Corey Eisenberg v. Marriott International, Inc.

• Court: District Court, D. Nevada
• Decided: March 18, 2026
• Docket: 2:25-cv-00208
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 Corey Eisenberg, Case No. 2:25-cv-00208-RFB-NJK 6 Plaintiff, Order 7 v. [Docket No. 33] 8 Marriott International, Inc., 9 Defendant. 10 Pending before the Court is Plaintiff’s motion to compel and for an award of expenses. 11 Docket No. 33. Defendant filed a response. Docket No. 35. Plaintiff filed a reply. Docket No. 12 40. The Court does not require a hearing. See Local Rule 78-1. 13 I. Background 14 This case involves allegations of a slip-and-fall in a hotel bathtub. Docket No. 1-2 at ¶ 2. 15 On January 31, 2025, Defendant removed the case from state court on diversity grounds. See 16 Docket No. 1. On July 16, 2025, Plaintiff served interrogatories, requests for production, and 17 requests for admissions. Docket No. 33-1 at ¶ 6. Defendant did not timely respond. See id. 18 Plaintiff’s counsel nudged defense counsel on multiple occasions as to the missing discovery, see, 19 e.g., id. at ¶ 4, and defense counsel finally acknowledged on February 4, 2026, having received 20 the discovery on January 30, 2026, see, e.g., Docket No. 33-3 at 4-5.1 The parties conferred on 21 the missing discovery, with Plaintiff’s counsel ultimately agreeing to allow responses by February 22 16, 2026. Docket No. 33-3 at 2. Having not received the responses by that date, Plaintiff filed a 23 motion to compel and for an award of expenses. Docket No. 33. After the motion was filed, 24 Defendant served responses with objections on March 9, 2026. Docket No. 35-8 at ¶¶ 9-10. 25 1 Defense counsel essentially blames the lengthy delay on a change in attorney 26 responsibilities within his law firm and the failure of the prior attorney to add the discovery requests to the litigation file. See, e.g., Docket No. 35-8 at ¶¶ 2-3. There is no dispute, however, 27 that Plaintiff properly served the discovery on counsel’s law firm in the first instance, and that Defendant’s attorney confirmed receipt of the requests on July 16, 2026. See Docket No. 35-3 at 28 4. 1 II. Motion to Compel 2 Plaintiff seeks an order compelling responses to the interrogatories and requests for 3 production without objection. 4 A. Standards 5 Discovery is meant to proceed “largely unsupervised by the district court.” Sali v. Corona 6 Reg. Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018); see also Fed. R. Civ. P. 29. Counsel must 7 strive to be cooperative, practical, and sensible, and must seek judicial intervention “only in 8 extraordinary situations that implicate truly significant interests.” Cardoza v. Bloomin’ Brands, 9 Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (quoting In re Convergent Techs. Securities Litig., 10 108 F.R.D. 328, 331 (N.D. Cal. 1985)). When an amicable resolution to a discovery dispute cannot 11 be attained, however, a party may move for issuance of an order compelling discovery. Fed. R. 12 Civ. P. 37(a). The party seeking to avoid discovery bears the burden of showing why that 13 discovery should not be permitted. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019). 14 It is well-settled law that the “failure to object to discovery requests within the time required 15 constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 16 1468, 1473 (9th Cir.1992). “[B]road discretion is vested in the trial court to permit or deny 17 discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 18 523 U.S. 574, 598 (1998). 19 B. Analysis 20 The record plainly shows that Defendant failed to respond to the interrogatories and 21 requests for production in timely fashion. This discovery was served on July 16, 2025, Docket 22 No. 33-1 at ¶ 6, and Defendant did not respond until March 9, 2026, Docket No. 35-8 at ¶¶ 9-10. 