Wilson v. Greater Las Vegas Association of Realtors

Filing 67

ORDER Granting 66 Stipulation to Re-open the Expert Witness Disclosure Deadline. Signed by Magistrate Judge Nancy J. Koppe on 11/24/15. (Copies have been distributed pursuant to the NEF - TR)

Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 1 of 11

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DUSTIN L. CLARK, Bar # 10548
CLARK LAW COUNSEL PLLC
10155 W. Twain Avenue, Ste. 100
Las Vegas, NV 89147
Telephone:
702.540.9070
E-mail:
[e-mail]
Attorney for Defendant/Counter-Claimant

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NEDRA WILSON,
Plaintiff,

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v.

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GREATER LAS VEGAS ASSOCIATION
OF REALTORS, a Nevada non-profit
cooperative corporation,

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STIPULATION AND ORDER TO REOPEN THE EXPERT-WITNESS
DISCLOSURE DEADLINE
(Second Request) 1

Defendant.
GREATER LAS VEGAS ASSOCIATION
OF REALTORS, a Nevada non-profit
cooperative corporation,
Counter-Claimant,

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Case No. 2:14-cv-00362-APG-NJK

v.
NEDRA WILSON,

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Counter-Defendant.

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Pursuant to Federal Rule of Civil Procedure 16(b)(4) and Local Rules 6-1, 6-2, and 26-4,

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Defendant/Counter-Claimant Greater Las Vegas Association of Realtors (“Association” or

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The Association previously moved to re-open the expert-witness disclosure deadline, ECF
No. 58, and the Court denied the Association’s Motion without prejudice citing Local Rule 26-7(b),
ECF No. 59. Accordingly, while this stipulation marks the second time that GLVAR has asked the
Court to re-open the expert-witness disclosure deadline, there have been no previous re-openings or
extensions of this deadline, and if the Court grants this stipulation, it would constitute the first time
that the expert-witness disclosure deadline has been either re-opened or extended.

Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 2 of 11

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“GLVAR”) and Plaintiff/Counter-Defendant Nedra Wilson (“Wilson”) stipulate and agree to re-open

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the expert-witness disclosure deadline in the above-captioned matter. Addressing the standards of

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both good cause and excusable neglect below, the Parties stipulate to re-open the cutoff for initial

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and rebuttal disclosures of experts and set those deadlines for December 4, 2015, and January 4,

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2016, respectively, which comply with the timelines set forth in Local Rule 26-1(e)(3).

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I.

PROCEDURAL BACKGROUND

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Plaintiff/Counter-Defendant Nedra Wilson (“Wilson”) filed the complaint, ECF No. 1,

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initiating the above-captioned matter on March 10, 2014, and the Court issued an order staying

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discovery pending a ruling on the Association’s motion to dismiss. ECF No. 23. On March 9,

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2015, 2 the Court issued an order granting in part and denying in part the Association’s motion to

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dismiss. ECF No. 27. After GLVAR answered, ECF No. 38, the complaint, the Court issued a

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scheduling order on April 9, which set August 6 as the deadline to identify expert witnesses. ECF

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No. 40 at 2:14-19. Wilson did not designate an expert witness with regard to her claims against the

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Association, and thus GLVAR did not designate a rebuttal expert.

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On July 7, GLVAR moved for leave to amend its answer to assert counterclaims. ECF No.

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43. The Association did not obtain such leave until September 10, ECF No. 52, over a month after

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the expert-witness disclosure deadline.

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On September 14, in response to the parties’ stipulation, the Court entered an order extending

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the discovery cut-off and the deadlines for dispositive motions and the pretrial order. ECF No. 55.

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In addition to explaining the reasons the parties needed additional time to conduct discovery, the

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stipulation requesting the extension of the discovery cut-off noted that the Association would be

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filing a motion seeking permission to name an expert witness with regard to its “newly pled

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counterclaims.” ECF No. 53 at 3:1-3. The stipulation included a footnote, which explained that

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pursuant to Local Rule 26-1(e)(3), expert witness disclosures are due sixty days before the discovery

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deadline, “Defendant intends to ask this Court that a new expert disclosure deadline be set for

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Unless indicated otherwise, dates referenced from this point forward in the stipulation
occurred in 2015.

CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 3 of 11

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December 4, 2015, and a new rebuttal expert deadline be set for 30 days later, which would be

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January 4, 2016.” The stipulation then stated, “Plaintiff does not oppose a reasonable, additional

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time being granted for Defendant to name an expert.” ECF No. 53 at 3:3-4.

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On October 12, the Association moved to re-open the expert-witness disclosure deadline,

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ECF No. 58. The next day, the Court denied the Association’s motion without prejudice citing

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Local Rule 26-7(b). ECF No. 59. Approximately thirty minutes after receiving the Court’s order,

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the Association’s undersigned legal counsel, Dustin Clark, e-mailed Wilson’s attorney, Robert

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Spretnak, regarding times to further meet and confer regarding the Association’s request to re-open

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the expert-witness disclosure deadline. Ex. 1, Clark Decl. ¶ 3. Messrs. Spretnak and Clark met and

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conferred by phone on October 21, 2015 regarding the issue of re-opening the expert-witness

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disclosure deadline as well as other case matters, and they ultimately agreed on behalf of their clients

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to stipulate to re-open the expert-witness disclosure deadlines. Ex. 1, Clark Decl. ¶¶ 3-4.

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During the October 21, 2015 phone call between Messrs. Spretnak and Clark, they agreed

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that Mr. Clark would prepare the stipulation for Mr. Spretnak’s review. Ex. 1, Clark Decl. ¶ 5.

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During this same time, however, Mr. Clark was in the process of preparing an opposition to

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Plaintiff/Counter-Defendant’s motion to dismiss the Association’s second and third counterclaims,

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and three days later Mr. Clark’s wife gave birth to a baby girl. Ex. 1, Clark Decl. ¶ 5. The time

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away from the office associated with the birth of a child as well as personal and family illness

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delayed completion of the Stipulation to Re-Open the Expert-Witness Disclosure Deadlines until the

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filing on November 23, 2015.

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II.

GOOD CAUSE

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“Applications to extend any date set by the discovery plan, scheduling order, or other order

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must . . . be supported by a showing of good cause for the extension.” LR 26-4; see also Johnson v.

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Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992).

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discovery deadline exists “if it cannot reasonably be met despite the diligence of the party seeking

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the extension.” Johnson, 975 F.2d at 609. “[T]he focus of the inquiry is upon the moving party’s

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CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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Good cause to extend a

Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 4 of 11

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reasons for seeking modification.” Liguori v. Hansen, No. 2:11-cv-00492-GMN-CWH, at 10 (D.

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Nev. March 6, 2012) (citing Johnson, 975 F.2d at 604).

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In the present matter, GLVAR suggests that good cause exists because as of the August 6

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expert-disclosure deadline, Wilson’s causes of action alleged against GLVAR were the only active

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claims in the case. Wilson did not designate an expert witness with regard to her claims, and thus

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the Association did not designate a rebuttal expert. Although GLVAR filed its motion for leave to

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amend its answer to assert counterclaims, ECF No. 43, on July 7, the parties’ briefing on GLVAR’s

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motion for leave to amend continued until September 4, ECF No. 51, and the Association did not

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receive leave to file the counterclaims until September 10, ECF No. 52, over a month after the

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expert-disclosure deadline.

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III.

EXCUSABLE NEGLECT

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In addition to showing good cause, a party who seeks an extension “after the expiration of

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the subject deadline” must also “demonstrate[] that the failure to act was the result of excusable

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neglect.” LR 6-1(b); LR 26-4; see, e.g. Couturier v. Am. Invsco Corp., No. 2:12-cv-01104-APG-

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NJK, at 2 (D. Nev. Oct. 21, 2013). Determining whether the requesting party’s neglect is excusable

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focuses on four criteria: “(1) the danger of prejudice to the opposing party; (2) the length of the delay

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and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant

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acted in good faith.” Bateman v. U.S. Postal Service, 231 F.3d 1220, 1223-24 (9th Cir. 2000) (citing

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Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 395 (1993)).

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Deciding whether neglect is excusable is an equitable determination left to the district court’s

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discretion. Pincay v. Andrews, 389 F.3d 853, 860 (9th Cir. 2004).

