Choice Construction, Inc. v. JMR Construction Corp. et al
Filing
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ORDER Granting 38 Motion to Extend Discovery. Discovery due by 3/20/2013. Motions due by 4/17/2013. Signed by Magistrate Judge Peggy A. Leen on 8/9/12. (Copies have been distributed pursuant to the NEF - MMM)
Case 2:12-cv-00192-MMD -PAL Document 38
Filed 08/08/12 Page 1 of 7
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MICHAEL W. BRIMLEY, ESQ.
Nevada Bar No. 3684
mbrimley@peelbrimley.com
CARY B. DOMINA, ESQ.
Nevada Bar No. 10567
PEEL BRIMLEY LLP
3333 E. Serene Avenue, Suite 200
Henderson, NV 89074-6571
Phone: (702) 990-7272
mbrimley@peelbrimley.com
cdomina@peelbrimley.com
Attorneys for Choice Construction, Inc.
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PEEL BRIMLEY LLP
3333 E. SERENE AVE., STE 200
HENDERSON, NEVADA 89074
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CHOICE CONSTRUCTION, INC., a Nevada
corporation,
Plaintiff,
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2:12-cv-00192-MMD-PAL
vs.
JMR CONSTRUCTION CORP., a foreign
corporation; GREAT AMERICAN
INSURANCE COMPANY, a Nevada
authorized surety; DOES 1 through 10; ROE
CORPORATIONS 1 through 10; BOE
BONDING COMPANIES 1 through 10,
JOINT MOTION TO EXTEND
DISCOVERY
(First Request)
Defendants.
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Pursuant to LR 6-1 and LR 26-4, Plaintiff, Choice Construction, Inc. ("Choice"), by and through
its attorneys, Peel Brimley LLP, and Defendant Great American Insurance Company, ("GAIC"), by and
through its attorneys, The Faux Law Group, jointly move the Court for an order extending the discovery
cut off date in the above captioned case to March 20, 2013. The current discovery deadline is August 20,
2012. The parties request this extension based on the following reason: the parties lost several months of
Discovery time as a result of the Motion to Stay and the transition from Judge Hicks to Judge Du.
Case 2:12-cv-00192-MMD -PAL Document 38
Filed 08/08/12 Page 2 of 7
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The parties hereby submit this Joint Motion to clarify the need to extend the dates, several of
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which have passed because the dates were in close proximity to the final adjudication of JMR’s Motion to
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Stay. The parties request a hearing or meeting with the Court concerning this matter as soon as possible.
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This Joint Motion is based on the points and authorities below, together with al pleadings and
papers filed in the action and any argument of counsel at the hearing of said Joint Motion.
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DATED this 8th day of August, 2012.
DATED this 8th day of August, 2012.
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PEEL BRIMLEY LLP
THE FAUX LAW GROUP
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/s/Cary B. Domina
Michael W. Brimley, Esq. (#3684)
Cary B. Domina, Esq. (#10567)
3333 E. Serene Avenue, Suite 200
Henderson, NV 89074
Attorneys for Choice Construction, Inc.
/s/ Leland K. Faux
Kurt C. Faux, Esq.
Leland K. Faux, Esq.
1540 W. Warm Springs Rd., #100
Henderson, NV 89014
Attorneys for Great American Insurance
Company
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PEEL, BRIMLEY LLP
3333 E. SERENE AVE.,STE 200
HENDERSON, NEVADA 89074
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MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATEMENT OF FACTS
This Case arises out of a payment dispute regarding the construction of the Brac Aircraft
Maintenance Shop Facility project, at Nellis AFB in Las Vegas, Nevada (“the Project”). On or
about June 26, 2007, Choice and JMR Construction Corp (“JMR”) entered into a subcontract
agreement whereby Choice agreed to furnish certain electrical related work, materials and
equipment (“Work”) for the Project. GAIC issued a contractor payment bond for the Project with
JMR as the principal and Choice as an obligee.
Choice filed a Complaint in the Eighth Judicial District Court of Nevada on January 6,
2012, alleging that JMR failed to pay Choice for the Work it provided to the Project. In its
Complaint, Choice also asserted a claim against GAIC, alleging that GAIC violated certain
provisions of Nevada’s Unfair Claims Practices Act (NRS 686A.310). On February 7, 2012,
GAIC filed a Notice of Removal of Action Under 28 U.S.C. §144(b) which was joined by JMR
by way of its Consent to Petition for Removal filed on or about February 28, 2012.
