Guanci v. Kessler et al

Filing 29

ORDER Granting 28 Stipulation to Modify 25 Scheduling Order. Discovery due by 9/28/2015. Motions due by 10/28/2015. Signed by Magistrate Judge George Foley, Jr on 1/23/2015. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:14-cv-01299-APG-GWF Document 28 Filed 01/22/15 Page 1 of 6

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Kevin S. Sinclair
Nevada State Bar No. 12277
[e-mail]
EARLY SULLIVAN WRIGHT
GIZER & McRAE LLP
3883 Howard Hughes Parkway, Suite 790
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: [phone]
Eric P. Early, California State Bar No. 166275
(Admitted Pro Hac Vice)
[e-mail]
EARLY SULLIVAN WRIGHT
GIZER & McRAE LLP
6420 Wilshire Boulevard, 17th Floor
Los Angeles, California 90048
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
ANTHONY GUANCI

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ANTHONY GUANCI, an individual,

Case No.: 2:14-cv-01299-APG-GWF

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Plaintiff,
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STIPULATION AND ORDER TO
MODIFY SCHEDULING ORDER

vs.
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(FIRST REQUEST)
JACK KESSLER, an individual, EUGENE
KESSLER, an individual, STUART
KESSLER, an individual, RAY PARELLO,
an individual, and SALEM VEGAS
INVESTMENTS, LLC, a Florida limited
liability company,
Defendants.

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STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER

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Case 2:14-cv-01299-APG-GWF Document 28 Filed 01/22/15 Page 2 of 6

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On October 12, 2014, ten days before the Court issued its Scheduling Order granting

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the Parties’ stipulated discovery plan (ECF No. 25.), Defendants Jack Kessler, Eugene

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Kessler, Stuart Kessler, Ray Parello, and Salem Vegas Investments (collectively,

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“Defendants”) filed a motion to dismiss (ECF No. 23) Plaintiff Anthony Guanci’s first

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amended complaint. (ECF No. 19.) On October 27, 2014, Mr. Guanci filed his Response to

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the motion. (ECF No. 26) On November 6, 2014, Defendants filed their Reply to the

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Response. (ECF No. 27.) To date, the Defendants’ motion remains under submission with

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the Court.

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Because Defendants’ motion remains under submission, and this case is still at the

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pleadings stage (among other things, Mr. Guanci is unaware of what affirmative defenses

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Defendants intend to pursue, or whether Defendants intend to assert any counterclaims, as

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Defendants have not yet been required to assert such pleadings), the Parties respectfully

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submit that good cause exists for the Honorable Magistrate Judge to modify the existing

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scheduling order, as it would be premature for the parties to, among other things, complete

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expert discovery before they know what claims, defenses and counterclaims might be at

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issue. Accordingly, Mr. Guanci and Defendants, by and through their respective counsel,

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hereby stipulate and agree, pursuant to Local Rules 6-1 and 26-4, and subject to Court

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approval, to modify the Court’s October 20, 2014 Scheduling Order (ECF No. 25), and to

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extend the deadlines set forth therein by approximately 180 days.

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1.

On October 20, 2014, the Honorable Magistrate Judge entered an Order (ECF

No. 25) which set the following deadlines:

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 Discovery cutoff: April 1, 2015

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 Initial expert designations: January 30, 2015

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 Rebuttal expert designations: March 2, 2015

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 Interim status report: January 30, 2015

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 Dispositive motions: May 1, 2015

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2.

As set forth above, the Parties bring the instant stipulation to modify the

scheduling order because, at present, Defendants’ motion to dismiss Mr. Guanci’s first
STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER

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amended complaint remains under submission, and the January 30, 2015 deadline for initial

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expert designations is rapidly approaching. As a result, Defendants do not know what

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claims will be asserted against them by Mr. Guanci, nor does Mr. Guanci know what

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affirmative defenses or counterclaims will be asserted by Defendants. Written discovery is

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currently pending in this action, and depositions of certain percipient witnesses and all

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expert discovery will follow. As explained in greater detail below, the Parties respectfully

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request a 180-day extension of the deadlines set forth in the current scheduling order

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because the pleadings are currently in a state of flux, discovery is still ongoing, and the

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Parties are loathe to incur the expense attendant with completing discovery before the

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pleadings are even set.
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On October 12, 2014, Defendants filed a motion to dismiss (ECF No. 23) Mr.

