Herndon v. Henderson Police Department et al

Filing 42

ORDER. The Court declines to give the 41 Motion to Compel emergency consideration. Instead, the motion will be briefed pursuant to the schedule previously provided, see Docket No. 25 , and will be decided in the ordinary course. Signed by Magistrate Judge Nancy J. Koppe on 9/11/2020. (Copies have been distributed pursuant to the NEF - HAM)

1
2
3
4
UNITED STATES DISTRICT COURT
5
DISTRICT OF NEVADA
6
7

JAMES M. HERNDON,

8
9
10
11
12

Case No.: 2:19-cv-00018-GMN-NJK

Plaintiff(s),
Order

v.

[Docket No. 41]
CITY OF HENDERSON,
Defendant(s).
Pending before the Court is Plaintiff’s motion to compel discovery, which was filed on an

13 emergency basis. Docket No. 41.
14

“The filing of emergency motions is disfavored because of the numerous problems they

15 create for the opposing party and the court resolving them.” Cardoza v. Bloomin’ Brands, Inc.,
16 141 F. Supp. 3d 1137, 1140 (D. Nev. 2015) (citing In re Intermagnetics America, Inc., 101 B.R.
17 191, 193-194 (C.D. Cal. 1989)). “Safeguards that have evolved over many decades are built into
18 the Federal Rules of Civil Procedure and the Local Rules of this court.” Mission Power Eng’g Co.
19 v. Continental Cas. Co., 883 F. Supp. 488, 491 (C.D. Cal. 1995). A request to bypass the default
20 procedures through the filing of an emergency motion impedes the adversarial process, disrupts
21 the schedules of the Court and opposing counsel, and creates an opportunity for bad faith
22 gamesmanship. Cardoza, 141 F. Supp. 3d at 1140-41. As a result, the Court allows motions to
23 proceed on an emergency basis in only very limited circumstances. See, e.g., Local Rule 7-4(b)
24 (“Emergency motions should be rare”).1
25

In addition to various technical requirements, see Local Rule 7-4(a), parties seeking

26 emergency relief must satisfy several substantive requirements. When a party files a motion on
27
1
Notwithstanding this rule, the instant motion is the second emergency motion filed by
28 Plaintiff in two days. See also Docket No. 39.

1

1 an emergency basis, it is within the sole discretion of the Court to determine whether any such
2 matter is, in fact, an emergency. Local Rule 7-4(c); see also Local Rule 26-7(d). Generally
3 speaking, an emergency motion is properly presented to the Court only when the movant has
4 shown (1) that it will be irreparably prejudiced if the Court resolves the motion pursuant to the
5 normal briefing schedule and (2) that the movant is without fault in creating the crisis that requires
6 emergency relief or, at the very least, that the crisis occurred because of excusable neglect.
7 Cardoza, 141 F. Supp. 3d at 1142 (citing Mission Power, 883 F. Supp. at 492). If there is no
8 irreparable prejudice, sufficient justification for bypassing the default briefing schedule does not
9 exist and the motion may be properly decided on a non-expedited basis. Cardoza, 141 F. Supp.
10 3d at 1142-43. If there is irreparable prejudice but the movant created the crisis, the Court may
11 simply deny the relief sought. Id. at 1143. The relevant inquiry is not whether the opposing party
12 was at fault with respect to the underlying dispute, but rather “[i]t is the creation of the crisis–the
13 necessity for bypassing regular motion procedures–that requires explanation.” Mission Power,
14 883 F. Supp. at 493. For example, when an attorney knows of the existence of a dispute and
15 unreasonably delays in bringing that dispute to the Court’s attention until the eleventh hour, the
16 attorney has created the emergency situation and the request for relief may be denied outright. See
17 Cardoza, 141 F. Supp. 3d at 1143 (collecting cases). Quite simply, emergency motions “are not
18 intended to save the day for parties who have failed to present requests when they should have.”
19 Intermagnetics America, 101 B.R. at 193; see also Local Rule 7-4(b) (“[The] failure to effectively
20 manage deadlines, discovery, trial, or any other aspect of litigation does not constitute an
21 emergency”).
22

The instant motion arises out of a notice of deposition and subpoena duces tecum. See

23 Mot. at 3. Defendants responded with written objections, on or about August 5, 2020. See Docket
24 No. 41-4.2 Nonetheless, a meet-and-confer on those objections was not held until September 3,
25
2

The dates as provided in the motion and exhibits do not make sense. The declaration in
26 support of the motion asserts that the discovery was served on August 6, 2020, but the exhibits
themselves provide a service date of August 7, 2020. Compare Mot. at 3 with Docket Nos. 41-2,
27 41-3. Complicating matters further, the indications in both the declaration and exhibit are that the
objections were served before either of those dates on August 5, 2020. See Mot. at 3 n.5; Docket
28 No. 41-4. Plaintiff does not explain how it is that objections were apparently served before
discovery, nor does Plaintiff explain which of these dates as stated in the underlying documentation
2

1 2020. See Mot. at 3. Plaintiff did not file the instant motion until September 10, 2020. Plaintiff
2 now seeks emergency treatment of the motion on the premise that he would like the underlying
3 discovery to be produced before the upcoming deposition set for September 16, 2020. The need
4 for emergency relief, however, appears to stem from Plaintiff’s own failure to more expeditiously
5 engage in the meet-and-confer process and file the instant motion. The fact that Plaintiff waited
6 until less than a week before the subject deposition to file the instant motion to compel does not
7 justify emergency treatment whereby the motion cuts to the front of the line ahead of the many
8 other matters pending before the undersigned. Cf. Mazzeo v. Gibbons, 2010 WL 3020021, at *1
9 (D. Nev. July 27, 2010) (Leen, J.) (explaining that “other cases, motions filed, scheduled hearings
10 and settlement conferences do not afford me the luxury of dropping everything to hear a party’s
11 perceived ‘emergency’” and instead waiting to resolve the motion until it “has worked its way up
12 the tall stack of matters on my desk”).
13

Accordingly, the Court declines to give the motion emergency consideration. Instead, the

14 motion will be briefed pursuant to the schedule previously provided, see Docket No. 25, and will
15 be decided in the ordinary course.3
16

IT IS SO ORDERED.

17

Dated: September 11, 2020

18

______________________________
Nancy J. Koppe
United States Magistrate Judge

19
20
21
22
23
24

25 may be wrong. A movant bears an initial burden of providing the factual basis supporting the
requested relief, including establishing the circumstances that justify receiving expedited
26 resolution of the motion. Cf. Silvagni v. Wal-Mart-Stores, Inc., 320 F.R.D. 237, 244 (D. Nev.
2017). Plaintiff having failed to clearly identify the pertinent dates here, the Court assumes for
27 purposes of this order that the objections were served on or about August 5, 2020.
28

3

The Court expresses no opinion herein as to the merits of the motion.
3