Delara v. Diamond Resorts International Marketing, Inc., No. 2:2019cv00022 - Document 98 (D. Nev. 2020)
Court Description: ORDER granting 97 Stipulation; Joint Status Report due by 12/11/2020. Amended Discovery Plan/Scheduling Order due by 12/18/2020. Proceedings in this matter are stayed until December 7, 2020. Signed by Magistrate Judge Nancy J. Koppe on 8/10/2020. (Copies have been distributed pursuant to the NEF - JM)
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Delara v. Diamond Resorts International Marketing, Inc. Doc. 98 Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 1 of 8 7 1 MICHAEL N. FEDER Nevada Bar No. 7332 2 DICKINSON WRIGHT PLLC 3 3883 Howard Hughes Parkway, Suite 800 Las Vegas, NV 89169 702-550-4440 4 Telephone: Facsimile: 844-670-6009 5 Email: mfeder@dickinson-wright.com 6 7 8 9 10 11 12 13 14 MARTIN D. HOLMES (Pro Hac Vice) Tennessee Bar No. 012122 PETER F. KLETT (Pro Hac Vice) Tennessee Bar No. 012688 AUTUMN N. GENTRY (Pro Hac Vice) Tennessee Bar No. 020766 DICKINSON WRIGHT PLLC Fifth Third Center, Suite 800 424 Church Street Nashville, TN 37219 Telephone: 615-244-6538 Facsimile: 844-670-6009 Email: mdholmes@dickinsonwright.com pklett@dickinsonwright.com agentry@dickinsonwright.com TREVOR W. HOWELL (Pro Hac Vice) Tennessee Bar No. 009496 HOWELL LAW, PLLC P.O. Box 158511 Nashville, TN, 37216 Telephone: 615-406-1417 Email: trevor@howelllawfirmllc.com 15 Attorneys for Plaintiff, Opt-in Plaintiffs 16 and Putative Opt-in Plaintiffs 17 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 18 19 20 ALBERTO DELARA, on behalf of himself and others similarly situated, 22 23 24 25 26 27 STIPULATION AND ORDER FOR A STAY OF PROCEEDINGS UNTIL DECEMBER 7, 2020, FOR THE PARTIES TO PREPARE FOR AND ATTEND MEDIATION Plaintiff, 21 Case No. 2:19-cv-00022-APG-NJK v. DIAMOND RESORTS INTERNATIONAL MARKETING, INC., Defendant. Plaintiff and Defendant HEREBY STIPULATE AND AGREE, by and through their respective counsel, as to the following: 28 1 Dockets.Justia.com Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 2 of 8 7 1 1. The parties and their counsel have agreed to mediate the case subject to the terms 2 set forth herein and in that regard, have scheduled a mediation on December 7, 2020, with Steve 3 Rottman, a mediator who is nationally recognized in mediating large class and collective actions. 4 Given the high demand for Mr. Rottman’s mediation services and his limited availability, and for 5 the reasons discussed below regarding additional supplementation of previously served written 6 discovery, the parties request a stay of proceedings through December 7, 2020, including the 7 August 13, 2020 Rule 30(b)(6) deposition deadline, the September 14, 2020 dispositive motion 8 deadline and the October 14, 2020 Joint Pretrial Order deadline. 1 The parties believe the proposed 9 stay is in the parties’ and the Court’s interests in costs and efficiency. 10 2. On July 8, 2019, Plaintiff filed his Motion for Conditional Certification of the 11 Matter as a Collective Action and Approval of 29 U.S.C. §216(b) Notice. [ECF No. 31]. The 12 matter was fully briefed, and briefing concluded on July 29, 2019. [ECF Nos. 32 & 33]. 13 3. During the pendency of Plaintiff’s Motion for Conditional Certification, the parties 14 continued with their written discovery as it related to Defendant and named Plaintiff Delara, and 15 Opt-in Plaintiffs Chiapponi, Moratelli and Gennari, who had opted-in prior to the filing of 16 Plaintiff’s Motion for Conditional Certification. 17 4. Defendant deposed Plaintiff and Opt-in Plaintiffs Chiapponi, Moratelli and Gennari 18 on February 11 – 14, 2020. 19 5. On February 10, 2020, Plaintiff served Defendant with a Notice of Deposition 20 pursuant to Fed. R. Civ. P. 30(b)(6), requiring Defendant to designate and produce a person or 21 persons qualified to testify on 21 topics. The deposition was noticed for February 27, 2020, in the 22 Las Vegas, Nevada offices of Plaintiff’s counsel. Ten days later, on February 20, 2020, Defendant 23 advised Plaintiff that neither defense counsel nor Defendant’s designees were available for 24 deposition on February 27, 2020, and requested that the deposition be rescheduled. 25 26 27 28 1 The stay would not include the current opt-in process or the filing of additional consents to join the action by Plaintiff’s counsel, any supplementation of written discovery requests previously propounded and continued meet and confer thereon. Plaintiff specifically reserves the right to seek relief from the Court in the event the parties reach an impasse on discovery issues related to written discovery requests previously propounded. 2 Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 3 of 8 7 1 6. Defendant also served written objections as to all 21 topics of Plaintiff’s Notice. 