Nevada Bar No. 09274 Nevada Bar No. 10106 1050 Indigo Drive, Suite 200B Las Vegas, Nevada 89145 Telephone: 702.910.3329 Facsimile: 702.553.3467 jwiley@wileypetersenlaw.com dkidd@wileypetersenlaw.com Attorneys for Plaintiff City Bay Capital LLC CITY BAY CAPITAL LLC, a New York limited CASE NO.: 2:21-cv-01790-RFB-EJY liability company, STIPULATION AND ORDER TO Plaintiff, EXTEND DISCOVERY DEADLINES v. BH&G HOLDINGS, LLC, a Nevada limited [SEVENTH REQUEST] liability company; BH&G ENTERPRISES, LLC, a Nevada limited liability company; GREEN MESA CAPITAL LLC, a Nevada limited liability company; MGP APEX 582 DEVELOPMENT, LLC formerly known as GMC APEX 582 DEVELOPMENT, LLC, a Nevada limited liability company; MGP APEX 582 GUARANTY, LLC formerly known as GMC APEX 582 GUARANTY, LLC, a Nevada limited liability company; MGP APEX 582 MULTIFAMILY, LLC formerly known as GMC APEX 582 MULTIFAMILY, LLC, a Nevada limited liability company; MULTIGREEN PROPERTIES, LLC, a Nevada limited liability company; TRU DEVELOPMENT LLC, a Nevada limited liability company; and DOES 1 through 50, inclusive, Defendants. Pursuant to Fed. R. Civ. P. 26(f) and Local Rule 26-4, City Bay Capital LLC (“Plaintiff”), by and through its attorneys of record, Jason M. Wiley, Esq. of the law firm Wiley Petersen; and Defendants BH&G Holdings, LLC, BH&G Enterprises LLC, Green Mesa Capital LLC, MGP Apex MultiGreen Properties, LLC, and Tru Development LLC (collectively, “Defendants”), by and through their attorneys of record, Karen L. Bashor, Esq. and I-Che Lai, Esq. of the law firm Wilson Elser Moskowitz Edelman & Dicker LLP and Bethany W. Kristovich, Esq. and James R. Salzmann, Esq. of the law firm Munger, Tolles & Olson LLP, hereby stipulate to amend the May 12, 2023 Scheduling Order (ECF No. 55) to extend the remaining discovery schedule by ninety (90) days. The parties have engaged in the following discovery: 1. Plaintiff served several third parties with subpoenas duces tecum; 2. Defendants produced a Supplemental Declaration of Randy C. Norton and documents in furtherance of jurisdictional discovery (ECF No. 12); 3. Plaintiff served in furtherance of jurisdictional discovery a subpoena to testify at a deposition in a civil action and a subpoena duces tecum upon Ricardo Alberto Melero, with Mr. Melero’s appearance and production of documents scheduled for September 30, 2022, at 10:00 AM in Orlando, Florida. Due (initially) to Hurricane Ian’s impact and the parties’ engagement in settlement negotiations, Mr. Melero’s deposition was postponed; 4. On March 9, 2023, Plaintiff took the deposition of Ricardo Alberto Melero; 5. On April 10, 2023, the parties, along with Trez Capital, submitted a Stipulated Protective Order regarding documents to be disclosed by Trez Capital in furtherance of jurisdictional discovery. (ECF No. 52). The Court issued its Order Granting Stipulated Protective Order that same day. (ECF No. 53); 6. Plaintiff received and reviewed documents responsive to subpoenas duces tecum from Trez Capital in furtherance of jurisdiction discovery on April 12, 2023; 7. Defendants propounded their First Set of Interrogatories to Plaintiff on August 18, 2023; and 8. On August 18, 2023, Defendants filed their Notice of Deposition of Plaintiff’s FRCP 30(b)(6) Designee to take place on September 18, 2023, in Los Angeles, CA, together with a Request for Documents. The following discovery is still anticipated: 1. Initial disclosures by all parties pursuant to Fed. R. Civ. P. 26; 2. Deposition of Tim Deters, CEO of Defendant Tru Development; 3. Deposition of Randy Norton, CEO of Defendants MultiGreen Properties, LLC and Green Mesa Capital LLC; 4. Deposition of Michael Zysman, Managing Principal of Plaintiff; 4. Disclosure of expert witnesses and depositions of expert witnesses; 5. Written discovery to Defendants Green Mesa Capital LLC, MGP Apex 582 Development, LLC; MGP Apex 582 Guaranty, LLC; MGP Apex 582, Multifamily, LLC, MultiGreen Properties, LLC, and Tru Development LLC. 6. Additional third-party subpoenas duces tecum