Dwight Manley v. MGM Resorts International; MGM Grand Hotel, LLC

• Court: District Court, D. Nevada
• Decided: December 1, 2025
• Docket: 2:22-cv-01906
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 DWIGHT MANLEY, Case No. 2:22-cv-01906-MMD-EJY

5 Plaintiff,

6 v. ORDER

7 MGM RESORTS INTERNATIONAL; MGM GRAND HOTEL, LLC, 8 Defendants. 9 MGM GRAND HOTEL, LLC, a Nevada 10 limited liability company,

11 Counterclaimant,

12 v.

13 DWIGHT MANLEY, an individual,

14 Counter-Defendant.

15 16 Pending before the Court is Plaintiff’s Motion to Reopen Discovery and For Leave to Exceed 17 the 10 Deposition Limit (ECF No. 191). The Court considered the Motion, the Response (ECF No. 18 192), and the Reply (ECF No. 193). 19 I. Background Fact 20 Through his Motion, filed on August 22, 2025, Plaintiff seeks to reopen discovery to take 21 seven depositions of individuals who received litigation hold notices regarding events that transpired 22 during his visit to MGM Grand on December 10 through 12, 2021.1 ECF No. 191 at 1. Plaintiff’s 23 Motion includes a discussion of Fed. R. Civ. P. 30(a)(2)(A)(i) and a request to exceed the 10 24 deposition limit applicable to each party. Id. These seven individuals are comprised of four current 25 and three former MGM Grand employees. Id. at 2. Plaintiff states he did not know these seven 26 individuals received litigation hold notices until April 9, 2025—after the March 14, 2025 close of 27 1 discovery. Id. at 3. Plaintiff asserts “that it may be assumed … these individuals received … 2 litigation hold notices because MGM’s legal department believed they could possess relevant 3 information and documents.” Id. at 2. The Court notes that Defendants filed a Motion for Summary 4 Judgment on May 14, 2025. ECF No. 160. That Motion is fully briefed. 5 Plaintiff recounts the second deposition of an MGM Grand Fed. R. Civ. P. 30(b)(6) witness 6 at which the deponent could not identify why the seven individuals received litigation hold notices.2 7 ECF No. 191 at 3-4. Plaintiff further argues that Defendant “understood” that discovery would need 8 to be reopened so that Plaintiff could depose the newly identified individuals. Id. Plaintiff points to 9 a discussion with defense counsel that occurred on May 6, 2025, after the conclusion of the second 10 deposition of MGM Grand’s 30(b)(6) deponent. A review of ECF No. 191-9 shows the following 11 exchange occurred:

12 Plaintiff’s Counsel: So I’m faced with this prospect of -- since this witness can’t tell me who they are or what they do, why they’re there, I’m going to need to reopen 13 discovery and depose these people.

14 Defense Counsel: Okay. Well, we can talk about that.· I mean –

15 Plaintiff’s Counsel: You understand why. I mean, I’m not –

16 Defense Counsel: I understand your point. Yeah, absolutely. I don’t think any of these people have any involvement in the dispute. 17 Plaintiff’s Counsel: Then why did they get litigation holds? You see the point, and 18 that’s –

19 Defense Counsel: I see your point, and

20 Plaintiff’s Counsel: I’m not

21 Defense Counsel: and I’m not, obviously, testifying on behalf of the witness, but –

22 Plaintiff’s Counsel: Certainly.

23 Defense Counsel: -- we don’t know the answer to that question.

24 25

2 It is undisputed that the May 6, 2025 deposition was the second time Plaintiff was deposing Defendants’ 26 30(b)(6) witness. The first day of deposition occurred on March 5, 2025, nine days before the close of discovery. During this first day of deposition, Defendants produced three witnesses. Ultimately Zachary Johnson, the third witness, could 27 not adequately respond to Topic 19 regarding “[p]ractices and procedures followed by … [Defendant] to implement 1 Plaintiff’s Counsel: I accept that for the moment, surely. *** But there’s information here that I need to follow up on, and I don’t want to let time go by. 2 May we have a meet and confer in the next few days so I can this thing teed up?

