Fielder v. C R Bard Inc

Opinion

1 ERIC W. SWANIS, ESQ. Nevada Bar No. 6840 2 GREENBERG TRAURIG, LLP 3 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 4 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 5 Email: swanise@gtlaw.com 6 Counsel for Defendants

7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 DUANE FIELDER, CASE NO. 3:20-CV-00473-MMD-BNW 11 Plaintiff, 12 vs. STIPULATION AND [PROPOSED] ORDER TO STAY DISCOVERY AND 13 C. R. BARD INC., a Foreign Corporation; BARD ALL PRETRIAL DEADLINES PERIPHERAL VASCULAR INC., an Arizona 14 Corporation; MCKESSON CORPORATION, a (SECOND REQUEST) Corporation,; and DOES 1 through 100, inclusive 15 Defendants. 16 17 Pursuant to Federal Rule of Civil Procedure 26(c) and (d), Plaintiff Duane Fielder in the 18 above-titled action and Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, 19 “Bard”) (Plaintiff and Bard are collectively referred to herein as “the Parties”), respectfully request 20 that this Court temporarily stay discovery and all pretrial deadlines until February 9, 2021 while the 21 Parties finalize settlement discussions. In support thereof, the Parties state as follows: 22 1. This case is related to the Multi-District Litigation proceeding In re Bard IVC Filters 23 Products Liability Litigation, MDL 2641 (D. Ariz.), pending before Senior Judge David Campbell in 24 the United States District Court for the District of Arizona. 25 2. After four years, the completion of general issue discovery, and the trial of three 26 bellwether cases to verdict, Judge Campbell ordered that certain MDL cases would no longer benefit 27 from centralized proceedings and would be transferred to the appropriate jurisdictions around the 28 country for case-specific discovery and trial. (MDL 2641, ECF No. 19899, 20672, 21472.) While 1 this action was not in the MDL and was not transferred with the remanded cases, the issues and 2 causes of action are substantially similar. 3 3. Here, Plaintiff filed his Petition on June 10, 2020. Bard removed the case to the 4 Northern District of Texas and that court transferred the case to the District of Nevada on August 20, 5 2020. Since that date, the Parties have engaged in settlement discussions and are in the process of 6 finalizing the settlement. A stay will allow the Parties to conclude the settlement without 7 unnecessary expenditures of the Parties’ and this Court’s resources. 8 4. Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent 9 authority and discretion to manage its own docket, this Court has the authority to grant the requested 10 stay. Fed. R. Civ. P. 6(b) (“When an act may or must be done within a specified time the court may, 11 for good cause, extend the time....”); Fed. R. Civ. P. 26(a) (“A party or any person from whom 12 discovery is sought may move for a protective order in the court where the action is pending . . . The 13 court may, for good cause, issue an order to protect a party or person from annoyance, 14 embarrassment, oppression, or undue burden or expense.”). 15 5. This Court therefore has broad discretion to stay proceedings as incidental to its 16 power to control its own docket – particularly where, as here, a stay would promote judicial 17 economy and efficiency. Bacon v. Reyes, 2013 U.S. Dist. LEXIS 143300, at *4 (D. Nev. Oct. 3, 18 2013) (citing, Munoz-Santana v. U.S. I.N.S., 742 F.2d 561, 562 (9th Cir. 1984)) (“Whether to grant a 19 stay is within the discretion of the court”); Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 20 2005) (“A district court has discretionary power to stay proceedings in its own court.”); Landis v. N. 21 Am. Co., 299 U.S. 248, 254 (1936) (“[T]he power to stay proceedings is incidental to the power 22 inherent in every court to control the disposition of the causes on its docket with economy of time 23 and effort for itself, for counsel, and for litigants.”). 24 6. Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) vest the Court with 25 authority to limit the scope of discovery or control its sequence. Crawford-El v. Britton, 523 U.S. 26 574, 598 (1998) (“Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and 27 to dictate the sequence of discovery.”) 1 and the court. 2 Among those competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being 3 required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be 4 expected to result from a stay. 5 Lockyer, 398 F.3d at 1110 (citing Landis, 299 U.S. at 255). Facilitating the efforts of parties to 6 resolve their disputes weighs in favor of granting a stay. In Coker v. Dowd, 2:13-cv-0994-JCM-NJK, 7 2013 U.S. Dist. LEXIS 201845, at *2-3 (D. Nev. July 8, 2013), the parties requested a 60-day stay to 8 facilitate ongoing settlement negotiations and permit them to mediate global settlement. The Court 9 granted the stay, finding the parties would be prejudiced if required to move forward with discovery 10 at that time and a stay would potentially prevent an unnecessary complication in the case. Id. at *3. 11 Similarly, the Parties in the present case are engaged in finalizing settlement and require additional 12 time to work out the details. 13 7. Accordingly, the Parties jointly move this Court for an order staying discovery and 14 pretrial deadlines until February 9, 2021. 15 8. The Parties agree that the relief sought herein is necessary to handle the case in the 16 most economical fashion. The relief sought in this stipulation is not being requested for delay, but 17 so that justice may be done. 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / ] WHEREFORE, the Parties jointly request that discovery and all pretrial deadlines be stayed 2 || until February 9, 2021 to allow the Parties to finalize settlement. 3 4 IT IS SO STIPULATED. 5 6 || DATED this 11% day of December 2020. 7 FEARS NACHAWATI, PLLC GREENBERG TRAURIG, LLC 8 /s/ Steven Schulte /s/ Eric W. Swanis 9 || Steven Schulte Eric W. Swanis (Admitted PHV) Nevada Bar No. 6840 10 || Texas Bar No. 24051306 Email: swanise@gtlaw.com Email: schulte@fnlawfirm.com 10845 Griffith Peak Drive, Suite 600 5473 Blair Road Las Vegas, Nevada 89135 12 || Dallas, TX 75231 Telephone: (702) 792-3773 Telephone: (214) 890-0711 13 |] Facsimile: (214) 890-0712 Counsel for Defendants 14 |! Counsel for Plaintiff 15 16 ORDER 17 IT IS SO ORDERED 18 DATED: 3:54 pm, December 15, 2020 19 20 x Leas wre fat, 2] BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28