Johnson v. Lopez et al

Filing 74

ORDER Granting Defendants' 73 Third Motion to Extend Time. Motions due by 10/3/2017. Proposed Joint Pretrial Order due by 11/2/2017. Signed by Magistrate Judge Nancy J. Koppe on 8/2/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:15-cv-00884-JAD-NJK Document 73 Filed 08/02/17 Page 1 of 8
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ADAM PAUL LAXALT
Attorney General
Frank A. Toddre II (Bar. No. 11474)
Deputy Attorney General
State of Nevada
Office of the Attorney General
555 E. Washington Avenue, Suite 3900
Las Vegas, NV 89101
[phone] (phone)
[phone] (fax)
[e-mail]
Attorneys for Defendants Isidro Baca,
Renee Baker, Julio Calderin, James Cox,
Brandon Lawrence, Luis Lopez, Dwight Neven,
Brian Williams and Johnny Youngblood

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Lausteveion Johnson,

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CASE NO. 2:15-cv-00884-JAD-NJK

Plaintiff,

MOTION TO EXTEND DISPOSITIVE
MOTION DEADLINES

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vs.

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Northern Nevada Correctional Center, et
al.,

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(THIRD REQUEST)

Defendants.

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Defendants, Isidro Baca, Renee Baker, Julio Calderin, James Cox, Brandon

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Lawrence, Luis Lopez, Dwight Neven, Brian Williams, and Johnny Youngblood, by and

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through counsel, Adam Paul Laxalt, Attorney General of the State of Nevada, and Frank

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A. Toddre II, Deputy Attorney General, hereby move for an extension of the dispositive

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motion deadline for an additional forty-five (45) days. Defendants’ motion is based on

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Federal Rule of Civil Procedure 7 and Local Rules 7-2 and 26-4, the following

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Memorandum of Points and Authorities, the pleadings and papers on file and the

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attached Declaration of Counsel.

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Case 2:15-cv-00884-JAD-NJK Document 73 Filed 08/02/17 Page 2 of 8
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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION AND RELEVANT PROCEDURAL HISTORY

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This is an inmate civil rights action brought pursuant to 42 U.S.C. § 1983.

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Plaintiff, Lausteveion Delano Johnson, (Plaintiff) is an inmate in the custody of the

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Nevada Department of Corrections (NDOC), currently housed at Southern Desert

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Correctional Center (SDCC).

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Northern Nevada Correctional Center (NNCC), SDCC, Ely State Prison (ESP), and High

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Desert State Prison (HDSP).

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Eighth Amendment Deliberate indifference to medical needs, First Amendment Religious

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exercise violations, First Amendment retaliation claims, First Amendment access to the

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Courts, and Fourteenth Amendment equal protection claims. (ECF No. 2). The initial

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Screening Order dismissed certain First and Eighth Amendment claims. (ECF No. 11).

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The causes of action took place while incarcerated at

The Original Complaint alleged six discrete claims for

The parties’ Early Mediation Conference was initially set for May 27, 2016, but

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was vacated for global settlement negotiations.

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settlement conferences, the final conference occurring on July 22, 2016. No settlement

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was reached and Judge Foley found that all of Johnson’s cases should be returned to the

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normal litigation track and lifted the associated global stay. (ECF No. 19).

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The parties conducted two global

An inmate early mediation conference was set for October 7, 2016. (ECF No. 21).

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A settlement was not reached.

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Scheduling Order regarding representation and responsive pleadings. (ECF No. 26).

(ECF No. 24).

The Court has entered its initial

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Johnson filed a Motion for Appointment of Counsel on October 27, 2016. (ECF No.

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28). Defendants opposed on November 9, 2016. (ECF No. 29). The Court denied the

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Motion finding that Johnson had not demonstrated “exceptional circumstances” to

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support an appointment. (ECF No. 33). Defendants filed an Answer on December 16,

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2016. (ECF NO. 34). The Court issued its scheduling Order, with a discovery deadline of

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March 20, 2017. (ECF No. 36).

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The parties filed their first Motion to Extend Discovery on March 16, 2017 in order

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to re-propound discovery to Johnson which had been lost during housing transfer. (ECF

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Case 2:15-cv-00884-JAD-NJK Document 73 Filed 08/02/17 Page 3 of 8
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No. 43). The Court granted the Order and extended the discovery deadline until May 19,

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2017 and dispositive motion deadline until June 19, 2017. (ECF No. 44).

