1 || MICHAEL A. FEDERICO (SBN 005946) mfederico@ocgas.com 2 || OLSON CANNON GORMLEY & STOBERSKI 9950 West Cheyenne Avenue 3 || Las Vegas, Nevada 89129 Telephone: (702) 384-4012 4 || Facsimile: (702) 383-0701 5 || KELLEY S. OLAH (Pro Hac Vice) KOlah@btlaw.com 6 || NOUSHAN NOUREDDINI (Pro Hac Vice) NNoureddini@btlaw.com 7 || BARNES & THORNBURG LLP 2029 Century Park East, Suite 300 8 || Los Angeles, California 90067 Telephone: (310) 284-3880 9 || Facsimile: (310) 284-3894 10 || Attorneys for Defendants COSTCO WHOLESALE CORPORATION; 11 || MAPLEBEAR INC. d/b/a INSTACART 12 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 || KRISTINA A. BIENEK, an individual, Case No. 2:21-cv-02005-APG-DJA 17 Plaintiff, STIPULATION BETWEEN DEFENDANTS MAPLEBEAR INC. d/b/a INSTACART, 18 || v. COSTCO WHOLESALE CORPORATION, AFFINITYLIFESTYLES.COM, INC. d/b/a 19 || AFFINITYLIFESTYLES.COM, INC. d/b/a REAL WATER, AND REAL WATER INC. REAL WATER, a Nevada corporation; REAL AND PLAINTIFF KRISTINA A. BIENEK 20 || WATER INC., a Delaware Corporation; AND fPROPOSEDLORDER TO STAY COSTCO WHOLESALE CORP., a Delaware DISCOVERY 21 || Corporation; MAPLEBEAR, INC. d/b/a INSTACART, a Delaware Corporation; 22 || DOES 2 through 10, inclusive; ROE Complaint Filed: July 30, 2021 CORPORATIONS 11 through 20, inclusive; 23 || and ABC LIMITED LIABILITY COMPANIES 21 through 30, inclusive, 24 Defendants. 25 26 27 /// 28 || /// -l- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 RECITALS 2 Plaintiff Kristina A. Bienek (“Plaintiff”) and Defendants Maplebear Inc. d/b/a Instacart 3 || (“‘Instacart”), Costco Wholesale Corporation (“Costco”), AffinityLifestyles.com, Inc. d/b/a Real 4 || Water (“AffinityLifestyles.com, Inc.”), and Real Water Inc. (“Real Water”)! (collectively the 5 || “Parties”), by and through their respective counsel of record, do hereby stipulate and respectfully 6 || request an order staying all discovery in this matter pending resolution of Plaintiffs Motion to 7 || Remand to State Court [ECF Dkt. No. 18]. 8 On July 30, 2021, Plaintiff filed this matter in Eighth Judicial District Court, Clark County, 9 || Case No. A-21-838724-C. On November 5, 2021, Costco and Instacart removed this action to the 10 || United States District Court for the District of Nevada. See Petition for Removal [ECF Dkt. No. 1]. 11 || On November 26, 2021, Plaintiff filed a Motion to Remand to State Court (“Plaintiff's Motion”). 12 || See Plaintiff's Motion [ECF Dkt. No. 18]. On December 10, 2021, Costco and Instacart filed a 13 || response to Plaintiff's Motion. See Costco’s and Instacart’s Response [ECF Dkt. No. 21]. On 14 |} December 17, 2021, Plaintiff filed her reply brief in support of her Motion. See Plaintiff's Reply 15 || [ECF Dkt No. 25]. Plaintiffs Motion is fully briefed and remains pending before this Court. 16 On October 8, 2021, the United States Bankruptcy Court for the District of Nevada entered 17 || an Order Approving Stipulation Allowing Claimants Relief From The Automatic Stay To Liquidate 18 || Alleged Personal Injury Claims In State Court Litigation (ECF No. 16), which allowed 19 || AffinityLifestyles.com, Inc. and Real Water to proceed with discovery and evidence preservation. 20 || Costco, Instacart, and Plaintiff are likewise not precluded from preserving evidence. 