Byrd Underground, LLC v. Automatic Data Processing, Inc., No. 2:2022cv01329 - Document 44 (D. Nev. 2023)
Court Description: ORDER Granting 42 Joint Motion to Extend Time Re 23 Order on Discovery Plan and Scheduling Order. Discovery due by 11/12/2023. Motions due by 12/12/2023. Proposed Joint Pretrial Order due by 1/11/2024. Signed by Magistrate Judge Nancy J. Koppe on 5/26/2023. (Copies have been distributed pursuant to the NEF - AMMi)
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Byrd Underground, LLC v. Automatic Data Processing, Inc. Doc. 44 Case 2:22-cv-01329-CDS-NJK Document 42 Filed 05/25/23 Page 1 of 6 1 2 3 4 5 6 7 LILITH V. XARA, ESQ. Nevada Bar No. 13138 AKERMAN, LLP 1635 Village Center Circle, Suite 200 Las Vegas, Nevada 89134 Telephone: (702) 634-5000 Facsimile: (702) 380-8572 Email: lilith.xara@akerman.com Counsel for Defendant/Third-Party Plaintiff/Counter-Defendant ADP, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 8 9 BYRD UNDERGROUND, LLC, Case No.: 2:22-cv-01329-CDS-NJK 11 Plaintiff, 12 v. RENEWED JOINT MOTION TO EXTEND SCHEDULING ORDER DEADLINES 13 AUTOMATIC DATA PROCESSING, INC., (Second Request – First Request Denied Without Prejudice) 14 15 Defendant/Third-Party Plaintiff/CounterDefendant, 16 v. 17 BYRD INSURANCE, INC. 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 AKERMAN LLP 10 18 Third-Party Defendant/Counter-Claimant. 19 20 21 22 23 24 25 26 Pursuant Local Rules IA 6-1 and 26-3, and for good cause, Plaintiff Byrd Underground, LLC (“Byrd Underground”), Defendant/Third-Party Plaintiff/Counter-Defendant ADP, Inc. (“ADP”), 1 and Third-Party Defendant/Counter-Claimant Byrd Insurance, Inc. (“Byrd Insurance”) jointly and respectfully request an extension of the following scheduling order deadlines in this case (see ECF No. 23), following Byrd Insurance’s recent May 16, 2023 appearance in the case as a new party and filing of Counterclaims against ADP (see ECF No. 39): 27 28 1 ADP states that it is incorrectly identified in the case caption as Automatic Data Processing, Inc. 1 Dockets.Justia.com 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 AKERMAN LLP Case 2:22-cv-01329-CDS-NJK Document 42 Filed 05/25/23 Page 2 of 6 1 Deadline Description Current Deadline Proposed Deadline 2 Byrd Insurance’s Rule 26(a)(1) N/A May 30, 2023 3 initial disclosures 4 Initial expert disclosures, as to May 29, 2023 September 13, 2023 5 issues on which a party bears 6 the burden of proof 7 Rebuttal expert disclosures, as June 26, 2023 October 13, 2023 8 to issues on which a party does 9 not bear the burden of proof 10 Discovery cutoff July 26, 2023 November 12, 2023 11 Dispositive motions August 25, 2023 December 12, 2023 12 Joint proposed pretrial order September 25, 2023, January 11, 2024, 13 or 30 days after resolution of or 30 days after resolution of 14 dispositive motions dispositive motions 15 16 In support of this joint motion, Byrd Underground, ADP, and Byrd Insurance state as follows: 17 BACKGROUND 18 19 20 1. On August 16, 2022, Byrd Underground commenced this lawsuit by filing its Complaint against ADP. See ECF No. 1. 2. On November 2, 2022, ADP first appeared in this matter, by filing a Rule 12(b)(6) 21 Motion to Dismiss, which seeks to dismiss the Complaint in its entirety, and which is still pending 22 before the Court. See ECF No. 11. 23 24 25 26 27 28 3. In light of ADP’s pending Motion to Dismiss (see id.), ADP has not yet answered Byrd Underground’s Complaint. 4. On December 28, 2023, the Court entered a scheduling order in this case, including discovery deadlines, even though ADP’s Motion to Dismiss is still pending. See ECF No. 23. 5. The scheduling order included an April 27, 2023 deadline to amend the pleadings and/or add parties. 2 Case 2:22-cv-01329-CDS-NJK Document 42 Filed 05/25/23 Page 3 of 6 1 2 6. filed a Third-Party Complaint against a new party, Byrd Insurance. See ECF No. 34. 3 4 7. 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 On April 21, 2023, the Clerk of the Court issued the Summons to new party Byrd Insurance. See ECF No. 35. 