Ott v. Worldmark, The Club et al

Filing 26

ORDER Denying 23 Stipulation. Status Conference set for 3/12/2012 08:45 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Signed by Magistrate Judge Peggy A. Leen on 3/2/2012. (Copies have been distributed pursuant to the NEF - SLR)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 DENNIS OTT, ) ) Plaintiff, ) ) vs. ) ) WORLDMARK, THE CLUB, et al., ) ) Defendants. ) __________________________________________) Case No. 2:11-cv-01779-KJD-PAL ORDER 12 13 The court conducted a status and scheduling hearing on the parties’ proposed Stipulation and 14 Order to Extend Discovery Deadlines (First Request) (Dkt. #23) on February 28, 2012. Molly Pitluck 15 appeared on behalf of the Plaintiff. Kevin Smith and Nathan Higley appeared on behalf of the 16 Defendants. 17 The Complaint in this case was filed in state court and removed (Dkt. #1) November 4, 2011. 18 Plaintiff filed an Amended Complaint (Dkt. 9) November 28, 2011. The Defendants responded by 19 filing a Motion to Strike (Dkt. #12) because Plaintiff did not seek leave of court to file the amended 20 complaint. Plaintiff filed a Counter Motion for Leave to Amend to Add Shawn Timmons (Dkt. #17) as 21 an additional Defendant in this case. Defendants argue that adding Timmons will destroy diversity 22 jurisdiction. Plaintiff claims Timmons is a Nevada resident and allowing the amendment will not 23 destroy diversity jurisdiction. 24 The parties initially submitted a Proposed Discovery Plan and Scheduling Order (Dkt. #13) 25 which requested a December 19, 2012, discovery cutoff, or more than twice the amount of time deemed 26 presumptively reasonable by LR 26-1(e) to complete discovery. The parties did not support their 27 request for additional time with a statement of reasons why longer or different time periods should 28 apply, or any reason why the additional time is required. The court therefore denied the parties’ 1 proposed stipulated discovery plan and scheduling order and entered a standard discovery plan and 2 scheduling order giving the parties 180 days, measured from the date of removal, in which to complete 3 discovery. The discovery cutoff is currently May 7, 2012. 4 In the current stipulation, the parties seek a 120-day extension of the discovery plan and 5 scheduling order deadlines. The stipulation does not comply with the requirements of LR 26-4. Rather, 6 counsel states that they have been discussing potential settlement or mediation for some time, and will 7 be unable to mediate prior to March 2012. Additionally, Defendants gave Plaintiff a 30-day extension 8 of time to respond to written discovery and will not receive discovery documents in sufficient time to 9 prepare their experts. Finally, Defendants believe that obtaining documents from Plaintiff’s out-of-state 10 heath care providers “will involve an exceptional delay”. Based on these representations, the parties 11 seek an extension of all the discovery plan and scheduling order deadlines. 12 At the hearing, the court canvassed counsel about whether they had reached an agreement to 13 mediate this case. Counsel for Plaintiff indicated that her client lives in the state of Washington, and 14 will be unavailable for a mediation until the end of March 2012. However, Plaintiff has not yet decided 15 whether he will agree to mediate. Plaintiff’s counsel has discussed three or four names of potential 16 mediators with opposing counsel, but neither side has selected a mediator or established a date for 17 mediation. 18 The parties conducted a telephonic Rule 26(f) conference and made their initial disclosures. 19 However, very little discovery has been conducted to date. Defendants served written discovery 20 requests on Plaintiff February 7, 2012, and have given Plaintiff an extension until April 9, 2012, to 21 serve responses. Plaintiff intends to serve the Defendants with written discovery requests, including 22 interrogatories, request for production of documents, and requests for admissions. Plaintiff may also 23 serve a non-party police department with a subpoena duces tecum to obtain the police report involved in 24 this incident, and may take the depositions of two eye-witnesses. Plaintiff does not intend to designate 25 any experts, but will rely on opinion testimony of Plaintiff’s treating physicians. Counsel for Plaintiff 26 requested all of the medical records from the five health care providers from whom Plaintiff received 27 treatment for injuries related to this complaint. Two of the providers have provided medical records, 28 but Plaintiff is still waiting for responses from the remaining three. 2 1 The Defendants requested that Plaintiff sign HIPPA-compliant medical authorization releases in 2 written discovery served on February 7, 2012, and intend to obtain Plaintiff’s medical records directly 3 from the health care providers. Defense counsel will also explore Plaintiff’s medical history to 4 determine whether some or all of the injuries Plaintiff complains about in this case are pre-existing. 5 Defendants intend to take the Plaintiff’s deposition and the depositions of at least two of the Plaintiff’s 6 medical providers, the psychologist and orthopaedic surgeon Plaintiff has seen. Plaintiff may also 7 depose up to three eye-witnesses involved in the incident in this case. Defense counsel does not 8 anticipate requesting an independent medical examination, but will probably designate experts in the 9 field of orthopaedic surgery and psychology. 10 Having reviewed and considered the matter, the court will not approve the parties’ proposed 11 stipulation to extend the discovery plan and scheduling order deadlines. It is evident given the lack of 12 progress made in discovery to date, that the parties are unlikely to meet even the extended deadlines 13 requested. The court directed counsel to determine within the next two weeks whether they would 14 agree to mediation, and if so, to select a mediator and set a date for mediation. The court will continue 15 this matter for a status and scheduling conference and address any requests for an adjustment of the 16 discovery plan and scheduling order deadlines once the parties have determined whether this matter will 17 be mediated within a reasonable period of time. 18 IT IS ORDERED that: 19 1. 20 21 The parties proposed Stipulation and Order (Dkt. #23) is NOT APPROVED and is DENIED. 2. A status and scheduling conference is set for Monday, March 12, 2012, at 8:45 a.m. 22 At the hearing, the court will address any request for an adjustment of the discovery plan 23 and scheduling order deadlines after hearing from the parties concerning whether they 24 have agreed to mediate, and if so, whether they have selected a mediator and established 25 a date for the mediation. 26 27 28 nd Dated this 2 day of March, 2012. ______________________________________ Peggy A. Leen United States Magistrate Judge 3

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