Boware v. Levi Strauss Distribution Center

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Brandon Boware, Case No. 2:24-cv-01139-RFB-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation Levi Strauss Distribution Center, 9 Defendant. 10 11 This is an employment action arising out of pro se Plaintiff Brandon Boware’s 12 employment with Defendant Levi Strauss Distribution Center. Plaintiff sues Defendant for 13 damages and injunctive relief, alleging claims for hostile work environment, workplace 14 harassment, retaliation, and negligence. (ECF No. 1-1). Defendant moves to dismiss the 15 complaint. (ECF No. 5). Defendant also moves for a more definite statement with respect to 16 Plaintiff’s fourth cause of action, asking that the Court order Plaintiff to file an amended 17 complaint. (ECF No. 6). Finally, Defendant filed a one-sided proposed discovery plan, 18 explaining that Plaintiff refused to meet and confer with Defendant. (ECF No. 12). Plaintiff has 19 not responded to any of Defendant’s motions. 20 Discussion 21 I. Motion to dismiss and motion for more definite statement. 22 Under Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities 23 in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s 24 fees, constitutes a consent to the granting of the motion.” Plaintiff did not respond to Defendant’s 25 motion to dismiss, constituting his consent to the Court granting it. The Court thus recommends 26 granting Defendant’s motion to dismiss and providing Plaintiff with leave to amend his 27 complaint. Because granting the motion to dismiss would moot the motion for more definite 1 II. Proposed discovery plan. 2 Plaintiff has also failed to respond to Defendant’s proposed discovery plan. The Court 3 thus grants in part and denies in part Defendant’s proposed plan. The Court denies it in part only 4 to remove the sentence in paragraph C stating that “before moving for an order relating to 5 discovery after complying with the Federal Rules of Civil Procedure and applicable Local Rules 6 of this District, the moving party must request a status conference with the Court pursuant to Fed. 7 R. Civ. P. 16(b)(3)(v).” (ECF No. 12 at 3). Otherwise, the Court grants the proposed plan. 8 9 Order 10 IT IS THEREFORE ORDERED that Defendant’s proposed discovery plan (ECF No. 11 12) is granted in part and denied in part. It is denied in part to the extent it requires the parties 12 to request a status conference with the Court before filing a discovery motion. It is granted in all 13 other respects. The following deadlines shall govern discovery: 14 15 Amend pleadings/add parties: September 27, 2024 16 Expert disclosures: October 28, 2024 17 Rebuttal expert disclosures: November 26, 2024 18 Close of discovery: December 26, 2024 19 Dispositive motions: January 27, 2025 20 Pretrial order: February 26, 2025 21 22 IT IS FURTHER ORDERED that the Clerk’s office is kindly directed to send a copy of 23 this order and report and recommendation to Plaintiff. 24 25 Recommendation 26 IT IS THEREFORE RECOMMENDED that Defendant’s motion to dismiss (ECF No. 27 5) be granted and Plaintiff be given leave to amend his complaint. 1 IT IS FURTHER RECOMMENDED that Defendant’s motion for more definite 2 statement (ECF No. 6) be denied as moot. 3 4 Notice 5 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 6 in writing and filed with the Clerk of the Court within fourteen days after service of this Notice. 7 The Supreme Court has held that the courts of appeal may determine that an appeal has been 8 waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 9 140, 142 (1985), reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that (1) 10 failure to file objections within the specified time and (2) failure to properly address and brief the 11 objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 12 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 13 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 14 15 DATED: August 29, 2024 16 17 DANIEL J. ALBREGTS 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27