Cardoza et al v. Bloomin' Brands, Inc. et al

Filing 394

ORDER re 360 Motion to Strike and 386 Motion to Extend Time. Motion Hearing set for 11/20/2015 10:00 AM in LV Courtroom 3A before Magistrate Judge Nancy J. Koppe. Signed by Magistrate Judge Nancy J. Koppe on 11/12/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BROOKE CARDOZA, et al.,
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Plaintiff(s),
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vs.
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BLOOMIN’ BRANDS, INC., et al.,
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Defendant(s).
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Case No. 2:13-cv-01820-JAD-NJK
ORDER
(Docket No. 360, 386)

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Pending before the Court is Defendants’ motion to strike Plaintiffs’ certification-related expert.

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Docket No. 360. Plaintiffs filed a response and Defendants filed a reply. Docket Nos. 385, 387. Also

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pending before the Court is Plaintiffs’ counter-motion to extend time. Docket No. 386. The Court

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hereby SETS the motions for hearing at 10:00 a.m. on November 20, 2015, in Courtroom 3A.

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The Court will entertain argument on the motions in their entirety, except with respect to

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Plaintiffs’ argument that a meet-and confer was required.1 To ensure counsel is properly prepared for

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the hearing, the Court advises counsel that they should ensure they are prepared to discuss the following.

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After the motion to strike was filed, Plaintiffs served an expert disclosure on October 16, 2015. “It is

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well settled in this District that the late disclosure of an expert is sufficiently harmless such that

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This argument lacks merit. “A meet and confer is not required for a sanctions motion brought
pursuant to Rule 37(c).” Greene v. Alan Waxler Group Charter Servs., LLC, 2014 WL 1089667, *2 n. 5
(D. Nev. Mar. 18, 2014) (collecting cases, including Hoffman v. Constr. Protective Servs., Inc., 541 F.3d
1175, 1179 (9th Cir. 2008)).

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exclusion is not a proper remedy so long as the disclosure is made sufficiently before the discovery

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cutoff to enable the opposing party to depose the expert and challenge [his] expert report.” Prudential

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Ins. Co. of Am. v. Manuele, 2015 U.S. Dist. Lexis 150531, *3 (D. Nev. Nov. 4, 2015); see also Wells

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Fargo Bank, N.A. v. ANC Vista I, LLC, 2015 WL 5286825, *1 (D. Nev. Sept. 10, 2015) (collecting

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cases). Counsel shall be prepared to explain whether any failure to timely disclose in this case was

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sufficiently harmless such that exclusion is not proper in light of the October 16, 2015 disclosure.

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Second, assuming a proper disclosure was not timely made and the October 16 disclosure renders that

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untimeliness sufficiently harmless, counsel should be prepared to discuss whether the Court should

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alternatively sanction Plaintiffs’ counsel in (1) the reasonable expenses incurred in bringing the pending

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motion and (2) the reasonable expenses incurred in preparing an additional rebuttal report. See, e.g.,

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Boliba v. Camping World, Inc., 2015 WL 3916775, *2 (D. Nev. June 24, 2015) (citing Cruz v. Durbin,

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2014 WL 4182334, *3 (D. Nev. Aug. 21, 2014)).

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IT IS SO ORDERED.

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DATED: November 12, 2015

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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