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The Parties filed their Second Motion to Extend Discovery on May 25, 2017. The

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Defendants advised that they sought to take an oral deposition in an effort to conserve

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judicial resources and avoid unnecessary motion practice over repetitive problems with

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written discovery. (ECF No. 63).

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discovery for August 2, 2017, and a dispositive Motion Deadline of August 19, 2017.

The Court granted the Order, setting a close of

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Defense Counsel, Frank Toddre II, deposed Lausteveion Johnson at High Desert

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State Prison on July 21, 2017. The deposition was continued twice due to operational

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conflicts at the Prison.

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transcript would likely be available three weeks after the deposition, with a hopeful date

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of August 11, 2017.

The Deposition Court Reporter advised that the deposition

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The parties discussed an extension of the dispositive motion only after the

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deposition and agreed that a brief extension of the dispositive motion deadline only was

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appropriate based upon the following:1 1) Both parties needed more time than a week

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with the transcript to effectively utilize the transcript for dispositive motions; 2) Mr.

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Johnson has what appears to be a firm two week trial setting on August 21, 2017, 2 in

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Case No. 2:14-cv-00110; 3) there would be no additional discovery or extension of

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discovery deadlines; 4) the parties are conducting meaningful global settlement

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discussions from the -110 case that will likely have an impact upon the instant matter;

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and 5) the parties have an Early Mediation Conference in a third case that the parties

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will likely be discussing global settlements with a mediator.3 Accordingly, the parties

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contend and agree that a forty-five day extension of the dispositive motion deadline is

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reasonable and appropriate.

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See generally Exhibit A, Declaration of Counsel

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See Exhibit B, Stipulation to Continue Trial, Case 2:14-cv-00110

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See Exhibit C, Order Setting Inmate Conference, Case 2:16-cv-01889

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Case 2:15-cv-00884-JAD-NJK Document 73 Filed 08/02/17 Page 4 of 8
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II.

APPLICABLE LEGAL STANDARD

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Local Rule 26-4 (revised May 1, 2016) provides as follows:

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A motion or stipulation to extend any date set by the discovery plan,
scheduling order, or other order must, in addition to satisfying the
requirements of LR IA 6-1, be supported by a showing of good cause for the
extension. A motion or stipulation to extend a deadline set forth in a
discovery plan must be received by the court no later than 21 days before the
expiration of the subject deadline. A request made within 21 days of the
subject deadline must be supported by a showing of good cause. A request
made after the expiration of the subject deadline will not be granted unless
the movant also demonstrates that the failure to act was the result of
excusable neglect. A motion or stipulation to extend a discovery deadline or
to reopen discovery must include:

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(a) A statement specifying the discovery completed;

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(b) A specific description of the discovery that remains to be completed;

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(c) The reasons why the deadline was not satisfied or the remaining
discovery was not completed within the time limits set by the discovery plan;
and,

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(d) A proposed schedule for completing all remaining discovery.

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III.

ARGUMENT
Defendants submit that there is good cause and excusable neglect to extend the

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dispositive motion deadline for an additional forty-five (45) days.

The parties have

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completed discovery and conducted a deposition. The parties hope to receive the

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deposition transcript by August 11, 2017.

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Mr. Toddre and Mr. Johnson agreed that a brief extension of the dispositive motion

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deadline was reasonable so that both parties had the opportunity to fully review and

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utilize the transcript in motion practice. Further, the parties agree that Johnson would

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not be able to fully develop his own dispositive motion or answer Defendant motions due

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to the trial setting.

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In an effort to conserve judicial resources and avoid unnecessary motion practice

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over problems that are likely rooted in procedural inefficiency and prison litigation

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logistical concerns rather than willful disregard of the written discovery, Defendants now

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seek to take an oral deposition of Plaintiff. Defendants provide the following information

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pursuant to Local Rule 26-4.

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A.

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As of the filing of this stipulation, the following written discovery has been

Discovery Completed

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completed. The time of receipt and time of response is provided.