3 Defense Counsel: Absolutely. 4 ECF No. 191-9 at 8 (internal pages 40-41). 5 After this exchange Defendants provided the job titles and employment status of the eight 6 individuals who received litigation hold letters. Then, despite engaging in email exchanges and 7 telephone conversations to discuss Plaintiff’s desire to take the depositions of the newly identified 8 individuals that would take no more than two hours each (ECF No. 191 at 5),3 Defendants ultimately 9 informed Plaintiff that they would not agree to the depositions of the litigation hold recipients or 10 further deposition of Defendants’ 30(b)(6) witness. Id. Defendants also told Plaintiff that he would 11 have to move to reopen discovery if he wanted to take additional depositions. Id. at 5-6. 12 Plaintiff recites Federal Rule of Civil Procedure Rule 16(b) requiring a party seeking 13 extension to establish good cause for the modification sought. ECF No. 191 at 6. Plaintiff does not 14 address the excusable neglect standard required under the Court’s Local Rule 26-3 in his opening 15 brief. Id. at 6-7. 16 Defendants argue Plaintiff fails to identify what relevant evidence any of the seven 17 individuals he seeks to depose possess; Defendants have confirmed these individuals were not 18 involved in the events at issue; Plaintiff obtained an adverse inference regarding lost 19 communications between Vanessa Reboton and Junit Manacher; and Plaintiff mischaracterizes the 20 exchange between counsel. ECF No. 192 at 3-5. Defendants contend Plaintiff does not establish 21 good cause to reopen discovery, and does not even address excusable neglect. Id. at 7-9. 22 Defendants also point out that one of the eight individuals—Jeff Cooper—identified Jeff Ash 23 and Ronald Buono during his deposition; Mr. Buono was identified as having reviewed the 24 surveillance footage from December 10, 2021 in a surveillance report produced by Defendants; and 25 another individual listed (Brian Jordan) received a litigation hold despite not being employed by 26 MGM Grand on the date of the events at issue. Id. at 10-11. Defendants submit Marc Cassell (an 27 1 original 30(b)(6) deponent) testified that MGM Grand’s security department was not involved in the 2 incident about which Plaintiff complains and did not undertake an investigation of the incident. Id. 3 at 11. Thus, Defendants state Plaintiff’s request to depose Sean Durand, Chief of Security, should 4 be denied. See id. at 11-12. 5 II. Discussion 6 a. Plaintiff’s Interpretation of the Exchange Between Counsel. 7 Because Plaintiff focuses on the above quoted exchange between counsel, the Court 8 addresses this before discussing other issues raised by the parties. Despite Plaintiff’s contention that 9 Defendants “understood” it would be necessary to reopen discovery, a review of the exchange 10 between counsel shows defense counsel “understood” what and why Plaintiff was seeking to reopen 11 discovery, but the exchange belies the notion that Defendants agreed to reopening discovery for any 12 purpose. Instead, Defendants agreed to a meet and confer to discuss what Plaintiff sought, but 13 ultimately, and unequivocally declined Plaintiff’s request. Thus, Defendants required Plaintiff to do 14 what he did—file a motion to reopen discovery and exceed the 10 deposition limit established under 15 Fed. R. Civ. P. 30(a)(2)(A)(i). 16 b. Plaintiff Establishes Good Cause Under Fed. R. Civ. P. 16(b). 17 Federal Rule of Civil Procedure Rule 16(b)(4) allows extensions to the Court’s scheduling 18 order “only for good cause and with the judge’s consent.” The Rule’s “good cause standard 19 primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth 20 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (internal quote marks omitted). More 21 specifically, to meet the burden established by Rule 16’s good cause standard, the moving party may 22 be required to show she (1) “was diligent in assisting the Court in creating a workable Rule 16 order” 23 …; (2) “that … [his] noncompliance with a Rule 16 deadline occurred … notwithstanding her 24 diligent efforts to comply, because of the development of matters which could not have been 25 reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference” …; and (3) 26 “that []he was diligent in seeking amendment of the Rule 16 order, once it became apparent that she 27 could not comply with the order.” Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999) 1 reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 2 609. “[C]arelessness is not compatible with a finding of diligence and offers no reason for a grant 3 of relief. Although the existence or degree of prejudice to the party opposing the modification might 4 supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party’s 5 reasons for seeking modification. If that party was not diligent, the inquiry should end.” Id. 6 (citations omitted). 7 Here, the Court finds Plaintiff was diligent in pursuing the issue of deposing either a Fed. R. 8 Civ. P. 30(b)(6) witness or the recipients of the litigation hold notices issued by Defendants. There 9 is no dispute that Plaintiff did not receive a list including the seven individuals now at issue until 10 after the close of discovery. Further, Topic 19 of Plaintiff’s Fed. R. Civ. P. 30(b)(6) notice sought 11 “[p]ractices and procedures followed by … [Defendants] to implement litigation preservation of 12 potential evidence.” During two 30(b)(6) depositions, Defendants’ witnesses could not answer 13 questions that ultimately included why the seven individuals Plaintiff seeks to depose received the 14 litigation hold notices they did. Plaintiff could not have foreseen that a Fed. R. Civ. P. 30(b)(6) 15 deponent would be unable to answer the questions posed, and Plaintiff sought relief soon after 16 Defendants declined Plaintiff’s request to reopen discovery and take additional depositions. Thus, 17 Plaintiff has met his diligence obligations under Fed. R. Civ. P. 16(b). 18 c. Whether Plaintiff Establishes Excusable Neglect and the Reopening of Discovery. 19 Local Rules applicable to civil practice in the U.S. District Court for the District of Nevada 20 states that “[a] request made after the expiration of the specified period will not be granted unless 21 the movant or attorney demonstrates that the failure to file the motion before the deadline expired 22 was the result of excusable neglect.” LR IA 6-1(a). When considering whether Plaintiff 23 demonstrates excusable neglect here, the Court examines four factors: “(1) danger of prejudice to 24 the opposing party; (2) length of delay and its potential impact on the proceedings; (3) reason for the 25 delay; and (4) whether the movant acted in good faith.” Lemoge v. United States, 587 F.3d 1188, 26 1192 (9th Cir. 2009) (internal citation and quotation marks omitted); Pioneer Investment Services 27 Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993).4 1 Addressing this standard, Defendants argues that discovery has been closed for six months. 2 ECF No. 192 at 7. However, Plaintiff did not receive the names of the seven individuals at issue 3 who received litigation hold notices from Defendants until after the close of discovery. Plaintiff 4 attempted to gain information regarding why these individuals were recipients of litigation holds, 5 but Defendants’ 30(b)(6) deponent could not answer these questions. The reason for delay is 6 therefore well established and cannot be attributed to Plaintiff. 7 Defendants, however, point to the fact that their Motion for Summary Judgment is already 8 fully briefed, which is true, and that Plaintiff provides no timeline for completing discovery thereby 9 failing to address the length of delay or the potential impact on proceedings. These failings, which 10 are undisputed, militate against a finding of excusable neglect. 11 Defendants next mix into this discussion the standard for reopening discovery, which mirrors 12 excusable neglect to some degree.5 Addressing these factors, the Court notes there is no trial date 13 set and, as stated above, Plaintiff was diligent in seeking the discovery at issue, both of which support 14 reopening discovery. Nonetheless, what is of greatest concern for the Court when considering 15 excusable neglect and reopening of discovery is whether the individuals Plaintiff seeks to depose are 16 likely to possess information that will lead to relevant evidence and, given the lack of any discussion 17 by Plaintiff regarding what information the proposed deponents possess, the prejudice that will 18 attach from the proposed depositions. Even in his Reply brief Plaintiff offers nothing to suggest that 19 any of the seven individuals have information that remotely relates to his claims. See ECF No. 193. 20 The party seeking to exceed Rule 30(a)(2)’s ten deposition “limit bears the burden of making a 21 ‘particularized showing’ of the need for additional depositions.” X One, Inc. v. Uber Techs., Inc., 22 Case No. 16-cv-06050 LHK (SVK), 2019 WL 2207645, at *2 (N.D. Cal. May 22, 2019); see also 23 Vega v. DNC Parks & Resorts at Asilomar, Inc., Case No. 19-CV-00484 ADA (SAB), 2023 WL 24 2617044, at *4 (E.D. Cal. Mar. 23, 2023) (collecting cases). 25