21 Courts have broad discretionary power to control discovery including the decision to allow 22 || or deny discovery. See, e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In cases 23 || like this, a temporary stay of discovery will promote the goals of Rule 1 of the Federal Rules of 24 || Civil Procedure, “to secure the just, speedy, and inexpensive determination” of this action — 25 26 || | Nothing in this stipulation alters Costco’s and Instacart’s position, as stated in their Notice of Removal, ECF Dkt. No. 1, and their opposition to Plaintiff's Motion to Remand, ECF Dkt. No. 21, 27 || that AffinityLifestyles.com and Real Water have been deemed nominal defendants in this action by stipulation and court order and as a result, their citizenship should not be considered for purposes 28 || of determining diversity jurisdiction. -2- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 || conserving judicial resources and promoting a more efficient disposition of the threshold 2 || jurisdictional and venue issues, which should be made at the earliest stage of litigation. Moreover, 3 || under Rule 26(c)(1), a court may issue an order to protect a party or person from annoyance, 4 || embarrassment, oppression, or undue burden or expense, including forbidding discovery. Fed. R. 5 || Civ. P. 26(c)(1). 6 Although a pending motion to remand is “not ordinarily a situation that in and of itself 7 || would warrant a stay of discovery,” when the motion challenges jurisdiction or venue, or immunity, 8 || astay is proper. See Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. 9 || Nev. 1989); Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 10 || 1997); Hamrick v. Feldman, 2013 U.S. Dist. LEXIS 49608, at *7 (D. Nev. Apr. 5, 2013); see also 11 || Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011) (matters dealing with 12 || “preliminary issues of jurisdiction, venue, or immunity” typically warrant a stay of discovery). 13 Courts in this district have stayed discovery where, as here, a “preliminary peek” at the 14 |] merits of the pending motion demonstrated: “[f]irst, the pending motion must be potentially 15 || dispositive of the entire case or at least dispositive on the issue on which discovery is sought. 16 || Second, the court must determine whether the pending potentially dispositive motion can be 17 || decided without additional discovery.” Tradebay, LLC, 278 F.R.D. at 602. Further, this district 18 || has held that matters dealing with “preliminary issues of jurisdiction, venue, or immunity” typically 19 || warrant a stay of discovery. /d. at 603. Plaintiff's Motion raises threshold issues of whether or not 20 || this matter may even be heard in this forum and it will dictate the extent of any discovery necessary, 21 || if any. Accordingly, Plaintiff's Motion is dispositive. Further discovery is not needed to resolve 22 || Plaintiff's Motion. 23 Furthermore, this Court has wide discretion to control the conduct of pretrial discovery by 24 || any party to the action, and courts have routinely stayed pre-trial obligations, including merits 25 || discovery, when a motion to remand was pending before the court. See Wilmington Sav. Fund 26 || Soc'y FSB v. El, 2019 US. Dist. LEXIS 205380, at *3-5 (D. Nev. Nov. 25, 2019) (Nevada district 27 || court granted a plaintiff's motion to stay discovery while motion to remand was pending); Hamrick 28 || v. Feldman, 2013 U.S. Dist. LEXIS 49608, at *7 (D. Nev. Apr. 5, 2013) (Nevada district court -3- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 || affirmed an order granting a stay of discovery due to the pendency of motion to remand). 2 The Parties agree that no prejudice will result by granting the stipulation to stay discovery 3 || at this juncture. The Parties agree that given that at this early stage in the litigation there is no 4 || scheduling order in place, a case management conference with the Court has not yet been scheduled, 5 || deadlines for fact and expert discovery have not yet been established, and Plaintiff's Motion is fully 6 || briefed, a stay is appropriate and would not result in prejudice to the Parties or limit their ability to 7 || conduct discovery in the event that the Court denies Plaintiff's Motion.
