Count's Kustoms, LLC et al v. Frontiera et al

Filing 55

ORDER Granting 54 Joint Motion to Extend Time (First Request) re Discovery and Deadlines. Discovery due by 5/31/2017. Motions due by 6/30/2017. Proposed Joint Pretrial Order due by 7/28/2017. Signed by Magistrate Judge George Foley, Jr on 3/6/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 1 of 10

1
2
3
4

Theresa Mains, Esq.
Nevada Bar 13373
2251 N. Rampart Blvd. #102
Las Vegas, NV 89128
[phone]; Fax: [phone]
[e-mail]
Attorney for Defendant/Cross Defendant

5
UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8

COUNT’S KUSTOMS, LLC
CASE NO.:

9
10
11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12

2:16-CV-00910-JAD-GWF

Plaintiff,
vs.
JOSEPH FRONTIERA, an Individual, and
RANDSTAD PROFESSIONALS, DOES I
through X, and DOE CORPORATIONS XI
through XX, inclusive,

13

Defendants.

14

16

RANDSTAND PROFESSIONALS US,
LP,
Plaintiff in Counterclaim,

17

vs.

18

JOINT MOTION TO REOPEN
DISCOVERY AND EXTEND
DEADLINES
(FIRST REQUEST)

COUNT’S KUSTOMS, LLC,

15

Defendant in Counterclaim,

19
20
21
22

RANDSTAND PROFESSIONALS US,
LP,
Cross Claimant

23

vs.

24

JOSEPH FRONTIERA,

25

Cross Defendant

26
27
28
-1-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 2 of 10

1

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

2

(First Request)

3
4

Plaintiff Count’s Kustoms, LLC, through its counsel, Steven Mack, Esq., and

5
Defendant Joseph Frontiera, through his counsel Theresa Mains, Esq. jointly and respectfully
6
7

move this Court to reopen and extend discovery deadlines. This Motion is based on the

8

following memorandum of points and authorities, and pleadings and papers on file, and any

9

further evidence the Court deems appropriate to consider.

10
11

MEMORANDUM OF POINTS AND AUTHORITIES

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13
14

I.

BACKGROUND
On June 23, 2016, the Discovery Plan and Scheduling Order was entered. (ECF 40).

15

On July 22, 2016, all parties, through their respective Counselors filed a Joint Motion to

16

Schedule a Pre-Discovery Settlement Conference with Honorable Magistrate Judge Foley

17

with suggested dates in August 2016. (ECF 45). On July 25, 2016 Magistrate Judge Foley

18

ordered the Settlement Conference for 9:00 a.m. on September 7, 2016. (ECF 46). On

19
20

September 7, 2016, a Settlement Conference was conducted with Hon. George Foley. (ECF

21

52). A Settlement was reached between Plaintiff and Defendant Randstad Professionals US,

22

LP. No Settlement was reached between Plaintiff and Defendant Frontiera and the Court

23

found the case should be returned to the normal litigation track. (ECF 52).

24

Pursuant to the Discovery Plan and Scheduling Order all discovery was to be

25
completed no later than November 21, 2016. (ECF 40). Dispositive motions were to be filed
26
27
28

by December 21, 2016 and, if no Dispositive motions are filed then the parties joint pretrial
order was to be filed by January 20, 2017. (ECF 40). An Interim Status Report was to be
-2-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 3 of 10

1

filed on or before September 22, 2016, as required by LR 26-3 stating the time estimated for

2

trial and whether or not in the opinion of counsel who will be trying the case, the trial will

3

be eliminated or its length affected by substantive motions. (ECF 40).

4
The Parties file this Joint Motion to Reopen Discovery and Extend Deadlines and as
5
6
7

demonstrated below the failure to act was due to good cause and excusable neglect.
II.