and for depositions (as needed); and 7. Potential motion practice to compel the production of documents (or otherwise unsatisfactory discovery responses), may also be needed. III. THE REASONS WHY THE REMAINING DISCOVERY HAS NOT BEEN This is the seventh request for an extension of the discovery deadlines. However, the parties’ first three requests related only to an extension of the jurisdictional discovery deadline. (ECF No. 54). This is the fourth request to continue the complete set of discovery deadlines. Id. All prior requests for extensions of discovery deadlines were completed through a stipulation between the parties. Pursuant to LR 26-3, if the parties are requesting the extension of discovery deadlines within 21 days of the subject deadline, the request must be supported by a showing of good cause. Here, good cause exists in order to extend the remaining discovery deadlines. The parties have been diligently pursuing both fact and jurisdictional discovery as evidenced by the completed discovery outlined above. However, on August 9, 2023, an involuntary petition pursuant to 11 U.S.C. § 303 was filed as to Defendant BH&G Holdings, LLC in the United States Bankruptcy Court for the District of Nevada, automatically staying the action as to that Defendant. (ECF No. 63). A status hearing on the bankruptcy current discovery deadlines will allow the parties to conduct the remaining discovery, while also allowing for discovery pursuant to the outcome of the September 12th hearing and further bankruptcy proceedings. Additionally, the parties are currently attempting to resolve the pending jurisdictional challenges through the motion work. (ECF Nos. 56, 57, 58, 60, 64 and 68). Hearing on this matter has not yet been set. Finally, Plaintiff anticipates objecting to the previously noticed deposition of Plaintiff’s FRCP 30(b)(6) Designee as there is nothing on record to compel such a deposition to take place as it is currently set. Also pursuant to LR 26-3, a request made after the expiration of the subject deadline will not be granted absent a showing that the failure to act was a result of excusable neglect. In evaluating excusable neglect, the Court considers the following factors: (a) the reason for the delay and whether it was in the reasonable control of the moving party; (b) whether the moving party acted in good faith; (c)the length of the delay and its potential impact on the proceedings; and (d) the danger of prejudice to the nonmoving party. Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Here, the failure to act within the 21-day time period was justified. Plaintiff initially filed its Motion to Extend Discovery Deadlines (ECF No. 67) within the 21-day window of the subject deadline on August 28, 2023. Following this filing, the parties were able to come to an agreement on a stipulation to extend the discovery deadlines and the motion was withdrawn on September 11, 2023. (ECF No. 69). Furthermore, because this extension request is made jointly by the parties, there is no danger of prejudice. Based on the foregoing, the good cause exists to extend the discovery deadlines and excusable neglect exists as to why this request was not made sooner. This request is not sought for delay or any other improper purpose. //
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Nevada Bar No. 09274 Nevada Bar No. 10106 1050 Indigo Drive, Suite 200B Las Vegas, Nevada 89145 Telephone: 702.910.3329 Facsimile: 702.553.3467 jwiley@wileypetersenlaw.com dkidd@wileypetersenlaw.com Attorneys for Plaintiff City Bay Capital LLC CITY BAY CAPITAL LLC, a New York limited CASE NO.: 2:21-cv-01790-RFB-EJY liability company, STIPULATION AND ORDER TO Plaintiff, EXTEND DISCOVERY DEADLINES v. BH&G HOLDINGS, LLC, a Nevada limited [SEVENTH REQUEST] liability company; BH&G ENTERPRISES, LLC, a Nevada limited liability company; GREEN MESA CAPITAL LLC, a Nevada limited liability company; MGP APEX 582 DEVELOPMENT, LLC formerly known as GMC APEX 582 DEVELOPMENT, LLC, a Nevada limited liability company; MGP APEX 