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Case 2:12-cv-00192-MMD -PAL Document 38
Filed 08/08/12 Page 3 of 7
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On April 13, 2012, the Court entered a Discovery Plan and Scheduling Order, setting the
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close of discovery for August 20, 2012 (Dkt. #18). On April 30, 2012, JMR filed an Emergency
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Motion to Stay (Dkt. #19) and on May 1, 2012, the Honorable Larry R. Hicks granted the request
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for Order Shortening Time and issued an expedited briefing schedule.
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On May 23, 2012, after the Motion was fully briefed by the parties, this Action was
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reassigned to the Honorable Miranda M. Du for all further proceedings. On June 21, 2012, the
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parties filed a Joint Interim Status Report and Stipulation and order to Extend Discovery and
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Related Deadlines. On July 5, 2012, Magistrate Peggy A. Leen denied the Stipulation to Extend
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without prejudice, but stated:
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In the event the Motion to Stay is denied, the parties may submit a
request for extension of the Discovery Plan and Scheduling Order
deadlines within fourteen days of the district judge’s decision.
PEEL, BRIMLEY LLP
3333 E. SERENE AVE.,STE 200
HENDERSON, NEVADA 89074
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On July 11, 2012, the Motion to Stay was heard before Judge Du and the matter taken
under advisement. On July 16, the Court granted JMR’s Motion to Stay as to claims involving
JMR only, but denied GAIC’s joinder thereto. Specifically, the Court held:
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Choice’s request for limited discovery is DENIED; GAIC’s Motion
to Stay is DENIED; JMR’s Motion for Stay is GRANTED; the
proceedings against JMR are stayed until the Federal Claims Court
issues a final decision in JMR Construction v. United States, No.
1:11-cv-187 and instructed JMR to file status reports every three
months.
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Exactly 14 days after receiving Judge Du’s written Order denying GAIC’s Motion to Stay,
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on July 30, 2012, Choice and GAIC submitted a Stipulation to Extend, which was DENIED for
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lack of sufficient explanation justifying the additional time requested. The purpose of this Joint
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Motion is to identify the legal and factual basis for Choice’s and GAIC’s request to extend the
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discovery deadlines in the Action.
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II.
LEGAL ARGUMENT
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LR 26-4 allows the Court to extend any date set by the discovery plan, scheduling order,
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or other order when the request to do so is supported by good cause. Along with the requisite
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showing of good cause, a motion to extend discovery must include the following: “(a) A
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Case 2:12-cv-00192-MMD -PAL Document 38
Filed 08/08/12 Page 4 of 7
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statement specifying the discovery completed; (b) A specific description of the discovery that
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remains to be completed; (c) The reasons why discovery remaining was not completed within the
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time limits set by the discovery plan; and (d) A proposed schedule for completing all remaining
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discovery.” LR 26-4.
In this Case, good cause exists for an extension of the current discovery deadlines. JMR’s
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Motion for Stay was filed shortly after removing this matter from the Eighth Judicial District
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Court to this Court. While JMR’s Motion for stay was filed on April 30, 2012, as a result of the
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Case being transferred to Judge Du, several months past before the Court actually heard and
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decided JMR’s Motion. In an effort to minimize costs, the parties refrained from conducting
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discovery during the pendency of the Motion. JMR’s Motion to Stay was decided on July 16,
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PEEL, BRIMLEY LLP
3333 E. SERENE AVE.,STE 200
HENDERSON, NEVADA 89074
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2012, three months after it was initially filed, and only a month before the August 20, 2012
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discovery deadline.
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Furthermore, although LR 26-4 requires that motions or stipulations to extend discovery
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be submitted “no later than twenty (20) days before the discovery cut-off date or any extension
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thereof,” in this case, the Court ordered that “the parties may submit a request for extension of the
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Discovery Plan and Scheduling Order deadlines within fourteen days of the district judge’s
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decision” on JMR’s motion to stay. The parties submitted their stipulation to extend discovery
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deadlines within those 14 days and has acted diligently in providing the court with the additional
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information required under LR 26-4 through this current motion. See Johnson v. Mammoth
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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (The good cause standard [in modifying a
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scheduling order] primarily considers the diligence of the party seeking the amendment.)
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Based on the foregoing, good cause exists for an extension of the current discovery
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deadlines.
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A.