5 AKERMAN LLP In accordance with the Court’s scheduling order (see id.), on April 20, 2023, ADP timely 8. On April 25, 2023, new party Byrd Insurance was served with the Summons and Third- 6 Party Complaint. See ECF No. 36. Byrd Insurance had 21 thereafter, until May 16, 2023, to answer or 7 otherwise respond to ADP’s Third-Party Complaint. See id.; see also ECF No. 35. Byrd Insurance’s 8 May 16 deadline fell less than two weeks before the current May 29, 2023 deadline for initial expert 9 disclosures, and only two months before the current July 26, 2023 discovery cut-off date. See ECF No. 10 11 12 13 23. 9. Given this posture, on May 2, 2023, Byrd Underground and ADP filed a joint motion to extend the scheduling order deadlines, which is incorporated herein by reference. See ECF No. 37. 10. On May 3, 2023, the Court denied Byrd Underground and ADP’s joint motion to extend 14 the scheduling order deadlines “without prejudice so that the parties can confer with Byrd Insurance 15 after its appearance” in the case. ECF No. 38. 16 17 18 19 20 21 22 11. On May 16, 2023, Byrd Insurance first appeared in the case, by filing its Answer to ADP’s Third-Party Complaint and Counterclaims against ADP. See ECF No. 39. 12. Pursuant to Federal Rule of Civil Procedure 12(a)(1)(B), ADP now has until June 6, 2023 to respond to Byrd Insurance’s Counterclaims against it. 13. In accordance with the Court’s May 3 Order (ECF No. 38), on May 18, 2023, began the process of conferring with Byrd Insurance about the extension of the scheduling order in this case. 14. Accordingly, Byrd Underground, ADP, and Byrd Insurance jointly and respectfully 23 request an extension of the scheduling order deadlines identified in the chart at the beginning of this 24 motion. This extension will accommodate the entry of a new party in this case (Byrd Insurance) who 25 will need to participate in the written, oral, and expert discovery process. In addition, this extension 26 accounts for the fact that ADP’s Motion to Dismiss is still pending, ADP has not yet filed an answer 27 and affirmative defenses to Byrd Insurance’s Complaint, and ADP is also not yet required to respond 28 to Byrd Insurance’s May 16 filing of Counterclaims against ADP. 3 Case 2:22-cv-01329-CDS-NJK Document 42 Filed 05/25/23 Page 4 of 6 1 2 3 4 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 15. Byrd Underground, ADP, and Byrd Insurance bring this motion in the interest of justice and not for the purpose of undue delay. 16. Pursuant to Local Rule IA 6-1, Byrd Underground, ADP, and Byrd Insurance state that 5 this is the first motion for extension of the scheduling order deadlines brought by all three parties. Byrd 6 Underground and ADP previously filed a motion for extension of scheduling order deadlines prior to 7 Byrd Insurance’s appearance in the case (see ECF No. 37), which the Court denied “without prejudice 8 so that the parties can confer with Byrd Insurance after its appearance” (ECF No. 38). 9 AKERMAN LLP LOCAL RULE STATEMENTS 17. Pursuant to Local Rule 26-3, Byrd Underground, ADP, and Byrd Insurance state that 10 there is good cause for this motion because it complies with the instructions in the Court’s May 3 Order 11 (ECF No. 38) for extending the scheduling order deadlines. Byrd Underground and ADP further state 12 that good cause should not be required to grant this motion because they previously moved to extend 13 the scheduling order deadlines on May 2 (see ECF No. 37), more than 21 days before the next 14 scheduling order deadline for initial expert disclosures on May 29, 2023. See ECF No. 23. 15 16 17 18 19 20 18. Pursuant to Local Rule 26-3(a), Byrd Underground and ADP state that the following discovery has been completed to date: a. On January 18, 2023, ADP served its Rule 26(a)(1) Initial Disclosures on Byrd Underground. b. On January 31, 2023, Byrd Underground served its Rule 26(a)(1) initial disclosures on ADP. 21 c. On February 10, 2023, ADP served its first sets of document requests and interrogatories 22 on Byrd Underground, to which Byrd Underground served objections and responses on 23 March 20, 2023. 24 25 26 27 d. On March 16, 2023, the Court granted Byrd Underground and ADP’s Stipulated Protective Order. See ECF No. 30. e. On March 20, 2023, Byrd Underground served its First Supplemental Rule 26(a)(1) Disclosures on ADP. 28 4 Case 2:22-cv-01329-CDS-NJK Document 42 Filed 05/25/23 Page 5 of 6 1 f. On March 29, 2023 (following the Court’s cancellation of the settlement conference in 2 this case (see ECF No. 33)), Byrd Underground served its first sets of document 3 requests, interrogatories, and requests for admission on ADP, to which ADP served 4 objections and responses on April 28, 2023. 