Heath v. Tristar Products, Inc.
Filing
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ORDER Granting 54 Unopposed Motion to Modify 8/2/2018 Pretrial Scheduling Order. Disclose experts deadline: 11/16/2018. Disclose rebuttal experts deadline: 12/17/2018. Signed by Magistrate Judge Peggy A. Leen on 10/17/2018. (Copies have been distributed pursuant to the NEF - SLD)
Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 1 of 6
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Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784 .5200
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Vaughn A. Crawford
Nevada Bar No. 7665
Alexandria L. Layton
Nevada Bar No. 14228
SNELL & WILMER L.L.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: (702) 784-5200
Facsimile: (702) 784-5252
vcrawford@swlaw.com
alayton@swlaw.com
Michael John Lopes (Admitted Pro Hac Vice)
GORDON & REES
One Battery Park Plaza, 28th Floor
New York, NY 10004
(212) 453-0752
mlopes@grsm.com
Attorneys for Defendant
Tristar Products, Inc.
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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TAWNDRA L. HEATH, an individual,
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Plaintiff,
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vs.
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TRISTAR PRODUCTS, INC., a
Pennsylvania corporation; ZHONGSHAN
JINGUANG HOUSEHOLD APPLIANCE
MANUFACTURE CO., LTD., a foreign
corporation; DOE Individuals 1 – 10; and
ROE Corporations 11 – 20;
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CASE NO. 2:17-cv-02869-GMN-PAL
JOINT MOTION TO MODIFY
AUGUST 2, 2018 PRETRIAL
SCHEDULING ORDER
Defendants.
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Plaintiff Tawndra L. Heath (“Plaintiff”) by and through her counsel, Joshua A. Dowling,
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Esq. of Cogburn Law Offices, and Defendant Tristar Products Inc., by and through its counsel.
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Alexandria L. Layton of Snell & Wilmer L.L.P. and Michael Lopes, Esq. of Gordon & Rees LLP
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(collectively the “Parties”) hereby move for an order modifying the August 2, 2018 Scheduling
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Conference Order. Specifically, the Parties move to continue the expert disclosure deadlines by
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thirty (30) days.
Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 2 of 6
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This motion is made pursuant to Federal Rules of Civil Procedure (“FRCP”), Rule
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16(b)(4), and is based on the grounds that good cause exists for the court to consent to continue
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discovery related deadlines. The Parties in this action require additional time to attempt to
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resolve this matter without the need of incurring additional expenses for experts.
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DATED this 2nd day of October, 2018.
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GORDON & REES LLP
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By: /s/ Michael J. Lopes
Michael J. Lopes (Admitted Pro Hac Vice)
One Battery Park Plaza, 28th Floor
New York, NY 10004
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Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784 .5200
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Attorneys for Defendant
Tristar Products Inc.
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SNELL & WILMER L.L.P
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By: /s/ Alexandria L. Layton
Vaughn A. Crawford
Alexandria L. Layton
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
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Attorneys for Defendant
Tristar Products Inc.
COGBURN LAW OFFICES
By: /s/ Joshua A. Dowling
Joshua A. Dowling
2580 St. Rose Parkway, Suite 330
Henderson, NV 89074
Attorneys for Plaintiff
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Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 3 of 6
MEMORANDUM OF POINTS AND AUTHORITIES
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I.
INTRODUCTION
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The Parties hereby move jointly to modify the Court’s August 2, 2018 Pretrial Scheduling
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Order, pursuant to FRCP, Rule 16(b)(4). Good cause exists for the Court to consent to continue
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expert disclosure deadlines. On September 21, 2018, the Parties completed the deposition of
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Plaintiff. The Parties now are attempting to negotiate settlement in good faith and wish to explore
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the possibility of settlement without incurring significant expert fees for the preparation of expert
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reports. Good cause, therefore, exists to modify the Court’s August 2, 2018 Pretrial Scheduling
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Order and continue deadlines for expert disclosure by thirty (30) days.
Specifically, it is
Snell & Wilmer
respectfully requested that the Court continue the deadline to disclose experts pursuant to Fed. R.
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784 .5200
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Civ. P. 26(a)(2) from October 17, 2018 to November 16, 2018 and the date to disclose rebuttal
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experts from November 16, 2018 to December 17, 2018.
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II.
LEGAL ANALYSIS
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A.
Legal Standard for Modification of Scheduling Order.
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Pursuant to FRCP, Rule 16(b)(4), “[a] schedule may be modified only for good cause and
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with the judge's consent.” A district court has “broad discretion in supervising the pretrial phase
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of litigation,” and orders entered by the court before the pretrial conference may be modified
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upon a showing of good cause. See Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607-
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608 (9th Cir. 1992) (citing Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985).
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Rule 16(b)’s “good cause” standard primarily focuses on the diligence of the party seeking
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the modification. Johnson, 975 F.2d at 609. A pretrial scheduling order may be modified “if it
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cannot reasonably be met despite the diligence of the party seeking the extension.” Federal Rule
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of Civil Procedure 16 advisory committee notes (1983 amendment). Factors to be considered
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when evaluating the diligence of the party seeking a modification of a pretrial order based on
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Rule 16(b)’s “good cause” standard. See Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D.
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1999).
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///
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///
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Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 4 of 6
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A movant may be required to show:
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(1) that she was diligent in assisting the Court in creating a workable Rule 16 order
[citation omitted]; (2) that her noncompliance with a Rule 16 deadline occurred or will
occur, notwithstanding her diligent efforts to comply, because of the development of
matters which could not have been reasonably foreseen or anticipated at the time of
the Rule 16 scheduling conference [citation omitted]; and (3) that she was diligent in
seeking amendment of the Rule 16 order, once it became apparent that she could not
comply with the order [citation omitted].