2 The parties worked diligently together to resolve them, with Defendant reserving the right to object 3 to specific questions in the depositions, including specifically on the basis of attorney/client 4 privilege, and Plaintiff reserving the right to argue that Defendant waived the attorney/client 5 privilege and/or that said information is discoverable. With this understanding, Defendant 6 designated four designees to cover the Rule 30(b)(6) topics: 2 designees who would be deposed 7 in Las Vegas, Nevada, and 2 designees who would be deposed in Orlando, Florida. Based on the 8 parties’ schedules, the parties agreed that the Florida depositions would take place on March 19, 9 2020, and the Las Vegas depositions would take place on March 24, 2020. 10 7. Due to the COVID-19 pandemic, the Rule 30(b)(6) depositions were temporarily 11 postponed. 12 8. The country is still affected by the COVID-19 pandemic, and there are recent 13 reports of a rise in the number of COVID-19 cases. 14 9. Given the number of documents and logistical issues involved, Plaintiff’s position 15 is that remote depositions are impracticable, especially given that Defendant and Defendant’s 16 counsel and, in some cases, witnesses, as well as Plaintiff’s counsel, are located in different states. 17 Based on the foregoing, the parties have agreed to postpone these depositions pursuant to the 18 stipulation to stay proceedings subject to the Court’s approval. 19 10. Since March 2020, the parties have continued to meet and confer in good faith 20 regarding supplementation of written discovery, exchanging numerous letters and engaging in two 21 extensive meet and confer conference calls lasting 2 ½ and 3 hours respectively. As a result, the 22 parties have exchanged numerous supplemental discovery responses and this process is still 23 ongoing. 24 11. On April 30, 2020, the Court granted Plaintiff’s Motion for Conditional 25 Certification. [ECF No. 64]. As part of the relief sought, the Court approved the notice and 26 consent form (ECF No. 79), which were sent to putative opt-in plaintiffs on June 11, 2020. Per 27 28 3 Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 4 of 8 7 1 the Court’s April 30, 2020 Order, putative opt-in Plaintiffs have until September 9, 2020, to file 2 consents and join the lawsuit. 3 12. At this juncture, 186 individuals have filed consents to join this action.2 Plaintiff 4 anticipates that the number of opt-in plaintiffs will exceed 200 individuals by the time the period 5 to join the lawsuit ends on September 9, 2020. 6 13. On January 27, 2020, Plaintiff served his Request for Admission, First Set of 7 Interrogatories and Second Requests for Production of Documents to Defendant. As part of the 8 discovery, Plaintiff sought information and documents regarding putative opt-in plaintiffs, 9 including but not limited to their personnel files, time records and pay records. Given that the 10 Court still had Plaintiff’s Motion for Conditional Certification under advisement, Defendant 11 objected to producing information and documents as to putative opt-in plaintiffs on a variety of 12 grounds, in part, taking the position that the production of such information or documents was 13 premature before any granting of conditional certification. 14 14. While the meet and confer process has continued since March 2020, once the opt- 15 in period ends on September 9, 2020, the parties will have further discussions regarding 16 supplementation of written discovery, including, but not limited to opt-in plaintiffs, including 17 production of time and pay records which are relevant to the issues of liability and damages 18 necessary for the forthcoming mediation. Given the large number of opt-in plaintiffs and the 19 volume of documents and information related to these individuals, this will be a time-consuming 20 process requiring significant additional meet and confers between the parties. 21 15. Based on the foregoing, the parties are of the belief that December 7, 2020, is an 22 appropriate date for mediation. 23 16. The parties recognize that substantial time and costs will be expended to review the 24 considerable amount of information produced to date and to be produced as discovery progresses. 25 The parties agree that it is in the best interest of all parties to wait until the mediation process is 26 27 28 2 Defendant hereby specifically reserves its continued rights to challenge, by motion after the stay period, opt-in class members’ standing and/or the Court’s jurisdiction over claims asserted by certain individuals and nothing herein is intended to waive any of those rights. 4 Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 5 of 8 7 1 complete prior to incurring the time and expense of depositions and motion practice, as the 2 mediation could resolve this matter in its entirety, thereby relieving the parties of further costs and 3 expenses and relieving the Court of taxes upon its resources. 