Kanie Kastroll v. Wynn Resorts Ltd., et al.

Filing 29

SCHEDULING ORDER re 28 Stipulated Discovery Plan and Scheduling Order. Discovery due by 5/30/2011. Motions due 30 days after the discovery cut-off date. Proposed Joint Pretrial Order due 30 days after the Court's ruling on the dispositive motions. Signed by Magistrate Judge Lawrence R. Leavitt on 11/22/10. (Copies have been distributed pursuant to the NEF - EDS)

Kanie Kastroll v. Wynn Resorts Ltd., et al.

Doc. 29

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MARC P. COOK, ESQ. Nevada Bar No. 004574 BAILUS COOK & KELESIS, LTD. 400 South Fourth Street, Suite 300 Las Vegas, Nevada 89101 Phone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for Plaintiff (Additional counsel appear below) UNITED STATES DISTRICT COURT DISTRICT OF NEVADA KANIE KASTROLL, on her own behalf and on behalf of all others similarly situated, Plaintiff, v. WYNN RESORTS, LTD, a Nevada Corporation d/b/a WYNN LAS VEGAS, Defendant. Case No. 09-cv-2034-LDG-LRL STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER SPECIAL SCHEDULING REQUESTED REVIEW

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Pursuant to Local Rule 26-1 and Federal Rule of Civil Procedure 26(f), the Parties through their respective attorneys of record submit their Stipulated Discovery Plan and Scheduling Order ("Discovery Plan") for this Court's review and approval. The Parties respectfully request the Court's approval to deviate from the default dates of Local Rule 26l(e) to account for the procedural posture of this case, including Defendant's request to bifurcate discovery into the class and merits issues, discussed more below. Pursuant to Federal Rule of Civil Procedure 26(f), a conference was held on November 5,2010. Steven Lezell, Esq., from the law firm EDELSON MCGUIRE, LLC,

appeared on behalf of Plaintiff Kanie Kastroll and the putative class ("Plaintiff' and/or "Kastroll"), and Debra L. Spinelli, Esq., of the law firm PISANELLI BICE PLLC appeared on behalf of Defendant Wynn Resorts, Ltd. d/b/a Wynn Las Vegas ("Defendant" and/or "Wynn").

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Discovery Cut-Off Date: The Parties

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Defendant filed its Answer to Plaintiffs Complaint on October 8, 2010.

held their Rule 26(f) conference on November 5, 2010. Defendant proposed at the conference that discovery in this case should be bifurcated between the class certification issues and the issues pertaining to the merits of the case. Plaintiff does not object to such bifurcation. Provided that the Court's schedule will allow for entry of this Discovery Plan on or before December 1,2010, the Parties propose the following discovery schedule: Class certification discovery cut-off 180 days from the entry of this Discovery Plan by the Court or May 30, 2011 60 days prior to class discovery cut-off or March 31, 2011 30 days prior to class discovery cut-off or April 29, 2011 to follow class discovery 150 days after the Court's ruling on the motion for class certification 90 days prior to merits discovery cut-off 90 days prior to merits discovery cut-off 60 days prior to merits discovery cut-off 30 days after merits discovery cut-off

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Plaintiff s class expert disclosures due Defendant's rebuttal expert disclosures due Briefing on the class certification motion Merits discovery cut-off Amending pleadings / adding parties deadline Merits experts' disclosures due Rebuttal merits experts' disclosures due Dispositive motions due 2.

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Amending the Pleadings and Adding Parties:

The Parties propose that the deadline for filing motions to amend pleadings or to add parties shall be no later than ninety (90) days prior to the close of merits discovery. 3. Fed. R. Civ. P. 26(a)(2) Disclosures (Experts):

The Parties propose that the class certification experts' disclosures should be made not later than 60 days prior to the class discovery cut-off, and the rebuttal experts' disclosures should be made not later than 30 prior to the class discovery cut-off. The Parties further

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STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER

Case No.: 09-cv-2034

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propose that the merits experts' disclosures should be due 90 days prior to the merits discovery cut-off, with the rebuttal experts' disclosures due 60 days prior to the merits discovery cut-off.

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Dispositive Motions:

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The Parties agree that the dispositive motions shall be filed not later than thirty (30) days after the merits discovery cut-off date.

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Pretrial Order:

The Parties anticipate that dispositive motions will be filed in this case. The Parties agree that the due date for filing the joint pretrial order shall be suspended until thirty (30) days after this Court's ruling on the dispositive motions or further order of the Court.

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Fed. R. Civ. P. 26(a)(3) Disclosures:

The Parties agree that Fed. R. Civ. P. 26(a)(3) disclosures shall be included by the Parties in their joint Pretrial Order.