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1 || MICHAEL A. FEDERICO (SBN 005946) mfederico@ocgas.com 2 || OLSON CANNON GORMLEY & STOBERSKI 9950 West Cheyenne Avenue 3 || Las Vegas, Nevada 89129 Telephone: (702) 384-4012 4 || Facsimile: (702) 383-0701 5 || KELLEY S. OLAH (Pro Hac Vice) KOlah@btlaw.com 6 || NOUSHAN NOUREDDINI (Pro Hac Vice) NNoureddini@btlaw.com 7 || BARNES & THORNBURG LLP 2029 Century Park East, Suite 300 8 || Los Angeles, California 90067 Telephone: (310) 284-3880 9 || Facsimile: (310) 284-3894 10 || Attorneys for Defendants COSTCO WHOLESALE CORPORATION; 11 || MAPLEBEAR INC. d/b/a INSTACART 12 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 16 || KRISTINA A. BIENEK, an individual, Case No. 2:21-cv-02005-APG-DJA 17 Plaintiff, STIPULATION BETWEEN DEFENDANTS MAPLEBEAR INC. d/b/a INSTACART, 18 || v. COSTCO WHOLESALE CORPORATION, AFFINITYLIFESTYLES.COM, INC. d/b/a 19 || AFFINITYLIFESTYLES.COM, INC. d/b/a REAL WATER, AND REAL WATER INC. REAL WATER, a Nevada corporation; REAL AND PLAINTIFF KRISTINA A. BIENEK 20 || WATER INC., a Delaware Corporation; AND fPROPOSEDLORDER TO STAY COSTCO WHOLESALE CORP., a Delaware DISCOVERY 21 || Corporation; MAPLEBEAR, INC. d/b/a INSTACART, a Delaware Corporation; 22 || DOES 2 through 10, inclusive; ROE Complaint Filed: July 30, 2021 CORPORATIONS 11 through 20, inclusive; 23 || and ABC LIMITED LIABILITY COMPANIES 21 through 30, inclusive, 24 Defendants. 25 26 27 /// 28 || /// -l- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 RECITALS 2 Plaintiff Kristina A. Bienek (“Plaintiff”) and Defendants Maplebear Inc. d/b/a Instacart 3 || (“‘Instacart”), Costco Wholesale Corporation (“Costco”), AffinityLifestyles.com, Inc. d/b/a Real 4 || Water (“AffinityLifestyles.com, Inc.”), and Real Water Inc. (“Real Water”)! (collectively the 5 || “Parties”), by and through their respective counsel of record, do hereby stipulate and respectfully 6 || request an order staying all discovery in this matter pending resolution of Plaintiffs Motion to 7 || Remand to State Court [ECF Dkt. No. 18]. 8 On July 30, 2021, Plaintiff filed this matter in Eighth Judicial District Court, Clark County, 9 || Case No. A-21-838724-C. On November 5, 2021, Costco and Instacart removed this action to the 10 || United States District Court for the District of Nevada. See Petition for Removal [ECF Dkt. No. 1]. 11 || On November 26, 2021, Plaintiff filed a Motion to Remand to State Court (“Plaintiff's Motion”). 12 || See Plaintiff's Motion [ECF Dkt. No. 18]. On December 10, 2021, Costco and Instacart filed a 13 || response to Plaintiff's Motion. See Costco’s and Instacart’s Response [ECF Dkt. No. 21]. On 14 |} December 17, 2021, Plaintiff filed her reply brief in support of her Motion. See Plaintiff's Reply 15 || [ECF Dkt No. 25]. Plaintiffs Motion is fully briefed and remains pending before this Court. 16 On October 8, 2021, the United States Bankruptcy Court for the District of Nevada entered 17 || an Order Approving Stipulation Allowing Claimants Relief From The Automatic Stay To Liquidate 18 || Alleged Personal Injury Claims In State Court Litigation (ECF No. 16), which allowed 19 || AffinityLifestyles.com, Inc. and Real Water to proceed with discovery and evidence preservation. 20 || Costco, Instacart, and Plaintiff are likewise not precluded from preserving evidence. 