23 Defendant attempts to avoid waiver by representing that Plaintiff’s counsel agreed to allow late 24 objections despite the many months of delay. See, e.g., Docket No. 35 at 4. Whether Plaintiff’s 25 counsel made that concession is hotly contested. See, e.g., Docket No. 40 at 3. Ultimately, the 26 Court need not resolve the dueling attestations on that issue of fact. Even assuming Plaintiff’s 27 counsel agreed to allow late objections, Defendant’s response was still not timely even under the 28 compromise position to which its attorney attests. During the conferral process, Plaintiff’s counsel 1 required the responses to be provided by February 16, 2026. Docket No. 33-3 at 2. Defendant did 2 not meet that deadline. Defendant provides no explanation how it can now rely on opposing 3 counsel’s alleged offer to allow late objections when Defendant did not respond by the 4 corresponding deadline set by opposing counsel. Instead, defense counsel unilaterally reset the 5 discovery response deadline based on a deemed service date of January 30, 2026. See, e.g., Docket 6 No. 33-3 at 5. Unsurprisingly, the motion papers include no legal authority that an attorney has 7 the prerogative to decide for himself a new deadline for discovery responses that are already six 8 months overdue. Contra Fed. R. Civ. P. 34(b)(2) (a longer response period “may be stipulated to 9 under Rule 29 or be ordered by the court” (emphasis added)). Remarkably, however, Defendant 10 served its discovery responses 38 days after defense counsel’s new service marker of January 30, 11 2026. See Docket No. 35-8 at ¶¶ 9-10 (attesting that responses were served on March 9, 2026). 12 Defendant has provided no explanation as to how that timeframe could possibly be permissible.2 13 In short, even taking as true Defendant’s contention that Plaintiff’s counsel agreed to allow 14 objections if discovery responses were made, Defendant still did not serve responses in timely 15 fashion under any possible metric. The Court agrees with Plaintiff that objections have been 16 waived. Accordingly, the Court will grant the motion to compel Defendant to respond to the 17 disputed discovery without objection. 18 19 20 21 22 23

24 2 Defense counsel indicated that he would deem service accomplished on January 30, 2026, and that responses would be served “in the normal course pursuant to the applicable rules.” Docket 25 No. 33-3 at 5. Responses to interrogatories and requests for production are due 30 days after service. Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). When service is completed by email, an additional 26 three days is added to that deadline. See Fed. R. Civ. P. 6(d) (addressing service made pursuant to Fed. R. Civ. P. 5(b)(2)(F)). In this case, 33 days from defense counsel’s unilaterally deemed 27 service date of January 30, 2026, would translate to a deadline of March 4, 2026. Defendant offers in the motion practice no scenario in which it was timely for Defendant to serve these discovery 28 responses five days later on March 9, 2026. 1 III. Countermotion to Withdraw Admissions 2 Defendant seeks to withdraw its admissions. Docket No. 35 at 5-8. Plaintiff does not 3 oppose that relief. Docket No. 40 at 26.3 Accordingly, the Court will grant this request as 4 unopposed. See Local Rule 7-2(d). 5 IV. Motion to Award Expenses 6 A. Standards 7 A pillar of federal litigation is that discovery should proceed with minimal involvement of 8 the Court. Cardoza v. Bloomin’ Brands, Inc., 141 F. Supp. 3d 1137, 1145 (D. Nev. 2015) (quoting 9 F.D.I.C. v. Butcher, 116 F.R.D. 196, 203 (E.D. Tenn. 1986)). Instead of forcing judicial oversight 10 of every dispute, attorneys are expected to approach discovery with an eye toward cooperation, 11 practicality, and sensibility. In re Convergent Techs. Securities Litig., 108 F.R.D. 328, 331 (N.D. 12 Cal. 1985). “The governing rules reflect this in several ways, including providing a presumption 13 that reasonable expenses—including attorneys’ fees—will be awarded to the party that prevails on 14 a discovery motion.” Big City Dynasty v. FP Holdings, L.P., 336 F.R.D. 507, 513 (D. Nev. 2020) 15 (citing Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786-87 (7th Cir. 1994)). Hence, when a motion 16 to compel has been granted, the Court “must” generally award expenses to the victor. See Fed. R. 17 Civ. P. 37(a)(5)(B).4 18 The losing party may rebut the presumption of an award of expenses by establishing that 19 her position was “substantially justified.” Fed. R. Civ. P. 37(a)(5)(B). A position is substantially 20 justified when “the parties had a genuine dispute on matters on which reasonable people could 21 differ as to the appropriate outcome.” Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. 