McKnight et al v. Nobu Hospitality Group LLC

Filing 16

ORDER Granting 14 Motion to Extend Time. ( Discovery due by 10/13/2017., Motions due by 11/13/2017., Proposed Joint Pretrial Order due by 12/13/2017.) IT IS FURTHER ORDERED that 15 Plaintiffs' Motion is GRANTED to the extent both si des will receive a 60-day extension of the discovery plan and scheduling order deadlines as set forth in the first paragraph, and DENIED with respect to the request to reopen the deadline for filing a motion to amend the pleadings to add parties, but GRANTED to substitute the proper party defendant. Signed by Magistrate Judge Peggy A. Leen on 6/2/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WILLIAM McKNIGHT, et al.,

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v.

Case No. 2:16-cv-02643-APG-PAL
Plaintiffs,

ORDER
(Mots Ext Time – ECF Nos. 14, 15)

NOBU HOSPITALITY GROUP, LLC,
Defendant.

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Before the court is defendant’s Motion to Extend Discovery Cutoff (ECF No. 14), and

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plaintiffs’ Motion for Enlargement of Time for Discovery and Other Deadlines (ECF No. 15).

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Each motion requests an extension of the discovery plan and scheduling order deadlines.

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At a hearing conducted January 10, 2017 the court granted the parties’ request for special

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scheduling review and gave the parties 9 months to complete discovery, rather than the year they

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requested. See Minutes of Proceeding, (ECF No. 11). However, the court advised counsel that

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any request for an extension must be supported by a strong showing of good cause and due

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diligence. Id.

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Defendant’s motion states that it has been diligent but has been hindered in completing

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discovery because plaintiff needed more time to respond to written discovery because he alleges a

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traumatic brain injury, and that the parties are in the process of scheduling plaintiffs’ return to Las

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Vegas for depositions and a Rule 35 IME of Mr. McKnight. Additionally, some of the medical

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providers have not made prompt disclosures. Defendant’s motion outlines the discovery completed

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to date and states the depositions of the plaintiffs, an IME of Mr. McKnight, expert disclosures,

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and expert depositions need to be completed.

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Plaintiffs’ motion states that shortly after the hearing defense counsel stated that plaintiffs

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had sued the wrong party and should have sued Caesars rather than Nobu. Plaintiffs’ counsel
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requested a copy of the contract between Nobu and Caesars to verify the correct entity, but

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production of the document was delayed while the terms of a protective order were agreed upon.

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The contract was not provided until April 21, 2017 or 24 hours before the deadline to file a motion

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to amend. It was produced in redacted form and did not contain the names of “persons responsible

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for aspects of Nobu guest rooms including choosing décor and fixtures like sinks, showers, etc.”

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A conference call was arranged for May 18, 2017 in which defense counsel stated he would agree

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to substituting Caesars for Nobu, but would not agree to allow plaintiffs to amend the complaint

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to add new parties. After the telephone conference counsel for plaintiffs realized the deadline for

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filing motions to amend had passed. Plaintiffs’ counsel wants a 60-day extension of the discovery

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plan and scheduling order deadlines and to reopen the deadline to file motions to amend “to flush

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out the proper parties that need to be named.”

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Plaintiffs need to serve written discovery, and possibly amend the complaint, and take the

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deposition of at least one representative of defendant and possibly a few others. Either side may

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need to take depositions of persons most knowledgeable and additional medical providers which

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may require travel to Kentucky. Both sides must disclose experts, and take their depositions.

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Plaintiffs state good cause and excusable neglect justify the extension and reopening requested

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because there have been “logistical issues that have delayed this matter” because the plaintiffs live

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in Kentucky, and the vast majority of medical providers are there.

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Having reviewed and considered the motions the court finds plaintiffs have not established

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good cause, excusable neglect or due diligence in even attempting to comply with the discovery

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plan and scheduling order deadlines. To the contrary, plaintiffs have not even served written

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discovery despite being warned at the January 10, 2017 hearing that, although the court would

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grant special scheduling review and give the parties 90 days longer than the amount of time deemed

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presumptively reasonable by LR 26-1, any request would be scrutinized for a strong showing of

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good cause and due diligence.

