Bienek v. Costco Wholesale Corp et al, No. 2:2021cv02005 - Document 38 (D. Nev. 2022)
Court Description: ORDER Granting in Part and Denying in Part 37 Stipulation to Stay Discovery. Signed by Magistrate Judge Daniel J. Albregts on 4/15/2022. (Copies have been distributed pursuant to the NEF - YAW)
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Bienek v. Costco Wholesale Corp et al 1 2 3 4 5 6 7 8 9 10 11 Doc. 38 MICHAEL A. FEDERICO (SBN 005946) mfederico@ocgas.com OLSON CANNON GORMLEY & STOBERSKI 9950 West Cheyenne Avenue Las Vegas, Nevada 89129 Telephone: (702) 384-4012 Facsimile: (702) 383-0701 KELLEY S. OLAH (Pro Hac Vice) KOlah@btlaw.com NOUSHAN NOUREDDINI (Pro Hac Vice) NNoureddini@btlaw.com BARNES & THORNBURG LLP 2029 Century Park East, Suite 300 Los Angeles, California 90067 Telephone: (310) 284-3880 Facsimile: (310) 284-3894 Attorneys for Defendants COSTCO WHOLESALE CORPORATION; MAPLEBEAR INC. d/b/a INSTACART 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 KRISTINA A. BIENEK, an individual, Plaintiff, 16 v. 17 18 19 20 21 22 23 AFFINITYLIFESTYLES.COM, INC. d/b/a REAL WATER, a Nevada corporation; REAL WATER INC., a Delaware Corporation; COSTCO WHOLESALE CORP., a Delaware Corporation; MAPLEBEAR, INC. d/b/a INSTACART, a Delaware Corporation; DOES 2 through 10, inclusive; ROE CORPORATIONS 11 through 20, inclusive; and ABC LIMITED LIABILITY COMPANIES 21 through 30, inclusive, Case No. 2:21-cv-02005-APG-DJA FURTHER STIPULATION BETWEEN DEFENDANTS MAPLEBEAR INC. d/b/a INSTACART, COSTCO WHOLESALE CORPORATION, AFFINITYLIFESTYLES.COM, INC. d/b/a REAL WATER, AND REAL WATER INC. AND PLAINTIFF KRISTINA A. BIENEK AND [PROPOSED] ORDER TO STAY DISCOVERY Complaint Filed: July 30, 2021 Removal Date: November 5, 2021 Defendants. 24 25 26 /// 27 /// 28 /// 1 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY Dockets.Justia.com RECITALS 1 2 Plaintiff Kristina A. Bienek (“Plaintiff”) and Defendants Maplebear Inc. d/b/a Instacart 3 (“Instacart”), Costco Wholesale Corporation (“Costco”), AffinityLifestyles.com, Inc. d/b/a Real 4 Water (“AffinityLifestyles.com, Inc.”), and Real Water Inc. (“Real Water”) (collectively the 5 “Parties”), by and through their respective counsel of record, do hereby stipulate and respectfully 6 request an order staying all discovery in this matter pending resolution of Instacart’s and Costco’s 7 Motion to Compel Arbitration and Stay the Case, or, Alternatively, to Dismiss for Failure to State 8 Claims for Relief Pursuant to Rule 12(b)(6) [ECF Dkt. No. 7]. 9 On July 30, 2021, Plaintiff filed this matter in Eighth Judicial District Court, Clark County, 10 Case No. A-21-838724-C. On November 5, 2021, Costco and Instacart removed this action to the 11 United States District Court for the District of Nevada. See Petition for Removal [ECF Dkt. No. 12 1]. On November 26, 2021, Plaintiff filed a Motion to Remand to State Court (“Plaintiff’s 13 Motion”). See Plaintiff’s Motion [ECF Dkt. No. 18]. On December 10, 2021, Costco and Instacart 14 filed a response to Plaintiff’s Motion. See Costco’s and Instacart’s Response [ECF Dkt. No. 21]. 15 On December 17, 2021, Plaintiff filed her reply brief in support of her Motion. See Plaintiff’s 16 Reply [ECF Dkt No. 25]. In light of Plaintiff’s pending Motion, on January 18, 2022, the Parties 17 entered into a Stipulation and Proposed Order to Stay Discovery, which the Court granted on 18 January 20, 2022 [ECF Dkt Nos. 30 and 31]. On February 23, 2022, the Court denied Plaintiff’s 19 Motion to Remand [ECF Dkt No. 34]. 20 On November 12, 2021, Instacart and Costco filed a Motion to Compel Arbitration and Stay 21 the Case, or, Alternatively, to Dismiss for Failure to State Claims for Relief Pursuant to Rule 22 12(b)(6) (“Defendants’ Motion” or “Instacart’s and Costco’s Motion”). See Defendants’ Motion 23 [ECF Dkt. No. 7]. On November 26, 2021, Plaintiff filed a response to Defendants’ Motion. See 24 Plaintiff’s Response [ECF Dkt. No. 17]. On December 3, 2021, Instacart and Costco filed their 25 reply brief in support of Defendants’ Motion. 26 Instacart’s and Costco’s Motion is fully briefed and remains pending before this Court. See Defendants’ Reply [ECF Dkt. No. 20]. 27 On October 8, 2021, the United States Bankruptcy Court for the District of Nevada entered 28 an Order Approving Stipulation Allowing Claimants Relief From The Automatic Stay To Liquidate 2 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY 1 Alleged Personal Injury Claims In State Court Litigation [ECF Dkt No. 16], which allowed 2 AffinityLifestyles.com, Inc. and Real Water to proceed with discovery and evidence preservation. 3 Costco, Instacart, and Plaintiff are likewise not precluded from preserving evidence. 