5 See City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1066 (9th Cir. 2017) (internal citation omitted) 26 stating that reopening of discovery requires the Court to consider: (1) whether trial is imminent, (2) whether the request is opposed, (3) whether the non-moving party would be prejudiced, (4) whether the moving party was diligent in 27 obtaining discovery within the guidelines established by the court, (5) the foreseeability of the need for additional 1 Further, one individual, Brian Jordon, was not employed by MGM Grand on December 10, 2 2021, and another, Sean Durand, was part of the Security Department that MGM Grand’s 30(b)(6) 3 testified played no role in the events or the investigation relating to Plaintiff’s claims. While it is 4 possible these two individuals could have exchanged emails or other electronic communications 5 regarding Plaintiff and the events at issue on some later date, there is nothing before the Court 6 suggesting they did so or that electronically stored evidence, if any, that was ever in their respective 7 possession. Indeed, Plaintiff provides nothing to suggest Defendants have not produced all 8 electronically stored information in its possession, custody or control. Plaintiff therefore fails to 9 demonstrate that the deposition of either Mr. Jordon or Mr. Durand is likely to lead to the discovery 10 of relevant evidence. Said slightly differently, Plaintiff fails to meets the requirement of Rule 11 26(b)(1)—relevance and proportionality. This leads to Plaintiff’s failure to demonstrate a limitation 12 on discovery is improper under Rule 26(b)(2)(C)(iii). The Court finds Plaintiff has not met this 13 burden with respect to Messrs. Jordon and Durand and therefore denies Plaintiff’s request to depose 14 these individuals 15 With respect to the remaining five individuals,6 the Court considers what information they 16 may have that is relevant and proportional to the needs of the case, and how reopening discovery 17 may delay and, therefore, prejudice resolution of this dispute. The Court notes one district court 18 cogently explained that these showings are necessary because the moving party could “indirectly 19 circumvent the cap on depositions by exhausting the maximum allotted number to take those that 20 she could not justify under the Rule 26(b)(2) standards, and then seeking leave to exceed the limit 21 in order to take depositions that he could substantiate.” Barrow v. Greenville Indep. Sch. Dist., 202 22 F.R.D. 480, 483 (N.D. Tex. 2001). 23 To this end, Plaintiff argues Defendants’ assurance that the individuals he wishes to depose 24 do not have any unique personal knowledge of the events that underlie this case is of little effect. 25 Surely, it is true that Plaintiff does not have to depend on Defendants’ assurances to decide in what 26 discovery to engage. However, the Court does not reach its decision based on Defendants’

