1 G. MARK ALBRIGHT, ESQ. (#001394) JORGE L. ALVAREZ, ESQ. (#014466) 2 ALBRIGHT, STODDARD, WARNICK & ALBRIGHT 3 801 South Rancho Drive, Suite D-4 Las Vegas, Nevada 89106 4 Tel: (702) 384-7111 Fax: (702) 384-0605 5 gma@albrightstoddard.com jalvarez@albrightstoddard.com 6 JOE JOHN ANDREW SOLSENG, ESQ. (NBN 11717) 7 SCHROETER GOLDMARK & BENDER 810 Third Avenue, Suite 500 8 Seattle, Washington 98104 Tel: 206-622-8000 9 Fax: 206-682-2305 10 solseng@sgb-law.com
11 Attorneys for Plaintiffs James and Pamela Coffee
12 UNITED STATES DISTRICT COURT
13 DISTRICT OF NEVADA
14 JAMES COFFEE, an Individual, and PAMELA CASE NO.: 2:20-CV-1352-APG-DJA 15 COFFEE, an Individual,
16 Plaintiffs, UNOPPOSED MOTION TO EXTEND CERTAIN DISCOVERY DEADLINES 17 vs. AND AMEND DISCOVERY PLAN AND SCHEDULING ORDER [ECF NO. 18 WYNDHAM RESORT DEVELOPMENT CORP., 27] WORLDMARK, THE CLUB, a California 19 Corporation, and DOES 1 THROUGH 40, [FIRST REQUEST] 20 INCLUSIVE,
Defendants 21
22 Plaintiffs JAMES COFFEE and PAMELA COFFEE (collectively, “Plaintiffs” or the 23 “Coffees”), by and through their respective counsel of record, hereby move this Court to extend 24 certain discovery deadlines by 90 days and issue an Amended Discovery Plan and Scheduling Order 25 in this matter. This Motion is filed as unopposed because Defendants WYNDHAM RESORT 26 DEVELOPMENT CORP. and WORLDMARK, THE CLUB, a California Corporation 1 the interest of all parties to diligently conduct necessary discovery and will not unduly delay these
2 proceedings, and therefore, Defendants, through their counsel, consent to the discovery extension 3 as requested in this Motion. 4 This is the first request to extend the discovery deadlines in this matter. MEMORANDUM AND POINTS AND AUTHORITIES 5 Federal Rule 16(b)4 allows the Court to grant discovery modifications for good cause. See 6 7 also Local Rule 26–4. The good cause inquiry focuses primarily on the movant's diligence. See 8 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294–95 (9th Cir.2000). Good cause to extend a 9 discovery deadline exists “if it cannot reasonably be met despite the diligence of the party seeking 10 the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992) (internal 11 citation and quotations omitted). While prejudice to the opposing party may also be considered, 12 where the movant “fail[s] to show diligence, ‘the inquiry should end.’ Coleman, 232 F.3d at 1295 13 (quoting Johnson, 975 F.2d at 609). The Court has broad discretion in supervising the pretrial phase 14 of litigation. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.2002). 15 In addition, requests to extend a discovery deadline filed less than 21 days before the 16 17 expiration of that particular deadline must be supported by a showing of excusable neglect. See 18 Local Rule 26–4.2 The Ninth Circuit has held that “the determination of whether neglect is 19 excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the 20 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason 21 for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Service, 231 22 F.3d 1220, 1223–24 (9th Cir.2000) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. 23 Partnership, 507 U.S. 380, 395 (1993)). 24 Plaintiffs submit that good cause exists to extend certain discovery deadlines. The COVID- 25 19 pandemic and related stay at home directives have affected both sides and their ability to conduct 26 discovery, including depositions. In recognition of this directive, and in consideration of the 1 participation of individuals in higher-risk age or health categories), the parties reached an agreement that a 90-day extension to the current pretrial deadlines is necessary. In addition, the Defendants 2 3 herein filed a Motion to Dismiss on or about September 16, 2020 [ECF No. 23], which seeks 4 dismissal of each of every cause of action asserted in Plaintiff’s First Amended Complaint. 5 Plaintiffs filed an Opposition on October 13, 2020 [ECF No. 32]. Defendants filed a Reply on 6 October 20, 2020 [ECF No. 33]. The Motion to Dismiss is fully briefed and the Parties are awaiting 7 the Court’s decision on said Motion. In light of the foregoing, the scope of discovery necessary for 8 this action is unknown as the claims may be substantially narrowed. To save time and resources 9 and the costs associated with discovery, the Parties only conducted limited discovery until this Court 10 rules on the motions to dismiss. In addition, the parties will be diligent with the additional time they 11 are provided and will endeavor to complete all necessary discovery if this extension is granted. The 12 length of the requested extension should not result in prejudice to any party. 