4 Courts have broad discretionary power to control discovery including the decision to allow 5 or deny discovery. See, e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In cases 6 like this, a temporary stay of discovery will promote the goals of Rule 1 of the Federal Rules of 7 Civil Procedure, “to secure the just, speedy, and inexpensive determination” of this action – 8 conserving judicial resources and promoting a more efficient disposition of the threshold 9 jurisdictional and venue issues, which should be made at the earliest stage of litigation. Moreover, 10 under Rule 26(c)(1), a court may issue an order to protect a party or person from annoyance, 11 embarrassment, oppression, or undue burden or expense, including forbidding discovery. Fed. R. 12 Civ. P. 26(c)(1). 13 Although a pending motion to dismiss is “not ordinarily a situation that in and of itself 14 would warrant a stay of discovery,” when the motion challenges jurisdiction or venue, or immunity, 15 a stay is proper. See Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. 16 Nev. 1989); Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 17 1997); see also Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011) (matters dealing 18 with “preliminary issues of jurisdiction, venue, or immunity” typically warrant a stay of discovery). 19 Courts in this district have stayed discovery where, as here, a “preliminary peek” at the 20 merits of the pending motion demonstrated: “[f]irst, the pending motion must be potentially 21 dispositive of the entire case or at least dispositive on the issue on which discovery is sought. 22 Second, the court must determine whether the pending potentially dispositive motion can be 23 decided without additional discovery.” Tradebay, LLC, 278 F.R.D. at 602. Further, this district 24 has held that matters dealing with “preliminary issues of jurisdiction, venue, or immunity” typically 25 warrant a stay of discovery. Id. at 603. Instacart’s and Costco’s Motion raises threshold issues of 26 whether or not this matter may even be heard in this forum and it will dictate the extent of any 27 discovery necessary, if any. Accordingly, Instacart’s and Costco’s Motion is dispositive. Further 28 discovery is not needed to resolve Instacart’s and Costco’s Motion. 3 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY 1 Furthermore, this Court has wide discretion to control the conduct of pretrial discovery by 2 any party to the action, and courts have routinely stayed pre-trial obligations, including merits 3 discovery, when a motion to compel arbitration was pending before the court. See Kidneigh v. 4 Tournament One Corp., 2013 WL 1855764, at *2 (D. Nev. May 1, 2013) (staying discovery 5 pending decision on motion to compel arbitration and dismiss, reasoning that “[t]he issues before 6 the Court in the pending dispositive motion do not require further discovery and are potentially 7 dispositive of the entire case[.]”); see also Andrus v. D.R. Horton, Inc., 2012 WL 1971326 (D. Nev. 8 June 1, 2012) (granting defendant’s motion to stay discovery pending ruling on defendant’s motion 9 to compel arbitration); Steiner v. Apple Computer, Inc., No. C 07-4486 SBA, 2007 WL 4219388, 10 at *1 (N.D. Cal. Nov. 29, 2007) (“Indeed, [stay in discovery] is a common practice while motions 11 to compel are pending.”); Cunningham v. Van Ru Credit Corp., 2006 WL 2056576, at *2 (E.D. 12 Mich. July 21, 2006) (staying merits discovery pending resolution of motion to compel arbitration); 13 Merrill Lynch, Pierce, Fenner & Smith Inc. v. Coors, 357 F.Supp.2d 1277, 1281 (D. Colo. 2004) 14 (court issued a stay of “all discovery and pretrial scheduling” pending resolution of motion to 15 compel arbitration). 16 The Parties agree that no prejudice will result by granting the stipulation to stay discovery 17 at this juncture. The Parties agree that given that at this early stage in the litigation there is no 18 scheduling order in place, a case management conference with the Court has not yet been scheduled, 19 deadlines for fact and expert discovery have not yet been established, and Instacart’s and Costco’s 20 Motion is fully briefed, a stay is appropriate and would not result in prejudice to the Parties or limit 21 their ability to conduct discovery in the event that the Court denies Defendants’ Motion. Therefore, 22 in order to avoid the hardship or inequity the Parties would suffer should the case immediately 23 proceed despite Instacart’s and Costco’s Motion, the Parties stipulate to a limited stay of discovery 24 in this action until the Court issues decisions on Defendants’ Motion, such that discovery will be 25 stayed with the exception that the Parties shall be permitted to continue their evidence preservation 26 efforts, including, but not limited to, attending inspections relating to facilities previously operated 27 by Defendants AffinityLifestyles.com, Inc. and Real Water Inc. or similar evidentiary preservation 28 events that are noticed by the Parties in the companion Real Water cases in state