTAR PRODUCTS, INC., a Pennsylvania corporation; ZHONGSHAN JINGUANG HOUSEHOLD APPLIANCE MANUFACTURE CO., LTD., a foreign corporation; DOE Individuals 1 – 10; and ROE Corporations 11 – 20; 19 20 21 CASE NO. 2:17-cv-02869-GMN-PAL Defendants. 22 23 Plaintiff Tawndra L. Heath (“Plaintiff”) by and through her counsel, Joshua A. Dowling, 24 Esq. of Cogburn Law Offices, and Defendant Tristar Products Inc., by and through its counsel. 25 Alexandria L. Layton of Snell & Wilmer L.L.P. and Michael Lopes, Esq. of Gordon & Rees LLP 26 (collectively the “Parties”) hereby move for an order modifying the August 2, 2018 Scheduling 27 Conference Order. Specifically, the Parties move to continue the expert disclosure deadlines by 28 thirty (30) days. Dockets.Justia.com Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 2 of 6 1 This motion is made pursuant to Federal Rules of Civil Procedure (“FRCP”), Rule 2 16(b)(4), and is based on the grounds that good cause exists for the court to consent to continue 3 discovery related deadlines. The Parties in this action require additional time to attempt to 4 resolve this matter without the need of incurring additional expenses for experts. 5 6 7 GORDON & REES LLP 8 By: /s/ Michael J. Lopes Michael J. Lopes (Admitted Pro Hac Vice) One Battery Park Plaza, 28th Floor New York, NY 10004 9 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nev ada 89169 702.784 .5200 10 Snell & Wilmer DATED this 2nd day of October, 2018. 11 Attorneys for Defendant Tristar Products Inc. 12 SNELL & WILMER L.L.P 13 14 15 16 17 18 19 20 21 By: /s/ Alexandria L. Layton Vaughn A. Crawford Alexandria L. Layton 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Attorneys for Defendant Tristar Products Inc. COGBURN LAW OFFICES By: /s/ Joshua A. Dowling Joshua A. Dowling 2580 St. Rose Parkway, Suite 330 Henderson, NV 89074 Attorneys for Plaintiff 22 23 24 25 26 27 28 -2- Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 3 of 6 1 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nev ada 89169 702.784 .5200 Snell & Wilmer 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 The Parties hereby move jointly to modify the Court’s August 2, 2018 Pretrial Scheduling 4 Order, pursuant to FRCP, Rule 16(b)(4). Good cause exists for the Court to consent to continue 5 expert disclosure deadlines. On September 21, 2018, the Parties completed the deposition of 6 Plaintiff. The Parties now are attempting to negotiate settlement in good faith and wish to explore 7 the possibility of settlement without incurring significant expert fees for the preparation of expert 8 reports. Good cause, therefore, exists to modify the Court’s August 2, 2018 Pretrial Scheduling 9 Order and continue deadlines for expert disclosure by thirty (30) days. Specifically, it is 10 respectfully requested that the Court continue the deadline to disclose experts pursuant to Fed. R. 11 Civ. P. 26(a)(2) from October 17, 2018 to November 16, 2018 and the date to disclose rebuttal 12 experts from November 16, 2018 to December 17, 2018. 13 II. LEGAL ANALYSIS 14 A. 15 Pursuant to FRCP, Rule 16(b)(4), “[a] schedule may be modified only for good cause and 16 with the judge's consent.” A district court has “broad discretion in supervising the pretrial phase 17 of litigation,” and orders entered by the court before the pretrial conference may be modified 18 upon a showing of good cause. See Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607- 19 608 (9th Cir. 1992) (citing Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). Legal Standard for Modification of Scheduling Order. 20 Rule 16(b)’s “good cause” standard primarily focuses on the diligence of the party seeking 21 the modification. Johnson, 975 F.2d at 609. A pretrial scheduling order may be modified “if it 22 cannot reasonably be met despite the diligence of the party seeking the extension.” Federal Rule 23 of Civil Procedure 16 advisory committee notes (1983 amendment). Factors to be considered 24 when evaluating the diligence of the party seeking a modification of a pretrial order based on 25 Rule 16(b)’s “good cause” standard. See Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. 26 1999). 27 /// 28 /// -3- Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 4 of 6 1 A movant may be required to show: 2 (1) that she was diligent in assisting the Court in creating a workable Rule 16 order [citation omitted]; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference [citation omitted]; and (3) that she was diligent in seeking amendment of the Rule 16 order, once it became apparent that she could not comply with the order [citation omitted]. 3 4 5 6 Id. 7 attempting to comply with the order, and in seeking amendment of the order. Thus, good cause 8 exists to modify this Court’s scheduling order. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nev ada 89169 702.784 .5200 Snell & Wilmer 9 The Parties have been diligent in assisting the Court in creating a workable order, in B. Good Cause Exists in This Case to Modify the Scheduling Order. 