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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NEVADA RESTAURANT SERVICES, INC.,
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Plaintiff,
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v.
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CLARK COUNTY,
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Defendants.
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Case No. 2:16-cv-00238-GMN-NJK
ORDER DENYING MOTION TO
REOPEN DISCOVERY
(Docket No. 72)

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Pending before the Court is Plaintiff’s motion to reopen discovery. Docket No. 72. Defendant

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filed a response in opposition and Plaintiff filed a reply. Docket Nos. 78, 84. The Court finds this

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matter properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully

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below, the motion to reopen discovery is hereby DENIED.

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District courts have wide latitude in controlling discovery and enforcing discovery deadlines.

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See, e.g., Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1027 (9th Cir. 2006). To prevail on

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a request to amend a scheduling order under Rule 16(b) of the Federal Rules of Civil Procedure, a

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movant must establish “good cause” for doing so. See Johnson v. Mammoth Recreations, Inc., 975 F.2d

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604, 608-09 (9th Cir. 1992); see also Local Rule 26-4. The party seeking to amend the scheduling order

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to reopen discovery bears the burden of establishing good cause. See Werbicky v. Green Tree Serv.,

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LLC, 2014 WL 5470466, at *2 (D. Nev. Oct. 27, 2014); see also Morgal v. Maricopa County Bd. of

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Supervisors, 284 F.R.D. 452, 460 (D. Ariz. 2012). The good cause inquiry focuses primarily on the

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movant’s diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000). Good

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cause to extend a discovery deadline exists “if it cannot reasonably be met despite the diligence of the

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party seeking the extension.” Johnson, 975 F.2d at 609. “[C]arelessness is not compatible with a

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finding of diligence and offers no reason for a grant of relief.” Id. While prejudice to the opposing party

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may also be considered, where the movant “fail[s] to show diligence, ‘the inquiry should end.’”

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Coleman, 232 F.3d at 1295 (quoting Johnson, 975 F.2d at 609).1

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The deadline for expert disclosures expired in this case on August 15, 2016, and the discovery

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cutoff expired on October 12, 2016. See Docket No. 35 at 4. In order to prevail on its motion to reopen

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discovery to designate a new expert witness and to conduct other discovery, Plaintiff must establish that

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it could not have reasonably met these deadlines through diligent discovery efforts. See Johnson, 975

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F.2d at 609. Plaintiff has failed to make this threshold showing. With respect to the proposed expert

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opinion, although Plaintiff points to recent developments in this case, it fails to show that an expert on

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statutory language could not have been disclosed by August 15, 2016.2 That is especially true since, as

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Defendant points out, Docket No. 78 at 9, the importance of this statutory language has long been known

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to the parties. With respect to fact discovery on the enforcement of the regulation, Plaintiff provides

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only generalized assertions of obtaining new evidence that prompted a desire for further discovery. See

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Docket No. 72 at 8.3 Such a generalized assertion is insufficient to establish that the further discovery

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now sought could not reasonably have been sought before the close of discovery. Cf. Werbicky, 2014

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WL 5470466, at *2 (generalized statements of late-discovered evidence is “simply insufficient to carry

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[the] burden of showing good cause to reopen discovery”). Lastly, Plaintiff has made no showing of any

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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.
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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.
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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.
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kind that discovery as to its damages could not have been completed through diligence prior to the close

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of discovery, and instead merely seeks to reopen discovery on this issue to moot a motion in limine filed

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by Defendant based on its contention that there is insufficient evidence of damages. See Docket 72 at

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8-9.

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For the reasons discussed above, Plaintiff’s motion to reopen discovery is DENIED.

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IT IS SO ORDERED.

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DATED: June 16, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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