Sanchez v. American Family Mutual Insurance Company

Filing 66

ORDER Granting in part and Denying in part 54 Defendant's Motion to Compel. Motion Hearing re 54 Motion to Compel on is hereby VACATED solely for this motion. Signed by Magistrate Judge Nancy J. Koppe on 05/29/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERICK SANCHEZ, et al.,

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Pending before the Court is Defendant’s Motion to Compel. Docket No. 54. Plaintiffs filed

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Plaintiff(s),
vs.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,

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Defendant(s).

Case No. 2:11-cv-01507-APG-NJK
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO
COMPEL
(Docket No. 54)

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a response and Defendant filed a reply. Docket Nos. 60, 61. The Court had set a hearing on this

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motion for May 29, 2013, see Docket No. 58, which is hereby VACATED solely for this motion.

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See Local Rule 78-2. The hearing will be held as scheduled for the motions at Docket Nos. 47 and

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48. For the reasons discussed below, Defendant’s Motion to Compel (Docket No. 54) is

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GRANTED in part and DENIED in part.

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The pending motion seeks three forms of relief from the Court. First, it seeks an order

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compelling the production of documents regarding jewelry receipts and a car title loan, but

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Defendant has now withdrawn that portion of the motion. See Reply at 3-4. Accordingly, the

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motion to compel is DENIED as moot with respect to that discovery.

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Second, Defendant seeks an order requiring Plaintiffs to provide responses to written

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discovery served on February 20, 2013. See Mot. at 12. Plaintiffs acknowledge that they failed to

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timely respond to that discovery and have indicated that they will now respond. See Response at 6.

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Accordingly, the motion to compel is GRANTED as unopposed with respect to this discovery.

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Plaintiffs shall serve responses to this discovery within 14 days hereof.1

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Third, Defendant seeks an extension of the discovery cut-off to conduct third-party discovery

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related to Plaintiffs’ medical treatment and/or employment files related to medical leave. See Mot.

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at 13-14. The current discovery cut-off expired on May 9, 2013, see Docket No. 46 at 2, and

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Defendant did not request an extension until it filed this motion on May 3, 2013. As such,

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Defendant must establish excusable neglect to extend this deadline. See, e.g., Local Rule 26-4; see

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also Docket No. 46 (outlining standard for extensions). The Ninth Circuit has held that “the

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determination of whether neglect is excusable is an equitable one that depends on at least four

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factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential

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impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good

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faith.” Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer

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Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489,

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123 L.Ed.2d 74 (1993)). Because Defendant fails to discuss the relevant standards and sufficiently

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explain why excusable neglect exists here, the motion to extend the discovery cut-off is DENIED

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without prejudice.2
Accordingly, for the reasons discussed above, Defendant’s motion to compel is GRANTED

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in part and DENIED in part.

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IT IS SO ORDERED.

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DATED: May 29, 2013

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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For the first time in reply, Defendant seeks an order that Plaintiffs have waived any objections
to this discovery because they failed to timely respond. Reply at 4. Because this issue was raised for
the first time in reply and Plaintiffs have not had an opportunity to respond, it is not properly before the
Court at this time. See, e.g., Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996) (per curiam).
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The parties’ failure to cite the relevant case law or discuss excusable neglect does “not relieve
the district court of the duty to apply the correct legal standard.” Bateman, 231 F.3d at 1224.
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