10 In applying the foregoing factors to the instant matter, first, the Parties were diligent in 11 assisting this Court in making a workable order. The Parties participated in timely filing a Joint 12 Discovery Stipulation on June 29, 2018. The Court entered a revised discovery schedule on 13 August 2, 2018. Through informal discussions between the Parties, they now wish to discuss the 14 possibility of settlement with their clients, but it is anticipated that these negotiations may not be 15 completed before October 17, 2018 – the deadline for expert disclosures. 16 Second, the Parties have diligently been conducting discovery in this case. The Parties 17 have propounded and responded to numerous written discovery requests and have completed the 18 deposition of the Plaintiff which took place on September 21, 2018. However, despite diligent 19 efforts, the Parties anticipate that the October 17, 2018 expert deadline may not be able to be 20 complied with given the substantive conversations between the Parties regarding potential 21 resolution of this action. The Parties now seek an additional thirty (30) days in order to explore 22 potential resolution before incurring significant expenses associated with expert witnesses. 23 Additionally, the Parties have diligently met and conferred for several weeks to schedule 24 the depositions and exchange discovery. The Parties have been amicable throughout discovery 25 and the request for extension of the expert disclosure deadlines will not impact any other dates in 26 the August 2, 2018 order except for the deadline for disclosure of rebuttal experts. There is no 27 trial date for this action. 28 -4- Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 5 of 6 1 Lastly, applying the aforementioned factors, the Parties have been diligent in seeking 2 amendment of the Court’s Scheduling Order once it became apparent that the October 17, 2018 3 deadline for expert disclosures may be unworkable. Upon realizing this and through constant 4 discussions about this matter and potential resolution, the Parties promptly conferred and 5 discussed the present relief sought herein. 6 III. CONCLUSION 7 For the foregoing reasons, good cause exists and the Parties respectfully request jointly 8 that this Court modify its August 2, 2018 Pretrial Scheduling Order, and continue the deadline to 9 disclose experts pursuant to Fed. R. Civ. P. 26(a)(2) from October 17, 2018 to November 16, 10 2018 and the date to disclose rebuttal experts from November 16, 2018 to December 17, 2018. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nev ada 89169 702.784 .5200 Snell & Wilmer 11 12 DATED this 2nd day of October, 2018. 13 GORDON & REES LLP 14 By: /s/ Michael J. Lopes Michael J. Lopes (Admitted Pro Hac Vice) One Battery Park Plaza, 28th Floor New York, NY 10004 15 16 17 Attorneys for Defendant Tristar Products Inc. 18 SNELL & WILMER L.L.P 19 By: /s/ Alexandria L. Layton Vaughn A. Crawford Alexandria L. Layton 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 20 21 22 Attorneys for Defendant Tristar Products Inc. 23 24 25 IT IS SO ORDERED this 17th day of October, 2018. 26 27 28 ___________________________ Peggy A. Leen United States Magistrate Judge COGBURN LAW OFFICES By: /s/ Joshua A. Dowling Joshua A. Dowling 2580 St. Rose Parkway, Suite 330 Henderson, NV 89074 Attorney for Plaintiff -5- Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 I hereby declare under penalty of perjury, that I am over the age of eighteen (18) years, 3 and I am not a party to, nor interested in, this action. On this date, I caused to be served a true 4 and 5 AUGUST 2, 2018 PRETRIAL SCHEDULING ORDER by the method indicated below and 6 addressed to the following: 7 correct 8 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nev ada 89169 702.784 .5200 Snell & Wilmer 11 copy of the foregoing JOINT MOTION TO MODIFY BY U.S. MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Las Vegas, Nevada addressed as set forth below. BY ELECTRONIC SUBMISSION: submitted to the above-entitled Court for electronic filing and service upon the Court’s Service List for the above-referenced case. BY EMAIL: by emailing a PDF of the document listed above to the email addresses of the individual(s) listed below. 12 13 14 15 16 17 Jamie S. Cogburn, Esq. Joshua A. Dowling, Esq. Cogburn Law Offices 2580 St. Rose Parkway, Suite 330 Henderson, NV 89074 (702) 748-7777 (702) 966-3880 fax jsc@cogburnlaw.com jdowling@cogburnlaw.com Pete C. Wetherall, Esq. Wetherall Group, LTD 9345 W. Sunset Road, Suite 100 Las Vegas, NV 89148 (7020 838-8500 pwetherall@wetherallgroup.com Attorneys for Plaintiff 18 19 20 21 22 23 24 25 Attorneys for Plaintiff Michael John Lopes, Esq. Gordon & Rees One Battery Park Plaza, 28th Floor New York, NY 10004 (212) 453-0752 mlopes@hinshawlaw.com Co-Counsel for Defendant Tristar Products, Inc. DATED this 2nd day of October, 2018. /s/ Julia M. Diaz An Employee of Snell & Wilmer L.L.P. 26 27 28 -6-
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