Top Rank Builders, Inc. et al v. Browning et al

Filing 44

ORDER Granting 43 Stipulation to Stay Discovery. IT IS FURTHER ORDERED that the parties must file a joint status report upon completion of the settlement conference or by 6/11/2018 whichever is sooner. Signed by Magistrate Judge Carl W. Hoffman on 3/12/2018. (Copies have been distributed pursuant to the NEF - ADR)

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Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 1 of 12 1 2 3 4 5 6 7 CHRISTINE E. DRAGE, APC Nevada Bar No. 6624 JOHN T. WENDLAND, ESQ. Nevada Bar No. 7207 WEIL & DRAGE, APC 2500 Anthem Village Drive Henderson, NV 89052 (702) 314-1905 • Fax (702) 314-1909 cdrage@weildrage.com jwendland@weildrage.com Attorneys for Defendant CHARLES ABBOTT ASSOCIATES, INC. 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 TOP RANK BUILDERS, INC., a Nevada Corporation; and EFRAIN RENE MORALES MORENO, individually; and as sole officer and shareholder of TOP RANK BUILDERS, INC., 13 Plaintiffs, 14 15 v. 16 CHARLES ABBOTT ASSOCIATES, INC., a California Corporation; WILLIAM B. BROWNING, an individual; AMERICAN WIND & SOLAR, INC., a Nevada Corporation; SUNDANCE BUILDERS, LLC, a Nevada Limited Liability Company; THOMAS R. FRANK, an individual; COUNTY OF NYE, a political subdivision of the State of Nevada; DOES I through X, inclusive; and ROE ENTITIES XI through XX, inclusive, 17 18 19 20 21 22 Case No.: 2:16-cv-02903-APG-CWH STIPULATION AND ORDER TO STAY ACTION TO ALLOW PARTIES TO ATTEND MEDIATION AND TO EXTEND THE DISCOVERY CUT OFF DATE AND DISPOSITIVE MOTION DEADLINE TO ALLOW FOR THE COMPLETION OF ALL PENDING DISCOVERY IF MEDIATION IS NOT SUCCESSFUL (Second Request) Defendants. 23 24 Pursuant to LR 6-2 and 26-4 the Parties, through their respective counsel of record, hereby 25 agree and stipulate and request this Court to issue a stay in the pending discovery to allow the 26 Parties to participate in mediation or a settlement conference. The Parties further request that the 27 current discovery cut-off date be extended to expire thirty (30) days after conclusion of mediation 28 or the settlement conference and the dispositive motion deadline be extended to expire at sixty 60) WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 1 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 2 of 12 1 days after the conclusion of mediation or settlement conference. In support of this Stipulation and 2 Request, the Parties state as follows: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 A. DISCOVERY COMPLETED TO DATE i. Production of Witnesses and Documents: 1. Plaintiffs Top Rank Builders, Inc. (“TRB”) and Efrain Rene Morales Moreno (“Morales”) (collectively, the “Plaintiffs”) produced their Initial List of Witnesses and Documents. 2. Plaintiffs produced their First Supplemental List of Witnesses and Documents. 3. Plaintiffs produced their Second Supplemental List of Witnesses and Documents. 4. Defendant Nye County (“Nye”) produced its Initial List of Witnesses and Documents. 5. Defendant Nye produced its First Supplement to List of Witnesses and Documents. 6. Defendant Nye produced its Second Supplement to List of Witnesses and Documents. 7. Defendant Charles Abbott Associates, Inc. (“CAA”) produced its Initial List of Witnesses and Documents. 8. Defendant CAA produced its First Supplement to List of Witnesses and 17 Documents. 18 9. 19 20 21 22 23 24 25 26 27 Defendant CAA produced its Second Supplement to List of Witnesses and Documents. 10. Defendant CAA produced its Third Supplement to List of Witnesses and Documents. 11. Defendant CAA produced its Fourth Supplement to its List of Witnesses and Documents. 12. Defendant William B. Browning (“Browning”) produced his Initial List of Witnesses and Documents. 13. Defendant American Wind & Solar, Inc. (“AWS”) produced its Initial List of Witnesses and Documents. 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 2 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 3 of 12 1 ii. Written Discovery and Responses: 14. Plaintiff TRB issued its First Set of Interrogatories to Defendant CAA. 15. Plaintiff TRB issued his First Set of Interrogatories to Defendant Nye. 16. Plaintiff TRB issued its First Set of Interrogatories to Defendant AWS. 17. Plaintiff TRB issued its First Set of Interrogatories to Defendant Browning. 