13 As it relates to the expert disclosure deadlines, the requested extension is not being made 14 15 within twenty-one (21) days of the current initial expert disclosure deadline, December 10, 2020 16 pursuant to LR 26-4; however, good cause and excusable neglect exists. A finding of excusable 17 neglect is warranted where the parties postpone to conduct expert discovery to save judicial 18 resources, expert costs, and attorney’s fees. See Pac. Indem. Co. v. Nidec Motor Corp., 203 F. Supp. 19 3d 1092, 1098 (D. Nev. 2016)(finding excusable neglect warranted to extend expert disclosure 20 deadlines where the parties were attempting to settle without the need to expend resources on costly 21 expert reports but were unable to do so by disclosure deadline”). Here, the parties acted in good 22 faith and with the joint objective to save time and fees, including expert costs as there is a pending 23 motion that seeks to dismiss Plaintiffs’ claims in their entirety and/or may substantially narrow the 24 issues upon which discovery and expert testimony may be needed. In addition, delays caused by the 25 26 COVID-19 pandemic have further impeded the parties’ ability to complete expert discovery. 1 This is the first such extension of discovery sought in this matter. This requested extension should be granted as good cause exists and there will be no prejudice or undue delay to any of the 2 3 parties. 4 This Motion should be granted without hearing as the Defendants do not oppose but are in 5 agreement to extend discovery deadlines by 90 days. 6 DISCOVERY COMPLETED 7 The Joint Discovery Plan and Scheduling Order was entered herein on September 18, 2020 8 [ECF No. 27]. Plaintiffs provided their Initial Disclosures on September 24, 2020, and a Supplement 9 thereto on October 5, 2020, which included Plaintiff’s computation of damages. Defendants served 10 their Initial Disclosures on September 24, 2020. Plaintiffs served their First Set of Interrogatories 11 and First Set of Requests for Production of Documents to Defendants on December 23, 2020. 12 DISCOVERY THAT REMAINS TO BE COMPLETED 13 The parties intend to serve written discovery on each other and the Parties continue to 14 anticipate that they will be requesting to take at least 4 depositions. Defendants have expressed that 15 they would like to take in-person depositions in this matter, thus additional time is needed in light 16 of certain Covid-19 restrictions and preferences.
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1 G. MARK ALBRIGHT, ESQ. (#001394) JORGE L. ALVAREZ, ESQ. (#014466) 2 ALBRIGHT, STODDARD, WARNICK & ALBRIGHT 3 801 South Rancho Drive, Suite D-4 Las Vegas, Nevada 89106 4 Tel: (702) 384-7111 Fax: (702) 384-0605 5 gma@albrightstoddard.com jalvarez@albrightstoddard.com 6 JOE JOHN ANDREW SOLSENG, ESQ. (NBN 11717) 7 SCHROETER GOLDMARK & BENDER 810 Third Avenue, Suite 500 8 Seattle, Washington 98104 Tel: 206-622-8000 9 Fax: 206-682-2305 10 solseng@sgb-law.com
11 Attorneys for Plaintiffs James and Pamela Coffee
12 UNITED STATES DISTRICT COURT
13 DISTRICT OF NEVADA
14 JAMES COFFEE, an Individual, and PAMELA CASE NO.: 2:20-CV-1352-APG-DJA 15 COFFEE, an Individual,
16 Plaintiffs, UNOPPOSED MOTION TO EXTEND CERTAIN DISCOVERY DEADLINES 17 vs. AND AMEND DISCOVERY PLAN AND SCHEDULING ORDER [ECF NO. 18 WYNDHAM RESORT DEVELOPMENT CORP., 27] WORLDMARK, THE CLUB, a California 19 Corporation, and DOES 1 THROUGH 40, [FIRST REQUEST] 20 INCLUSIVE,
Defendants 21
22 Plaintiffs JAMES COFFEE and PAMELA COFFEE (collectively, “Plaintiffs” or the 23 “Coffees”), by and through their respective counsel of record, hereby move this Court to extend 24 certain discovery deadlines by 90 days and issue an Amended Discovery Plan and Scheduling Order 25 in this matter. This Motion is filed as unopposed because Defendants WYNDHAM RESORT 26 DEVELOPMENT CORP. and WORLDMARK, THE CLUB, a California Corporation 1 the interest of all parties to diligently conduct necessary discovery and will not unduly delay these