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Guanci’s first amended complaint. (ECF No. 19.) On October 27, 2014 Mr. Guanci filed

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his Response to the motion. (ECF No. 26) On November 6, 2014 Defendants filed their

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Reply to the Response. (ECF No. 27.) Pursuant to the current scheduling order, the Parties

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have a January 30, 2015 deadline to make their initial expert disclosures. To date, the

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motion remains under submission with the Court.

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4.

Because the pleadings are not set, under the current schedule, the Parties will

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be forced to expend significant resources attempting to complete discovery (including in

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particular the costs associated with retaining experts to analyze the case and prepare

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reports), all without actually knowing what claims and defenses are being litigated (as there

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is no operative complaint pending in this litigation). Additionally, there is little time to

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prepare any expert reports for designation in advance of the approaching deadline –

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especially with the pleadings in a state of flux. Accordingly, both sides agree that the most

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prudent course of action would be to stipulate to an extension of the presently-pending

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discovery deadlines, so that the Court can resolve this round of pleadings motions.

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5.

Discovery In Progress: As set forth above, written discovery between the

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parties is currently pending, and additional discovery will likely be propounded once the

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pleadings are set, and based on claims and defenses which the Parties have yet to assert.
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6.

Discovery Remaining to be Completed: In addition to the exchange of

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expert disclosures and rebuttal expert disclosures, the Parties anticipate the depositions of

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the individual parties to this action. The Parties recognize that the need for some of these

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depositions might be obviated, and the need for other depositions might become apparent,

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once the pleadings are settled.

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Reasons Why Discovery Will Not Be Completed Before the Expiration of

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the Current Deadlines: As set forth in the above paragraphs 1 through 4, the purpose of

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this stipulation is to ensure that the proverbial cart does not come before the proverbial

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horse – namely, that the pleadings will be set before the Parties (which have already

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conducted significant threshold discovery) are forced to incur the significant expense of

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expert discovery while the pleadings are unsettled and with the deadline quickly

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approaching.

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Requested Modification to the Scheduling Order: Based on the foregoing,

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the Parties respectfully request that the current deadlines be modified as follows (or to such

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other dates as the Honorable Magistrate Judge deems appropriate):

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 Discovery cutoff: September 28, 2015

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 Initial expert designations: July 29, 2015

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 Rebuttal expert designations: August 31, 2015

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 Interim status report: July 29, 2015

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 Dispositive motions: October 28, 2015

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STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER

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9.

Good cause exists to extend the deadlines for the reasons discussed above.

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Therefore, the Parties respectfully request that the Honorable Magistrate Judge approve this

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Stipulation.

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Respectfully submitted,

By:
/s/ Kevin S. Sinclair
Kevin S. Sinclair
EARLY SULLIVAN WRIGHT
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GIZER & MCRAE LLP
3883 Howard Hughes Parkway, Suite 790
10 Las Vegas, Nevada 89169
Attorneys for Plaintiff Anthony Guanci
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By:
/s/ Eduardo Rasco_______
Eduardo I. Rasco, Esq.
Steve Bimston, Esq.
ROSENTHAL, ROSENTHAL RASCO
KAPLAN, LLC
One Aventura, Suite 600
20900 Northeast 30th Avenue
Aventura, Florida 33180
Attorneys for Defendants Jack Kessler,
Eugene Kessler, Stuart Kessler, Ray Parello,
and Salem Vegas Investments, LLC

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ORDER

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IT IS SO ORDERED.
_________________________________
JUDGE
UNITED STATES MAGISTRATE JUDGE

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January 23, 2015
DATED:__________________________

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STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER

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CERTIFICATE OF SERVICE

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I HEREBY CERTIFY that, on January 22, 2015, I caused to be served the foregoing
STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER (FIRST REQUEST)
via electronic mail through the United States District Court’s CM/ECF system to the following at
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their last known electronic mail address:
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David A. Carroll, Esq.
Rice Reuther Sullivan & Carroll
3800 Howard Hughes Parkway, Suite 1200
Las Vegas, Nevada 89169
[e-mail]
Eduardo I. Rasco, Esq.
Steve M. Bimston, Esq.
Rosenthal Rosenthal Rasco Kaplan, LLC
One Aventura, Suite 600
20900 Northeast 30th Avenue
Aventura, Florida 33180
Attorneys for Defendants

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/s/ Kevin S. Sinclair_____
KEVIN S. SINCLAIR

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STIPULATION AND ORDER TO MODIFY SCHEDULING ORDER

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