18. Plaintiff TRB issued its First Set of Request for Production of Documents to 2 3 4 5 6 7 Defendant CAA. 8 19. 9 10 11 12 13 14 15 16 Plaintiff TRB issued its Second Set of Request for Production of Documents to Defendant CAA. 20. Plaintiff TRB issued its First Set of Request for Production of Documents to Defendant Nye. 21. Plaintiff TRB issued its First Set of Request for Production of Documents to Defendant Browning. 22. Plaintiff TRB issued its First Set of Request for Production of Documents to Defendant AWS. 23. Plaintiff Morales issued his First Set of Interrogatories to Defendant CAA. 24. Plaintiff Morales issued his First Set of Interrogatories to Defendant Nye. 25. Plaintiff Morales issued his First Set of Interrogatories to Defendant Browning. 26. Plaintiff Morales issues his First Set of Request for Production of Documents to 17 18 19 20 21 22 23 24 25 26 27 Defendant CAA. 27. Plaintiff Morales issues his First Set of Request for Production of Documents to Defendant Nye. 28. Plaintiff Morales issues his First Set of Request for Production of Documents to Defendant Browning. 29. Plaintiff Morales issues his First Set of Request for Admissions to Defendant Browning. 30. Plaintiff Morales issues his First Set of Request for Admissions to Defendant Nye. 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 3 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 4 of 12 1 31. Defendant CAA issued its First Set of Interrogatories to Plaintiff TRB. 32. Defendant CAA issued its First Set of Interrogatories to Plaintiff Morales. 33. Defendant CAA issued its First Set of Interrogatories to Defendant Nye. 34. Defendant CAA issued its First Set of Request for Production of Documents to 2 3 4 5 Plaintiff TRB. 6 35. Defendant CAA issued its Second Set of Request for Production of Documents to 7 Plaintiff TRB. 8 36. 9 Plaintiff TRB. 10 37. Defendant CAA issued its First Set of Request for Admissions to Defendant AWS. 39. 12 Defendant CAA Issued its First Set of Request for Admissions to Defendant Nye. 38. 11 13 Defendant CAA issued its Third Set of Request for Production of Documents to Defendant CAA issued its First Set of Request for Admissions to Defendant Browning. 14 40. Defendant Nye issued its First Set of Interrogatories to Plaintiff Morales. 42. 16 Defendant Nye issued its First Set of Interrogatories to Plaintiff TRB. 41. 15 Defendant Nye issued its First Set of Request for Production of Documents to 17 Plaintiff TRB. 18 43. 19 Plaintiff Morales. 20 44. 47. Defendant Browning issued his First Set of Request for Production of Documents to Plaintiff Morales. 26 27 Defendant Browning issued his First Set of Request for Production of Documents to Plaintiff TRB. 24 25 Defendant Browning issued his First Set of Interrogatories to Plaintiff Morales. 46. 22 Defendant Browning issued his First Set of Interrogatories to Plaintiff TRB. 45. 21 23 Defendant Nye issued its First Set of Request for Production of Documents to 48. Defendant Browning issued his First Set of Request for Admissions to Plaintiff TRB. 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 4 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 5 of 12 1 49. Defendant Browning issued his First Set of Request for Admissions to Plaintiff 2 Morales. 3 4 50. to Defendant CAA. 5 6 Defendant CAA issued its responses to Plaintiff TRB’s First Set of Interrogatories 51. Defendant Nye issued its responses to Plaintiff TRB’s First Set of Interrogatories to Defendant Nye. 7 52. Defendant AWS issued its responses to Plaintiff TRB’s First Set of Interrogatories 8 to Defendant AWS. 9 10 53. Interrogatories to Defendant Browning. 11 12 54. 55. Defendant CAA issued its responses to Plaintiff TRB’s First Set of Request for Production of Documents to Defendant CAA. 15 16 Defendant Browning issued its first supplement to answers to Plaintiff TRB’s First Set of Interrogatories to Defendant Browning. 