5 6 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 AKERMAN LLP 7 19. Pursuant to Local Rule 26-3(b), Byrd Underground, ADP, and Byrd Insurance state that one or more of the parties anticipate that at least the following discovery remains to be completed: a. On April 24, 2023, ADP served its second sets of document requests and interrogatories 8 on Byrd Underground, to which Byrd Underground’s objections and responses are due 9 on May 24, 2023. 10 b. Following new party Byrd Insurance’s May 16 appearance in the case, Byrd Insurance 11 needs to provide Rule 26(a)(1) disclosures. Following ADP’s review of those 12 disclosures, ADP intends to serve document requests, interrogatories, and requests for 13 admissions on Byrd Insurance. 14 c. Byrd Insurance intends to serve its own written discovery. 15 d. All parties will need the opportunity to take depositions of fact and expert witnesses. No 16 17 depositions have been noticed to date. e. 18 19 The parties will also need to make their written expert disclosures and exchange expert reports. 20. Pursuant to Local Rule 26-3(c), Byrd Underground, ADP, and Byrd Insurance reiterate 20 that the upcoming discovery deadlines for initial expert disclosures (May 29, 2023), rebuttal expert 21 disclosures (June 26, 2023), and the close of discovery (July 26, 2023) (see ECF No. 23) are not feasible 22 in light of (i) ADP’s still pending Motion to Dismiss Byrd Underground’s Complaint (see ECF No. 23 11), (ii) ADP’s timely addition of new party Byrd Insurance as a third-party defendant to this case on 24 April 20, 2023, from whom no discovery has yet to be taken (see ECF Nos. 22, 34), (iii) the fact that 25 ADP is not required to respond to Byrd Insurance’s May 16, 2023 counterclaims against ADP until 26 June 6, 2023 (see ECF No. 39), and (iv) the fact that ADP has not yet been required to answer and 27 assert affirmative defenses to Byrd Underground’s complaint asserted against it (see ECF Nos. 11). 28 5 Case 2:22-cv-01329-CDS-NJK Document 42 Filed 05/25/23 Page 6 of 6 1635 VILLAGE CENTER CIRCLE, SUITE 200 LAS VEGAS, NEVADA 89134 TEL.: (702) 634-5000 – FAX: (702) 380-8572 AKERMAN LLP 1 21. Pursuant to Local Rule 26-3(d), Byrd Underground, ADP, and Byrd Insurance have 2 proposed a schedule identified in the chart at the beginning of this motion for the completion of 3 discovery and for the extension of other case management deadlines. Under this proposed schedule, 4 discovery will close 180 days after Byrd Insurance’s first appearance in this case, which was May 16, 5 2023, and the other deadlines have been correspondingly adjusted. 6 WHEREFORE, pursuant to Local Rules IA 6-1 and 26-3, and for good cause, Byrd 7 Underground, ADP, and Byrd Insurance jointly and respectfully request an extension of the scheduling 8 order deadlines identified in the chart at the beginning of this motion. 9 Jointly and respectfully submitted this 25th day of May 2023. 10 Takos Law Group, Ltd. AKERMAN, LLP 11 /s/ Zachary P. Takos /s/ Brian C. Bianco Lilith V. Xara, Esq., Nevada Bar No. 13138 1635 Village Center Circle, Suite 200 Las Vegas, Nevada 89134 12 14 Zachary P. Takos, Esq., Nevada Bar No. 11293 Steven R. Hart, Esq., Nevada Bar No. 15418 10785 W. Twain Avenue, Suite 224 Las Vegas, Nevada 89135 15 Counsel for Plaintiff 13 Brian C. Bianco, Esq. (admitted pro hac vice) Julia R. Lissner, Esq. (admitted pro hac vice) Akerman LLP 71 S. Wacker Drive, 46th Floor Chicago, Illinois 60606 16 17 MICHAEL D. RAWLINS, PLLC 18 /s/ Michael D. Rawlins 19 Michael D. Rawlins, Nevada Bar No. 5467 3271 E. Warm Springs Rd. Las Vegas, Nevada 89120 20 21 22 23 24 25 26 27 Counsel for Defendant / Third-Party Plaintiff / Counter-Defendant Counsel for Third-Party Defendant/ Counter-Claimant The pendency of the motion to dismiss does not establish good cause for the extensions sought, but the circumstances otherwise justify that relief. Accordingly, the stipulation is GRANTED and the proposed deadlines are ADOPTED. IT IS SO ORDERED. UNITED STATES MAGISTRATE JUDGE DATE: May 26, 2023 28 6
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