2 proceedings, and therefore, Defendants, through their counsel, consent to the discovery extension 3 as requested in this Motion. 4 This is the first request to extend the discovery deadlines in this matter. MEMORANDUM AND POINTS AND AUTHORITIES 5 Federal Rule 16(b)4 allows the Court to grant discovery modifications for good cause. See 6 7 also Local Rule 26–4. The good cause inquiry focuses primarily on the movant's diligence. See 8 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294–95 (9th Cir.2000). Good cause to extend a 9 discovery deadline exists “if it cannot reasonably be met despite the diligence of the party seeking 10 the extension.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir.1992) (internal 11 citation and quotations omitted). While prejudice to the opposing party may also be considered, 12 where the movant “fail[s] to show diligence, ‘the inquiry should end.’ Coleman, 232 F.3d at 1295 13 (quoting Johnson, 975 F.2d at 609). The Court has broad discretion in supervising the pretrial phase 14 of litigation. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir.2002). 15 In addition, requests to extend a discovery deadline filed less than 21 days before the 16 17 expiration of that particular deadline must be supported by a showing of excusable neglect. See 18 Local Rule 26–4.2 The Ninth Circuit has held that “the determination of whether neglect is 19 excusable is an equitable one that depends on at least four factors: (1) the danger of prejudice to the 20 opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason 21 for the delay; and (4) whether the movant acted in good faith.” Bateman v. U.S. Postal Service, 231 22 F.3d 1220, 1223–24 (9th Cir.2000) (citing Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. 23 Partnership, 507 U.S. 380, 395 (1993)). 24 Plaintiffs submit that good cause exists to extend certain discovery deadlines. The COVID- 25 19 pandemic and related stay at home directives have affected both sides and their ability to conduct 26 discovery, including depositions. In recognition of this directive, and in consideration of the 1 participation of individuals in higher-risk age or health categories), the parties reached an agreement that a 90-day extension to the current pretrial deadlines is necessary. In addition, the Defendants 2 3 herein filed a Motion to Dismiss on or about September 16, 2020 [ECF No. 23], which seeks 4 dismissal of each of every cause of action asserted in Plaintiff’s First Amended Complaint. 5 Plaintiffs filed an Opposition on October 13, 2020 [ECF No. 32]. Defendants filed a Reply on 6 October 20, 2020 [ECF No. 33]. The Motion to Dismiss is fully briefed and the Parties are awaiting 7 the Court’s decision on said Motion. In light of the foregoing, the scope of discovery necessary for 8 this action is unknown as the claims may be substantially narrowed. To save time and resources 9 and the costs associated with discovery, the Parties only conducted limited discovery until this Court 10 rules on the motions to dismiss. In addition, the parties will be diligent with the additional time they 11 are provided and will endeavor to complete all necessary discovery if this extension is granted. The 12 length of the requested extension should not result in prejudice to any party. 13 As it relates to the expert disclosure deadlines, the requested extension is not being made 14 15 within twenty-one (21) days of the current initial expert disclosure deadline, December 10, 2020 16 pursuant to LR 26-4; however, good cause and excusable neglect exists. A finding of excusable 17 neglect is warranted where the parties postpone to conduct expert discovery to save judicial 18 resources, expert costs, and attorney’s fees. See Pac. Indem. Co. v. Nidec Motor Corp., 203 F. Supp. 19 3d 1092, 1098 (D. Nev. 2016)(finding excusable neglect warranted to extend expert disclosure 20 deadlines where the parties were attempting to settle without the need to expend resources on costly 21 expert reports but were unable to do so by disclosure deadline”). Here, the parties acted in good 22 faith and with the joint objective to save time and fees, including expert costs as there is a pending 23 motion that seeks to dismiss Plaintiffs’ claims in their entirety and/or may substantially narrow the 24 issues upon which discovery and expert testimony may be needed. In addition, delays caused by the 25 26 COVID-19 pandemic have further impeded the parties’ ability to complete expert discovery. 