13 14 Defendant Browning issued its responses to Plaintiff TRB’s First Set of 56. Defendant CAA issued its responses to Plaintiff TRB’s Second Set of Request for Production of Documents to Defendant CAA. 17 57. Defendant Nye issued its responses to Plaintiff TRB’s First Set of Request for 18 Production of Documents to Defendant Nye. 19 20 58. for Production of Documents to Defendant Browning. 21 22 59. 60. 27 Defendant CAA issued its responses to Plaintiff Morales’ First Set of Interrogatories to Defendant CAA. 25 26 Defendant AWS issued its responses to Plaintiff TRB’s First Set of Request for Production of Documents to Defendant AWS. 23 24 Defendant Browning issued his responses to Plaintiff TRB’s First Set of Request 61. Defendant Nye issued its responses to Plaintiff Morales’ First Set of Interrogatories to Defendant Nye. /// 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 5 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 6 of 12 1 62. Defendant Browning issued his responses to Plaintiff Morales’ First Set of 2 Interrogatories to Defendant Browning. 3 4 63. First Set of Interrogatories to Defendant Browning. 5 6 Defendant Browning issued his first supplement to answers to Plaintiff Morales’ 64. Defendant CAA issued its responses to Plaintiff Morales’ First Set of Request for Production of Documents to Defendant CAA. 7 65. Defendant Nye issued its responses to Plaintiff Morales’ First Set of Request for 8 Production of Documents to Defendant Nye. 9 10 66. for Production of Documents to Defendant Browning. 11 12 67. 68. Defendant Browning issued his supplement to answers to Plaintiff Morales’ First Set of Request for Admissions. 15 16 Defendant Browning issued his responses to Plaintiff Morales’ First Set of Request for Admissions to Defendant Browning. 13 14 Defendant Browning issued his responses to Plaintiff Morales’ First Set of Request 69. Defendant Nye issued its responses to Plaintiff Morales’ First Set of Request for Admissions to Defendant Nye. 17 70. Plaintiff TRB issued its responses to Defendant CAA’s First Set of Interrogatories 18 to Plaintiff TRB. 19 20 71. Interrogatories to Plaintiff Morales. 21 22 72. 73. 27 Plaintiff TRB issued its responses to Defendant CAA’s First Set of Request for Production of Documents to Plaintiff TRB. 25 26 Defendant Nye issued its responses to Defendant CAA’s First Set of Interrogatories to Defendant Nye. 23 24 Plaintiff Morales’ issued his responses to Defendant CAA’s First Set of 74. Plaintiff TRB issued its responses to Defendant CAA’s Second Set of Request for Production of Documents to Plaintiff TRB. /// 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 6 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 7 of 12 1 75. Plaintiff TRB issued its responses to Defendant CAA’s Third Set of Request for 2 Production of Documents to Plaintiff TRB. 3 4 76. Admissions to Defendant Nye. 5 6 Defendant Nye issued its responses to Defendant CAA’s First Set of Request for 77. Defendant AWS issued its responses to Defendant CAA’s First Set of Request for Admissions to Defendant AWS. 7 78. Defendant Browning issued his responses to Defendant CAA’s First Set of Request 8 for Admissions to Defendant Browning. 9 10 79. Plaintiff TRB. 11 12 80. 81. Plaintiff TRB issued its responses to Defendant Nye’s First Set of Request for Production of Documents to Plaintiff TRB. 15 16 Plaintiff Morales issued his responses to Defendant Nye’s First Set of Interrogatories to Plaintiff Morales. 13 14 Plaintiff TRB issued its responses to Defendant Nye’s First Set of Interrogatories to 82. Plaintiff Morales’ issued his responses to Defendant Nye’s First Set of Request for Production of Documents to Plaintiff Morales. 17 iii. Experts: 83. Plaintiffs TRB and Morales have produced their initial list of expert witnesses, 18 19 summaries and designations. 20 21 84. qualifications and reports. 22 iv. 27 Deposition of Plaintiff Efrain Rene Morales, individually and as 30(b)(6) witness for Plaintiff TRB. 25 26 Depositions 85. 23 24 Defendants CAA and Browning have produced their rebuttal expert witnesses, 86. Custodian of Record Depositions for Green Cross of America, Inc. (non- appearance), SATI Construction and Nye Farm Tech (non-appearance). /// 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 7 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 8 of 12 1 87. Deposition of Nye County’s 30(b)(6) Witness for Nye County’s licensing and 2 Permitting Policies and Procedures and Knowledge as to Projects involving Green Cross of 3 America, Inc. 4 88. Deposition of Pamela Webster, Nye County Manager. 