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 7 C ounsel for Defendants 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRI CT OF NEVADA 10 NESTOR GRIEGO, CASE NO. 2:21-cv-00325-JAD-BNW 11 Plaintiff, 12 v. 13 C. R. BARD, INCORPORATED and BARD 14 PERIPHERAL VASCULAR, 15 INCORPORATED,
16 Defendants.
17 18 STIPULATION AND [PROPOSED] ORDER TO STAY 19 DISCOVERY AND ALL PRETRIAL DEADLINES 20 Plaintiff Nestor Griego and Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, 21 Inc. (collectively “Bard”) (Plaintiff and Bard are collectively referred to herein as “the 22 Parties”) pursuant to Fed. R. Civ. P. 26 and the Court’s inherent powers, respectfully request 23 that this Court enter an Order temporarily staying discovery and all pretrial deadlines imposed 24 by the Court, the Local Rules, and the Federal Rules of Civil Procedure for ninety (90) days 25 to permit them to pursue negotiations of a settlement of this and all cases of Plaintiff’s counsel 26 recently remanded from the MDL pursuant to the MDL Court’s February 11, 2021 Amended 27 Suggestion of Remand and Transfer Order (Fifth) (“Fifth Remand Order”). 28 / / / 1 Plaintiff’s counsel and Defendants have previously settled in principle numerous cases 2 in the MDL concerning Bard inferior vena cava (“IVC”) filters. The Parties believe that a 3 stay is necessary in this case to conserve their resources and attention so that they may attempt 4 to resolve it and the claims of other such plaintiffs represented by Plaintiff’s counsel that were 5 recently remanded to district courts across the country. Accordingly, the Parties jointly 6 request that the Court enter a stay of discovery and all pretrial deadlines in this case for a 7 period of ninety (90) days. If Plaintiff has not filed dismissal papers within ninety (90) days 8 from the stay being granted, the Parties request the opportunity to file a joint status report 9 regarding the status of the settlement. 10 I. BACKGROUND 11 Plaintiff’s counsel represents plaintiffs with cases in the In re: Bard IVC Filters 12 Products Liability Litigation, MDL 2641 (the “MDL”), as well as cases that have been 13 transferred or remanded from the MDL to courts across the country, involving claims against 14 Bard for injuries they contend arise out of their use of Bard’s IVC filters. The Parties reached 15 a settlement in principle concerning the majority of the Plaintiff’s counsel’s IVC filter cases 16 and have finalized the details of that settlement with most of their clients. However, a small 17 number of those plaintiffs “opted out” of the settlement. The cases remanded pursuant to the 18 MDL’s Fifth Remand Order included those cases that were previously dismissed but for 19 which the MDL Court reinstated prior to remanding, since the plaintiff had opted out of the 20 settlement and a final settlement had not been reached. With respect to these cases, including 21 this one, counsel for the Parties have renewed discussions in an attempt to achieve a settlement 22 of the cases of these remaining plaintiffs represented by Plaintiff’s counsel. Counsel for the 23 Parties believe that their resources are best directed to focusing their efforts on potential 24 settlement discussions, especially given their past history of successful settlement discussions 25 relating to cases in this MDL. Thus, the Parties jointly move this Court to enter a stay of all 26 discovery and pretrial deadlines in this case for a period of ninety (90) days. 27 / / / 28 / / / 1 II. ARGUMENTS AND AUTHORITIES 2 A. The Court Has Authority to Grant the Requested Stay. 3 Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent 4 authority and discretion to manage its own docket, this Court has the authority to grant the 5 requested stay. Fed. R. Civ. P. 6(b) (“When an act may or must be done within a specified 6 time the court may, for good cause, extend the time . . .”); Fed. R. Civ. P. 26(a) (“A party or 7 any person from whom discovery is sought may move for a protective order in the court where 8 the action is pending . . . The court may, for good cause, issue an order to protect a party or 9 person from annoyance, embarrassment, oppression, or undue burden or expense.”). This 10 Court therefore has broad discretion to stay proceedings as incidental to its power to control 11 its own docket – particularly where, as here, a stay would promote judicial economy and 12 efficiency. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Sierra Club v. U.S. Army Corps 13 of Engineers, 446 F.3d 808, 816 (8th Cir. 2006) (citing, Clinton v. Jones, 520 U.S. 681, 706 14 (1997)). 15 A stipulation to stay proceedings, like the Parties seek here, is an appropriate exercise 16 of this Court’s jurisdiction. See, Landis v. N. Am. Co., 299 U.S. 248, 254-255 (1936) 17 (explaining a court’s power to stay proceedings is incidental to its inherent power to control 18 the disposition of the cases on its docket to save the time and effort of the court, counsel, and 19 the parties). 20 The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with 21 economy of time and effort for itself, for counsel, and for litigants. 22 How this can best be done calls for the exercise of judgment, which 23 must weigh competing interests and maintain an even balance. 24 Id. (citing, Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)); see also, 25 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (district courts possess “inherent power 26 to control the disposition of the causes on its docket in a manner which will promote economy 27 of time and effort for itself, for counsel, and for litigants”); Garlock Sealing Tech., LLC v. 28 Pittsburgh Corning Corp. (In re Pittsburgh Corning Corp.), No. 11-1406, 11-1452 2012 U.S. 1 Dist. LEXIS 86193, *11 (W.D. Mo. June 21, 2012) (noting that a court’s power to stay 2 proceedings is incidental to its power to control the disposition of causes on its docket). 3 Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) also vest the Court with 4 authority to limit the scope of discovery or control its sequence and may grant a stay to allow 5 parties to negotiate a settlement. Britton, 523 U.S. at 598. 6 B. Good Cause Exists to Grant the Requested Stay. 7 Plaintiff and Defendants are actively engaging in settlement negotiations. The Parties 8 further and in good faith believe that a final settlement is forthcoming that shall resolve this 9 and other cases within the inventory, especially given their past history of successful 10 settlement discussions relating to cases in this MDL.