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Pursuant to LR 26-4, the parties submit the following statements regarding the current
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REQUIREMENTS OF LR 26-4
status of Discovery.
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1.
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As a result of the Motion to Stay, the Parties have conducted no discovery in this matter.
Discovery Completed. To date, the following discovery has been completed:
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Case 2:12-cv-00192-MMD -PAL Document 38
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All discovery remains to be completed.
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3.
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As previously mentioned, given the time that transpired between JMR filing its Motion to
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Stay, and this Court rendering its decision, the parties did not engage in discovery in an effort to
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minimize costs in the event the Court granted the Motion in its entirety.
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4.
Remaining Discovery. The following discovery remains to be completed;
Reasons the Above Discovery is Remaining.
Proposed Schedule for Completing Remaining Discovery. The Parties have
stipulated and agreed to the Discovery Schedule below:
a.
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March 20, 2013.
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PEEL, BRIMLEY LLP
3333 E. SERENE AVE.,STE 200
HENDERSON, NEVADA 89074
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b.
Discovery in the above captioned case shall be completed on or before
Any and all pleadings and/or motions brought under the following rules
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shall be filed on or before December 20, 2012.
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(1)
Fed R. Civ.P. 13 regarding counterclaims and cross-claims.
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(2)
Fed R. Civ.P. 14 regarding third-party actions.
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(3)
Fed R. Civ.P. 15 regarding amended and supplemental pleadings.
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(4)
Fed. R. Civ.P. 19 & 20 regarding joinder of additional parties.
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c.
Disclosures pursuant to Fed R. Civ.P. 26(a)(2) shall be made on or before
January 16, 2012 and rebuttal expert disclosures shall be made on or before February 15, 2013.
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d.
The parties shall file an Interim Status Report On or before January 21,
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2013 as required by LR 26-3, stating the times estimated for trial, three alternative dates for trial,
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and whether or not trial will be proceeding or affected by substantive motions.
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e.
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2013.
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III.
Dispositive motions in this matter shall be filed on or before April 17,
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CONCLUSION
For the reasons set forth above, Choice and GAIC respectfully request the Court extend
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Case 2:12-cv-00192-MMD -PAL Document 38
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Filed 08/08/12 Page 6 of 7
the current discovery deadlines to the proposed dates.
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DATED this 8th day of August, 2012.
DATED this 8th day of August, 2012.
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PEEL BRIMLEY LLP
THE FAUX LAW GROUP
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/s/Cary B. Domina
Michael W. Brimley, Esq. (#3684)
Cary B. Domina, Esq. (#10567)
3333 E. Serene Avenue, Suite 200
Henderson, NV 89074
Attorneys for Choice Construction, Inc.
/s/Leland K. Faux
Kurt C. Faux, Esq.
Leland K. Faux, Esq.
1540 W. Warm Springs Rd., #100
Henderson, NV 89014
Attorneys for Great American Insurance
Company
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PEEL, BRIMLEY LLP
3333 E. SERENE AVE.,STE 200
HENDERSON, NEVADA 89074
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IT IS ORDERED that the parties' Joint Motion to Extend Discovery (Dkt. #38) is
GRANTED. The proposed discovery plan and scheduling order deadlines set forth in
the Joint Motion are APPROVED.
Dated this 9th day of August, 2012.
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____________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE
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Case 2:12-cv-00192-MMD -PAL Document 38
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CERTIFICATE OF SERVICE
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Pursuant to NRCP 5(b), I certify that I am an employee of PEEL BRIMLEY LLP and that
on this 8th day of August, 2012, I caused the above and foregoing document entitled JOINT
MOTION TO EXTEND DISCOVERY to be served as follows:
by placing same to be deposited for mailing in the United States Mail, in a sealed
envelope upon which first class postage was prepaid in Las Vegas, Nevada; and/or
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X
the Court’s CM/ECF electronic filing system;
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PEEL, BRIMLEY LLP
3333 E. SERENE AVE.,STE 200
HENDERSON, NEVADA 89074
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to the party(ies) and/or attorney(s) listed below at the address and/or facsimile number indicated
below:
Kurt C. Faux, Esq.
Leland K. Faux, Esq.
THE FAUX LAW GROUP
1540 W. Warm Springs Rd., #100
Henderson, NV 89014
Attorneys for Great American Insurance Company
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K.A.Gentile______________
An Employee of Peel Brimley LLP
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