90. Deposition of Peter Gnecco, Green Cross of America, Inc. 91. Deposition of Gary Carlson, AIA. 92. Deposition of William Browning. 93. Deposition of Nye Farm Tech, Ltd.’s 30(b)(6) Witness. v. Third Party Subpoenas for Records 94. 6 Deposition Faith Simunick, former CAA employee. 89. 5 Defendant CAA issued subpoena duces tecum to the State of Nevada Board of 7 8 9 10 11 12 Contractors. 13 95. Defendant CAA issued its subpoena duces tecum to Nye Farm Tech, Ltd. 98. Defendant Nye issued its subpoena duces tecum to Green Cross of America, Inc. 99. 16 Defendant CAA issued its subpoena duces tecum to SATI Construction. 97. 15 Defendant CAA issued its subpoena duces tecum to Green Cross of America, Inc. 96. 14 Plaintiff TRB issued its subpoena duces tecum to the State of Nevada Board of 17 18 Contractors. 19 20 21 22 23 24 25 26 27 B. DISCOVERY REMAINING-IN PROGRESS The Parties have the following depositions scheduled for this action: 1. The Deposition of the 30(b)(6) witness for Esmeralda County; 2. The Deposition of Guy Marzola, Green Cross of America, Inc. 3. The Deposition of Kevin Fisher, Green Cross of America, Inc. 4. The Deposition of Sean Wilson, TRB and designated as non-retained expert for Plaintiffs TRB and Morales. 5. The Deposition of Dan Ames, D&J Electrical. 6. The Deposition of Geraldo Guzman, Ganda Concrete. 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 8 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 9 of 12 1 7. The Deposition of L. Darrell Lacy, Nye. 2 8. Plaintiffs TRB and Morales’ responses to Defendant Browning’s written discovery due 3 one week after resumption of discovery. 4 5 9. Any and all supplements to prior discovery requests (written and/or at deposition) wherein the responding party represented that they will supplement their response at a future date. 6 Based on the amounts of fees and costs incurred by the Parties to date, discussions have 7 arisen about staying all remaining discovery and litigation and placing this matter into mediation 8 or settlement conference. The fees and costs estimated by the Parties moving forward to complete 9 10 11 12 13 14 15 discovery; file dispositive motions, oppositions and replies; appear at hearings and court ordered conferences; engage in extensive pre-trial litigation; and finally prepare for and attend trial is estimated to be a significant. Extensive discovery has assisted the Parties in identifying and eliminating claims, issues, damages and to assess any potential risks to the Parties in the action. Therefore, the Parties believe the time is ripe and there is universal interest in the Parties to pursue an avenue to stop the further incursion of fees and costs and to engage in meaningful settlement discussions concerning the action. 16 If mediation or settlement conference is not successful, the Parties request the present 17 discovery cut-off date be extended to expire thirty (30) days after the formal termination of 18 mediation or settlement conference. The Parties further request that any remaining discovery in 19 20 21 22 23 this action following an unsuccessful mediation or settlement be limited to the discovery pending at the time the Parties entered into this stipulation. The Parties stipulate that following the conclusion of an unsuccessful mediation or settlement conference, no additional depositions or written discovery is allowed other than the items expressly stated herein as pending and needing completion. 