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Because the only claims before the Court as of August 6 were Wilson’s causes of action

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against GLVAR and because it did not receive leave to file counterclaims until September 10, ECF

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No. 52, the Association respectfully suggests that it did not neglect the expert-witness disclosure

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deadline. Nevertheless, for purposes of this Stipulation and to the extent it is determined that the

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Association was neglectful and in order to comply with Local Rules 6-1(b) and 26-4, the Association

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addresses each of the elements of the excusable-neglect standard as follows:

CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 5 of 11

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(1)

Danger of Prejudice.

With regard to the first factor of the excusable-neglect

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standard, Wilson has joined in this stipulation to re-open the expert-witness disclosure deadline

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thereby allaying concerns that may exist regarding prejudice.

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opportunity to depose the Association’s expert and retain and disclose an expert of her own.

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(2)

Further, Wilson will have an

The Length of the Delay and Its Potential Impact on the Proceedings. Pursuant

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to Local Rule 26-1(e)(3), “[expert] disclosures [must] be made sixty (60) days before the discovery

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cut-off date.” The current discovery deadline is February 2, 2016, ECF No. 55, and therefore the

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deadline to designate expert witness would be Friday, December 4, 2015 with rebuttal expert

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disclosures being due thirty days later on January 4, 2016. The Parties hereby stipulate and agree

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that these cut-off dates for the expert-witness disclosure deadlines will not postpone this matter, and

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the second criterion of the excusable-neglect standard is satisfied.

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(3)

The Reason for the Delay. Similar to the good-cause standard, which, as indicated

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above, focuses on “the [requesting] party’s reasons for seeking modification,” Liguori, No. 2:11-cv-

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00492-GMN-CWH, at 10 (D. Nev. March 6, 2012) (citing Johnson, 975 F.2d at 604), the third factor

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of the excusable-neglect standard focuses on the reason for the delay. In the present matter, while

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the original scheduling order set August 6 as the deadline to make expert-witness disclosures,

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Wilson did not designate an expert. Also, on August 6, Wilson’s causes of action asserted against

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the Association constituted the only claims in the case, and as of the expert-disclosure deadline,

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GLVAR did not have leave from the Court to amend its answer to assert counterclaims.

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Accordingly, GLVAR asserts that not designating an expert by August 6 is excusable.

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(4)

Good Faith.

GLVAR asserts that as a result of Wilson’s opposition to the

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Association’s motion for leave to amend and the uncertainty regarding what claims, if any, GLVAR

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would be allowed to assert, designating an expert and providing the required report pursuant to

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Federal Rule of Civil Procedure 26(a)(2) would have required speculation and possibly wasteful

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guess work. The Association suggests that this speculation and possibly unnecessary expense would

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have carried over to Wilson because the scheduling order required her to designate a rebuttal expert

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by September 8, which was before the Court issued the order granting the Association’s motion for

CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 6 of 11

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leave to amend. Therefore, GLVAR asserts that its reason for not designating an expert by August 6

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is not only reasonable but was also made in good faith.

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IV.

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LOCAL RULE 26-4
In accordance with LR 26-4(a)-(d), the following information is provided regarding the

instant Stipulation to Re-Open the Expert -Witness Disclosure Deadline:

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(a)

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initial disclosures.

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propounded her first set of interrogatories, requests for production, and requests for admissions to

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which the Association responded. GLVAR has likewise propounded written discovery, and Wilson

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has served her responses. Additionally, GLVAR served a FOIA request on the United States Equal

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Employment Opportunity Commission on April 8, 2014.

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(b)

A Statement Specifying the Discovery Completed. The parties exchanged their
Wilson supplemented her initial disclosures on April 30, 2015, and she

A Specific Description of the Discovery that Remains To Be Completed. The

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parties will conduct additional written discovery along with serving subpoena educes tecum on

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relevant third-party witnesses. The Association intends to depose Wilson and possibly Kevin Child,

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Jackie Porter, and other individuals identified during discovery, and the parties have discussed the

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timing of depositions in this matter, including taking Wilson’s deposition on Wednesday, December

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30, 2015. Pending the outcome of this Stipulation, GLVAR will work toward making its expert-

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witness disclosure. Wilson has indicated that she plans to depose a number of current or former

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employees of the Association.

