Thomas v. Smith-Palluck Associates Corp.

Filing 72

ORDER granting ECF No. 71 Stipulation to Extend Time re ECF No. 64 Motion to Dismiss (Second Request). Response due by 6/26/2019. Signed by Judge Miranda M. Du on 6/19/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDREA THOMAS,

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ORDER RE:

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Case No.: 2:17-cv-02001-MMD-CWH

Plaintiff,
vs.

STIPULATION AND ORDER TO
EXTEND TIME FOR PLAINTIFF TO
RESPOND TO MOTION TO DISMISS

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SMITH-PALLUCK ASSOCIATES CORP.,
d/b/a LAS VEGAS ATHLETIC CLUBS,

[SECOND REQUEST]

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Defendants.
Plaintiff Andrea Thomas (“Plaintiff”), by and through her counsel of record, and Defendant

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Smith-Palluck Associates Corp., d/b/a Las Vegas Athletic Clubs (“LVAC”) have agreed and

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stipulated to the following:

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1.

On July 24, 2017, Plaintiffs filed a Complaint [ECF No. 1].

STIPULATION AND ORDER TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO MOTION TO
DISMISS[SECOND REQUEST] - 1

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2.

On September 14, 2017, LVAC filed an Answer to the Complaint [ECF No.5].

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3.

On February 7, 2018, Plaintiff filed a Motion to Amend the Complaint [ECF No.

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17] and briefing was completed on February 28, 2018 [ECF No. 23].

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4.

On July 17, 2018 LVAC filed a Motion to Stay Case [ECF No. 38].

5.

On September 6, 2018, the Court granted LVAC’s Motion to Stay Case and denied

Plaintiff’s Motion to Amend Complaint [ECF No. 42].
6.

On April 2, 2019, Plaintiff filed a Motion for Leave to file First Amended

Complaint [ECF No. 51].

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7.

On April 12, 2019, the Court denied Plaintiff’s Motion to file First Amended

Complaint as moot [ECF No. 54].
8.

On April 13, 2019, Plaintiff filed a Notice Re-Urging her Motion for Leave to File

First Amended Complaint [ECF No. 55].
9.

On May 14, 2019, the Court granted Plaintiff’s Notice Re-Urging her Motion for

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Leave to File First Amended Complaint [ECF No. 61].

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10.

On May 15, 2019, Plaintiff filed a First Amended Complaint [ECF No. 62].

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11.

On May 29, 2019, LVAC filed a Motion to Dismiss Plaintiff’s First Amended

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Complaint, which seeks dismissal on the ground that the Telephone Consumer Protection Act
(“TCPA”) imposes an unconstitutional restriction on First Amendment speech [ECF No. 64].

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12.

On June 11, 2019, the Parties entered into a stipulation to extend Plaintiff’s

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response deadline from June 12, 2019 to June 19, 2019, as Plaintiff’s counsel requested additional

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time to respond to the Motion to Dismiss due to a conflict stemming from a Ninth Circuit Court

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of Appeals’ hearing in Alaska [ECF No. 69].

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STIPULATION AND ORDER TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO MOTION TO
DISMISS[SECOND REQUEST] - 2

13.

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On June 11, 2019, the Court granted the Parties stipulation to extend Plaintiff’s

response deadline to June 19, 2019 [ECF No. 70].

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14.

Plaintiff’s Response is due June 19, 2019.

15.

On June 13, 2019, the Ninth Circuit Court of Appeals issued its decision in Duguid

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v. Facebook, Inc., --- F.3d ----, 2019 WL 2454853 (9th Cir. June 13, 2019), in which the Ninth

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Circuit Court of Appeals found that a 2015 amendment to the TCPA was unconstitutional, but the

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provision was severable from the remainder of the TCPA. See id. at *5-8.

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16.

Plaintiff believes that because the Duguid panel’s decision found that the non-

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severed provisions of the TCPA were constitutional, and LVAC’s conduct falls entirely within

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those statutory provisions whose constitutionality was upheld, that LVAC should withdraw its

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motion.

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17.

On June 14, 2019, Plaintiff reached out to LVAC’s counsel, requesting that LVAC

withdraw its pending motion to dismiss in light of the conclusive and binding interpretation of the

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Duguid panel. LVAC is presently considering Plaintiff’s request.

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18. Consequently, Plaintiff and LVAC have agreed to extend Plaintiff’s response seven

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days in order to allow the parties to consider the impact of the Duguid case and determine whether

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the issue should be briefed, or whether LVAC will withdraw its pending motion. If agreed to,

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withdrawal of the motion will minimize the expense of litigation and prevent burdening the Court

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with consideration of the motion. As a result, both Plaintiff and LVAC hereby request this Court

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to further extend the date for Plaintiff to respond to LVAC’s Motion to Dismiss Amended

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Complaint until June 26, 2019. This stipulation is made in good faith, is not interposed for delay,

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//

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//
STIPULATION AND ORDER TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO MOTION TO
DISMISS[SECOND REQUEST] - 3

and is not filed for an improper purpose.
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IT IS SO STIPULATED.
Dated June 18, 2019.
KNEPPER & CLARK LLC

BALLARD SPAHR LLP

Isl Miles N Clark
Matthew I. Knepper, Esq.
Nevada Bar No. 12796
Miles N. Clark, Esq.
Nevada Bar No. 13848
5510 So. Fo1i Apache Rd, Suite 30
Las Vegas, NV 89148
Email: [e-mail]
Email: [e-mail]

Isl Stacy H Rubin
Joel E. Tasca, Esq.
Nevada Bar No. 14124
Lindsay C. Demaree, Esq.
Nevada Bar No. 11949
Stacy H. Rubin, Esq.
Nevada Bar No. 9298
1980 Festival Plaza Drive, Suite 900
Las Vegas, NV 89135
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

HAINES & KRIEGER LLC
David H. Krieger, Esq.
Nevada Bar No. 9086
8985 S. Eastern Avenue, Suite 350
Henderson, NV 89123
Email: [e-mail]

Counsel for Defendant
Smith-Palluck Associates C01p., d/b/a Las
Vegas Athletic Clubs

Counselfor Plaintiff
ORDER GRANTING
STIPULATION TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO
MOTION TO DISMISS
IT IS SO ORDERED.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
D ated: 6/19/2019---

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STIPULATION AND ORDER TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO MOTION TO
DISMISS[SECOND REQUEST] - 4