Laidman v. Clark et al
Filing
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ORDER Denying 54 Motion or Extension of the Pretrial Order Deadline and to Reopen Discovery for Limited Purpose. Proposed Joint Pretrial Order due by 4/24/2013. Signed by Magistrate Judge Peggy A. Leen on 3/27/2013. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JERRY LAIDMAN,
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Plaintiff,
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vs.
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CHUCK CLARK, et al.,
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Defendants. )
__________________________________________)
Case No. 2:11-cv-00704-LRH-PAL
ORDER
(Mot Ext Jt PTO and Reopen Disc - Dkt. #54)
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Before the court is Defendants/Counterclaimants Chuck Clark, Louis Martin, and TotalFlare,
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Inc.’s (“TotalFlare”) Motion for an Extension of the Pretrial Order Deadline and to Reopen Discovery
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for a Limited Purpose (Dkt. #54). The court has considered the Motion, and
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Plaintiff/Counterdefendant’s Jerry Laidman’s Response (Dkt. #55).
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The Complaint (Dkt. #1) in this case was filed May 3, 2011. The parties requested, and
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received, special scheduling review and nine months, rather than six months, in which to complete
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discovery. The court’s Discovery Plan and Scheduling Order (Dkt. #33) was entered September 22,
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2011, and established an April 10, 2012, discovery cutoff and other deadlines consistent with LR 26-
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1(e). However, the court informed counsel that they should initiate and complete discovery within the
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extended time allowed, and that the court would strictly scrutinize any request for an extension of the
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deadlines for good cause. See Minutes of Proceedings (Dkt. #32). The parties applied for, and
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received, a limited extension of the discovery cutoff until June 11, 2012. See Stipulation (Dkt. #39) and
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Order (Dkt. #40). Discovery was extended until June 25, 2012.
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After the close of discovery Plaintiff/Counterdefendant Laidman filed a Motion for Partial
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Summary Judgment (Dkt. #43). On February 8, 2013, the district judge entered an Order (Dkt. #52)
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denying the motion without prejudice. The district judge concluded that the Plaintiff is not barred, in a
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fraud action, from offering evidence of damage resulting from the performance of a pre-existing
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obligation. However, Plaintiff had not offered any evidence of damage traceable to the Defendants’
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deceptions in his motion for partial summary judgment, and the motion was therefore denied without
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prejudice.
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In the current motion, TotalFlare seeks to reopen discovery arguing the rationale for court’s
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order denying the motion for partial summary judgment was not previously discussed or anticipated by
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the parties. TotalFlare therefore requests an opportunity to obtain discovery from Plaintiff to explore
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the material issues raised by the court’s holding that Plaintiff is not barred in a fraud action from
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offering evidence of damage resulting from the performance of a pre-existing obligation. Specifically,
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TotalFlare requests leave to take the limited deposition of Plaintiff on the issues of missed opportunities
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he allegedly had as a result of complying with the parties’ agreement and his ability to pay any
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expectancy damages that would have resulted from his breach of that agreement. TotalFlare also
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intends to serve requests for production and interrogatories on the Plaintiff concerning these two issues,
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and to subpoena documents or testimony from any non-party witnesses Plaintiff identifies in this
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additional discovery. TotalFlare seeks sixty days to complete this additional discovery, and an order
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extending until thirty days thereafter the deadline for filing the joint pretrial order. TotalFlare requested
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that Plaintiff stipulate to an extension. However, Plaintiff declined to stipulate.
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Plaintiff opposes the motion pointing out that Defendants refused to cooperate in the preparation
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and filing of a joint pretrial order which required Plaintiff to file its unilateral pretrial order on the date
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it was due, March 11, 2013. Plaintiff believes this motion was filed to delay setting a trial date.
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Additionally, on the merits, Plaintiff acknowledges that he is precluded from, and does not intend to
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offer any evidence that has not already been disclosed during discovery. Plaintiff was deposed June
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15, 2012, after all documents and physical evidence had been disclosed by the parties. The law is well
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settled that Plaintiff cannot introduce new evidence at trial not disclosed during the discovery cutoff,
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and affirmatively represents that Plaintiff does not intend to offer evidence at trial that has not already
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been disclosed.
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Having reviewed and considered the matter, the court finds that Defendants/Counterclaimants
have not established good cause or excusable neglect for failing to conduct the discovery requested
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within the extended time allowed. The fact that the movants did not expect the district judge’s ruling
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does not establish good cause or excusable neglect to reopen discovery where, as here, Plaintiff
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acknowledges and affirmatively represents he does not intend to introduce any evidence not timely
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disclosed during the discovery allowed by the court. Accordingly,
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IT IS ORDERED that:
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1.
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Defendants/Counterclaimants’ Motion for Extension of the Pretrial Order Deadline and
to Reopen Discovery for Limited Purpose (Third Request) (Dkt. #54) is DENIED.
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Defendants/Counterclaimants shall have until April 10, 2013, to cooperate with Plaintiff
in the preparation of a joint pretrial order which shall be filed no later than April 24,
2013.
Dated this 27th day of March, 2013.
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______________________________________
Peggy A. Leen
United States Magistrate Judge
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