4 17. It would be counterproductive to the parties’ settlement efforts to have the parties 5 incur the expense of time-consuming and costly depositions and motion practice because the 6 parties have agreed to stay such proceedings in favor of attempting to achieve a resolution to this 7 matter. Rule 1 of the Federal Rules of Civil Procedure provides that the federal rules of practice 8 should be “construed and administered to secure the just, speedy, and inexpensive determination 9 of every action and proceeding.” (Emphasis added). If the Court does not grant a stay, the parties 10 will be required to engage in and incur the costs of depositions and motion practice that may not 11 be necessary. 12 18. In order to conserve the parties’ and the Court’s resources, to promote judicial 13 economy, and to increase the likelihood of a successful mediation, the parties have agreed, subject 14 to the Court’s approval, and subject to the exceptions noted, to stay this matter in order for the 15 parties to complete the agreed upon mediation. 16 19. In the event that the parties are unable to reach a resolution at the mediation, the 17 parties agree to file a joint status report informing the Court of the same by Friday, December 11, 18 2020. The parties further agree to file an amended proposed discovery plan and scheduling order 19 by Friday, December 18, 2020. 20 20. In addition, information obtained during the opt-in process through its completion, 21 as well as supplementation of written discovery, will have a bearing on questions posed in 22 conjunction with various topics during the Rule 30(b)(6) deposition of Defendant’s four designees 23 in Florida and Nevada, should the parties not resolve the matter at the mediation and those 24 depositions become necessary. 25 21. Based on the foregoing, the parties stipulate to a stay of proceedings through 26 December 7, 2020. The stay specifically excludes the continuation of the opt-in process and the 27 filing of consent forms by Plaintiff’s counsel. In addition, the stay excludes the parties’ ongoing 28 5 Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 6 of 8 7 1 meet and confers and/or any supplementation of previously served discovery, which will also 2 encompass any further supplementation as it relates to current and future opt-ins plaintiffs. The 3 parties have agreed to continue to meet and confer and produce information necessary to enable 4 the parties to properly evaluate liability and damages and conduct a meaningful mediation in good 5 faith. In addition, Plaintiff specifically reserves the right to seek relief from the Court in the event 6 the parties reach an impasse on discovery issues related to discovery requests previously 7 propounded. 8 IT IS SO STIPULATED this 7th day of August, 2020. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DICKINSON WRIGHT PLLC LEWIS ROCA ROTHGERBER CHRISTIE LLP /s/ Martin D. Holmes MICHAEL N. FEDER Nevada Bar No. 7332 3883 Howard Hughes Parkway, Suite 800 Las Vegas, NV 89169 /s/ Kirstin E. Muller HOWARD E. COLE Nevada Bar No. 4950 JENNIFER K. HOSTETLER Nevada Bar No. 11994 BRIAN D. BLAKELY Nevada Bar No. 13074 3993 Howard Hughes Pkwy, Suite 600 Las Vegas, NV 89169-5996 MARTIN D. HOLMES (Admitted Pro Hac Vice) Tennessee Bar No. 012122 PETER F. KLETT (Admitted Pro Hac Vice) Tennessee Bar No. 012688 AUTUMN L. GENTRY (Admitted Pro Hac Vice) Tennessee Bar No. 020766 Fifth Third Center, Suite 800 424 Church Street Nashville, TN 37219 TREVOR W. HOWELL (Admitted Pro Hac Vice) HOWELL LAW, PLLC Tennessee Bar No. 009496 P.O. Box 158511 Nashville, TN 37215 KIRSTIN E. MULLER (Admitted Pro Hac Vice) California Bar No. 186373 ALISON M. HAMER (Admitted Pro Hac Vice) California Bar No. 258281 BENJAMIN J. TREGER (Admitted Pro Hac Vice) California Bar No. 285283 Hirschfeld Kramer LLP 233 Wilshire Boulevard, Suite 600 Santa Monica, California 90401 Attorneys for Defendant Attorneys for Plaintiff, Opt-in Plaintiffs and and Putative Collective Class Members 26 27 28 6 Case 2:19-cv-00022-APG-NJK Document 97 98 Filed 08/07/20 08/10/20 Page 7 of 8 7 1 2 ORDER Based on the parties’ stipulations, and for good cause shown, it is hereby ORDERED that 3 the proceedings in this matter are stayed until December 7, 2020. In the event that the parties are 4 unable to reach a resolution at the mediation, the parties agree to file a joint status report informing 5 the Court of the same by Friday, December 11, 2020. The parties further agree to file an amended 6 proposed discovery plan and scheduling order by Friday, December 18, 2020. The stay, however, 7 specifically excludes the continuation of the opt-in process and the filing of consent forms by 8 Plaintiff’s counsel. In addition, the stay excludes the parties’ ongoing meet and confers and/or 9 supplementation of previously served discovery. Finally, the stay excludes the parties’ right to 10 seek relief from the Court in the event the parties reach an impasse on issues related to written 11 discovery requests previously propounded. 12 13 IT IS SO ORDERED: 14 15 16 ______________________________ NANCY J. KOPPE United States Magistrate Judge 17 August 10, 2020 DATED: ______________________ 18 19 20 21 22 23 24 25 26 27 28 7
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