Cannon v. Anderson Business Advisors LLC, No. 2:2018cv01599 - Document 142 (D. Nev. 2022)
Court Description: ORDER Granting 140 Joint Pretrial Order. Calendar Call set for 1/31/2023 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Jury Trial set for 2/6/2023 at 09:00 AM in LV Courtroom 6C before Judge Andrew P. Gordon. Signed by Judge Andrew P. Gordon on 5/23/2022. (Copies have been distributed pursuant to the NEF - LOE)
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Cannon v. Anderson Business Advisors LLC Doc. 142 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 1 of 8 1 2 3 4 CHRISTINA MUNDY-MAMER, ESQ. Nevada Bar No. 13181 MESSNER REEVES LLP 8945 W. Russell Road, Suite 300 Las Vegas, Nevada 89148 Telephone: (702) 363-5100 Facsimile: (702) 363-5101 E-mail: cmamer@messner.com 5 6 Attorneys for Defendant Anderson Business Advisors, LLC 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA, SOUTHERN DIVISION 9 10 ELIZABETH CANNON, an individual, Case No. 2:18-cv-01599-APG-VCF Plaintiff, 11 JOINT PRETRIAL ORDER vs. 12 13 ANDERSON BUSINESS ADVISORS, LLC, a Nevada limited liability company, Defendant. 14 15 16 17 18 19 20 21 22 23 24 After pretrial proceedings in this case, IT IS ORDERED: The parties, Elizabeth Cannon (“Plaintiff”) and Anderson Business Advisors, LLC (“Defendant”) submit this Pretrial Order as follows: I. Nature of the Case a. Plaintiff’s Statement Plaintiff, Elizabeth Cannon brings her Complaint, filed 08/24/18 [ECF #1] alleging causes of action for Family Medical Leave Interference and Family Medical Leave Act Retaliation pursuant to 29 U.S.C. § 2615, et. seq. Plaintiff’s Complaint also alleges causes of action for Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing. By order of the Court on 03/09/21 [ECF #124], the Court dismissed Plaintiff’s claims for Breach of Contract, and Breach of the Covenant of 25 Page 1 of 8 Dockets.Justia.com Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 2 of 8 1 Good Faith and Fair Dealing. At this time, only Plaintiff’s claims for FMLA Interference and FMLA 2 Retaliation are at issue. b. Defendant’s Statement 3 4 Defendant, Anderson Business Advisors denies all claims. More specifically, Anderson 5 contends that on or about January 30, 2018, Anderson issued Plaintiff a level 2 written warning. 6 Anderson issued Plaintiff the warning because she was away from the office “Far Too Many Days.” 7 Per the terms of the written warning, Plaintiff was required to come into the office for work, rather 8 than working remotely. On January 30, 2018, Plaintiff requested information regarding potential 9 FMLA leave claiming that she needed to take care of a “parent due to his/her serious health condition”. 10 Cannon had previously inquired about taking FMLA leave for the same reason in April 2017. 11 Anderson provided Plaintiff with the required FMLA documents for her to have completed by her 12 mother’s physician. Plaintiff requested a day off on February 16, 2018 for cosmetic breast surgery. 13 Plaintiff did not come into the office for work from February 19-21, 2018. Plaintiff’s absences on 14 February 19-21, 2018 were “no call no show” absences. On February 20, 2018, Anderson 15 representative Dan Ollman contacted Plaintiff via text message to determine what was happening with 16 Plaintiff. Plaintiff indicated that she would be in to work, stating that she would “Uber tomorrow” and 17 that “Holly [would] clean [her] drains.” Plaintiff did not report to work as promised in her text 18 messages. Anderson terminated Plaintiff’s employment on February 21, 2018. 19 Relief Sought 20 21 22 23 (1) Plaintiff seeks past and future lost wages from the date of her termination through payment of any judgment obtained; (2) Plaintiff seeks liquidated and/or punitive damages to the fullest extent allowed under the law, including, but not limited to, 29 U.S.C. § 2617(a)(1)(A)(iii); 24 25 Page 2 of 8 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 3 of 8 1 2 3 4 5 (3) Plaintiff seeks pre-judgment interest to the fullest extent allowed under the law, including, but not limited to, 29 U.S.C. § 2617(a)(1)(A)(ii); (4) Plaintiff seeks fees and costs incurred in bringing the instant lawsuit to the fullest extent allowed under the law, including, but not limited to, 29 U.S.C. § 2617(a)(3) Contentions of Parties: 6 Plaintiff contends that she was wrongfully denied the protections of the FMLA when she had 7 surgery. Plaintiff further contends that she was terminated for exercising her rights under the 8 FMLA when she utilized the leave protections therein. 