21 Courts have broad discretionary power to control discovery including the decision to allow 22 || or deny discovery. See, e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In cases 23 || like this, a temporary stay of discovery will promote the goals of Rule 1 of the Federal Rules of 24 || Civil Procedure, “to secure the just, speedy, and inexpensive determination” of this action — 25 26 || | Nothing in this stipulation alters Costco’s and Instacart’s position, as stated in their Notice of Removal, ECF Dkt. No. 1, and their opposition to Plaintiff's Motion to Remand, ECF Dkt. No. 21, 27 || that AffinityLifestyles.com and Real Water have been deemed nominal defendants in this action by stipulation and court order and as a result, their citizenship should not be considered for purposes 28 || of determining diversity jurisdiction. -2- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 || conserving judicial resources and promoting a more efficient disposition of the threshold 2 || jurisdictional and venue issues, which should be made at the earliest stage of litigation. Moreover, 3 || under Rule 26(c)(1), a court may issue an order to protect a party or person from annoyance, 4 || embarrassment, oppression, or undue burden or expense, including forbidding discovery. Fed. R. 5 || Civ. P. 26(c)(1). 6 Although a pending motion to remand is “not ordinarily a situation that in and of itself 7 || would warrant a stay of discovery,” when the motion challenges jurisdiction or venue, or immunity, 8 || astay is proper. See Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. 9 || Nev. 1989); Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 10 || 1997); Hamrick v. Feldman, 2013 U.S. Dist. LEXIS 49608, at *7 (D. Nev. Apr. 5, 2013); see also 11 || Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011) (matters dealing with 12 || “preliminary issues of jurisdiction, venue, or immunity” typically warrant a stay of discovery). 13 Courts in this district have stayed discovery where, as here, a “preliminary peek” at the 14 |] merits of the pending motion demonstrated: “[f]irst, the pending motion must be potentially 15 || dispositive of the entire case or at least dispositive on the issue on which discovery is sought. 16 || Second, the court must determine whether the pending potentially dispositive motion can be 17 || decided without additional discovery.” Tradebay, LLC, 278 F.R.D. at 602. Further, this district 18 || has held that matters dealing with “preliminary issues of jurisdiction, venue, or immunity” typically 19 || warrant a stay of discovery. /d. at 603. Plaintiff's Motion raises threshold issues of whether or not 20 || this matter may even be heard in this forum and it will dictate the extent of any discovery necessary, 21 || if any. Accordingly, Plaintiff's Motion is dispositive. Further discovery is not needed to resolve 22 || Plaintiff's Motion. 23 Furthermore, this Court has wide discretion to control the conduct of pretrial discovery by 24 || any party to the action, and courts have routinely stayed pre-trial obligations, including merits 25 || discovery, when a motion to remand was pending before the court. See Wilmington Sav. Fund 26 || Soc'y FSB v. El, 2019 US. Dist. LEXIS 205380, at *3-5 (D. Nev. Nov. 25, 2019) (Nevada district 27 || court granted a plaintiff's motion to stay discovery while motion to remand was pending); Hamrick 28 || v. Feldman, 2013 U.S. Dist. LEXIS 49608, at *7 (D. Nev. Apr. 5, 2013) (Nevada district court -3- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 || affirmed an order granting a stay of discovery due to the pendency of motion to remand). 