Daley v. CVS Pharmacy Inc

Filing 20

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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