Graves et al v. Nye County et al

Filing 24

ORDER Granting in Part 21 Motion to Extend Deadlines. Discovery due by 2/4/2022. Motions due by 3/8/2022. Proposed Joint Pretrial Order due by 4/5/2022. Plaintiff's request for a Rule 16 conference is Denied. Signed by Magistrate Judge Daniel J. Albregts on 9/7/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:20-cv-02359-JAD-DJA Document 24 Filed 09/07/21 Page 1 of 5

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Estate of Nekiylo Dewayne Graves, et al.
Plaintiffs,

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v.

Case No. 2:20-cv-02359-JAD-DJA
Order

Nye County, Nevada, et al.,
Defendants.

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This is a civil rights action arising out of a chase during which Nye County police officers

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fired their weapons at Nekiylo Graves, inflicting fatal injuries. Plaintiffs sue Defendants for

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damages and declaratory judgment, claiming that the officers violated Nye County policies and

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used excessive force. Plaintiffs move for an extension of discovery deadlines, arguing that their

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counsel reached out to Defendants’ counsel for a stipulation, but that Defendants counsel could

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not respond within a reasonable time. Because the Court finds that the parties generally agree on

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an extension, it grants the motion in part. The Court finds these matters properly resolved

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without a hearing. LR 78-1.

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I.

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Background.
Plaintiffs brought the motion to extend all discovery deadlines about two weeks after the

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first deadline in this case—the deadline to amend pleadings or add parties—had passed (ECF No.

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21). Plaintiffs seek to extend all discovery deadlines by 120 days. Plaintiffs’ counsel explains

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that he reached out to Defendants’ counsel to request a stipulation, but that Defendants’ counsel

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could not provide an answer “until next week after speaking with his clients…” Plaintiffs assert

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that they have shown good cause by acting diligently in serving their initial disclosures and

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propounding written discovery. Plaintiffs also seem to claim that their excusable neglect is due to

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their counsel’s error of not initially requesting longer deadlines and because Defendants identified

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fifty non-party witnesses in their initial disclosures on June 14, 2021, less than a month before the

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deadline to amend. Plaintiffs then suggest that “[t]his is a case in which a Rule 16 conference

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may be beneficial.”
Defendants respond (ECF No. 22) that they do not disagree with a discovery extension,

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but that when Plaintiffs’ counsel requested a stipulation, he demanded a response by the next day,

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a deadline Defendants could not meet. Defendants assert that a ninety-day extension is more

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appropriate because it is “better suited to accommodate limited discovery from Plaintiffs

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reasonably targeted at identifying [] additional Defendants and adding them without wasting time

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on discovery that may need to be duplicated after their appearance.” Defendants also point out

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that Plaintiffs’ proposed new deadline to amend pleadings and add parties is 150—rather than 120

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days—beyond the original deadlines. Defendants end by explaining that they will withhold their

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expert disclosures—originally due on the now-passed August 9, 2021 deadline—anticipating the

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result of Plaintiff’s motion.

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Plaintiffs reply (ECF No. 23) that they were forced to file a motion—rather than a

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stipulation—because Defendants “refused to provide a simple answer to Plaintiffs’ inquiry within

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a reasonable period of time...” They argue that 120 days is appropriate because Defendants’

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initial disclosures were insufficient, and that they anticipate that Defendants will withhold

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information that Plaintiffs will need to amend their complaint. Plaintiffs conclude that “a

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discovery conference may be appropriate where some of these issues can be discussed at greater

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length, including a frank discussion of whether even 120-days is appropriate given Nye County’s

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anticipated refusal to disclose material documents in this case.”

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II.

Discussion.

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A.

Plaintiffs have shown good cause to extend most of their discovery deadlines.

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A motion to extend a date set by a discovery plan must be supported by good cause. See

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LR 26-3. The good cause standard primarily considers the diligence of the party seeking the

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extension. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 699 (9th Cir. 1992). The

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scheduling order can be modified if it cannot reasonably be met despite the diligence of the party

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seeking the extension. See id.
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Here, Plaintiffs have shown good cause to extend every deadline but the deadline to

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amend pleadings or add parties, which already passed. Plaintiffs claim that they are in the

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process of issuing subpoenas and have acted diligently in propounding written discovery. They

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also assert that they did not initially appreciate the extent of discovery needed in the case and

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erred by not requesting an extended discovery schedule at the outset.

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To be clear, the Court is not convinced Plaintiffs were diligent in seeking an extension

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because they moved to extend a deadline that had already passed and only gave Defendants a day

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to reply to their request to stipulate. Nonetheless, they have been diligent in conducting discovery

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so far, which diligence Defendants do not contest. Plaintiffs have shown good cause to extend

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the discovery deadlines which did not pass before their instant motion: the expert disclosure

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deadline, the rebuttal expert disclosure deadline, the discovery cutoff deadline, the dispositive

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motion deadline, and the joint pretrial order deadline.

