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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DENNIS OTT,

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Plaintiff,
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vs.
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WORLDMARK, THE CLUB, et al.,
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Defendants. )
__________________________________________)

Case No. 2:11-cv-01779-KJD-PAL
ORDER

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The court conducted a status and scheduling hearing on the parties’ proposed Stipulation and

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Order to Extend Discovery Deadlines (First Request) (Dkt. #23) on February 28, 2012. Molly Pitluck

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appeared on behalf of the Plaintiff. Kevin Smith and Nathan Higley appeared on behalf of the

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Defendants.

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The Complaint in this case was filed in state court and removed (Dkt. #1) November 4, 2011.

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Plaintiff filed an Amended Complaint (Dkt. 9) November 28, 2011. The Defendants responded by

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filing a Motion to Strike (Dkt. #12) because Plaintiff did not seek leave of court to file the amended

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complaint. Plaintiff filed a Counter Motion for Leave to Amend to Add Shawn Timmons (Dkt. #17) as

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an additional Defendant in this case. Defendants argue that adding Timmons will destroy diversity

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jurisdiction. Plaintiff claims Timmons is a Nevada resident and allowing the amendment will not

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destroy diversity jurisdiction.

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The parties initially submitted a Proposed Discovery Plan and Scheduling Order (Dkt. #13)

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which requested a December 19, 2012, discovery cutoff, or more than twice the amount of time deemed

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presumptively reasonable by LR 26-1(e) to complete discovery. The parties did not support their

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request for additional time with a statement of reasons why longer or different time periods should

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apply, or any reason why the additional time is required. The court therefore denied the parties’

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proposed stipulated discovery plan and scheduling order and entered a standard discovery plan and

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scheduling order giving the parties 180 days, measured from the date of removal, in which to complete

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discovery. The discovery cutoff is currently May 7, 2012.

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In the current stipulation, the parties seek a 120-day extension of the discovery plan and

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scheduling order deadlines. The stipulation does not comply with the requirements of LR 26-4. Rather,

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counsel states that they have been discussing potential settlement or mediation for some time, and will

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be unable to mediate prior to March 2012. Additionally, Defendants gave Plaintiff a 30-day extension

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of time to respond to written discovery and will not receive discovery documents in sufficient time to

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prepare their experts. Finally, Defendants believe that obtaining documents from Plaintiff’s out-of-state

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heath care providers “will involve an exceptional delay”. Based on these representations, the parties

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seek an extension of all the discovery plan and scheduling order deadlines.

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At the hearing, the court canvassed counsel about whether they had reached an agreement to

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mediate this case. Counsel for Plaintiff indicated that her client lives in the state of Washington, and

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will be unavailable for a mediation until the end of March 2012. However, Plaintiff has not yet decided

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whether he will agree to mediate. Plaintiff’s counsel has discussed three or four names of potential

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mediators with opposing counsel, but neither side has selected a mediator or established a date for

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mediation.

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The parties conducted a telephonic Rule 26(f) conference and made their initial disclosures.

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However, very little discovery has been conducted to date. Defendants served written discovery

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requests on Plaintiff February 7, 2012, and have given Plaintiff an extension until April 9, 2012, to

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serve responses. Plaintiff intends to serve the Defendants with written discovery requests, including

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interrogatories, request for production of documents, and requests for admissions. Plaintiff may also

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serve a non-party police department with a subpoena duces tecum to obtain the police report involved in

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this incident, and may take the depositions of two eye-witnesses. Plaintiff does not intend to designate

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any experts, but will rely on opinion testimony of Plaintiff’s treating physicians. Counsel for Plaintiff

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requested all of the medical records from the five health care providers from whom Plaintiff received

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treatment for injuries related to this complaint. Two of the providers have provided medical records,

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but Plaintiff is still waiting for responses from the remaining three.
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The Defendants requested that Plaintiff sign HIPPA-compliant medical authorization releases in

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written discovery served on February 7, 2012, and intend to obtain Plaintiff’s medical records directly

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from the health care providers. Defense counsel will also explore Plaintiff’s medical history to

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determine whether some or all of the injuries Plaintiff complains about in this case are pre-existing.

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Defendants intend to take the Plaintiff’s deposition and the depositions of at least two of the Plaintiff’s

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medical providers, the psychologist and orthopaedic surgeon Plaintiff has seen. Plaintiff may also

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depose up to three eye-witnesses involved in the incident in this case. Defense counsel does not

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anticipate requesting an independent medical examination, but will probably designate experts in the

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field of orthopaedic surgery and psychology.

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Having reviewed and considered the matter, the court will not approve the parties’ proposed

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stipulation to extend the discovery plan and scheduling order deadlines. It is evident given the lack of

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progress made in discovery to date, that the parties are unlikely to meet even the extended deadlines

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requested. The court directed counsel to determine within the next two weeks whether they would

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agree to mediation, and if so, to select a mediator and set a date for mediation. The court will continue

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this matter for a status and scheduling conference and address any requests for an adjustment of the

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discovery plan and scheduling order deadlines once the parties have determined whether this matter will

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be mediated within a reasonable period of time.

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IT IS ORDERED that:

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1.

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The parties proposed Stipulation and Order (Dkt. #23) is NOT APPROVED and is
DENIED.

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A status and scheduling conference is set for Monday, March 12, 2012, at 8:45 a.m.

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At the hearing, the court will address any request for an adjustment of the discovery plan

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and scheduling order deadlines after hearing from the parties concerning whether they

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have agreed to mediate, and if so, whether they have selected a mediator and established

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a date for the mediation.

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nd
Dated this 2 day of March, 2012.

______________________________________
Peggy A. Leen
United States Magistrate Judge
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