22 3 Plaintiff expressly does not oppose this request, but invites the Court to come to its own 23 conclusion without meaningful input from Plaintiff. See id. at 26, 27. Consistent with the governing rules, the Court declines that invitation. Even were the Court to consider the issue on 24 its own, however, it would find that Defendant met its burden of showing that the presentation of the merits would be promoted, Plaintiff has not established prejudice, and a sufficient showing has 25 not been made that the Court should exercise its discretion to deny withdrawal. See, e.g., McNamara v. Hallinan, 2019 WL 6122003, at *3 (D. Nev. Oct. 28, 2019). 26 4 The fact that the opposing party served discovery responses after the motion to compel 27 was filed is not a ground on which to deny an award of expenses. See Fed. R. Civ. P. 37(a)(5)(A) (providing for an award of expenses if the “requested discovery is provided after the motion was 28 filed”). 1 Nev. 2016) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The party facing an award 2 of expenses bears the burden of establishing substantial justification. See Nationstar Mortg., LLC 3 v. Flamingo Trails No. 7 Landscape Maintenance Assoc., 316 F.R.D. 327, 335 (D. Nev. 2016). 4 District courts have “great latitude” in awarding expenses under Rule 37. Lew v. Kona Hosp., 754 5 F.2d 1420, 1425 (9th Cir. 1985). 6 If the movant is entitled to an award of fees, the Court turns to the familiar lodestar 7 approach. See, e.g., Marrocco v. Hill, 291 F.R.D. 586, 587 (D. Nev. 2013). Under the lodestar 8 method, the Court determines a reasonable fee by multiplying the number of hours reasonably 9 expended by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The 10 lodestar figure is presumptively reasonable. Cunningham v. County of Los Angeles, 879 F.2d 481, 11 488 (9th Cir. 1988). 12 B. Analysis 13 The Court agrees with Plaintiff that an award of expenses is warranted. Plaintiff prevailed 14 on the motion to compel responses without objection to the interrogatories and requests for 15 production. Moreover, Defendant has not established substantial justification or unjust 16 circumstances to avoid an award of expenses. To repeat, even crediting the best-case-scenario 17 offered by Defendant, its discovery responses were still untimely.5 Plaintiff is entitled to an award 18 of expenses.6 19 With respect to the amount of fees, however, Plaintiff’s papers are insufficient. As to a 20 reasonable hourly rate, Plaintiff’s counsel offers no evidence of any kind as to the prevailing rate 21 in the community. But see, e.g., Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984) (“To inform and 22 assist the court in the exercise of its discretion, the burden is on the fee applicant to produce 23 satisfactory evidence–in addition to the attorneys’ own affidavits–that the requested rates are in 24 line with those prevailing in the community for similar services by lawyers of reasonably 25 5 As discussed above, defense counsel afforded himself a new deadline based on a service 26 date of January 30, 2026, but did not serve the responses for another 38 days, which would be untimely even if counsel were actually permitted to set his own response deadline. 27 6 Defendant’s opposition throws the kitchen sink at Plaintiff’s entitlement to expenses. See 28 Docket No. 35 at 8-11. The arguments are not well-developed or supported, and they are meritless. 1 comparable skill, experience and reputation”). Instead, Plaintiff’s counsel indicates that her hourly 2 rate is usually $400. See Docket No. 33-1 at ¶ 12. While the customary rate the attorney attests 3 to charging other clients may be considered, see, e.g., Local Rule 54-14(a)(3)(F), it is not 4 dispositive of the inquiry of a reasonable rate, see, e.g. Maldonado v. Leman, 811 F.2d 1341, 1342 5 (9th Cir. 1987). Given the lack of substantiating information and the Court’s familiarity with the 6 legal market, see Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011), the Court finds an hourly 7 rate of $250 to be appropriate. 8 Plaintiff’s counsel also fails to substantiate the number of hours claimed. The motion 9 included a sum total of all hours related to the issues presented, including the meet-and-confer 10 process. See Docket No. 33-1 at ¶ 12.7 Plaintiff has not shown that the time conferring is 11 recoverable. See Aevoe Corp. v. AE Tech. Co., 2013 WL 5324787, at *6 (D. Nev. Sept. 20, 2013) 12 (collecting cases that time spent conferring is generally not recoverable). Moreover, some of the 13 time spent on the briefing was related to the admissions for which withdrawal has been allowed. 