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B.

Plaintiffs have demonstrated excusable neglect to extend the deadline to amend
pleadings and add parties.

A request to extend time made after the expiration of a deadline will not be granted unless

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the movant demonstrates that the failure to file the motion before the deadline expired was the

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result of excusable neglect. See LR 6-1(a). In evaluating excusable neglect, the Court considers

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the following factors: (1) the reason for the delay and whether it was in the reasonable control of

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the moving party, (2) whether the moving party acted in good faith, (3) the length of the delay

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and its potential impact on the proceedings, and (4) the danger of prejudice to the nonmoving

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party. See Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993); see also

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Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n. 4 (9th Cir. 1996). Here,

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although the first two factors weigh against excusable neglect, because the second two weigh in

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its favor and because Defendants do not disagree with an extension, the Court grants Plaintiffs’

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request to extend the deadline to amend pleadings and add parties.

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The first two factors weigh against excusable neglect. First, the delay was entirely within

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Plaintiffs’ control. Plaintiffs suggest that the delay was because they did not receive Defendants’

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initial disclosures until June 14, 2021. But this was twenty-five days before the deadline to
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amend pleadings or add parties, and Plaintiffs do not explain why they did not seek to extend the

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deadline within this time. Second, Plaintiffs have not supported their claim that they acted in

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good faith. Although Defendants do not directly contest good faith, they point out that Plaintiffs

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initially asked for ninety days, but then filed a motion for 120. Plaintiffs admit this. Defendants

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also point out that Plaintiffs incorrectly calculated their proposed discovery schedule, including a

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150-day extension to amend pleadings or add parties. Plaintiffs ignore this in reply. Plaintiffs’

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delay, change in the number of days they requested, and apparent attempt to sneak in a much

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longer deadline are inconsistent with good faith.

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The next two factors weigh in favor of excusable neglect. For the third factor, a delay will

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impact proceedings, but the Court has already found good cause to extend all other deadlines for

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120 days. For the fourth factor, Defendants do not argue that an extension will prejudice them.

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Defendants only argue that the Court should limit the extension to ninety days. But the Court

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does not agree that thirty additional days will result in duplicative discovery as Defendants

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suggest. The Court is also unconvinced by Plaintiffs’ argument that they need 120 days because

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Defendants will be be withholding. Nonetheless, a 120-day extension is an otherwise reasonable

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request, especially because the parties have not previously requested extended discovery

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deadlines. A 120-day extension would also keep the discovery deadlines consistent. The Court

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thus extends the deadline to add parties or amend pleadings for 120 days.

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C.

The Court denies Plaintiffs’ request for a Rule 16 conference.

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In any action, the court may order the parties to appear at a pretrial conference for

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purposes such as: (1) expediting disposition of the action; (2) establishing early and continuing

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control so that the case will not be protracted because of lack of management; (3) discouraging

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wasteful pretrial activities; (4) improving the quality of the trial through more thorough

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preparation; and (5) facilitating settlement. Fed. R. Civ. P. 16(a). Here, Plaintiffs request a

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pretrial conference to have a frank discussion with Defendants about discovery deadlines,

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apparently forgetting that this option is always available to them. Defendants have not refused to

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meet and confer with Plaintiffs. Rather, Plaintiffs filed their motion to extend deadlines after

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missing a deadline and giving Defendants only one day to respond. At this stage, the relationship
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between the parties has not deteriorated to the point that the Court needs to intervene. The Court

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denies Plaintiffs’ request for a court-mandated Rule 16 conference as premature.

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IT IS THEREFORE ORDERED that Plaintiffs’ motion to extend discovery deadlines

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(ECF No. 21) is granted in part. The following deadlines shall control discovery in this case:

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Amend pleadings and add parties

Monday, November 8, 2021

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Expert disclosures

Tuesday, December 7, 2021

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Rebuttal expert disclosures

Wednesday, January 5, 2022

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Discovery cutoff

Friday, February 4, 2022

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Dispositive motions

Tuesday, March 8, 2022

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Joint pretrial order

Tuesday, April 5, 2022 1

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IT IS FURTHER ORDERED that Plaintiffs’ request for a Rule 16 conference is denied.

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DATED: September 7, 2021

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DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE

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Under LR 26-1(b)(5), if dispositive motions are filed, the deadline for filing the joint pretrial
order will be suspended until thirty days after decision on the dispositive motions or further court
order.
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