Flores v. Walmart, Inc.

• Court: District Court, D. Nevada
• Decided: June 18, 2025
• Docket: 2:24-cv-01493
• Status: Unknown

Opinion

1 || TYSON & MENDES LLP GRIFFITH H. HAYES 2 || Nevada Bar No. 7374 NICHOLAS F. PSYK 3 || Nevada Bar No. 15983 Email(s): ghayes@tysonmendes.com 4 npsyk@tysonmendes.com 2835 St. Rose Pkwy., Suite 140 5 || Henderson, NV 89052 Telephone: (702) 724-2648 6 || Facsimile: (702) 410-7684 Attorneys for Defendant Walmart, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 | ROSEMARY FLORES, an individual, CASE NO.: 2:24-cv-01493-JAD-NJK 11 Plaintiff, □□□□□□ 12 V. TO PERMIT DEPOSITION OF AARON FILLER, M.D. 13 | WALMART, INC., a foreign corporation; YET IDENTIFIED EMPLOYEE; DOES I through | (Third Request) 14 || X and ROE CORPORATIONS I through X, inclusive, 15 Defendants. 16 17 IT IS HEREBY STIPULATED AND AGREED, between the parties and their attorneys o 18 record, that the deposition of Aaron Filler, M.D., be permitted to proceed on July 3, 2025, pursuan 19 to FRCP 29 and Local Rule 26-1(b). This is the parties’ third request to permit Dr. Filler’ 20 deposition. The Court previously permitted Dr. Filler’s deposition to proceed on June 17, 2025 21 However, as discussed in further detail below, the parties were informed by Dr. Filler’s office th 22 day prior to the deposition that Dr. Filler had been subpoenaed to appear for trial and would b 23 unable to attend the deposition, resulting in the necessity of the instant request. 24 I. 25 DISCOVERY COMPLETED TO DATE 26 1. The parties have conducted the FRCP 26.1 Early Case Conference. 27 2. Defendant produced its Lists of Witnesses and Documents, pursuant to FRCP 26(a 28

1 || on September 9, 2024. 2 3. Plaintiff produced her Lists of Witnesses and Documents, pursuant to FRCP 26(a 3 || on August 27, 2024. 4 4, Plaintiff produced her Amended Lists of Witnesses and Documents, pursuant t 5 || FRCP 26(a) on September 3, 2024. 6 5. Defendant served a Notice of Intent to Serve Rule 45 Subpoenas to the Custodian 7 || of Records of Plaintiff's identified medical providers on September 9, 2024. 8 6. Defendant propounded its First Set of Interrogatories (30 Interrogatories), Request 9 || for Production of Documents (27 Requests), and Requests for Admissions (31 Requests) to Plaintif 10 || on October 9 , 2024. 11 7. Plaintiff served her responses to Defendant’s First Set of Interrogatories, Request 12 || for Production of Documents, and Requests for Admissions on November 21, 2024. 13 8. Plaintiff's propounded First Set of Request for Admission and Requests fo 14 || Production of Documents to Defendant on September 11, 2024. 15 9. Defendant served its responses to Plaintiff's First Set of Request for Admission an 16 || Requests for Production of Documents discovery on November 1, 2024. 17 10. _—_— Plaintiff served her First Supplemental Disclosure on September 24, 2024. 18 11. Defendant served its First Supplement to its FRCP 26(a) Disclosures on Novembe 19 || 1, 2024. 20 12. Defendant served its Second Supplement to its FRCP 26(a) Disclosures o1 21 || November 21, 2024. 22 13. Defendant served its Third Supplement to its FRCP 26(a) Disclosures on Januar 23 |) 24, 2025. 24 14. _— Plaintiff's propounded Second Set of Requests for Production of Document 25 || February 19, 2025. 26 15. Defendant served its Supplemental Responses to Interrogatories on March 3, 2025 27 16. Plaintiff served her Second Supplemental Disclosure on March 19, 2025. 28 17. Defendant served its Supplemental Responses to Requests for Production o

