Nevada Restaurant Services, Inc. v. Clark County

Filing 87

ORDER that 72 Motion to Reopen Discovery is DENIED. Signed by Magistrate Judge Nancy J. Koppe on 6/16/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 NEVADA RESTAURANT SERVICES, INC., 11 Plaintiff, 12 v. 13 CLARK COUNTY, 14 Defendants. 15 ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-00238-GMN-NJK ORDER DENYING MOTION TO REOPEN DISCOVERY (Docket No. 72) 16 Pending before the Court is Plaintiff’s motion to reopen discovery. Docket No. 72. Defendant 17 filed a response in opposition and Plaintiff filed a reply. Docket Nos. 78, 84. The Court finds this 18 matter properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully 19 below, the motion to reopen discovery is hereby DENIED. 20 District courts have wide latitude in controlling discovery and enforcing discovery deadlines. 21 See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006). To prevail on 22 a request to amend a scheduling order under Rule 16(b) of the Federal Rules of Civil Procedure, a 23 movant must establish “good cause” for doing so. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 24 604, 608-09 (9th Cir. 1992); see also Local Rule 26-4. The party seeking to amend the scheduling order 25 to reopen discovery bears the burden of establishing good cause. See Werbicky v. Green Tree Serv., 26 LLC, 2014 WL 5470466, at *2 (D. Nev. Oct. 27, 2014); see also Morgal v. Maricopa County Bd. of 27 Supervisors, 284 F.R.D. 452, 460 (D. Ariz. 2012). The good cause inquiry focuses primarily on the 28 movant’s diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000). Good 1 cause to extend a discovery deadline exists “if it cannot reasonably be met despite the diligence of the 2 party seeking the extension.” Johnson, 975 F.2d at 609. “[C]arelessness is not compatible with a 3 finding of diligence and offers no reason for a grant of relief.” Id. While prejudice to the opposing party 4 may also be considered, where the movant “fail[s] to show diligence, ‘the inquiry should end.’” 5 Coleman, 232 F.3d at 1295 (quoting Johnson, 975 F.2d at 609).1 6 The deadline for expert disclosures expired in this case on August 15, 2016, and the discovery 7 cutoff expired on October 12, 2016. See Docket No. 35 at 4. In order to prevail on its motion to reopen 8 discovery to designate a new expert witness and to conduct other discovery, Plaintiff must establish that 9 it could not have reasonably met these deadlines through diligent discovery efforts. See Johnson, 975 10 F.2d at 609. Plaintiff has failed to make this threshold showing. With respect to the proposed expert 11 opinion, although Plaintiff points to recent developments in this case, it fails to show that an expert on 12 statutory language could not have been disclosed by August 15, 2016.2 That is especially true since, as 13 Defendant points out, Docket No. 78 at 9, the importance of this statutory language has long been known 14 to the parties. With respect to fact discovery on the enforcement of the regulation, Plaintiff provides 15 only generalized assertions of obtaining new evidence that prompted a desire for further discovery. See 16 Docket No. 72 at 8.3 Such a generalized assertion is insufficient to establish that the further discovery 17 now sought could not reasonably have been sought before the close of discovery. Cf. Werbicky, 2014 18 WL 5470466, at *2 (generalized statements of late-discovered evidence is “simply insufficient to carry 19 [the] burden of showing good cause to reopen discovery”). Lastly, Plaintiff has made no showing of any 20 21 22 23 24 25 26 27 28 1 Requests to extend deadlines filed after the deadlines’ expiration also require a showing of excusable neglect. See, e.g., Fed. R. Civ. P. 6(b)(1)(B); Local Rule 26-4. When a threshold showing of good cause is not made, however, the Court need not reach the issue of excusable neglect. See, e.g., Werbicky, 2014 WL 5470466, at *1 n.1. 2 The Court does not herein express any opinion regarding the parties’ competing contentions as to whether the proposed expert testimony would be admissible in the event discovery were reopened. 3 Plaintiff cites an allegation in its amended complaint regarding a photograph from a Jackpot Joanie’s location. See Docket No. 60 at ¶ 73. The mere fact that Plaintiff may have obtained this photograph after the close of discovery, standing alone, has little bearing on the inquiry as to whether Plaintiff was diligent during the discovery period. 2 1 kind that discovery as to its damages could not have been completed through diligence prior to the close 2 of discovery, and instead merely seeks to reopen discovery on this issue to moot a motion in limine filed 3 by Defendant based on its contention that there is insufficient evidence of damages. See Docket 72 at 4 8-9. 5 For the reasons discussed above, Plaintiff’s motion to reopen discovery is DENIED. 6 IT IS SO ORDERED. 7 DATED: June 16, 2017 8 9 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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