New Vision Gaming & Development, Inc. v. Bally Gaming Inc.

Filing 25

ORDER Granting 23 Stipulation to Stay Disclosures, Discovery, and the filing of a proposed case schedule until 14 days after the resolution on New Vision's 14 Motion to Dismiss. Signed by Magistrate Judge Peggy A. Leen on 12/18/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:17-cv-01559-APG-PAL Document 23 Filed 11/22/17 Page 1 of 4

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KARL ANDERSEN, ESQ.
Nevada State Bar No. 10306
SAMUEL G. BROYLES, JR., ESQ. APC
Nevada State Bar No. 5888
ANDERSEN & BROYLES, LLP
5550 Painted Mirage Road, Suite 320
Las Vegas Nevada 89149
Telephone: [phone]
Facsimile: 702-834-4529
200 South Virginia Street, Suite 800
Reno, Nevada 89501
Telephone: [phone]
Facsimile: 888-816-8129
[e-mail]
[e-mail]

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Attorneys for Plaintiff,
NEW VISION GAMING, INC.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NEW VISION GAMING AND
DEVELOPMENT, INC., a Massachusetts
corporation,

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Plaintiff,

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v.

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BALLY GAMING INC, dba BALLY
TECHNOLOGIES, a Nevada corporation,

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Civil Case No. 2:17-cv-01559-APG-PAL

STIPULATION AND ORDER TO STAY
PENDING RESOLUTION OF NEW
VISION’S MOTION TO DISMISS

Defendant.

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Pursuant to LR 7-1 and LR IA 6-2, Defendant Bally Gaming, Inc. (“Bally”) and Plaintiff

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New Vision Gaming and Development, Inc. (“New Vision”), by and through their counsel, hereby

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jointly request that the Court stay discovery between the parties, disclosures, and the filing of a

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proposed case schedule in this matter pending this Court’s resolution on New Vision’s Motion to

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Dismiss (ECF No. 14).

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In support of this stipulation, the parties state as follows.

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Case 2:17-cv-01559-APG-PAL Document 23 Filed 11/22/17 Page 2 of 4

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I.

PROCEDURAL HISTORY

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On September 29, 2017, Bally filed an Answer that asserted six counterclaims against

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New Vision: (1) Declaration of Patent Invalidity; (2) Material Breach of Contractual Warranties;

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(3) Mistake; (4) Unjust Enrichment; (5) Breach of the Implied Covenant of Good Faith and Fair

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Dealing; and (6) Contractual Declaratory Relief. (ECF No. 7). These counterclaims relate to the

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same central issue that New Vision’s complaint raises: whether and to what extent Bally owes

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New Vision royalties on the parties’ patent license agreement.

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On October 20, 2017, New Vision filed a Motion to Dismiss all of Bally’s counterclaims

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except (1) Declaration of Patent Invalidity. (ECF No. 14). The parties have held their Rule 26(f)

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conference and have agreed that the Court should stay discovery between the parties and

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disclosures, pending a ruling on the Motion.

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As the parties were finalizing this stipulation yesterday afternoon, the Court issued a

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scheduling order, which, among other things, set a deadline of December 5, 2017 by which to

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hold a Rule 26(f) conference (ECF No. 21).

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II.

GOOD CAUSE EXISTS TO STAY DISCOVERY

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The Court has “wide discretion in controlling discovery” and should stay or control

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discovery pending a decision on a motion if doing so would further the “goal of efficiency for the

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court and litigants.” Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). New Vision’s

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Motion to Dismiss is based on Rules 12(b)(1) and 12(b)(6). (ECF No. 14 at 2). While the parties

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dispute whether New Vision’s Motion to Dismiss has merit, the parties agree that the Court’s

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ruling granting or denying the Motion could clarify issues with respect to contract interpretation

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and damages relevant to both the overlapping claims and counterclaims. This, in turn, would

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guide and potentially significantly narrow the scope of relevant discovery. This would be

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consistent with Rule 1’s directive to “secure the just, speedy, and inexpensive determination of

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every action.” Fed. R. Civ. P. 1.

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Relatedly, Bally informs the Court that it is planning to file a Petition for a Covered

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Business Method Patent Review (CBM) with the Patent and Trademark Office, arguing that each

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Case 2:17-cv-01559-APG-PAL Document 23 Filed 11/22/17 Page 3 of 4

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of the licensed patents is directed to patent-ineligible subject matter under 35 U.S.C. § 101 and is

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thus invalid. Accordingly, shortly after filing the CBM petitions, Bally intends to seek a stay of

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this proceeding pursuant to § 18(b)(1) of the America Invents Act (AIA), Pub L. No. 112–29, 125

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Stat. 284, 329–31 (2011). At this time, however, the parties have not entered into any stipulations

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regarding a further stay based on Bally’s anticipated CBM petitions and simply agree that a stay

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pending review of the motion to dismiss would further judicial economy.

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It would make little sense to engage in extensive discovery now, only to have that

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discovery mooted by the Court’s decision on New Vision’s Motion to Dismiss. The parties will

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be better equipped to propose a more efficient schedule in the future. However, Local Patent

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Rule 1-23 dictates that, absent a stay, all fact and expert discovery would end on June 26, 2018,

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and the Court’s recently issued scheduling order (ECF No. 21) has discovery closing on February

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28, 2018. Under either timeline, the parties would need to engage in expensive discovery almost

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immediately. Adding to the burden and inefficiency, the parties would have to serve patent

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invalidity and infringement contentions in the near future.

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III.

CONCLUSION

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The parties stipulate to a stay of disclosures and discovery (other than third party

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discovery) and the filing of a proposed case schedule until fourteen (14) days after this Court’s

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resolution on New Vision’s Motion to Dismiss (ECF No. 14). At that point, the parties would

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propose a schedule that allots the full amount of time for discovery as allowed under the

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applicable local rules.

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It is so stipulated:

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Dated November 22, 2017

Dated: November 22, 2017

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ANDERSEN & BROYLES, LLP.

PISANELLI BICE PLLC

/s/ Samuel G. Broyles Jr.
Karl Andersen, Esq.
Samuel G. Broyles Jr., Esq
5550 Painted Mirage Road, Suite 320
Las Vegas, Nevada 89149
Attorney for Plaintiff

/s/ M. Magali Mercera
James J. Pisanelli, Esq.
M. Magali Mercera, Esq.
400 South 7th Street, Suite 300
Las Vegas, Nevada 89101

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Attorneys for Plaintiff,
New Vision Gaming, Inc.

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PERKINS COIE LLP
/s/ John H. Gray
Jessica L. Everett-Garcia
John H. Gray
Nathan R. Kassebaum
(admitted pro hac vice)
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788

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Attorneys for Defendant and Counterclaimant
Bally Gaming, Inc

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ORDER

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IT IS SO ORDERED this 18th day of

December

2017.

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UNITED STATES MAGISTRATE JUDGE

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