Kraja v. Bellagio, LLC et al

Filing 118

ORDER Granting 116 Motion to Extend Time for briefing deadlines. Responses for 115 and 116 Motions due by 3/3/2017, Replies due by 3/7/2017; Responses for 112 and 113 Motions due by 3/17/2017, Replies due by 3/24/2017. Signed by Magistrate Judge Nancy J. Koppe on 2/24/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDI KRAJA,
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Plaintiff,
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vs.
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BELLAGIO, LLC, et al.,
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Defendants.
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Case No. 2:15-cv-01983-APG-NJK
ORDER
(Docket Nos. 115, 116, 117)

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Pending before the Court is Plaintiff’s motion to strike Defendants’ motions at Docket Nos. 112

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and 113, filed on an emergency basis. Docket No. 115. Also pending before the Court are Plaintiff’s

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motion to reopen discovery and motion for extension of briefing deadlines, filed on an emergency basis.

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Docket Nos. 116, 117.

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“The filing of emergency motions is disfavored because of the numerous problems they create

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for the opposing party and the court resolving them.” Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp.

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3d 1137, 1140 (D. Nev. 2015) (citing In re Intermagnetics America, Inc., 101 B.R. 191, 193-194 (C.D.

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Cal. 1989)). “Safeguards that have evolved over many decades are built into the Federal Rules of Civil

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Procedure and the Local Rules of this court.” Mission Power Eng’g Co. v. Continental Cas. Co., 883

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F. Supp. 488, 491 (C.D. Cal. 1995). A request to bypass the default procedures through the filing of an

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emergency motion impedes the adversarial process, disrupts the schedules of the Court and opposing

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counsel, and creates an opportunity for bad faith gamesmanship. Cardoza, 141 F. Supp. 3d at 1140-41.

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As a result, the Court allows motions to proceed on an emergency basis in only very limited

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circumstances. See, e.g., Local Rule 7-4(b) (“Emergency motions should be rare”).

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Emergency motions must as a threshold matter meet several technical requirements outlined in

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the local rules. First, the face of the motion itself must be entitled an “Emergency Motion” so the Court

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has prompt notice that expedited relief is being requested. Local Rule 7-4(a). Second, the emergency

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motion must be accompanied by an affidavit providing several key facts necessary for the Court to

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determine whether, in fact, an emergency exists and allowing the Court to provide the fairest, most

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efficient resolution. Id. This affidavit must include a detailed description of the nature of the

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emergency. See id. The affidavit must also provide the contact information (telephone number and

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office addresses) of the movant and all other affected parties. See id. The affidavit must also provide

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a certification that, despite personal consultation and sincere effort to do so, the movant was unable to

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resolve the matter without court action. See, e.g., Local Rule 7-4(a)(3). If the circumstances are such

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that personal consultation is truly not possible, the movant must provide a detailed explanation why that

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is the case so the Court can evaluate whether to exercise its discretion to decide the motion despite the

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lack of a proper pre-filing conference. See id. Similarly, if no notice whatsoever was provided to the

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opposing party regarding the filing of the motion, the affidavit must include a detailed explanation of

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why it was not practicable to provide that notice. See id. Concurrently with the filing of an emergency

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motion, or promptly thereafter, the movant must inform the courtroom administrators of the assigned

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judges that the motion was filed. Local Rule 7-4(d).

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If these technical requirements are not met, the emergency motion may be denied. Local Rule

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7-4(b). If these technical requirements are met, the Court will turn to the substantive requirements for

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filing an emergency motion. When a party files a motion on an emergency basis, it is within the sole

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discretion of the Court to determine whether any such matter is, in fact, an emergency. Local Rule 7-

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4(c). Generally speaking, an emergency motion is properly presented to the Court only when the movant

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has shown (1) that it will be irreparably prejudiced if the Court resolves the motion pursuant to the

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normal briefing schedule and (2) that the movant is without fault in creating the crisis that requires

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emergency relief or, at the very least, that the crisis occurred because of excusable neglect. Cardoza,

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141 F. Supp. 3d at 1142 (citing Mission Power, 883 F. Supp. at 492). If there is no irreparable prejudice,
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sufficient justification for bypassing the default briefing schedule does not exist and the motion may be

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properly decided on a non-expedited basis. Cardoza, 141 F. Supp. 3d at 1142-43. If there is irreparable

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prejudice but the movant created the crisis, the Court may simply deny the relief sought. Id. at 1143.

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The relevant inquiry is not whether the opposing party was at fault with respect to the underlying

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dispute, but rather “it is the creation of the crisis–the necessity for bypassing regular motion

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procedures–that requires explanation.” Mission Power, 883 F. Supp. at 493. For example, when an

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attorney knows of the existence of a dispute and unreasonably delays in bringing that dispute to the

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Court’s attention until the eleventh hour, the attorney has created the emergency situation and the request

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for relief may be denied outright. See Cardoza, 141 F. Supp. 3d at 1143 (collecting cases). Quite

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simply, emergency motions “are not intended to save the day for parties who have failed to present

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requests when they should have.” Intermagnetics America, 101 B.R. at 193; see also Local Rule 7-4(b)

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(“[The] failure to effectively manage deadlines, discovery, trial, or any other aspect of litigation does

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not constitute an emergency”).

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The Court declines to grant emergency treatment to these motions, but will expedite briefing.
Accordingly,

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IT IS ORDERED that a response shall be filed to the motions at Docket Nos. 115 and 116 no

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later than March 3, 2017. Any reply to the responses to those motions shall be filed no later than March

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7, 2017.

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IT IS FURTHER ORDERED that Plaintiff’s motion for extension of briefing deadlines is

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GRANTED. Plaintiff’s response to Defendants’ motions at Docket Nos. 112 and 113 shall be filed no

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later than March 17, 2017. Any reply to Plaintiff’s response shall be filed no later than March 24, 2017.

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IT IS SO ORDERED.

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DATED: February 24, 2017.

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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