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(c)

The Reasons Why The Deadline Was Not Satisfied or the Remaining Discovery

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Was Not Completed within the Time Limits Set By the Discovery Plan. As more fully detailed

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above, the Association did not designate an expert witness to offer an opinion regarding the damages

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associated with its counterclaims because GLVAR did not have leave to file its counterclaims until

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over a month after the original expert-disclosure deadline.

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(d)

A Proposed Schedule for Completing All Remaining Discovery. The current

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discovery deadline is February 2, 2016. In accordance with LR 26-1(e)(3), initial disclosures

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identifying experts shall be made sixty (60) days prior to the discovery cut-off date, and

CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 7 of 11

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therefore not later than Friday, December 4, 2015, and disclosures identifying rebuttal experts

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shall be made thirty (30) days after the initial disclosure of experts, and therefore not later

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than Monday, January 4, 2016 since the thirtieth day, January 3, 2016, is a Sunday. The initial

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and rebuttal disclosures must be accompanied by a written report in accordance with Federal

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Rule of Civil Procedure 26(a)(2)(B).

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DATED: November 23, 2015

DATED: November 23, 2015

Respectfully submitted,

Respectfully submitted,

/s/ Dustin L. Clark
Dustin L. Clark
CLARK LAW COUNSEL PLLC
Attorney for Defendant/Counter-Claimant

/s/ Robert P. Spretnak
Robert P. Spretnak
LAW OFFICES OF ROBERT P. SPRETNAK
Attorney for Plaintiff/Counter-Defendant

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IT IS SO ORDERED.

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November 24
DATED: ________________________, 2015

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_____________________________________________
NANCY J. KOPPE
United States Magistrate Judge

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CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 8 of 11

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CERTIFICATE OF SERVICE

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Pursuant to Federal Rule of Civil Procedure 5(b)(3) and Local Rule 5-4, I served the

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foregoing STIPULATION AND ORDER TO

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DISCLOSURE DEADLINE via CM/ECF filing on the following:

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Robert P. Spretnak, Esq.
8275 S. Eastern Avenue, Suite 200
Las Vegas, Nevada 89123

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RE-OPEN THE

I declare under penalty of perjury that the foregoing is true and correct.

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DATED: November 23, 2015

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/s/ Dustin L. Clark
Dustin L. Clark

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CLARK LAW COUNSEL PLLC
10155 W. Twain Ave., Ste. 100
Las Vegas, NV 89147
702.540.9070

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EXPERT-WITNESS

Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 9 of 11

Exhibit 1

Exhibit 1

Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 10 of 11

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DUSTIN L. CLARK, Bar # 10548
CLARK LAW COUNSEL PLLC
10155 W. Twain Avenue, Ste. 100
Las Vegas, NV 89147
Telephone:
702.540.9070
E-mail:
[e-mail]
Attorney for Defendant/Counter-Claimant

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NEDRA WILSON,
Plaintiff,

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v.
GREATER LAS VEGAS ASSOCIATION
OF REALTORS, a Nevada non-profit
cooperative corporation,

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Case No. 2:14-cv-00362-APG-NJK
DECLARATION OF DUSTIN L. CLARK
IN SUPPORT OF STIPULATION TO REOPEN EXPERT-WITNESS DISCLOSURE
DEADLINE

Defendant.
GREATER LAS VEGAS ASSOCIATION
OF REALTORS, a Nevada non-profit
cooperative corporation,
Counter-Claimant,
v.
NEDRA WILSON,

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Counter-Defendant.

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I, Dustin L. Clark, declare as follows:

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1.

I have personal knowledge of the facts set forth below, and if called upon to testify to

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the same, I could and would do so competently and truthfully. I make this declaration in support of

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the Stipulation to Re-Open the Expert-Witness Disclosure Deadlines filed in the above-captioned

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matter on November 23, 2015 as ECF No. 66.

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Case 2:14-cv-00362-APG-NJK Document 66 Filed 11/23/15 Page 11 of 11