Behrends v. Taggart

Opinion

4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6

7 SCOTT BEHRENDS, et al., Case No.: 2:20-cv-00571-GMN-NJK 8 Plaintiff(s), ORDER 9 v. [Docket No. 20] 10 JAKE ALEXANDER TAGGART, et al., 11 Defendant(s). 12 Pending before the Court is Defendants’ motion for protective order, which was filed on 13 an emergency basis. Docket No. 20. 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”). 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 an emergency basis, it is within the sole discretion of the Court to determine whether any such 28 matter is, in fact, an emergency. Local Rule 7-4(c); see also Local Rule 26-6(d). Generally 1 speaking, an emergency motion is properly presented to the Court only when the movant has 2 shown (1) that it will be irreparably prejudiced if the Court resolves the motion pursuant to the 3 normal briefing schedule and (2) that the movant is without fault in creating the crisis that requires 4 emergency relief or, at the very least, that the crisis occurred because of excusable neglect. 5 Cardoza, 141 F. Supp. 3d at 1142 (citing Mission Power, 883 F. Supp. at 492). If there is no 6 irreparable prejudice, sufficient justification for bypassing the default briefing schedule does not 7 exist and the motion may be properly decided on a non-expedited basis. Cardoza, 141 F. Supp. 8 3d at 1142–43. If there is irreparable prejudice but the movant created the crisis, the Court may 9 simply deny the relief sought. Id. at 1143. The relevant inquiry is not whether the opposing party 10 was at fault with respect to the underlying dispute, but rather “[i]t is the creation of the crisis—the 11 necessity for bypassing regular motion procedures—that requires explanation.” Mission Power, 12 883 F. Supp. at 493. For example, when an attorney knows of the existence of a dispute and 13 unreasonably delays in bringing that dispute to the Court’s attention until the eleventh hour, the 14 attorney has created the emergency situation and the request for relief may be denied outright. See 15 Cardoza, 141 F. Supp. 3d at 1143 (collecting cases). Quite simply, emergency motions “are not 16 intended to save the day for parties who have failed to present requests when they should have.” 17 Intermagnetics America, 101 B.R. at 193; see also Local Rule 7-4(b) (“[The] failure to effectively 18 manage deadlines, discovery, trial, or any other aspect of litigation does not constitute an 19 emergency”). 20 The instant motion arises out of a notice of deposition. See Docket No. 20 at 2–4. 21 Defendants submit that, on October 16, 2020, “Plaintiffs served a Notice of Deposition Duces 22 Tecum[,]” which provided notice of a Rule 30(b)(6) deposition of Defendant Ferlin Kearns Auto 23 Transport for November 13, 2020. Id. at 2. Defendants submit that they responded with written 24 objections on October 20, 2020. Id. at 3. Defendants further submit that a meet and confer on 25 those objections was held on October 22, 2020. Id. Defendants did not file the instant motion 26 until the afternoon of October 26, 2020. See Docket. Defendants seek emergency treatment of 27 the motion. However, Defendants fail to address, let alone demonstrate, why the motion should 28 be considered on an emergency basis. See Cardoza, 141 F. Supp. 3d 1137. Moreover, the need 1} for emergency relief appears to stem from Defendants’ own failure to engage in the meet and 2|| confer process and file the instant motion more expeditiously. These circumstances do not justify emergency treatment whereby the motion cuts to the front of the line ahead of the many other 4! matters pending before the Court. Cf. Mazzeo v. Gibbons, 2010 WL 3020021, at *1 (D. Nev. July 5] 27, 2010) (explaining that “other cases, motions filed, scheduled hearings and settlement conferences do not afford me the luxury of dropping everything to hear a party’s perceived ‘emergency’” and instead waiting to resolve the motion until it “has worked its way up the tall 8|| stack of matters on my desk”). 9 Accordingly, the Court declines to give the motion emergency consideration. Instead, the 10] motion will be briefed pursuant to the default briefing schedule and will be decided in the ordinary 11} course.! The deposition is vacated pending the resolution of the instant motion. 12 IT IS SO ORDERED. 13 Dated: October 27, 2020

Nancy. Koppe 15 United States Magistrate Judge 16

17 18 19 20 21 22 23 24 25 26 27 28 ' The Court expresses no opinion herein as to the merits of the motion.