9 Defendant contends that Plaintiff was terminated for attendance issues. Furthermore, Plaintiff 10 never sought to take FMLA leave. Finally, Plaintiff never presented any evidence that even if 11 she had requested FMLA, that she was eligible for FMLA. 12 13 II. Statement of Jurisdiction: 14 The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 2617, 15 which provides that an action for FMLA leave interference or retaliation may be maintained against 16 an employer “in any Federal or State court of competent jurisdiction.” 29 U.S.C. § 2617(a)(2). 2. The 17 Court also has supplemental jurisdiction, when necessary, pursuant to 28 U.S.C. § 1367 18 This is an issue of Federal law, and this court has jurisdiction over this matter pursuant to 28 19 U.S.C. § 1331 and 29 U.S.C. § 2617, which provides that an action for FMLA leave interference or 20 retaliation may be maintained against an employer “in any Federal or State court of competent 21 jurisdiction.” 29 U.S.C. § 2617(a)(2). 2. The Court also has supplemental jurisdiction, when necessary, 22 pursuant to 28 U.S.C. § 1367. 23 24 25 Page 3 of 8 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 4 of 8 1 2 III. The following facts are admitted by the parties and require no proof: 3 (a) Anderson hired Elizabeth Cannon on April 18, 2016. 4 (b) Plaintiff’s last day of employment with Anderson was on February 21, 2018. 5 (c) At the time of her termination, Plaintiff’s job title was Senior Advisor. 6 7 8 9 IV. The following facts, though not admitted, will not be contested at trial by evidence to the contrary: None at this time. 10 11 12 13 14 V. The following are the issues of fact to be tried and determined at trial. [Each issue of fact must be stated separately and in specific terms.] (1) Whether Elizabeth Cannon qualified for FMLA protection either because of her surgery or her post-surgical care and/or complications. 15 (2) Whether Elizabeth Cannon timely requested FMLA leave for her breast surgery. 16 (3) Whether Elizabeth Cannon’s breast surgery would have qualified for leave under the 17 18 19 20 21 22 23 24 FMLA. (4) Whether Elizabeth Cannon’s termination was due to attendance issues. VI. The following are the issues of law to be to be tried and determined at trial. [Each issue of law must be stated separately and in specific terms.] (a) Whether Elizabeth Cannon’s surgical procedure, and/or post-surgical complications, qualified for protection under the FMLA. (b) Whether Elizabeth Cannon timely requested FMLA leave for her breast surgery. 25 Page 4 of 8 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 5 of 8 (c) Whether Elizabeth Cannon’s breast surgery would have qualified for leave under the 1 FMLA. 2 (d) Whether Anderson’s termination of Elizabeth Cannon was retaliatory for her taking 3 FMLA leave. 4 (e) Whether Anderson’s termination of Elizabeth Cannon was in violation of the FMLA. 5 (f) Whether Elizabeth Cannon’s termination was due to attendance issues. 6 VII. The following exhibits are stipulated into evidence in this case and may be so marked by the 7 8 9 clerk. None at this time. VIII. 10 11 (b) As to the following exhibits, the party against whom the same will be offered objects to their admission on the grounds stated: 12 (1) Plaintiff’s exhibits: None 13 (2) Defendant’s exhibits: None 14 15 16 17 18 19 20 21 22 23 24 (c) Electronic evidence: [State whether the parties intent to present electronic evidence for purposes of jury deliberations.] No Electronic Evidence is anticipated to be presented for the purpose of jury deliberations. (d) Depositions: (1) Plaintiff will offer the following depositions: Deposition of Plaintiff, Elizbeth Cannon. Plaintiff intends to use the entire deposition against Defendant. Deposition of Rodney Truman, the FRCP 30(b)(6) designee for Defendant. Plaintiff intends to use the entire deposition against Defendant. (5) Defendant will offer the following depositions: 25 Page 5 of 8 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 6 of 8 1 Deposition of Plaintiff, Elizbeth Cannon. 