2 The Parties agree that no prejudice will result by granting the stipulation to stay discovery 3 || at this juncture. The Parties agree that given that at this early stage in the litigation there is no 4 || scheduling order in place, a case management conference with the Court has not yet been scheduled, 5 || deadlines for fact and expert discovery have not yet been established, and Plaintiff's Motion is fully 6 || briefed, a stay is appropriate and would not result in prejudice to the Parties or limit their ability to 7 || conduct discovery in the event that the Court denies Plaintiff's Motion. Therefore, in order to avoid 8 || the hardship or inequity the Parties would suffer should the case immediately proceed despite 9 || Plaintiff's Motion, the Parties stipulate to a limited stay of discovery in this action until the Court 10 || issues decisions on Plaintiff's Motion, such that discovery will be stayed with the exception that 11 |] the parties shall be permitted to continue their evidence preservation efforts. Proceeding in this 12 || manner would preserve both judicial and party resources and promote efficiency. 13 STIPULATION 14 IT IS HEREBY STIPULATED by and between the Parties as follows: 15 1. WHEREAS, discovery is stayed pending a decision on Plaintiffs Motion to 16 || Remand to State Court, with the exception that the parties shall be permitted to continue their 17 || ongoing efforts to preserve evidence. 18 2. WHEREAS, alternatively, in the event that the Court denies Plaintiff's Motion, the 19 |} Parties shall conduct an Rule 26(f) Conference and then submit a proposed Joint Discovery Plan 20 || and Scheduling Order within forty-five (45) days of the Court’s decision on Plaintiff's Motion. 21 3. WHEREAS, this Stipulation is made in good faith and to preserve the resources of 22 || the judicial system and the Parties, is not interposed for delay, and is not filed for an improper 23 || purpose. 24 IT IS SO STIPULATED. 25 || /// 26 || /// 27 | /// 28 || /// -4- Case No. 2:21-cv-02005-APG-DJA ~~ STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY _
1 || Dated: January 18, 2022 Dated: January 18, 2022 2 3 || By: /s/Andréa L. Vieira By: /s/ Noushan Noureddini Christian M. Morris (SBN 11218) Kelley S. Olah (Pro Hac Vice) 4 Andréa L. Vieira (SBN 15667) Noushan Noureddini (Pro Hac Vice) NETTLES | MORRIS BARNES & THORNBURG LLP 5 Attorneys for Plaintiff Michael A. Federico (SBN 005946) 6 KRISTINA A. BIENEK OLSON CANNON GORMLEY & STOBERSKI 7 Attorneys for Defendants 8 COSTCO WHOLESALE CORPORATION; MAPLEBEAR INC. 9 d/b/a INSTACART 10 11 || Dated: January 18, 2022 12 13 || By: /s/ Jason W. Williams Joel D. Odou 14 Jason W. Williams (SBN 8310) Xheni Ristani 15 L. Renee Green WOOD, SMITH, HENNING & 16 BERMAN LLP 17 Attomeys for Defendants AFFINITYLIFESTYLES.COM, INC. 18 d/b/a REAL WATER; REAL WATER INC. 19 20 21 22 23 24 25 26 27 28 -5- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
| PROPOSED ORDER 2 Pursuant to the Parties’ stipulated request, discovery is stayed pending a decision on Motion 3 || to Remand to State Court, with the exception that the parties shall be allowed to continue their 4 || evidence preservation efforts. Alternatively, in the event that the Court denies Plaintiff's Motion, 5 || the Parties shall conduct a Rule 26(f) Conference and then submit a proposed Joint Discovery Plan 6 || and Scheduling Order within forty-five (45) days of the Court’s decision on Plaintiff's Motion. 7 PURSUANT TO STIPULATION, IT IS SO ORDERED. 8 oe 9 || Dated: January 20, 2022 \ ) Daniel J. Albregts\ 10 United States Magistrate Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY
1 SIGNATURE ATTESTATION 2 I hereby attest that I have obtained the concurrence of Andréa L. Vieira, counsel for Plaintiff 3 || Kristina A. Bienek, and Jason W. Williams, counsel for Defendants AffinityLifestyles.com, Inc. 4 || and Real Water Inc., for the filing of this stipulation. 5 6 By: /s/ Noushan Noureddini 4 Noushan Noureddini 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Case No. 2:21-cv-02005-APG-DJA STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO STAY