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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    1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 WILLIAM McKNIGHT, et al., 8 9 10 v. Case No. 2:16-cv-02643-APG-PAL Plaintiffs, ORDER (Mots Ext Time – ECF Nos. 14, 15) NOBU HOSPITALITY GROUP, LLC, Defendant. 11 12 Before the court is defendant’s Motion to Extend Discovery Cutoff (ECF No. 14), and 13 plaintiffs’ Motion for Enlargement of Time for Discovery and Other Deadlines (ECF No. 15). 14 Each motion requests an extension of the discovery plan and scheduling order deadlines. 15 At a hearing conducted January 10, 2017 the court granted the parties’ request for special 16 scheduling review and gave the parties 9 months to complete discovery, rather than the year they 17 requested. See Minutes of Proceeding, (ECF No. 11). However, the court advised counsel that 18 any request for an extension must be supported by a strong showing of good cause and due 19 diligence. Id. 20 Defendant’s motion states that it has been diligent but has been hindered in completing 21 discovery because plaintiff needed more time to respond to written discovery because he alleges a 22 traumatic brain injury, and that the parties are in the process of scheduling plaintiffs’ return to Las 23 Vegas for depositions and a Rule 35 IME of Mr. McKnight. Additionally, some of the medical 24 providers have not made prompt disclosures. Defendant’s motion outlines the discovery completed 25 to date and states the depositions of the plaintiffs, an IME of Mr. McKnight, expert disclosures, 26 and expert depositions need to be completed. 27 Plaintiffs’ motion states that shortly after the hearing defense counsel stated that plaintiffs 28 had sued the wrong party and should have sued Caesars rather than Nobu. Plaintiffs’ counsel 1     1 requested a copy of the contract between Nobu and Caesars to verify the correct entity, but 2 production of the document was delayed while the terms of a protective order were agreed upon. 3 The contract was not provided until April 21, 2017 or 24 hours before the deadline to file a motion 4 to amend. It was produced in redacted form and did not contain the names of “persons responsible 5 for aspects of Nobu guest rooms including choosing décor and fixtures like sinks, showers, etc.” 6 A conference call was arranged for May 18, 2017 in which defense counsel stated he would agree 7 to substituting Caesars for Nobu, but would not agree to allow plaintiffs to amend the complaint 8 to add new parties. After the telephone conference counsel for plaintiffs realized the deadline for 9 filing motions to amend had passed. Plaintiffs’ counsel wants a 60-day extension of the discovery 10 plan and scheduling order deadlines and to reopen the deadline to file motions to amend “to flush 11 out the proper parties that need to be named.” 12 Plaintiffs need to serve written discovery, and possibly amend the complaint, and take the 13 deposition of at least one representative of defendant and possibly a few others. Either side may 14 need to take depositions of persons most knowledgeable and additional medical providers which 15 may require travel to Kentucky. Both sides must disclose experts, and take their depositions. 16 Plaintiffs state good cause and excusable neglect justify the extension and reopening requested 17 because there have been “logistical issues that have delayed this matter” because the plaintiffs live 18 in Kentucky, and the vast majority of medical providers are there. 19 Having reviewed and considered the motions the court finds plaintiffs have not established 20 good cause, excusable neglect or due diligence in even attempting to comply with the discovery 21 plan and scheduling order deadlines. To the contrary, plaintiffs have not even served written 22 discovery despite being warned at the January 10, 2017 hearing that, although the court would 23 grant special scheduling review and give the parties 90 days longer than the amount of time deemed 24 presumptively reasonable by LR 26-1, any request would be scrutinized for a strong showing of 25 good cause and due diligence. 26 The parties initially submitted a proposed discovery plan and scheduling order which 27 requested one year to complete discovery based on arguments Mr. McKnight suffered a traumatic 28 brain injury, the plaintiffs resided out of state, there would be difficulty getting out of state medical 2     1 records, and some discovery would be needed to ascertain the proper defendant(s), and there was 2 the possibility that the complaint would need to be amended to name the operator of the applicable 3 tower. Stipulation, ECF No. 7. The parties’ proposed plan was filed December 27, 2016. Thus, 4 plaintiffs’ counsel was aware of the need to propound appropriate discovery to explore the proper 5 party, and whether to name additional parties before the scheduling conference. Despite this 6 knowledge, and the court’s warning, counsel has done absolutely nothing to prosecute this case 7 other than making initial disclosures, and requesting a copy of the contract between Caesars and 8 Nobu. Additionally, although the face of the motion states plaintiffs’ counsel is requesting a 60- 9 day extension, the proposed extended deadlines are approximately 2 weeks longer. Finally, even 10 if plaintiffs’ counsel had shown some diligence in pursuing needed discovery, it is highly unlikely 11 that plaintiffs will be able to complete the additional discovery needed within the additional time 12 requested to ascertain the identities of non-parties responsible for selecting bathroom fixtures 13 which are allegedly “at issue in this matter”, even if the extension was granted. Plaintiffs had not 14 even served written discovery as of the date the motion was filed on May 26, 2017, despite 15 knowing defense counsel would not stipulate to an extension of the deadline to file a motion to 16 amend to add parties. 17 Defendant, by contrast, has conducted substantial discovery. Defense counsel served 18 written discovery the day of the scheduling conference, January 10, 2017. Defense counsel set up 19 a meet and confer conference March 17, 2017 when plaintiffs had not responded to written 20 discovery, supplemented defendant’s initial disclosure 3 times, and requested medical bills and 21 records from multiple providers once plaintiffs responded to defendant’s discovery requests. 22 The court will therefore grant a 60-day extension of the discovery cut-off and related case 23 management deadlines that had not expired before the motions were filed, and deny plaintiffs’ 24 request to reopen the deadline to file a motion to amend the complaint to add parties. However, 25 the court will require counsel for defendant to live up to his agreement to allow plaintiffs to 26 substitute the proper party defendant. Accordingly, 27 28 /// 3     1 IT IS ORDERED: 2 1. 3 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, 4 a. Last date to complete discovery: October 13, 2017. 5 b. Last date to file interim status report: August 14, 2017. 6 c. Last date to disclose experts pursuant to Fed. R. Civ. P. 26(a)(2): 7 August 14, 2017. 8 d. Last date to disclose rebuttal experts: September 13, 2017. 9 e. Last date to file dispositive motions: November 13, 2017. 10 f. Last date to file joint pretrial order: December 13, 2017. In the event 11 dispositive motions are filed, the date for filing the joint pretrial order shall be 12 suspended until 30 days after a decision of the dispositive motions. 13 2. The disclosures required by Fed. R. Civ. P. 26(a)(3), and any objections thereto, 14 shall be included in the pretrial order. 15 3. Applications to extend any dates set by this discovery plan and scheduling order 16 shall, in addition to satisfying the requirements of LR 6-1, be supported by a showing of good 17 cause for the extension. All motions or stipulations to extend discovery shall be received no later 18 than September 22, 2017, and shall fully comply with the requirements of LR 26-4. 19 4. Plaintiffs’ Motion (ECF No 15) is GRANTED to the extent both sides will receive 20 a 60-day extension of the discovery plan and scheduling order deadlines as set forth in the first 21 paragraph, and DENIED with respect to the request to reopen the deadline for filing a motion to 22 amend the pleadings to add parties, but GRANTED to substitute the proper party defendant. 23 DATED this 2nd day of June, 2017. 24 25 PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE 26 27 28 4

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