582 GUARANTY, LLC formerly known as GMC APEX 582 GUARANTY, LLC, a Nevada limited liability company; MGP APEX 582 MULTIFAMILY, LLC formerly known as GMC APEX 582 MULTIFAMILY, LLC, a Nevada limited liability company; MULTIGREEN PROPERTIES, LLC, a Nevada limited liability company; TRU DEVELOPMENT LLC, a Nevada limited liability company; and DOES 1 through 50, inclusive, Defendants. Pursuant to Fed. R. Civ. P. 26(f) and Local Rule 26-4, City Bay Capital LLC (“Plaintiff”), by and through its attorneys of record, Jason M. Wiley, Esq. of the law firm Wiley Petersen; and Defendants BH&G Holdings, LLC, BH&G Enterprises LLC, Green Mesa Capital LLC, MGP Apex MultiGreen Properties, LLC, and Tru Development LLC (collectively, “Defendants”), by and through their attorneys of record, Karen L. Bashor, Esq. and I-Che Lai, Esq. of the law firm Wilson Elser Moskowitz Edelman & Dicker LLP and Bethany W. Kristovich, Esq. and James R. Salzmann, Esq. of the law firm Munger, Tolles & Olson LLP, hereby stipulate to amend the May 12, 2023 Scheduling Order (ECF No. 55) to extend the remaining discovery schedule by ninety (90) days. The parties have engaged in the following discovery: 1. Plaintiff served several third parties with subpoenas duces tecum; 2. Defendants produced a Supplemental Declaration of Randy C. Norton and documents in furtherance of jurisdictional discovery (ECF No. 12); 3. Plaintiff served in furtherance of jurisdictional discovery a subpoena to testify at a deposition in a civil action and a subpoena duces tecum upon Ricardo Alberto Melero, with Mr. Melero’s appearance and production of documents scheduled for September 30, 2022, at 10:00 AM in Orlando, Florida. Due (initially) to Hurricane Ian’s impact and the parties’ engagement in settlement negotiations, Mr. Melero’s deposition was postponed; 4. On March 9, 2023, Plaintiff took the deposition of Ricardo Alberto Melero; 5. On April 10, 2023, the parties, along with Trez Capital, submitted a Stipulated Protective Order regarding documents to be disclosed by Trez Capital in furtherance of jurisdictional discovery. (ECF No. 52). The Court issued its Order Granting Stipulated Protective Order that same day. (ECF No. 53); 6. Plaintiff received and reviewed documents responsive to subpoenas duces tecum from Trez Capital in furtherance of jurisdiction discovery on April 12, 2023; 7. Defendants propounded their First Set of Interrogatories to Plaintiff on August 18, 2023; and 8. On August 18, 2023, Defendants filed their Notice of Deposition of Plaintiff’s FRCP 30(b)(6) Designee to take place on September 18, 2023, in Los Angeles, CA, together with a Request for Documents. The following discovery is still anticipated: 1. Initial disclosures by all parties pursuant to Fed. R. Civ. P. 26; 2. Deposition of Tim Deters, CEO of Defendant Tru Development; 3. Deposition of Randy Norton, CEO of Defendants MultiGreen Properties, LLC and Green Mesa Capital LLC; 4. Deposition of Michael Zysman, Managing Principal of Plaintiff; 4. Disclosure of expert witnesses and depositions of expert witnesses; 5. Written discovery to Defendants Green Mesa Capital LLC, MGP Apex 582 Development, LLC; MGP Apex 582 Guaranty, LLC; MGP Apex 582, Multifamily, LLC, MultiGreen Properties, LLC, and Tru Development LLC. 6. Additional third-party subpoenas duces tecum and for depositions (as needed); and 7. Potential motion practice to compel the production of documents (or otherwise unsatisfactory discovery responses), may also be needed. III. THE REASONS WHY THE REMAINING DISCOVERY HAS NOT BEEN This is the seventh request for an extension of the discovery deadlines. However, the parties’ first three requests related only to an extension of the jurisdictional discovery deadline. (ECF No. 54). This is the fourth request to continue the complete set of discovery deadlines. Id. All prior requests for extensions of discovery deadlines were completed through a stipulation between the parties. Pursuant to LR 26-3, if the parties are requesting the extension of discovery deadlines