Bartech Systems International, Inc. v. Mobile Simple Solutions, Inc. et al

Filing 225

ORDER vacating the deposition of Defendant Pigeat; directing Plaintiff to respond to Defendat's ECF No. 223 Motion for Protective Order by 2/13/2017 - Reply due by 2/15/2017; directing Clerk to serve this order on Defendant Pigeat via e-mail (sent 2/8/2017). Signed by Magistrate Judge Nancy J. Koppe on 2/8/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BARTECH SYSTEMS INTERNATIONAL, INC., )
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Plaintiff(s),
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vs.
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MOBILE SIMPLE SOLUTIONS, INC., et al.,
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Defendant(s).
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Case No. 2:15-cv-02422-MMD-NJK
ORDER

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Pending before the Court is a motion for protective order filed by Defendant Pigeat on an

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emergency basis. Docket No. 223. The motion relates to a deposition scheduled to take place on

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February 9, 2017, in Las Vegas, Nevada. See id. at 53. Defendant Pigeat submits that she is

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financially unable to travel to Las Vegas, and has tried unsuccessfully to convince Plaintiff to hold

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the deposition in a location closer to her home in Canada. See id. at 4-6.

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

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

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

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(C.D. Cal. 1989)). “Safeguards that have evolved over many decades are built into the Federal Rules

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of Civil Procedure and the Local Rules of this court.” Mission Power Eng’g Co. v. Cont’l Cas. Co.,

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

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filing of an emergency motion impedes the adversarial process, disrupts the schedules of the Court

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and opposing counsel, and creates an opportunity for bad faith gamesmanship. Cardoza,141 F.

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Supp. 2d at 1140-41. As a result, the Court allows motions to proceed on an emergency basis in only

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very limited circumstances.

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

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

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

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emergency motion must be accompanied by an affidavit providing several key facts necessary for

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

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

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

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number and office addresses) of the movant and all other affected parties. See id. As with any

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discovery motion, the affidavit must also provide a certification that, despite personal consultation

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and sincere effort to do so, the movant was unable to resolve the matter without court action. See

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id.; see also Fed. R. Civ. P. 37(a)(1).1 If the circumstances are such that personal consultation is

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truly not possible, the movant must provide a detailed explanation why that is the case so the Court

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can evaluate whether to exercise its discretion to decide the motion despite the lack of a proper pre-

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filing conference. Similarly, if no notice whatsoever was provided to the opposing party regarding

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the filing of the motion, the affidavit must include a detailed explanation of why it was not

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practicable to provide that notice. See Local Rule 7-4(a).

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If these technical requirements are met, the Court will turn to the substantive requirements

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

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The purportedly emergency nature of a discovery dispute does not obviate the requirement
to conduct a proper meet-and-confer. See, e.g., Cardoza, 2015 WL 6123192, at *3 (citing Goben
v. Wal-Mart Stores, Inc., 2013 U.S. Dist. Lexis 26773, *3-4 (D. Nev. Feb. 27, 2013)). “To the
contrary, a good faith and thorough attempt to resolve the dispute without Court intervention is even
more critical when time is of the essence.” Id.

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

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Rule 7-4(d). Generally speaking, an emergency motion is properly presented to the Court only when

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

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

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that requires emergency relief or, at the very least, that the crisis occurred because of excusable

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neglect. Cardoza, 141 F. Supp. 2d. at 1142 (citing Mission Power, 883 F. Supp. at 492). If there

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is no irreparable prejudice, sufficient justification for bypassing the default briefing schedule does

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not exist and the motion may be properly decided on a non-expedited basis. Cardoza, 141 F. Supp.

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2d at 1142.

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In this case, the Court does not find emergency relief appropriate, as the Court finds that

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Defendant Pigeat will not be irreparably prejudiced if the Court vacates the scheduled deposition and

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resolves the motion pursuant to a slightly expedited briefing schedule. See Docket No. 223.

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Accordingly, the Court VACATES the deposition of Defendant Pigeat pending resolution

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of her motion. The Court further ORDERS Plaintiff to respond to Defendant’s motion for protective

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order no later than February 13, 2017. Any reply shall be filed no later than February 15, 2017. The

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Court INSTRUCTS the Clerk’s Office to serve this order on Defendant Pigeat by e-mail at

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[e-mail].

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IT IS SO ORDERED.

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DATED: February 8, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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