2 Defendant intends to use the entire deposition against Plaintiff. 3 Deposition of Rodney Truman, the FRCP 30(b)(6) designee for Defendant. Defendant 4 intends to use the entire deposition against Plaintiff. 5 (e) Objections to depositions: 6 1) Defendant objects to plaintiff’s depositions as follows: None. 7 (2) Plaintiff objects to defendant’s depositions as follows: None. 8 IX. 9 The following witnesses may be called by the parties at trial: 10 (a) Provide names and addresses of plaintiff’s witnesses.1 11 (i) Elizabeth Cannon C/O HKM Employment Attorneys 101 Convention Center Drive, Suite 600 Las Vegas, Nevada, 89109 (ii) Rodney Truman C/O Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 (iii) Dan Ollman C/O Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 (iv) Toby Mathis C/O Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendant objects to Plaintiff’s witnesses as Plaintiff failed to complete any disclosures pursuant to FRCP 26 during the discovery period. Defendant also objects to Plaintiff’s use of any documentary evidence under the same grounds. 1 Page 6 of 8 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 7 of 8 1 (v) Clint Coons C/O Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 (vi) Michael Bowman C/O Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 (vii) Randall Ritchie C/O Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 2 3 4 5 6 7 8 (viii) Elizabeth’s Assistant 9 10 (b) (b) Provide names and addresses of defendant’s witnesses. 11 (c) Anderson Business Advisors’ FRCP 30(b)(6) Witness as to Human Resources, Rod Truman c/o Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, Nevada 89148 12 13 14 15 16 17 18 (d) Anderson Business Advisors’ FRCP 30(b)(6) Witness as to Operations and Plaintiff’s employment, David Gass c/o Messner Reeves 8945 W. Russell Road, Suite 300 Las Vegas, Nevada 89148 (e) Plaintiff, Elizabeth Cannon C/O HKM Employment Attorneys 101 Convention Center Drive, Suite 600 Las Vegas, Nevada, 89109 19 20 X. 21 The attorneys or parties have met and jointly offer these three trial dates: February1-15, 2023, 22 February 20-28, 2023, March 1-30, 2023. It is expressly understood by the undersigned that the court 23 will set the trial of this matter on one of the agreed-upon dates if possible; if not, the trial will be set 24 at the convenience of the court’s calendar. 25 Page 7 of 8 Case 2:18-cv-01599-APG-VCF Document 142 Filed 05/23/22 Page 8 of 8 1 It is estimated that the trial will take a total of 5-6 days not including jury selection. 2 XI. 3 ACTION BY THE COURT 4 This case is set for jury trial on the stacked calendar on February 6, 2023, at 9:00 a.m. Calendar call will 5 6 be held on January 31, 2023, at 9:00 a.m. in Las Vegas Courtroom 6C. DATED: May 23, 2022 ____________________________________ ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 7 8 9 10 11 APPROVED AS TO FORM AND CONTENT: DATED this 16th day of May, 2022. HKM EMPLOYMENT ATTORNEYS LLP 15 /s/ Jenny L. Foley ___________________________________ JENNY L. FOLEY, Ph.D., ESQ. 101 Convention Center Drive, Suite 600 Las Vegas, Nevada 89104 Tel: (702) 805-8340 Fax: (702) 805-8340 E-mail: jfoley@hkm.com 16 and 12 13 14 17 18 19 20 21 22 MESSNER REEVES /s/ Renee M. Finch ______________________________ CHRISTINA MAE MAMER, ESQ. RENEE M. FINCH, ESQ. 8945 W. Russell Road, Suite 300 Las Vegas, NV 89148 702-363-5100 Fax: 702-363-5101 Email: cmamer@messner.com Email: rfinch@messner.com Attorneys for Defendant MULLINS & TRENCHAK, ATTORNEYS AT LAW PHILIP J. TRENCHAK, ESQ. 1614 S. Maryland Pkwy Las Vegas, Nevada 89104 Tel: (702) 778-9444 Fax: (702) 778-9449 E: phil@mullinstrenchak.com Attorneys for Plaintiff 23 24 25 Page 8 of 8
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