27 6 The five remaining individuals include Chris Durlej, Vice President of Customer Development; Steward 1 assurances. Rather, Plaintiff provides no showing, let alone a particularized showing, of the need to 2 depose the five remaining individuals; that is, there is no showing that any one of these individuals 3 is likely to possess information that would lead to relevant evidence. The names of these individuals 4 do not come up in Plaintiff’s moving papers or reply (ECF Nos. 191, 193); there is no discussion of 5 their positions; how those positions may have played a role in the alleged events; the relationship of 6 any of the individuals to this case; or whether one or more of the seven people Plaintiff wants to 7 depose interacted with anyone who was involved in the events about which Plaintiff complains. 8 Plaintiff cites the Rule 26(a)(1)(i) standard identifying the requirement to disclose individuals who 9 are likely to have discoverable information, and then relies on Defendants’ belated disclosure of 10 litigation hold recipients as if this meets Plaintiff’s obligations as the moving party seeking to reopen 11 discovery and take more than 10 depositions. It does not. Plaintiff has not explained what relevant 12 evidence any of the individuals he seeks to depose may possess beyond the fact that they received a 13 litigation hold letter years ago. Plaintiff has not met the burden of demonstrating the discovery he 14 seeks “is relevant to any” of his claims “and proportionate to the needs of the case . …” Fed. R. Civ. 15 P. 26(b)(1). 16 Moreover, if the Court applies the standards established by Federal Rules of Civil Procedure 17 26(b)(2), Plaintiff’s reply is silent on this consideration. Plaintiff mentions, but never analyzes this 18 Rule as it may apply to his request. In the absence of information demonstrating the likelihood that 19 the deposition of any of these individuals will lead to relevant evidence, Plaintiff fails to demonstrate 20 a basis for reopening discovery. He likewise fails to meet Rule 26(b)(1)’s standard, and 21 simultaneously demonstrates a limitation on discovery is properly granted under Rule 22 26(b)(2)(c)(iii). 23 III. Order 24 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Reopen Discovery and 25 for Leave to Exceed 10 Deposition Limit (ECF No. 191) is DENIED. 26 DATED this 1st day of December, 2025.