Johnson v. Gentry et al

Filing 192

ORDER Granting 188 Stipulation for Extension of Time. Motions in limine due by 5/23/2022. Responses due by 5/23/2022 re 165 Motion for jury to visit the prison, 166 Motion for a diverse jury, 167 Emergency Writ of Habeas Corpus Ad Testificadum, 180 , 181 , 182 , 183 , 184 , 185 , 186 Motion in Limine. Signed by Judge Andrew P. Gordon on 5/10/2022. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:17-cv-01671-APG-EJY Document 192 Filed 05/10/22 Page 1 of 5

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FRANK M. FLANSBURG III, ESQ., Nevada Bar No. 6974
[e-mail]
EMILY A. ELLIS, ESQ., Nevada Bar No. 11956
[e-mail]
TROY P. DOMINA, ESQ., Nevada Bar No. 13862
[e-mail]
BROWNSTEIN HYATT FARBER SCHRECK, LLP
100 North City Parkway, Suite 1600
Las Vegas, Nevada 89106
Telephone:
702.382.2101
Facsimile:
702.382.8135

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Attorneys for Plaintiff Lausteveion Johnson

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Attorney s at Law
100 North City Parkway, Suite 1600
Las Veg as, NV 8910 6

B ROWNSTEIN H YATT F ARBER S CHRECK , LLP

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LAUSTEVEION JOHNSON,

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Plaintiff,

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v.

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JAMES DZURENDA; FRANK DREESEN;
REGINA BARRETT; JOSEPH LEWIS;
TIMOTHY KNATZ; DAVID WILLIS AND
JO GENTRY,

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CASE NO. 2:17-cv-01671-APG-EJY
JOINT STIPULATION AND ORDER
TO PRELIMINARILY EXTEND
DEADLINES AND REQUEST FOR
STATUS CONFERENCE ON ORDER
SHORTENING TIME
(FIRST REQUEST)

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Defendants.
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Plaintiff, Lausteveion Johnson (“Plaintiff”), by and through his appointed counsel, Frank

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M. Flansburg, III, Esq., Emily A. Ellis, Esq., and Troy P. Domina, Esq., of the law firm Brownstein

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Hyatt Farber Schreck, LLP, and Defendants, James Dzurenda, Frank Dreesen, Regina Barrett,

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Joseph Lewis, Timothy Knatz, David Willis, and Jo Gentry (“Defendants”) by and through their

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counsel Aaron D. Ford, Esq., and Austin T. Barnum, Esq., hereby submit this Joint Stipulation and

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Order to Preliminarily Extend Deadlines and Request for Status Conference on Order Shortening

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Time. Pursuant to Local Rule IA 6-1and Local Rule 7-1, the Parties request the deadline for

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motions in limine be extended from May 9, 2022 to May 23, 2022.
MEMORANDUM OF POINTS AND AUTHORITIES

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I.

RELEVANT BACKGROUND

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On May 4, 2022, this Court entered an order (the “Order”) appointing Frank M. Flansburg,

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Emily A. Ellis, and Troy P. Domina as pro bono counsel for Plaintiff, Lausteveion Johnson (“Pro
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Case 2:17-cv-01671-APG-EJY Document 192 Filed 05/10/22 Page 2 of 5

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Bono Counsel”).1 Pro Bono Counsel entered their notices of appearance on May 5, 2022.2 The

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Order stated the scope of Pro Bono Counsel’s representation was limited to “preparing a joint

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pretrial order and advising Plaintiff in the course of preparing for and conducting trial.”3

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This matter is set for a jury trial on the stacked calendar on June 6, 2022, at 9:00am, and the
corresponding calendar call is scheduled for May 31, 2022, at 9:00am.

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Just before and just after the time Pro Bono Counsel was appointed, the Plaintiff, acting pro
se, filed various motions to which Defendants must respond. These motions include:
ECF No. 165 – Motion for jury to visit the prison;

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ECF No. 166 – Motion for a diverse jury;

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Attorney s at Law
100 North City Parkway, Suite 1600
Las Veg as, NV 8910 6

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B ROWNSTEIN H YATT F ARBER S CHRECK , LLP

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ECF No. 167 – Emergency Writ of Habeas Corpus Ad Testificadum;

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ECF No. 180- Motion in Limine;

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ECF No. 181- Motion in Limine;

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ECF No. 182- Motion in Limine;

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ECF No. 183- Motion in Limine;

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ECF No. 184- Motion in Limine;

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ECF No. 185- Motion in Limine; and

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ECF No. 186- Motion in Limine

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In addition, the deadline to file motions in limine expires May 9, 2022.
II.

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LEGAL DISCUSSION
A.

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EXTENDING TIME.

(1) In General. When an act may or must be done within a specified time, the
court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request
is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act
because of excusable neglect.

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See ECF No. 177, at 1, filed herein.
See ECF No. 178, at 1, filed herein.
See ECF No. 177, at 1:13-15.

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Case 2:17-cv-01671-APG-EJY Document 192 Filed 05/10/22 Page 3 of 5

Fed.R.Civ.P. 6(b)(1).4

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flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is

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sought before or after the actual termination of the allotted time.” Lujan v. Nat'l Wildlife Fed., 497

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U.S. 871, 906 n. 7 (1990) (internal quotation marks and citation omitted) (emphasis added); see

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also Perez-Denison v. Kaiser Found. Health Plan of the Nw., 868 F. Supp. 2d 1065, 1079 (D. Or.