APPLICABLE LAW

8

Local Rule 26-4 provides:

9

A motion or stipulation to extend any date set by the discovery plan,
scheduling order, or other order must, in addition to satisfying the requirements of
LR IA 6-1, be supported by a showing of good cause for the extension. A motion or
stipulation to extend a deadline set forth in a discovery plan must be received by the
court no later than 21 days before the expiration of the subject deadline. A request
made within 21 days of the subject deadline must be supported by a showing of good
cause. A request made after the expiration of the subject deadline will not be granted
unless the movant also demonstrates that the failure to act was the result of excusable
neglect. A motion or stipulation to extend a discovery deadline or to reopen discovery
must include:

10
11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13
14
15

(a) A statement specifying the discovery completed;

16
17

(b) A specific description of the discovery that remains to be completed;

18

(c) The reasons why the deadline was not satisfied or the remaining discovery
was not completed within the time limits set by the discovery plan; and

19

(d) A proposed schedule for completing all remaining discovery.

20
21
22
23

III.

LEGAL ARGUMENT
The parties submit that there is good cause to reopen discovery and extend deadlines

24

in this case and further they can demonstrate excusable neglect for not having filed this

25

motion 21 days prior to the expiration of the deadlines. The parties here provide the

26

following information related to their request.

27

A.

Background Information

28
-3-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 4 of 10

1.

1
2
3

Discovery completed

As of the filing of this motion, Plaintiffs have provided their initial discovery of a
production of documents pursuant to FRCP 26. Neither party has served any written

4
discovery to each other. Plaintiff sent Defendant a Notice of Taking Deposition of Joseph
5
6

Frontiera scheduled for March 17, 2017.
2.

7

Discovery that remains to be completed

8

As of the filing of this motion, Counsel for the parties have conferred on what

9

discovery each party will need given the scheduling difficulties explained below and the

10
11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13

status of the missed deadlines. Plaintiff’s counsel plans to conduct written discovery.
Defendant’s counsel will want to take a FRCP 30(b)(6) deposition of a representative of
Plaintiff. Defendant will also seek written discovery requests as described in Defendant’s

14

FRCP 26(e) Initial Disclosures provided on June 29, 2016. The parties may use experts for

15

accounting purposes, if the parties are unable to agree on the amounts in dispute.

16
17

3.

Reasons why the deadlines were not satisfied

Since the Settlement Conference held on September 7, 2016, the parties have

18
19

conferred and have been actively engaged in settlement negotiations in an effort to resolve

20

the matter. However, to date no settlement has been reached however the parties are still in

21

discussion.

22
23
24

In or around July 2015, Plaintiffs filed a police report with the Las Vegas Metro
Police against Defendant and Defendant faces criminal charges in Clark County District
Court for the same set of facts as alleged in the Plaintiff’s Complaint. And in September 10,

25
26
27

2015 an arrest warrant was issued. Defendant nor Defendant’s Counsel was made aware of
the warrant until June 2016. Defendant lives in northern Florida. Counsel immediately filed

28
-4-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 5 of 10

1

Motion to Recall arrest and had Defendant travel from Florida to turn himself in to be

2

released on own recognizance. Defendant has obtained separate counsel for the criminal

3

case. Since this time a preliminary hearing has been reset several times and due to the

4
preliminary hearing being reset within the criminal case it has not progressed, which was not
5
6

in the control of the Counsels in this case. Defendant also had a major operation in

7

September 2016 and has been undergoing a series of medical treatments. Defendant is

8

waiting for the preliminary hearing to schedule another operation and to allow himself

9

recovery time.

10

Defendant’s counsel did not anticipate Defendant’s preliminary hearing to be reset

11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13

multiple times and anticipated in having a more concise forecast of scheduling and other
logistics. Defense counsel conferred with Plaintiff’s counsel in early November and again

14

in January, both agreeing to request an extension from this Court as counsels are waiting to

15

see the status of the criminal matter before deciding whether to file motion to stay discovery

16

or extend. Both Parties’ counsel has agreed to an extension based upon the status of the

17

underlying criminal case.

18
19

The Parties have been in communication and Plaintiff’s Counsel has accommodated

20

Defendant, as to the criminal dates and with the deposition scheduling to occur while

21

Defendant is in Las Vegas for the next Preliminary Hearing.

22
23

4.