24 25 26 27 The Parties also stipulate to file notice of recommencement of discovery to the Court, confirming the commencement date of the resumption of discovery, if the mediation or settlement conference is unsuccessful. /// 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 9 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 10 of 12 1 C. REASONS WHY DISCOVERY WAS NOT COMPLETED 2 As shown herein, the Parties have expended considerable time, energy and costs litigating 3 4 5 6 this action. Many depositions have been taken and extensive written discovery and production of documents from the Parties and third parties have been acquired. Based on the discovery to date, there is an opportunity for the Parties to engage in detailed, meaningful settlement discussions in this action in a good faith effort at resolution. Therefore, the Parties stipulate that the time is ripe 7 for settlement discussions that may ultimately resolve this action. The remaining discovery stated 8 herein has been previously and timely scheduled in anticipation of completion prior to the current 9 10 11 12 discovery cut-off date of March 13, 2018. However, the Parties will incur significant fees and costs completing the discovery and then proceeding to file dispositive motions. These projected fees and costs could be directed toward meaningful settlement discussions that may resolve the action. 13 14 15 The Parties all represent that this extension is being made in good faith and not to needlessly delay the proceedings. D. PROPOSED SCHEDULE FOR COMPLETION OF DISCOVERY 16 Current Deadline Proposed New Deadline Close of discovery March 13, 2018 30 days following the formal conclusion of mediation or settlement conference Amend Pleadings/Add Parties N/A N/A 22 Initial Experts September 14, 2017 N/A 23 Rebuttal Experts February 9, 2018 N/A 24 Dispositive Motions April 17, 2018 60 days following the formal conclusion of mediation or settlement conference 17 18 19 20 21 25 26 27 28 /// WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 10 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 11 of 12 1 E. 2 3 CURRENT TRIAL DATE To the knowledge of the Parties, no trial date has been scheduled in this action. DATED this 9th day of March, 2018. DATED this 9th day of March, 2018. WEIL & DRAGE, APC THE WRIGHT LAW GROUP, P.C. /s/ John T. Wendland ____________________________________ CHRISTINE E. DRAGE, ESQ. Nevada Bar No. 6624 JOHN T. WENDLAND, ESQ. Nevada Bar No. 7207 2500 Anthem Village Drive Henderson, Nevada 89052 Attorneys for Defendant, CHARLES ABBOTT ASSOCIATES, INC. /s/ John Henry Wright ____________________________________ JOHN HENRY WRIGHT, ESQ. Nevada Bar No. 6182 PHILIP S. GERSON, ESQ. Nevada Bar No. 5964 2340 Paseo Del Prado, Suite D-305 Las Vegas, NV 89102 Attorneys for Plaintiffs, TOP RANK BUILDERS, INC. and EFRAIN RENE MORALES MORENO 13 DATED this 9th day of March, 2018. DATED this 9th day of March, 2018. 14 MARQUIS AURBACH COFFING WOODBURY LAW /s/ Craig Anderson ____________________________________ CRAIG ANDERSON, ESQ. Nevada Bar No. 6882 JONATHAN B. LEE, ESQ. Nevada Bar No. 13524 10001 Park Run Drive Las Vegas, Nevada 89145 Attorneys for Defendant, COUNTY OF NYE /s/ Rodney S. Woodbury _____________________________________ RODNEY S. WOODBURY, ESQ. Nevada Bar No. 7216 50 S. Stephanie Street, Suite 201 Henderson, Nevada 89012 Attorneys for Defendants, AMERICAN WIND & SOLAR, INC. and WILLIAM BROWNING 4 5 6 7 8 9 10 11 12 15 16 17 18 19 20 21 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 11 of 12 Case 2:16-cv-02903-APG-CWH Document 43 Filed 03/09/18 Page 12 of 12 1 DATED this 9th day of March, 2018. 2 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 3 4 5 6 7 8 /s/ David S. Kahn _____________________________________ DAVID S. KAHN, ESQ. Nevada Bar No. 7038 300 S. Fourth Street, 4th Fl. Las Vegas, Nevada 89101 Attorneys for Defendant WILLIAM BROWNING 9 10 11 12 13 ORDER IT IS IT ISORDERED. IT IS FURTHER ORDERED that the parties must file a joint SO SO ORDERED. status report upon completion of the settlement conference or by June 11, 2018, whichever is sooner. day of March, 2018. DATED this ____ DATED: March 12, 2018 14 ______________________________________ UNITED STATES MAGISTRATE JUDGE 15 16 17 CASE NO. 2:16-cv-02903-APG-CWH Top Rank Builders, Inc. v. Charles Abbott Associates, Inc. 18 19 20 21 22 23 24 25 26 27 28 WEIL & DRAGE A T T O R N E Y S A T L A W A PROFESSIONAL CORPORATION 2500 Anthem Village Drive Henderson, NV 89052 Phone: (702) 314-1905 Fax: (702) 314-1909 www.weildrage.com {01354142;1} Page 12 of 12

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