14 See, e.g., Docket No. 33 at 11. Lastly, the issues in dispute are very simple, so extensive research 15 and lengthy briefing should not have been needed. See Marrocco, 291 F.R.D. at 588 (“in 16 determining the reasonableness of hours spent in relation to a discovery motion, the Court 17 considers factors such as the complexity of the issues raised, the need to review the record and 18 pleadings, and the need to conduct legal research, in addition to the length of the briefing”). 19 Considering all of the circumstances, five hours of time was reasonably incurred in preparing the 20 motion and reply. 21 Accordingly, Plaintiff’s motion for expenses will be granted in part in that $1,250 of fees 22 are awarded. 23 V. Final Warning to Counsel 24 The motion practice again reveal numerous violations of the local rules, including an 25 improper counter-motion tucked within a responsive brief, see Docket No. 35; but see Local Rule 26

27 7 The reply provides somewhat of a breakout of the numbers, Docket No. 40-1 at ¶ 9, but providing such information for the first time in reply is improper, Zamani v. Carnes, 491 F.3d 990, 28 997 (9th Cir. 2007). 1 2-2(b), over-lengthy briefing, see Docket No. 40 (27-page reply); but see Local Rule 7-3(b) 2 (limiting replies to 12 pages), and failure to identify the district judge in the case caption, see, e.g., 3 Docket No. 33 at 1; but see Local Rule IA 10-2.8 This is by no means an isolated issue as this case 4 has been plagued by procedural mishaps. See also, e.g., Docket No. 14. As the Court has already 5 done, it again orders that counsel must immediately familiarize themselves with the rules that 6 govern the practice of law in this courthouse. As explained by the Ninth Circuit: 7 We recognize that many attorneys who appear in this court rarely practice in federal court at all or are not in the federal system by their 8 own choice, but, rather, were removed here by the opposing litigant. The fact that an attorney’s federal practice is rare or infrequent, 9 however, is no excuse for ignoring the rules of this court. Just as an attorney who always practices in state court is expected to know the 10 rules of administration and operation particular to that court, we expect an attorney practicing law in federal court to become familiar 11 with and follow rules applicable to practice in this court. It is incumbent upon an attorney practicing in [this federal district court] 12 for the first time to secure and study the Federal Rules of [Civil Procedure] and the local rules of this [District] so that he or she will 13 know what is expected by the court, the form in which a case is presented, and the consequences inherent in noncompliance. Such 14 behavior is not only a mark of elementary professional competence, but is common sense to attorneys seeking to zealously represent the 15 interests of their clients. 16 Dela Rosa v. Scottsdale Mem. Hosp. Sys., Inc., 136 F.3d 1241, 1244 (9th Cir. 1998). Particularly 17 given prior admonitions of counsel in this case, the Court’s patience is running very thin for the 18 continued violations of the rules that govern practice in this federal courthouse. The Court would 19 be justified to impose sanctions now for the continued violations in this motion practice. 20 Nonetheless, as a final warning, counsel for both sides are CAUTIONED that further violations 21 of the governing rules will likely result in the imposition of sanctions. 22 VI. Conclusion 23 For the reasons discussed above, the Court rules as follows: (1) Plaintiff’s motion to 24 compel is GRANTED in that Defendant must provide discovery responses without objection by 25 April 1, 2026; (2) Defendant’s counter-motion to withdraw admissions is GRANTED; and (3) 26 Plaintiff’s motion for an award of expenses is GRANTED in part in that Defendant must pay 27 8 This is not an exhaustive catalogue of all violations evidenced in the current motion 28 practice. 1] $1,250 in fees by April 1, 2026. Counsel for both sides are CAUTIONED that further violations 2|| of the governing rules will likely result in the imposition of sanctions 3 IT IS SO ORDERED. 4 Dated: March 18, 2026.

Nancy ‘J. Seppe 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28