Kiessling v. Rader et al

Filing 27

ORDER re 26 emergency motion to compel discovery filed by Plaintiff. The Court finds the pending motion should be briefed based on the default timetable in the local rules and will be resolved in the ordinary course. Response is due by 1/10/2017, a nd the reply is due by 1/17/2017. A hearing on the motion is set for 1/25/2017 at 3:00 PM in LV Courtroom 3D before Magistrate Judge Nancy J. Koppe. Signed by Magistrate Judge Nancy J. Koppe on 12/28/2016. (Copies have been distributed pursuant to the NEF - AF)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 JAMES KIESSLING, 11 Plaintiff(s), 12 vs. 13 DET. RADER P#6099, et al., 14 Defendant(s). 15 ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-00690-GMN-NJK ORDER (Docket No. 26) 16 Pending before the Court is a motion to compel discovery filed by Plaintiff on an emergency 17 basis. Docket No. 26. “The filing of emergency motions is disfavored because of the numerous 18 problems they create for the opposing party and the court resolving them.” Cardoza v. Bloomin’ Brands, 19 Inc., 141 F. Supp. 3d 1137, 1140 (D. Nev. 2015) (citing In re Intermagnetics America, Inc., 101 B.R. 20 191, 193-194 (C.D. Cal. 1989)). “Safeguards that have evolved over many decades are built into the 21 Federal Rules of Civil Procedure and the Local Rules of this court.” Mission Power Eng’g Co. v. 22 Continental Cas. Co., 883 F. Supp. 488, 491 (C.D. Cal. 1995). A request to bypass the default 23 procedures through the filing of an emergency motion impedes the adversarial process, disrupts the 24 schedules of the Court and opposing counsel, and creates an opportunity for bad faith gamesmanship. 25 Cardoza, 141 F. Supp. 3d at 1140-41. As a result, the Court allows motions to proceed on an emergency 26 basis in only very limited circumstances. See, e.g., Local Rule 7-4(b) (“Emergency motions should be 27 rare”). 28 1 Emergency motions must as a threshold matter meet several technical requirements outlined in See, e.g., Local Rule 26-7(d) (emergency discovery motions must satisfy the 2 the local rules. 3 requirements outlined in Local Rule 7-4). First, the face of the motion itself must be entitled an 4 “Emergency Motion” so the Court has prompt notice that expedited relief is being requested. Local Rule 5 7-4(a). Second, the emergency motion must be accompanied by an affidavit providing several key facts 6 necessary for the Court to determine whether, in fact, an emergency exists and allowing the Court to 7 provide the fairest, most efficient resolution. Id. This affidavit must include a detailed description of 8 the nature of the emergency. See id. The affidavit must also provide the contact information (telephone 9 number and office addresses) of the movant and all other affected parties. See id. The affidavit must 10 also provide a certification that, despite personal consultation and sincere effort to do so, the movant was 11 unable to resolve the matter without court action. See, e.g., Local Rule 7-4(a)(3). If the circumstances 12 are such that personal consultation is truly not possible, the movant must provide a detailed explanation 13 why that is the case so the Court can evaluate whether to exercise its discretion to decide the motion 14 despite the lack of a proper pre-filing conference. See id. Similarly, if no notice whatsoever was 15 provided to the opposing party regarding the filing of the motion, the affidavit must include a detailed 16 explanation of why it was not practicable to provide that notice. See id. Concurrently with the filing 17 of an emergency motion, or promptly thereafter, the movant must inform the courtroom administrators 18 of the assigned judges that the motion was filed. Local Rule 7-4(d). 