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Fed. R. Civ. P. 26(f)(3)(A) - Rule 26(a) initial disclosures:

The Parties agree to exchange their Rule 26(a)(l) initial disclosures on or before November 29,2010.

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Fed. R. Civ. P. 26(f)(3)(B) - subjects, scope, and phases of discovery:

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Phases of Discovery

Wynn's Position: As stated above, Wynn proposes that discovery should be conducted in two phases: (l) class certification; and (2) merits. Bifurcation of discovery is consistent with the District Court's September 23, 2010 Order on Wynn's motion to dismiss for lack of subject matter jurisdiction or, in the alternative motion to dismiss pursuant to Fed. R. Civ. P. I2(b)(6), Specifically, in deciding whether the "home state controversy" exception to the Class Action

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STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case No.: 09-cv-2034

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Fairness Act mandates dismissal of this action, I the District Court stated that" [a]lthough this 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 court acknowledges the novel issues raised by Wynn's argument, later litigation stages more naturally facilitate a determination of the proper scope of Kastroll's proposed class. Accordingly, the court will further entertain arguments regarding the proper scope of Kastroll's proposed class during later stages of this action." (Doc. No. 24.) By conducting discovery limited to the proposed class, the parties can engage in discovery pertinent to class certification, brief the issue for the District Court, and have the Court resolve whether it can exercise jurisdiction over this action before embarking on invasive merits-based discovery. Wynn further suggests that the second phase of discovery should not begin until the Court rules on Plaintiff s anticipated motion for class certification. Plaintiffs Position: Plaintiff does not object to bifurcation between class and merits issues. B. Subjects and Scope of Discovery 1. Plaintiff anticipates discovery into the following subjects:

Statistical data and information regarding Defendant's former and current employees; Defendant's policies regarding smoking inside the casino; Defendant's policies regarding employees' handling of the patrons' smoke; Defendant's procedures regarding addressing employees' complaints about the smoke; Defendant's efforts in alleviating the effect of the second hand smoke on its employees; Defendant's testing and sampling the air quality inside the gaming areas of the

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The Home State Controversy exception mandates dismissal of actions where "twothird or more of the members of the proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." Wynn is a Nevada entity with its principal place of business in Nevada. Kastroll is a Nevada resident. And, Kastroll purports to bring this action for injunctive relief only on behalf of all past, present, and future employees of Wynn.
STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case No.: 09-cv-2034

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casino; and other subjects.
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Defendant anticipates discovery will be necessary on the class

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certification issue, whether the Plaintiff can assert any claims on behalf of the defined class, whether this Court can exercise subject matter jurisdiction under the Class Action Fairness Act, and (should this matter get passed the class certification stage), on all of Plaintiffs claims and related defenses.

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("ESI"):

Fed. R. Civ. P. 26(f)(3)(C) - discovery of electronically stored information

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The Parties do not anticipate that any ESI issues would be implicated in this case at this time. The Parties reserve the right to adjust their respective positions regarding the ESI as discovery progresses. 10. Fed. R. Civ. P. 26(f)(3)(D) - privilege issues:

Prior to discovery responses becoming due from either Party, the Parties agree to resolve whether a confidentiality agreement and protective order is necessary and present it to the Court for review and approval.
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Fed. R. Civ. P. 26(f)(3)(E) - changes to discovery limitations:

Plaintiff anticipates requesting leave to propound interrogatories in excess of the maximum number allowed by the Rules of Civil Procedure. Defendant reserves its right to seek such leave should the need arise. 12. Fed. R. Civ. P. 26(f)(3)(F) - other Court orders:

The Parties do not anticipate the need for any Court Orders at this time. BAILUS COOK & KELESIS, LTD. By: lsi Marc P. Cook Marc P. Cook, Esq. (Bar No. 004574) 400 South Fourth Street, Suite 300 Las Vegas, Nevada 89101 Phone: [phone] Fax: [phone]
PISANELLI BICE PLLC

By: lsi Debra L. Spinelli James 1. Pisanelli, Esq., Bar No. 4027 Debra L. Spinelli, Esq., Bar No. 9695 Jarrod L. Rickard, Esq., Bar No.1 0203 3883 Howard Hughes Parkway, Suite 800 Las Vegas, NV 89169

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STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER

Case No.: 09-cv-2034

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Jay Edelson (admitted pro hac vice) Steven Lezell (admitted pro hac vice) EDELSON MCGUIRE, LLC 350 N. LaSalle Ave, Suite 1300 Chicago, Illinois 60654 Tel: [phone] Fax: [phone] Attorneysfor Plaintiff and the putative class

Tel: [phone] Fax: [phone] Attorneysfor Defendant

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ORDER IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE DATED: CASE NO.:

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11-22-10
09-cv-2034-LDG-LRL

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STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER Case No.: 09-cv-2034

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