1 || Documents on March 24, 2205. 2 18. Plaintiff served her Designation of Initial Expert Witnesses on March 31, 2025. 3 19. Plaintiff's propounded Third Set of Requests for Production of Documents on Marc! 4 || 31, 2025. 5 20. Plaintiff served her Third Supplemental Disclosure on March 31, 2025. 6 21. Plaintiff served her Amended Initial Disclosure of Experts of March 31, 2025. 7 22. Plaintiff served her Fourth Supplemental Disclosure on March 31, 2025. 8 23. Defendant served its Designation of Expert Witnesses on March 31, 2025. 9 24. Plaintiff served her First Supplemental to Designation of Initial Expert Witnesses o: 10 || April 9, 2025. 11 25. Plaintiff served her Fifth Supplemental Disclosure on April 9, 2025. 12 26. Plaintiff served her Second Supplemental to Designation of Initial Expert Witnesse 13 |} on April 15, 2025. 14 27. Plaintiff served her Sixth Supplemental Disclosure on April 15, 2025. 15 28. Plaintiff served her Seventh Supplemental Disclosure on April 21, 2025. 16 29. Defendant served its Responses to Second Set of Requests for Production o 17 || Documents on April 23, 2025. 18 30. Defendant served its Fourth Supplement to FRCP 26(a) Disclosures on April 23 19 || 2025. 20 31. Plaintiff served her Eighth Supplemental Disclosure on April 24, 2025. 21 32. Defendant served its Rebuttal Expert Disclosure on May 2, 2025. 22 33. Plaintiff served her Ninth Supplemental Disclosure May 13, 2025. 23 34. ‘Plaintiff served her Third Supplemental to Designation of Initial Expert Witnesse 24 || on May 28, 2025. 25 35. Plaintiff served her Fourth Supplemental to Designation of Initial Expert Witnesse 26 |} on May 30, 2025. 27 36. Plaintiff's Rule 35 Examination conducted by defense expert Dr. Ginsburg o1 28 || February 18, 2025.

1 37. Deposition of third-party witness Ramona Martinez conducted February 27, 2025. 2 38. Deposition of Defendant 30(b)(6) witnesses conducted March 3, 2025, April 24 3 || 2025, and May 13, 2025. 4 39. Deposition of Walmart employee Rita Herrera conducted March 3, 2025. 5 40. Plaintiff's deposition conducted March 12, 2025. 6 41. Deposition of third-party witness David Flippo conducted April 15, 2025. 7 42. Deposition of Walmart employee Jessica Ornellas conducted April 18, 2025. 8 43. Deposition of Plaintiff's expert Tracy Travis conducted April 29, 2025. 9 44. Deposition of Plaintiff's expert Dr. Allan P. Long, conducted April 24, 2025. 10 45. Deposition of Plaintiff's expert Dr. William Muir conducted May 5, 2025. 11 46. Deposition of Plaintiff's expert Dr. John Baker, conducted June 12, 2025. 12 13 I. 4 DISCOVERY THAT REMAINS TO BE COMPLETED 1s 1. Deposition of Dr. Chopra set for June 26, 2025, per the Court’s prior approval. 16 2. Deposition of Dr. Filler tentatively set for July 3, 2025, pending Court approval. 17 18 Ii. REASONS THE PARTIES REQUEST TO EXTEND THE DISCOVERY DEADLINES 19 20 A. Good Cause 1 LR 26-3 governs modifications or extension of the Discovery Plan and Scheduling Orde1 92 || Any stipulation or motion to extend or modify that Discovery Plan and Scheduling Order must b 23 || made no later than twenty-one (21) days before the expiration of the subject deadline and mus 24 || comply fully with LR 26-3. If the stipulation is made less than twenty-one (21) days before th 25 || expiration of a deadline, the parties must show a good cause exist. A request made after th 26 || expiration of the subject deadline will not be granted unless the movant also demonstrates that th 97 || failure to act was the result of excusable neglect. 28 A request to extend unexpired deadlines in the scheduling order must be premised on.

1 || showing of good cause. Fed. R. Civ. P. 16(b)(4); Local Rule 26-3. The good cause analysis turn 2 || on whether the subject deadlines cannot reasonably be met despite the exercise of diligence 3 || Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 4 The parties submit the instant Stipulation to permit rescheduling Dr. Filler’s deposition fron 5 || the prior approved date of June 17, 2025, to July 3, 2025. The parties reiterate they are not seekin 6 || an extension of discovery for this case generally, which the parties acknowledge closed on May 3( 7 || 2025. The parties further agree and submit that the depositions of Dr. Filler could not hav 8 || proceeded on the previously permitted date despite the exercise of diligence. Specifically, the da 9 || before the deposition was to proceed on June 17, 2025, counsel for the parties were informed tha 10 || Dr. Filler had been subpoenaed to appear for trial, and would be unable to appear for the deposition 11 || Following this notice, the parties diligently cooperated to determine the earliest date amenable t 12 || all parties to re-schedule Dr. Filler’s deposition. As such, the parties bring the instant request t 13 || permit taking Dr. Filler’s deposition on July 3, 2025. 14 B. Excusable Neglect 15 When a request for relief from case management deadlines is made after the deadline ha 16 || expired, an additional showing of excusable neglect must be made. Branch Banking & Trust Co. 1 17 || DMST, LLC, 871 F.3d 751, 764-65 (9th Cir. 2017); see also Local Rule 26-3. The excusable neglec 18 || “determination is at bottom an equitable one, taking account of all relevant circumstance 19 || surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 50 20 || U.S. 380, 395 (1993). Factors courts may consider when evaluating excusable neglect include (1 21 || the danger of prejudice to the non-moving party, (2) the length of the delay and its potential impac 22 || onjudicial proceedings, (3) the reason for the delay and, (4) whether the movant acted in good faitk 23 || Id. The movant bears the burden of establishing sufficient justification for modification of the cas 24 || management deadlines. See Desio v. State Farm Mut. Auto. Ins. Co., 339 F.R.D 632, 638 (D. Nev 25 || 2021) (citing Singer v. Las Vegas Athl. Clubs, 376 F. Supp. 3d 1062, 1077 (D. Nev. 2019)); se 26 || also Branch Banking, 871 F.3d at 765 (affirming denial of request to modify case managemen 27 || deadlines because the movants had not established good cause or excusable neglect). Magistrat 28 || judges have broad discretion to manage the discovery process “in the interests of dispatch an