19 If these technical requirements are not met, the emergency motion may be denied. Local Rule 20 7-4(b). If these technical requirements are met, the Court will turn to the substantive requirements for 21 filing an emergency motion. When a party files a motion on an emergency basis, it is within the sole 22 discretion of the Court to determine whether any such matter is, in fact, an emergency. See Local Rule 23 7-4(c). Generally speaking, an emergency motion is properly presented to the Court only when the 24 movant has shown (1) that it will be irreparably prejudiced if the Court resolves the motion pursuant to 25 the normal briefing schedule and (2) that the movant is without fault in creating the crisis that requires 26 emergency relief or, at the very least, that the crisis occurred because of excusable neglect. Cardoza, 27 141 F. Supp. 3d at 1142 (citing Mission Power, 883 F. Supp. at 492). If there is no irreparable prejudice, 28 sufficient justification for bypassing the default briefing schedule does not exist and the motion may be 2 1 properly decided on a non-expedited basis. Cardoza, 141 F. Supp. 3d at 1142-43. If there is irreparable 2 prejudice but the movant created the crisis, the Court may simply deny the relief sought. Id. at 1143. 3 The relevant inquiry is not whether the opposing party was at fault with respect to the underlying 4 dispute, but rather “it is the creation of the crisis–the necessity for bypassing regular motion 5 procedures–that requires explanation.” Mission Power, 883 F. Supp. at 493. For example, when an 6 attorney knows of the existence of a dispute and unreasonably delays in bringing that dispute to the 7 Court’s attention until the eleventh hour, the attorney has created the emergency situation and the request 8 for relief may be denied outright. See Cardoza, 141 F. Supp. 3d at 1143 (collecting cases). Quite 9 simply, emergency motions “are not intended to save the day for parties who have failed to present 10 requests when they should have.” Intermagnetics America, 101 B.R. at 193; see also Local Rule 7-4(b) 11 (“[The] failure to effectively manage deadlines, discovery, trial, or any other aspect of litigation does 12 not constitute an emergency”). 13 In this instance, Plaintiff has met neither of the substantive requirements for an emergency 14 motion. The reason provided for filing the motion on an emergency basis is that the discovery cutoff 15 is set for January 17, 2017. Docket No. 26 at 5. The discovery at issue was propounded on July 22, 16 2016, however, and responses were provided on September 30, 2016. See id. at 2. The telephonic pre- 17 filing conference took place on October 31, 2016, with follow-up emails through November 14, 2016. 18 See id. at 2-3. According to Plaintiff’s counsel, it has been clear since November 14, 2016 that 19 Defendants would not be providing responsive documents for at least five different categories. See id. 20 at 5-6; Docket No. 26-6. Plaintiff’s counsel provides no explanation why the pending motion was filed 21 three months after the discovery responses were served or why the motion was filed six weeks after the 22 meet-and-confer process. Moreover, there is no irreparable harm identified. Plaintiff cites no reason 23 why the Court must decide his motion before the discovery cutoff. To the contrary, so long as a party 24 has not unreasonably delayed in bringing a discovery motion, the outer deadline for filing a discovery 25 motion is generally the deadline for dispositive motions. See Gault v. Nabisco Co., 184 F.R.D. 620, 622 26 27 28 3 1 (D. Nev. 1999); see also Williams v. Las Vegas Metropolitan Police Dept., 2015 WL 3489553, at *1-2 2 (D. Nev. June 3, 2015).1 3 For the reasons outlined above, the Court finds the pending motion should be briefed based on 4 the default timetable in the local rules and will be resolved in the ordinary course. The response shall 5 be filed by January 10, 2017, and the reply shall be filed by January 17, 2017. The Court further SETS 6 a hearing on the motion for 3:00 p.m. on January 25, 2017, in Courtroom 3D. 7 IT IS SO ORDERED. 8 DATED: December 28, 2016 9 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 26 27 28 The Court does not herein express an opinion as to the timeliness of the motion. The Court further expresses no opinion as to whether it is inclined to grant any implicit request to extend the discovery cutoff. See, e.g., Williams, 2015 WL 3489553, at *2 (“When the motion to compel also includes an implicit request to extend the discovery period, the movant must further show that the relevant standards for such an extension have been met”). 4

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