Proposed Schedule for Discovery Plan and Scheduling Order:

1. The Discovery cut-off date should be May 21, 2017.

24
2. Dispositive motions should be filed no later than 30 days after discovery cut-off
25
26
27

date and filed on or before June 21, 2017.
3. Pretrial Order. If no dispositive motions are filed, the joint pretrial order should

28
-5-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 6 of 10

1

be filed by July 20, 2017. If dispositive motions are filed, the date for filing the

2

joint pretrial order should be suspended until 30 days after the decision on the

3

dispositive motion or by further order of the court.

4
4. Interim Status Report. On or before March 22, 2017, 60 days prior to the close
5
of discovery, the parties should file an Interim Status Report as required by LR

6
7

26-3, stating the time estimated for trial, providing three alternative dates for trial,

8

and stating whether or not in the opinion of counsel who will be trying the case,

9

the trial will be eliminated or its length affected by substantive motions.

10

5. Extensions or Modifications of the Discovery Plan and Scheduling Order. In

11
addition, in accordance with LR 26-4, any stipulation or motion for modification

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12

or extension of this discovery plan should be made no later than 20 days before

13

the discovery cut-off date or no later than May 1, 2017.

14
15
16
17

B.

Good Cause Supports the Parties’ Request to Reopen Discovery and Extend
Deadlines

18
19

The Parties submit there is good cause to reopen discovery and extend deadlines. In

20

deciding whether to reopen discovery, courts consider the following factors: 1) whether trial

21

is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be

22

prejudiced, 4) whether the moving party was diligent in obtaining discovery within the

23

guidelines established by the court, 5) the foreseeability of the need for additional discovery

24
in light of the time allowed for discovery by the district court, and 6) the likelihood that the
25
26
27
28
-6-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 7 of 10

1

discovery will lead to relevant evidence.1 Whether to reopen discovery rests in the court's

2

sound discretion.2

3
4

A trial in this matter is not imminent. Since this is a joint motion, neither parties are
opposed. The parties have been conferring with each other and Plaintiff’s counsel has been

5
6

accommodating to Defendant’s geographical and health challenges as well as the situation

7

with the criminal case. Both parties have been diligent considering they do not require much

8

discovery or depositions. An ability to schedule rested with the Defendant’s ability to travel

9

and the status of the criminal case.

10

In light of the time allowed for discovery, as proposed, the foreseeability for the need

11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13
14

for additional discovery is minimal. The discovery that Defendant seeks will lead to relevant
evidence as it is primarily seeking only written discovery of the financial records of Plaintiff.
Plaintiff’s discovery requests will be fairly typical of similar cases.

15
16

C.

Excusable Neglect Supports the Parties’ Failure to Act Earlier

17
18

Local Rule 26-4 provides that a request made after the expiration of the subject

19

deadline will not be granted unless the movant also demonstrates that the failure to act was

20

the result of excusable neglect.

21

Excusable neglect “encompass[es] situations in which the failure to comply with a

22
23

filing deadline is attributable to negligence.”3 Excusable neglect includes “omissions caused

24
25
26
27
28

1

U.S. ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 1512, 1526 (9th Cir.1995), cert. granted in part, 519 U.S.
926, 117 S.Ct. 293, 136 L.Ed.2d 212, judgment vacated on other grounds, 520 U.S. 939, 117 S.Ct. 1871, 138
L.Ed.2d 135 (1997), citing, Smith v. United States, 834 F.2d 166, 169 (10th Cir.1987).
2 U.S. ex rel. Schumer, 63 F.3d at 1526.
3
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 394, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993),

-7-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 8 of 10

1

by carelessness”4 The determination of whether neglect is excusable “is at bottom an

2

equitable one, taking account of all relevant circumstances surrounding the party's

3

omission.”5 To determine when neglect is excusable, we conduct the equitable analysis

4

specified in Pioneer by examining “at least four factors: (1) the danger of prejudice to the

5
6
7

opposing party; (2) the length of the delay and its potential impact on the proceedings; (3)
the reason for the delay; and (4) whether the movant acted in good faith.” 6

8

As stated in the factors considered for good faith, the parties are jointly filing this

9

motion and there is no danger of prejudice to reopen and extend discovery. The next factor

10

this Court should consider is that length of delay is minimal as well as the potential impact

11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13

on the proceedings is also minimal. The reasons for the delay as explained above were
unforeseeable for both counsel, as the criminal case has affected the continuity of this case.