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Propounding
Party
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson

Answering
Party
Baca
Lopez
Lawrence
Youngblood
Williams
Neven
Calderin
Baker
“Defendants”

Written
Discovery
ROG Set One
ROG Set One
ROG Set One
ROG Set One
ROG Set One
ROG Set One
ROG Set One
ROG Set One
RPD Set One

Date of
Service
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017
Jan. 13, 2017

Responsive
Date
Feb. 9, 2017
Feb. 9, 2017
Feb. 14, 2017
Feb. 9 2017
Feb. 9, 2017
Feb. 13, 2017
Feb. 9, 2017
Feb. 14, 2017
Feb. 9, 2017

Baker
Williams
Cox
Neven
Baca

Johnson
Johnson
Johnson
Johnson
Johnson

RFA Set One
RFA Set One
RFA Set One
RFA Set One
RFA Set One

Feb. 3, 2017
Feb. 3, 2017
Feb. 3, 2017
Feb. 3, 2017
Feb. 3, 2017

Feb. 10, 2017
Feb. 10, 2017
Feb. 10, 2017
Feb. 10, 2017
Feb. 10, 2017

Baker
Calderin
Youngblood
Baker
Calderin
Youngblood
Baker
Calderin
Youngblood
Cox
Cox
Williams
Williams
Baca
Baca
Neven
Neven
Lawrence
Lawrence
Lawrence

Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson

ROG Set One
ROG Set One
ROG Set One
RFA Set Two
RFA Set One
RFA Set One
RPD Set One
RPD Set One
RPD Set One
RPD Set One
ROG Set One
RPD Set One
ROG Set One
RPD Set One
ROG Set One
RPD Set One
ROG Set One
RPD Set One
ROG Set One
RFA Set One

Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 9, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017
Feb. 15, 2017

Feb. 14, 2017
Feb. 14, 2017
Feb. 14, 2017
Feb. 14, 2017
Feb. 14, 2017
Feb. 14, 2017
n/a
n/a
n/a
n/a
May 5, 2017
n/a
May 5, 2017
n/a
May 5, 2017
n/a
May 5, 2017
n/a
May 5, 2017
May 5, 2017

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Case 2:15-cv-00884-JAD-NJK Document 73 Filed 08/02/17 Page 6 of 8
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Baker
Baker
Baker
Lopez
Lopez
Lopez
Neven

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Johnson
Johnson
Johnson
Johnson
Johnson
Johnson
Johnson

ROG Set Two
RPD Set Two
RFA Set Three
ROG Set One
RPD Set One
RFA Set One
ROG Set 2

Feb. 17, 2017
Feb. 17, 2017
Feb. 17, 2017
Feb. 17, 2017
Feb. 17, 2017
Feb. 17, 2017
March 14, 2017

May 5, 2017
n/a
May 5, 2017
May 5, 2017
n/a
May 5, 2017
May 5, 2017

Depositions: Defendant Counsel Toddre deposed Johnson at High Desert State
Prison on July 21, 2017. There are no further depositions scheduled.

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B.

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NONE

Discovery That Remains to be Completed

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C.

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The parties have completed discovery and do not request a further extension of

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discovery. The parties agree that they both need more time to review the deposition

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transcript in order to effectively utilize and consider the transcript for dispositive motion

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practice.

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Johnson was to clear up improper and incomplete written discovery responses through

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deposition rather than motion practice. As such, the deposition topics contemplate

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discovery that Defendants sought months ago through written discovery.

Reasons why the Deadlines Were not Satisfied

As noted previously, one of the primary reasons that Defendants deposed

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Further, the current dispositive motion deadline is set to run the week before

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Johnson’s -110 trial is set to begin and Johnson, therefore, anticipates that he would be

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unable to effectively prepare for both the trial and dispositive motions.

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Lastly, the parties have engaged in meaningful negotiations in the -110 matter

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that will likely impact the instant matter. For these reasons set forth above and in

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declaration, the parties request an extension of the dispositive motion deadline only, and

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do not request any extension of discovery.

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D.

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Defendants propose the following scheduling deadlines are based upon a request

Proposed Schedule for Remaining Scheduling Deadlines

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for a forty-five day extension.

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October 3, 2017

Dispositive Motion Deadline.

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November 2, 2017

Joint Pretrial Order due (suspended until 30 days after

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the Court resolves dispositive motions).
IV.

CONCLUSION

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There is good cause and excusable neglect to extend the dispositive motion

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deadline. The parties submit that there is no need to extend discovery further.

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Accordingly, the parties request that the Court adopt the proposed schedule for

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remaining deadlines provided herein.

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DATED this 2nd day of August, 2017.

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Respectfully submitted,

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ADAM PAUL LAXALT
Attorney General

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By: /s/ Frank A. Toddre II
Frank A. Toddre II (Bar. No. 11474)
Deputy Attorney General

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Attorneys for Defendants Isidro Baca,
Renee Baker, Julio Calderin, James Cox,
Brandon Lawrence, Luis Lopez, Dwight Neven,
Brian Williams and Johnny Youngblood

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IT IS SO ORDERED.
Dated: August 2, 2017

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____________________________
United States Magistrate Judge

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