court, as long as 4 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY 1 notice is given to the Parties in this matter as to such events. Proceeding in this manner would 2 preserve both judicial and party resources and promote efficiency. STIPULATION 3 4 IT IS HEREBY STIPULATED by and between the Parties as follows: 5 1. WHEREAS, discovery is stayed pending a decision on Instacart’s and Costco’s 6 Motion to Compel Arbitration and Stay the Case, or, Alternatively, to Dismiss for Failure to State 7 Claims for Relief Pursuant to Rule 12(b)(6), with the exception that the Parties shall be permitted 8 to continue their ongoing efforts to preserve evidence, including, but not limited to, attending 9 inspections relating to facilities previously operated by Defendants AffinityLifestyles.com, Inc. and 10 Real Water Inc. or similar evidentiary preservation events that are noticed by the Parties in the 11 companion Real Water cases in state court, as long as notice is given to the Parties in this matter as 12 to such events. 2. 13 WHEREAS, alternatively, in the event that the Court denies Instacart’s and Costco’s 14 Motion, the Parties shall conduct an Rule 26(f) Conference and then submit a proposed Joint 15 Discovery Plan and Scheduling Order within forty-five (45) days of the Court’s decision on 16 Defendants’ Motion. 3. 17 WHEREAS, the Court shall set a status conference within six (6) months of this 18 Order. In the event that the Court issues its decision on Instacart’s and Costco’s Motion prior to 19 the status conference, the status conference shall be vacated. 4. 20 WHEREAS, this Stipulation is made in good faith and to preserve the resources of 21 the judicial system and the Parties, is not interposed for delay, and is not filed for an improper 22 purpose. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY IT IS SO STIPULATED. 1 2 3 Dated: April 13, 2022 Dated: April 13, 2022 4 5 6 7 8 By: /s/ Alexandra B. McLeod___________ Christian M. Morris (SBN 11218) Alexandra B. McLeod (SBN 8185) NETTLES | MORRIS By: /s/ Noushan Noureddini ____________ Kelley S. Olah (Pro Hac Vice) Noushan Noureddini (Pro Hac Vice) BARNES & THORNBURG LLP Attorneys for Plaintiff KRISTINA A. BIENEK Michael A. Federico (SBN 005946) OLSON CANNON GORMLEY & STOBERSKI 9 Attorneys for Defendants COSTCO WHOLESALE CORPORATION; MAPLEBEAR INC. d/b/a INSTACART 10 11 12 Dated: April 13, 2022 13 14 15 16 17 18 19 By: /s/ Joel D. Odou__________ Joel D. Odou Jason W. Williams (SBN 8310) Xheni Ristani L. Renee Green WOOD, SMITH, HENNING & BERMAN LLP Attorneys for Defendants AFFINITYLIFESTYLES.COM, INC. d/b/a REAL WATER; REAL WATER INC. 20 21 SIGNATURE ATTESTATION 22 I hereby attest that I have obtained the concurrence of Alexandra B. McLeod, counsel for 23 Plaintiff Kristina A. Bienek, and Joel D. Odou, counsel for Defendants AffinityLifestyles.com, Inc. 24 and Real Water Inc., for the filing of this stipulation. 25 26 By: /s/ Noushan Noureddini Noushan Noureddini 27 28 6 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY [PROPOSED] ORDER 1 2 Pursuant to the Parties’ stipulated request, discovery is stayed pending a decision on 3 Instacart’s and Costco’s Motion to Compel Arbitration and Stay the Case, or, Alternatively, to 4 Dismiss for Failure to State Claims for Relief Pursuant to Rule 12(b)(6), with the exception that the 5 Parties shall be allowed to continue their evidence preservation efforts, including, but not limited 6 to, 7 AffinityLifestyles.com, Inc. and Real Water Inc. or similar evidentiary preservation events that are 8 noticed by the Parties in the companion Real Water cases in state court, as long as notice is given 9 to the Parties in this matter as to such events. Alternatively, in the event that the Court denies 10 Defendants’ Motion, the Parties shall conduct a Rule 26(f) Conference and then submit a proposed 11 Joint Discovery Plan and Scheduling Order within forty-five (45) days of the Court’s decision on 12 13 Defendants’ Motion. The alsotoset six (6) months The Court Court shall declines setaastatus status conference conference.within ties request that theof this Court schedule a status conference is denied. Order. In the event the Court issues its Stipulation decision on is Instacart’s Costco’s Motioninprior Accordingly, IT ISthat ORDERED that the granted and in part and denied part.to 14 the status conference, the15th statusday conference be vacated. DATED this of April,shall 2022. attending inspections relating to facilities previously operated by Defendants PURSUANT TO STIPULATION, IT IS SO ORDERED. 15 16 17 18 19 Dated: _____________________________________ DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE Hon. Andrew P. Gordon UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 7 FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY DISCOVERY
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