14

Defense counsel did not know until June 2016 that Defendant had an arrest warrant. Because

15

Defendant lives in Florida and has been undergoing medical treatment, travel arrangements

16

have been challenging. It also has not been foreseeable as to when the Defendant’s criminal

17

attorney and the District Attorney are resetting the preliminary hearing multiple times. In

18
19

fact, the Defendant has not even had a preliminary hearing in the criminal matter. Because

20

the criminal matter is based on the same set of facts Defense counsel was foreseeing more

21

solidarity on the progression of the two cases to enable counsel to strategize and determine

22

whether to stay discovery or advise her client accordingly with discovery open.

23

The delays were done in good faith. The parties have been actively discussing

24
25
26
4

27

5

28

6

Id. at 388, 113 S.Ct. 1489.
Id.
Bateman, 231 F.3d at 1223–24 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489).

-8-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 9 of 10

1

settlement and any delays and the reasons were communicated amongst counsel. Neither

2

Counsel for the parties suggest or feel any bad faith delaying tactics were the cause of these

3

delays.

4
IV.

CONCLUSION

5
For the reason discussed the Plaintiff and Defendant respectfully ask this Court, in its

6
7

discretion grant this Motion to Reopen Discovery and Extend the Deadlines.

8
9
10

Proposed Schedule for Discovery Plan and Scheduling Order:
1.

The Discovery cut-off date should be May 31, 2017.

2.

Dispositive motions should be filed no later than 30 days after discovery cut-off

11
date and filed on or before June 30, 2017.

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13

3.

Pretrial Order. If no dispositive motions are filed, the joint pretrial order should

14

be filed by July 28, 2017. If dispositive motions are filed, the date for filing the

15

joint pretrial order should be suspended until 30 days after the decision on the

16

dispositive motion or by further order of the court.

17

4.

Interim Status Report. On or before March 31, 2017, 60 days prior to the close

18
of discovery, the parties should file an Interim Status Report as required by LR

19
20

26-3, stating the time estimated for trial, providing three alternative dates for trial,

21

and stating whether or not in the opinion of counsel who will be trying the case,

22

the trial will be eliminated or its length affected by substantive motions.

23

5.

Extensions or Modifications of the Discovery Plan and Scheduling Order. In

24
addition, in accordance with LR 26-4, any stipulation or motion for modification
25
26
27

or extension of this discovery plan should be made no later than 20 days before
the discovery cut-off date or no later than May 11, 2017.

28
-9-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES

Case 2:16-cv-00910-JAD-GWF Document 54 Filed 02/28/17 Page 10 of 10

1

Dated:

February 28, 2017.
/s/Theresa Mains______
Theresa Mains, Esq. (Nevada Bar 13373)
2251 N. Rampart Blvd. #102
Las Vegas, NV 89128
[phone]; Fax: [phone]
[e-mail]
Attorney for Defendant

2
3
4
5
6
7

_/s/ Steven Mack______________________
Steven Mack
Black & LoBello
10777 West Twain Ave., Ste. 300
Las Vegas, NV 89135
702-869-8801/Fax: [phone]
Email: [e-mail]
Attorney for Plaintiff

8
9
10
11

THERESA MAINS, ESQ., MACC, CFE
2251 N. Rampart Blvd., Suite 102
Las Vegas, Nevada 89128

12
13
14
15
16
17

ORDER
IT IS SO ORDERED:

18
DATED:

03/06/2017

19
20
21
22
23
24

__________
UNITED STATES DISTRICT COURT MAGISTRATE JUDGE
UNITED STATES MAGISTRATE JUDGE

25
26

HONORABLE JUDGE GEORGE FOLEY JR.

27
28
-10-

JOINT MOTION TO REOPEN DISCOVERY AND EXTEND DEADLINES