within 21 days of the subject deadline, the request must be supported by a showing of good cause. Here, good cause exists in order to extend the remaining discovery deadlines. The parties have been diligently pursuing both fact and jurisdictional discovery as evidenced by the completed discovery outlined above. However, on August 9, 2023, an involuntary petition pursuant to 11 U.S.C. § 303 was filed as to Defendant BH&G Holdings, LLC in the United States Bankruptcy Court for the District of Nevada, automatically staying the action as to that Defendant. (ECF No. 63). A status hearing on the bankruptcy current discovery deadlines will allow the parties to conduct the remaining discovery, while also allowing for discovery pursuant to the outcome of the September 12th hearing and further bankruptcy proceedings. Additionally, the parties are currently attempting to resolve the pending jurisdictional challenges through the motion work. (ECF Nos. 56, 57, 58, 60, 64 and 68). Hearing on this matter has not yet been set. Finally, Plaintiff anticipates objecting to the previously noticed deposition of Plaintiff’s FRCP 30(b)(6) Designee as there is nothing on record to compel such a deposition to take place as it is currently set. Also pursuant to LR 26-3, a request made after the expiration of the subject deadline will not be granted absent a showing that the failure to act was a result of excusable neglect. In evaluating excusable neglect, the Court considers the following factors: (a) the reason for the delay and whether it was in the reasonable control of the moving party; (b) whether the moving party acted in good faith; (c)the length of the delay and its potential impact on the proceedings; and (d) the danger of prejudice to the nonmoving party. Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 S.Ct. 1489, 123 L.Ed.2d 74 (1993). Here, the failure to act within the 21-day time period was justified. Plaintiff initially filed its Motion to Extend Discovery Deadlines (ECF No. 67) within the 21-day window of the subject deadline on August 28, 2023. Following this filing, the parties were able to come to an agreement on a stipulation to extend the discovery deadlines and the motion was withdrawn on September 11, 2023. (ECF No. 69). Furthermore, because this extension request is made jointly by the parties, there is no danger of prejudice. Based on the foregoing, the good cause exists to extend the discovery deadlines and excusable neglect exists as to why this request was not made sooner. This request is not sought for delay or any other improper purpose. // // // // Except as indicated, the parties agree to the following proposed new deadlines: EVENT CURRENT PROPOSED NEW DEADLINE DATE Dispositive Motions 10/18/2023 1/15/2024 Discovery Cutoff 9/18/2023 12/15/2023 Joint Pretrial Order 11/15/2023, or 30 days 2/12/2024, or 30 days after resolution of after resolution of dispositive motions or dispositive motions or further order of the further order of the Court Court DATED this 12th day of September 2023. DATED this 12th day of September 2023. WILEY PETERSEN MUNGER, TOLLES & OLSON LLP /s/ Jason M. Wiley /s/ Bethany W. Kristovich ______________________________ ________________________________ JASON M. WILEY, ESQ. Bethany W. Kristovich, Esq. (PHV) Nevada Bar No. 9274 James R. Salzmann, Esq. (PHV) RYAN S. PETERSEN, ESQ. Nevada Bar No. 10715 350 South Grand Avenue, 50th Floor Los Angeles, California 90071-3426 1050 Indigo Drive, Suite 200B Las Vegas, Nevada 89145 Tel.: (213) 683-9100 / Fax: (213) 687-3702 Telephone: 702.910.3329 Email: bethany.kristovich@mto.com jwiley@wileypetersenlaw.com james.salzmann@mto.com rpetersen@wileypetersenlaw.com Karen L. Bashor, Esq. (NBN 11913) Attorneys for Plaintiff WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 6689 Las Vegas Blvd. South, Suite 200 Las Vegas, Nevada 89119 Tel.: (702) 727-1400 / Fax: (702) 727-1401 Email: karen.bashor@wilsonelser.com Attorneys for Defendants IT IS SO ORDERED: DATED: September 12, 2023 UNITED STATES MAGISTRATE JUDGE