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2012) (citing and quoting Lujan, 497 U.S. at 906). Further, this rule, like all the Federal Rules of

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Civil Procedure is to be liberally construed to effectuate the general purpose of seeing that cases

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are tried on the merits. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010).

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Attorney s at Law
100 North City Parkway, Suite 1600
Las Veg as, NV 8910 6

The United States Supreme Court has recognized, “Rule 6(b) gives the court extensive

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B ROWNSTEIN H YATT F ARBER S CHRECK , LLP

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Regarding “good cause,” it is a non-rigorous standard that has been construed broadly across

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procedural and statutory contexts. Id. (citing several circuits Venegas–Hernandez v. Sonolux

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Records, 370 F.3d 183, 187 (1st Cir.2004); Thomas v. Brennan, 961 F.2d 612, 619 (7th Cir.1992);

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Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir.1987)).

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Consequently, requests for extensions of time made before the applicable deadline has

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passed should “normally ... be granted in the absence of bad faith on the part of the party seeking

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relief or prejudice to the adverse party.” Ahanchian, 624 F.3d at 1259 (quoting 4B Charles Alan

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Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed. 2004).

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Pro Bono Counsel was appointed on May 4, 2022, and they entered their appearances on

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May 5, 2022. Pro Bono Counsel needs adequate time to review the filings in this matter and

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properly assess and analyze the needs of the case. Pro Bono Counsel also needs adequate time to

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make contact with Plaintiff to discuss strategy. As such, the Parties submit that good cause exists

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for the extension requested herein, which is not brought for delay or any other improper purpose.

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Therefore, the Parties hereby stipulate and request the Court grant a short, two-week,

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preliminary extension of the deadline for motions in limine and the deadlines to respond to the

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following ECF numbered documents to provide Pro Bono Counsel the time to accomplish the tasks

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LR IA 6-1(a): “A motion or stipulation to extend time must state the reasons for the
extension requested and must inform the court of all previous extensions of the subject deadline the
court granted.” Further, a “stipulation or motion seeking to extend the time to file an opposition or
reply to a motion, or to extend the time fixed for hearing a motion, must state in its opening
paragraph the filing date of the subject motion or the date of the subject hearing.” LR IA 6-1(c).
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Case 2:17-cv-01671-APG-EJY Document 192 Filed 05/10/22 Page 4 of 5

described above: ECF No. 165 – Motion for jury to visit the prison, ECF No. 166 – Motion for a

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diverse jury, ECF No. 167 – Emergency Writ of Habeas Corpus Ad Testificadum, ECF No. 180-

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Motion in Limine, ECF No. 181- Motion in Limine, ECF No. 182- Motion in Limine, ECF No. 183-

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Motion in Limine, ECF No. 184- Motion in Limine, ECF No. 185- Motion in Limine, ECF No. 186-

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Motion in Limine.

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B.

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The order appointing Pro Bono Counsel states their representation is limited to “preparing

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a joint pretrial order and advising Plaintiff in the course of preparing for and conducting trial.”5

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Trial is scheduled to commence on a trial stack beginning on June 6, 2022, and calendar call is

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Attorney s at Law
100 North City Parkway, Suite 1600
Las Veg as, NV 8910 6

B ROWNSTEIN H YATT F ARBER S CHRECK , LLP

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REQUEST FOR STATUS CONFERENCE.

scheduled for May 31, 2022.

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The Parties seek clarification on the extent of Pro Bono Counsel’s representation regarding

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advising Plaintiff in the course of preparing for and conducting trial.6 More specifically, the Parties

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seek clarification whether the advisory role of Pro Bono Counsel includes preparing for and

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conducting opening and closing arguments, direct and cross examination of witnesses, and

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introducing exhibits into evidence at trial on Plaintiff’s behalf.7 Because of the compressed time

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frame before trial, the Parties seek a status conference on order shortening time to receive this

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clarification.8

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See ECF No. 177, at 1:13-15; see also Decl. of T. Domina, at ¶ 5, May 9, 2022, attached as
Exhibit 1.
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See Ex. 1, at ¶ 8.
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Id. at ¶ 9.
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Id. at ¶¶ 10, 11.
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Case 2:17-cv-01671-APG-EJY Document 192 Filed 05/10/22 Page 5 of 5

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III.

CONCLUSION

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For the reasons stated above, the Parties request this Court grant a two-week extension of

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the deadline to file motions in limine (to May 23, 2022) and for Defendant to respond to the

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documents identified herein. The Parties also request a status conference to specify the parameters

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of Pro Bono Counsel’s representation on an order shortening time.

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Attorney s at Law
100 North City Parkway, Suite 1600
Las Veg as, NV 8910 6

B ROWNSTEIN H YATT F ARBER S CHRECK , LLP

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DATED this 9th day of May, 2022

DATED this 9th day of May, 2022

BROWNSTEIN HYATT FARBER SCHRECK, LLP
BY: /s/ Emily A. Ellis
FRANK M. FLANSBURG III, ESQ.,
EMILY A. ELLIS, ESQ.,
TROY P. DOMINA, ESQ.,
Attorneys for Plaintiff Lausteveion Johnson

STATE OF NEVADA OFFICE OF
ATTORNEY GENERAL
BY: _/s/ Austin T. Barnum
m
AARON D. FORD, Attorney General
AUSTIN T. BARNUM Deputy
Attorney General
Attorneys for Defendants Regina
Barrett, Frank Dreesen, James
Dzurenda, Timothy Knatz, Joseph
Lewis, and David Willis

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IT IS SO ORDERED.

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_____________________________________
UNITED STATES DISTRICT JUDGE

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May 10, 2022
DATE: ________________________________

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