1 || fairness.” V5 Techs. v. Switch, Ltd.,332 F.R.D. 356, 361 (D. Nev. 2019); see also Hallett v. Morgan 2 || 296 F.3d 732, 751 (9th Cir. 2002). 3 Addressing the first factor, the parties are jointly requesting the instant extension. As suck 4 || the parties submit that there is no danger of prejudice to either party if the requested extension i 5 || granted. 6 Addressing the second factor, the parties acknowledge the Court has broad discretion t 7 || manage the discovery process in the interest of dispatch and fairness. Regarding the requeste 8 || extension, the parties note that discovery has only recently closed, and a trial date has not yet bee 9 || set for this matter that would need to be continued. See Bateman v. U.S. Postal Serv., 231 □□□□ 10 || 1220, 1225 (9th Cir. 2000) (noting discovery had only recently closed and there was no evidenc 11 || trial would have been postponed for an inordinate amount of time when finding excusable neglec 12 || for an untimely opposition to a motion for summary judgment). As such, although the partie 13 || acknowledge the Court is in the best position to manage its schedule, the parties respectfully subm: 14 || that the requested extension will not result in significant delay or substantial impact on judicia 15 || proceedings. 16 Addressing the third factor, the parties refer to the Court to the above discussion of goo 17 || cause for the circumstances resulting in the instant request. The parties further submit the 18 || diligently cooperated to submit this request as soon as an amenable date for re-scheduling D1 19 || Filler’s deposition had been confirmed. See Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004 20 || (reversing denial of Rule 60(b) motion where delay was caused by paralegal miscalculating a filin 21 || deadline); Bateman, 231 F.3d at 1223 (finding a Rule 60(b) motion should have been granted wher 22 || delay caused by attorney needing to recover from jet lag and catch up on his mail for two weeks). 23 Addressing the fourth factor, the parties submit that the parties have acted in good faith 1 24 || their efforts to complete discovery for this case. Although the parties acknowledge the instan 25 || request is submitted after the discovery cutoff, the parties submit this delay is not due to the ba 26 || faith of any party, or any intent to unnecessarily delay these proceedings. See Bateman, 231 F.3d z 27 || 1225 (finding excusable neglect despite a weak reason for delay due to lack of deviousness o 28 || willfulness).

1 The parties therefore respectfully submit that excusable neglect is present in the instan 2 || circumstance that resulted in the instant stipulation being submitted after the discovery □□□□□□ 3 || Based on the good cause and excusable neglect outlined above, both Plaintiff and Defense counse 4 || are requesting permission to take Dr. Filler’s deposition on July 3, 2025. 5 IT IS SO STIPULATED. 6 || DATED this 17" day of June, 2025 DATED this 17" day of June, 2025 7 TYSON & MENDES LLP THE GALLIHER LAW FIRM . /s/ Keith E. Galliher 9 _/s/ Griffith H. Haves GRIFFITH H. HAYES KEITH E. GALLIHER, JR. 10 Nevada Bar No. 220 Nevada Bar No. 7374 NICHOLAS F. PSYK GEORGE J. KUNZ 11 Nevada Bar No. 12245 Nevada Bar No. 15983 1850 East Sahara Avenue, Suite 107 12 2835 St. Rose Parkway, Suite 140 Las Vegas, Nevada 89104 Henderson, Nevada 89052 Attorneys for Plaintiff Rosemary Flores 13 Attorneys for Defendant Walmart, Inc. 14 15 IT IS SO ORDERED. 16 gH. FAN 17 UNITED. TATES MAGISTRATE JUDGE 18 DATED this June 18, 2025 19 20 21 22 23 24 25 26 27 28