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Id.
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attempting to comply with the order, and in seeking amendment of the order. Thus, good cause
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exists to modify this Court’s scheduling order.
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The Parties have been diligent in assisting the Court in creating a workable order, in
B.
Good Cause Exists in This Case to Modify the Scheduling Order.
Snell & Wilmer
In applying the foregoing factors to the instant matter, first, the Parties were diligent in
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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784 .5200
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assisting this Court in making a workable order. The Parties participated in timely filing a Joint
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Discovery Stipulation on June 29, 2018. The Court entered a revised discovery schedule on
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August 2, 2018. Through informal discussions between the Parties, they now wish to discuss the
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possibility of settlement with their clients, but it is anticipated that these negotiations may not be
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completed before October 17, 2018 – the deadline for expert disclosures.
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Second, the Parties have diligently been conducting discovery in this case. The Parties
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have propounded and responded to numerous written discovery requests and have completed the
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deposition of the Plaintiff which took place on September 21, 2018. However, despite diligent
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efforts, the Parties anticipate that the October 17, 2018 expert deadline may not be able to be
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complied with given the substantive conversations between the Parties regarding potential
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resolution of this action. The Parties now seek an additional thirty (30) days in order to explore
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potential resolution before incurring significant expenses associated with expert witnesses.
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Additionally, the Parties have diligently met and conferred for several weeks to schedule
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the depositions and exchange discovery. The Parties have been amicable throughout discovery
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and the request for extension of the expert disclosure deadlines will not impact any other dates in
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the August 2, 2018 order except for the deadline for disclosure of rebuttal experts. There is no
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trial date for this action.
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Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 5 of 6
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Lastly, applying the aforementioned factors, the Parties have been diligent in seeking
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amendment of the Court’s Scheduling Order once it became apparent that the October 17, 2018
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deadline for expert disclosures may be unworkable. Upon realizing this and through constant
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discussions about this matter and potential resolution, the Parties promptly conferred and
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discussed the present relief sought herein.
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III.
CONCLUSION
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For the foregoing reasons, good cause exists and the Parties respectfully request jointly
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that this Court modify its August 2, 2018 Pretrial Scheduling Order, and continue the deadline to
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disclose experts pursuant to Fed. R. Civ. P. 26(a)(2) from October 17, 2018 to November 16,
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2018 and the date to disclose rebuttal experts from November 16, 2018 to December 17, 2018.
Snell & Wilmer
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784 .5200
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DATED this 2nd day of October, 2018.
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GORDON & REES LLP
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By: /s/ Michael J. Lopes
Michael J. Lopes (Admitted Pro Hac Vice)
One Battery Park Plaza, 28th Floor
New York, NY 10004
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Attorneys for Defendant
Tristar Products Inc.
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SNELL & WILMER L.L.P
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By: /s/ Alexandria L. Layton
Vaughn A. Crawford
Alexandria L. Layton
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
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Attorneys for Defendant
Tristar Products Inc.
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IT IS SO ORDERED this 17th day
of October, 2018.
___________________________
Peggy A. Leen
United States Magistrate Judge
COGBURN LAW OFFICES
By: /s/ Joshua A. Dowling
Joshua A. Dowling
2580 St. Rose Parkway, Suite 330
Henderson, NV 89074
Attorney for Plaintiff
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Case 2:17-cv-02869-GMN-PAL Document 54 Filed 10/02/18 Page 6 of 6
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CERTIFICATE OF SERVICE
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I hereby declare under penalty of perjury, that I am over the age of eighteen (18) years,
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and I am not a party to, nor interested in, this action. On this date, I caused to be served a true
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and
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AUGUST 2, 2018 PRETRIAL SCHEDULING ORDER by the method indicated below and
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addressed to the following:
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correct
L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784 .5200
Snell & Wilmer
the
foregoing
JOINT
MOTION
TO
MODIFY
BY U.S. MAIL: by placing the document(s) listed above in a sealed envelope with
postage thereon fully prepaid, in the United States mail at Las Vegas, Nevada addressed
as set forth below.
BY ELECTRONIC SUBMISSION: submitted to the above-entitled Court for
electronic filing and service upon the Court’s Service List for the above-referenced case.
BY EMAIL: by emailing a PDF of the document listed above to the email addresses of
the individual(s) listed below.
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of
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copy
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Jamie S. Cogburn, Esq.
Joshua A. Dowling, Esq.
Cogburn Law Offices
2580 St. Rose Parkway, Suite 330
Henderson, NV 89074
(702) 748-7777
(702) 966-3880 fax
jsc@cogburnlaw.com
jdowling@cogburnlaw.com
Pete C. Wetherall, Esq.
Wetherall Group, LTD
9345 W. Sunset Road, Suite 100
Las Vegas, NV 89148
(7020 838-8500
pwetherall@wetherallgroup.com
Attorneys for Plaintiff
Attorneys for Plaintiff
Michael John Lopes, Esq.
Gordon & Rees
One Battery Park Plaza, 28th Floor
New York, NY 10004
(212) 453-0752
mlopes@hinshawlaw.com
Co-Counsel for Defendant
Tristar Products, Inc.
DATED this 2nd day of October, 2018.
/s/ Julia M. Diaz
An Employee of Snell & Wilmer L.L.P.
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