Daley v. CVS Pharmacy Inc
Filing
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ORDER. IT IS ORDERED that 12 , 13 Defendant CVS Pharmacy Inc.'s Motion to Stay Discovery and for Exemption from the Early Neutral Evaluation Program is GRANTED. IT IS FURTHER ORDERED that the Early Neutral Evaluation set for 5/1/17 is VACATED. Signed by Magistrate Judge Carl W. Hoffman on 4/3/17. (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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RICHARD DALEY,
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Plaintiff,
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vs.
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CVS PHARMACY, INC.,
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Defendant.
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__________________________________________)
Case No. 2:16-cv-02693-JCM-CWH
ORDER
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Presently before the court is Defendant CVS Pharmacy Inc.’s Motion to Stay Discovery and
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for Exemption from the Early Neutral Evaluation Program (ECF Nos. 12, 13), filed on March 13,
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2017. Plaintiff Richard Daley filed a response (ECF Nos. 14, 15) on March 20, 2017. Defendant
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filed a reply (ECF No. 19) on March 27, 2017.
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Defendant requests that discovery be stayed and that it be exempted from the early neutral
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evaluation requirement pending the court’s resolution of its motion to dismiss and to compel
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arbitration (ECF Nos. 7, 8), which is pending before the United States district judge assigned to this
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case. Defendant argues that its motion to compel arbitration is potentially dispositive of the entire
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complaint because the parties contractually agreed that jurisdiction over disputes between the
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parties rests solely with an arbitrator. Defendant further argues that no discovery is needed for the
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court to rule on its motion to dismiss and to compel arbitration. According to Defendant, forcing it
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to conduct discovery and appear at the early neutral evaluation conference would deprive it of the
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inexpensive and expeditious arbitration for which it contracted. Finally, Defendant argues Plaintiff
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would not be prejudiced by a stay because the case is in its early stages and that if the court denies
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its motion to dismiss and to compel arbitration, the parties may proceed with discovery and
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participate in the early neutral evaluation conference.
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Plaintiff responds that he also seeks to cancel the early neutral evaluation conference.
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Although Plaintiff responds that the motion to stay discovery should be denied, he does not provide
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any legal argument or authority in support of his position and therefore consents to the granting of
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Defendant’s motion to stay discovery. See LR 7-2(d) (stating in relevant part that “[t]he failure of
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an opposing party to file points and authorities in response to any motion . . . constitutes a consent
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to the granting of the motion.”) Additionally, the court has taken a “preliminary peek” at the
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motion to stay discovery and to compel arbitration and finds that the pending motion is potentially
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dispositive of the entire case and that the motion can be decided without additional discovery. See
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Ministerio Roca Solida v. U.S. Dep’t of Fish & Wildlife, 288 F.R.D. 500, 506 (D. Nev. 2013);
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Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 603 (D. Nev. 2011). The court therefore will grant
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Defendant’s motion to stay discovery and to vacate the early neutral evaluation conference.
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IT IS THEREFORE ORDERED that Defendant CVS Pharmacy Inc.’s Motion to Stay
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Discovery and for Exemption from the Early Neutral Evaluation Program (ECF Nos. 12, 13) is
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GRANTED.
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IT IS FURTHER ORDERED that the Early Neutral Evaluation set for May 1, 2017 is
VACATED.
IT IS FURTHER ORDERED that if Defendant’s motion to dismiss and to compel
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arbitration (ECF Nos. 7, 8) is denied, the parties must meet and confer and file a stipulated
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discovery plan with 21 days from the date of the order denying the motion.
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IT IS FURTHER ORDERED that if Defendant’s motion to dismiss and to compel
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arbitration (ECF Nos. 7, 8) is denied, the parties must jointly contact Magistrate Judge Ferenbach’s
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chambers to reschedule the early neutral evaluation conference.
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DATED: April 3, 2017
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C.W. Hoffman, Jr.
United States Magistrate Judge
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