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The parties initially submitted a proposed discovery plan and scheduling order which

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requested one year to complete discovery based on arguments Mr. McKnight suffered a traumatic

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brain injury, the plaintiffs resided out of state, there would be difficulty getting out of state medical
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records, and some discovery would be needed to ascertain the proper defendant(s), and there was

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the possibility that the complaint would need to be amended to name the operator of the applicable

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tower. Stipulation, ECF No. 7. The parties’ proposed plan was filed December 27, 2016. Thus,

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plaintiffs’ counsel was aware of the need to propound appropriate discovery to explore the proper

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party, and whether to name additional parties before the scheduling conference. Despite this

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knowledge, and the court’s warning, counsel has done absolutely nothing to prosecute this case

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other than making initial disclosures, and requesting a copy of the contract between Caesars and

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Nobu. Additionally, although the face of the motion states plaintiffs’ counsel is requesting a 60-

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day extension, the proposed extended deadlines are approximately 2 weeks longer. Finally, even

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if plaintiffs’ counsel had shown some diligence in pursuing needed discovery, it is highly unlikely

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that plaintiffs will be able to complete the additional discovery needed within the additional time

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requested to ascertain the identities of non-parties responsible for selecting bathroom fixtures

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which are allegedly “at issue in this matter”, even if the extension was granted. Plaintiffs had not

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even served written discovery as of the date the motion was filed on May 26, 2017, despite

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knowing defense counsel would not stipulate to an extension of the deadline to file a motion to

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amend to add parties.

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Defendant, by contrast, has conducted substantial discovery. Defense counsel served

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written discovery the day of the scheduling conference, January 10, 2017. Defense counsel set up

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a meet and confer conference March 17, 2017 when plaintiffs had not responded to written

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discovery, supplemented defendant’s initial disclosure 3 times, and requested medical bills and

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records from multiple providers once plaintiffs responded to defendant’s discovery requests.

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The court will therefore grant a 60-day extension of the discovery cut-off and related case

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management deadlines that had not expired before the motions were filed, and deny plaintiffs’

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request to reopen the deadline to file a motion to amend the complaint to add parties. However,

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the court will require counsel for defendant to live up to his agreement to allow plaintiffs to

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substitute the proper party defendant.
Accordingly,

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IT IS ORDERED:

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1.

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and the following discovery plan and scheduling order dates shall apply:

Defendant’s Motion to Extend Discovery (ECF Nos. 14) by 60 days is GRANTED,

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a.

Last date to complete discovery: October 13, 2017.

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b.

Last date to file interim status report: August 14, 2017.

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c.

Last date to disclose experts pursuant to Fed. R. Civ. P. 26(a)(2):

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August 14, 2017.

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d.

Last date to disclose rebuttal experts: September 13, 2017.

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e.

Last date to file dispositive motions: November 13, 2017.

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f.

Last date to file joint pretrial order: December 13, 2017. In the event

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dispositive motions are filed, the date for filing the joint pretrial order shall be

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suspended until 30 days after a decision of the dispositive motions.

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2.

The disclosures required by Fed. R. Civ. P. 26(a)(3), and any objections thereto,

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shall be included in the pretrial order.

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3.

Applications to extend any dates set by this discovery plan and scheduling order

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shall, in addition to satisfying the requirements of LR 6-1, be supported by a showing of good

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cause for the extension. All motions or stipulations to extend discovery shall be received no later

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than September 22, 2017, and shall fully comply with the requirements of LR 26-4.

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4.

Plaintiffs’ Motion (ECF No 15) is GRANTED to the extent both sides will receive

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a 60-day extension of the discovery plan and scheduling order deadlines as set forth in the first

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paragraph, and DENIED with respect to the request to reopen the deadline for filing a motion to

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amend the pleadings to add parties, but GRANTED to substitute the proper party defendant.

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DATED this 2nd day of June, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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