1 This is the first such extension of discovery sought in this matter. This requested extension should be granted as good cause exists and there will be no prejudice or undue delay to any of the 2 3 parties. 4 This Motion should be granted without hearing as the Defendants do not oppose but are in 5 agreement to extend discovery deadlines by 90 days. 6 DISCOVERY COMPLETED 7 The Joint Discovery Plan and Scheduling Order was entered herein on September 18, 2020 8 [ECF No. 27]. Plaintiffs provided their Initial Disclosures on September 24, 2020, and a Supplement 9 thereto on October 5, 2020, which included Plaintiff’s computation of damages. Defendants served 10 their Initial Disclosures on September 24, 2020. Plaintiffs served their First Set of Interrogatories 11 and First Set of Requests for Production of Documents to Defendants on December 23, 2020. 12 DISCOVERY THAT REMAINS TO BE COMPLETED 13 The parties intend to serve written discovery on each other and the Parties continue to 14 anticipate that they will be requesting to take at least 4 depositions. Defendants have expressed that 15 they would like to take in-person depositions in this matter, thus additional time is needed in light 16 of certain Covid-19 restrictions and preferences. 17 Based on the filing of the Defendants’ Motion to Dismiss which seeks dismissal of Plaintiffs’ 18 entire First Amended Complaint, the Parties conducted only a limited amount of discovery to date. 19 Based thereon, Plaintiffs seek the additional 90 days so that, should the Court deny the Motion to 20 Dismiss, they have enough time to complete the discovery that they have largely put on hold. In 21 addition, delays caused by the COVID-19 pandemic have further impeded the parties’ ability to 22 complete discovery. 23 PROPOSED SCHEDULING ORDER 24 Plaintiffs propose, and Defendants have consented, that the Joint Discovery Plan and 25 Scheduling Order [ECF No. 27] shall be amended as follows, with all other stipulations therein remaining unchanged: 26 1 b. Amending the Pleadings and Adding Parties: This deadline has already
2 expired and shall not be extended. 3 c. Initial Expert Disclosure: March 11, 2021 (formerly December 10, 2020) 4 a. Rebuttal Expert Disclosure: April 12, 2021 (formerly January 11, 2021) d. Dispositive Motions: June 9, 2021 (formerly March 10, 2021) 5 e. Pretrial Order: July 9, 2021 (formerly April 9, 2021), unless pursuant to LR 6 26.1(e)(5), if dispositive motions are filed, this date will be suspended until 7 30 days after decision on the dispositive motions or further order of the Court. 8 Therefore, Plaintiffs, with the consent of Defendants, respectfully request that the Court 9 enter an order approving the proposed discovery schedule as set forth above. 10 11 DATED this 30th day of December, 2020. ALBRIGHT, STODDARD, WARNICK 12 & ALBRIGHT
13 /s/ Jorge L. Alvarez, Esq. 14 G. MARK ALBRIGHT, ESQ., #1394 JORGE L. ALVAREZ, ESQ., #14466 15 801 South Rancho Drive, Suite D4 Las Vegas, Nevada 89106 16 T: 702.384.7111 / F: 702.384.0605 Attorneys for Plaintiffs 17
18 ORDER 19 IT IS HEREBY ORDERED that the current Discovery Plan and Scheduling Order be 20 amended as follows: 21 a. Discovery Cut-Off Date: May 10, 2021 (formerly February 8, 2021) 22 b. Amending the Pleadings and Adding Parties: This deadline has already 23 expired and shall not be extended. 24 c. Initial Expert Disclosure: March 11, 2021 (formerly December 10, 2020) 25 a. Rebuttal Expert Disclosure: April 12, 2021 (formerly January 11, 2021) 26 d. Dispositive Motions: June 9, 2021 (formerly March 10, 2021) 1 e. Pretrial Order: July 9, 2021 (formerly April 9, 2021), unless pursuant to L 2 26.1(e)(5), if dispositive motions are filed, this date will be suspended unt 3 30 days after decision on the dispositive motions or further order of the Cour 4 IT IS FURTHER ORDERED that requests to extend any dates set forth by this Discover 5 Plan and Scheduling Order shall, in addition to satisfying the requirements of LR 6-1, be supporte 6 by a showing of good cause for the extension. All motions and stipulations shall be received no lat 7 than 20 days before the discovery cut-off date, or no later than May 19, 2021, and shall fully comp! 26-3 8 with the requirements of LR 26-4. The Court reserves the right to conduct a status check conferenc
9 for any requests to extend the discovery. IT IS SO ORDERED.
A (YO 12 UNITED STATES MAGISTRATE JUDGE
DATE: January 15, 2021 14
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