Schulman v. Wynn Las Vegas LLC et al

Filing 44

ORDER Granting 41 Second MOTION to Extend Time to Respond to 35 Motion for Summary Judgment. Responses due by 9/10/2014. Replies due by 9/29/2014. Signed by Judge Richard F. Boulware, II on 9/9/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ! JEFFREY MARTIN SCHULMAN, Plaintiff, v. WYNN LAS VEGAS, LLC, WYNN RESORTS HOLDINGS, LLC, WYNN RESORTS LIMITED Defendants. ! Case No. 2:13-cv-01447-RCJ-VCF 2:13-cv-01447-RFB-VCF § § § § § § § § § § § § PLAINTIFF’S SECOND OPPOSED MOTION TO EXTEND TIME TO RESPOND TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMES NOW, Plaintiff, Jeffrey Schulman (hereinafter “Schulman”) and by and through his counsel, Damon Mathias and hereby moves this Court pursuant to Local Rules 6-1 and 26-4 for an Order: extending the time to respond to Defendant’s Motion for Summary Judgment from August 29, 2014 to September 10, 2014. This motion is made and based on the following memorandum of points and authorities, the pleadings and papers on ﬁle in this case, and any brieﬁng and oral argument that is presented to the Court. ! ! MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION/LR 26-4(a) Statement PLAINTIFF’S OPPOSED MOTION TO EXTEND DEADLINE 1 On March 3, the parties submitted an agreed stipulation for an extension of time for discovery and on March 14 the Court ordered the discovery deadline extended to May 23, 2014. Defendant ﬁled its motion for summary judgment on June 20, 2014. On June 30, 2014, the Court granted Plaintiff’s motion to extend to depose Luz Cruz Vitaro and perform a 30(b)(6) deposition and further ordered Plaintiff answer Defendant’s request for admissions. The Court further ordered Plaintiff’s opposition to motion for summary judgment to be ﬁled by August 29, 2014. On August 29, 2014, Plaintiff’s counsel requested an extension to ﬁle a response by September 2, 2014. II.  ARGUMENT A. Standard for Motion to Extend Local Rule 26-4 states: “[a]pplications to extend any date set by the discovery plan, scheduling order, or other order must, in addition to satisfying the requirements of LR 6-1, be supported by a showing of good cause for the extension. While the primary basis for granting a motion to extend is because the party seeking the amendment has demonstrated diligence (which is shown here), courts also look to prejudice to the non-movant and the public’s interest in having cases decided on their merits. See e.g., Nelson v. Safeco Ins. Co. of Illinois, 2011 WL PLAINTIFF’S OPPOSED MOTION TO EXTEND DEADLINE 2 13848, at *1 (D. Nevada, Jan. 4, 2011) (granting plaintiff’s motion to extend notwithstanding movant’s lack of diligence because extension would not prejudice defendant and would serve the public’s interest in having cases decided on their merits). When determining whether good cause exists to re-open and/or extend discovery, the Court considers the following factors: 1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence. U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir. 1995) vacated on other grounds, 520 U.S. 939 (1997) (citing Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987). In addition, requests to extend a deadline ﬁled less than 21 days before the expiration of that particular deadline must be supported by a showing of excusable neglect. See Local Rule 26-4. The Ninth Circuit has held that "the determination of whether neglect is excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) PLAINTIFF’S OPPOSED MOTION TO EXTEND DEADLINE 3 whether the movant acted in good faith." Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993)). B. Statement in Support Over the past several months and in the weeks prior to the this deadline. Plaintiff’s counsel’s ﬁrm has experienced drastic changes, going from a ﬁrm of two attorneys and three employees, to a ﬁrm of one attorney, acting as sole practitioner for the time being. This drastic change has shifted a signiﬁcant amount of responsibility onto the ﬁrm’s only remaining attorney. Counsel has made diligent effort to comply with the deadline to ﬁle opposition, but is unable to complete the ﬁling before the scheduled deadline. Plaintiff requested a short extension on August 29 until Tuesday, September 2, 2014 to ﬁle its opposition to Defendant’s motion for summary judgment. Unfortunately and despite diligence, counsel was unable to complete the response due to unforeseen issues coming up with other cases preventing him from completing the response by the September 2, 2014 deadline. Plaintiff respectfully requests one ﬁnal extension to September 10, 2014. ! ! PLAINTIFF’S OPPOSED MOTION TO EXTEND DEADLINE 4 III. CONCLUSION Based upon the foregoing, Plaintiff respectfully request that the Court extend the deadline for Plaintiff to ﬁle his opposition to Defendant’s motion for summary judgment to September 10, 2014. This request is not for the purpose of delay but so that justice may be done. ! DATED this 3rd day of September 2014. ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! Respectfully submitted, ! ! ! ! ! ! ! /s/ Damon Mathias ! ! ! ! ! ! ___________________________! Damon Mathias  State Bar No.: 24080170  8390 LBJ Freeway  Suite 500  Dallas, Texas 75243  Telephone: 214-739-0100  Facsimile: 214-739-0151 Email: damon@dallaslegalteam.com ! ! For the good cause noted in the motion, Plaintiff's [41]!Second Motion to Extend Time is GRANTED. IT IS ! HEREBY ORDERED that Plaintiff's Response to the Defendants' Motion for Summary Judgment is due on ! September 10, 2014. The Defendants' Reply to this Response is due on September 29, 2014. ! ! DATED this 9th day of September, 2014. ! __________________________ ! RICHARD F. BOULWARE, II ! IT IS SO ORDERED. United States District Judge PLAINTIFF’S OPPOSED MOTION TO EXTEND DEADLINE 5 ! ! ! CERTIFICATE OF SERVICE! ! The undersigned certiﬁes that a copy of the foregoing instrument was served upon all parties to the above cause on this the September 3, 2014. ! ! ! ! ! ! ! ! /s/ Damon Mathias Damon Mathias ! ! ! ! ! ! ! ! ! PLAINTIFF’S OPPOSED MOTION TO EXTEND DEADLINE 6

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