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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 7 C ounsel for Defendants 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRI CT OF NEVADA 10 NESTOR GRIEGO, CASE NO. 2:21-cv-00325-JAD-BNW 11 Plaintiff, 12 v. 13 C. R. BARD, INCORPORATED and BARD 14 PERIPHERAL VASCULAR, 15 INCORPORATED,
16 Defendants.
17 18 STIPULATION AND [PROPOSED] ORDER TO STAY 19 DISCOVERY AND ALL PRETRIAL DEADLINES 20 Plaintiff Nestor Griego and Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, 21 Inc. (collectively “Bard”) (Plaintiff and Bard are collectively referred to herein as “the 22 Parties”) pursuant to Fed. R. Civ. P. 26 and the Court’s inherent powers, respectfully request 23 that this Court enter an Order temporarily staying discovery and all pretrial deadlines imposed 24 by the Court, the Local Rules, and the Federal Rules of Civil Procedure for ninety (90) days 25 to permit them to pursue negotiations of a settlement of this and all cases of Plaintiff’s counsel 26 recently remanded from the MDL pursuant to the MDL Court’s February 11, 2021 Amended 27 Suggestion of Remand and Transfer Order (Fifth) (“Fifth Remand Order”). 28 / / / 1 Plaintiff’s counsel and Defendants have previously settled in principle numerous cases 2 in the MDL concerning Bard inferior vena cava (“IVC”) filters. The Parties believe that a 3 stay is necessary in this case to conserve their resources and attention so that they may attempt 4 to resolve it and the claims of other such plaintiffs represented by Plaintiff’s counsel that were 5 recently remanded to district courts across the country. Accordingly, the Parties jointly 6 request that the Court enter a stay of discovery and all pretrial deadlines in this case for a 7 period of ninety (90) days. If Plaintiff has not filed dismissal papers within ninety (90) days 8 from the stay being granted, the Parties request the opportunity to file a joint status report 9 regarding the status of the settlement. 10 I. BACKGROUND 11 Plaintiff’s counsel represents plaintiffs with cases in the In re: Bard IVC Filters 12 Products Liability Litigation, MDL 2641 (the “MDL”), as well as cases that have been 13 transferred or remanded from the MDL to courts across the country, involving claims against 14 Bard for injuries they contend arise out of their use of Bard’s IVC filters. The Parties reached 15 a settlement in principle concerning the majority of the Plaintiff’s counsel’s IVC filter cases 16 and have finalized the details of that settlement with most of their clients. However, a small 17 number of those plaintiffs “opted out” of the settlement. The cases remanded pursuant to the 18 MDL’s Fifth Remand Order included those cases that were previously dismissed but for 19 which the MDL Court reinstated prior to remanding, since the plaintiff had opted out of the 20 settlement and a final settlement had not been reached. With respect to these cases, including 21 this one, counsel for the Parties have renewed discussions in an attempt to achieve a settlement 22 of the cases of these remaining plaintiffs represented by Plaintiff’s counsel. Counsel for the 23 Parties believe that their resources are best directed to focusing their efforts on potential 24 settlement discussions, especially given their past history of successful settlement discussions 25 relating to cases in this MDL. Thus, the Parties jointly move this Court to enter a stay of all 26 discovery and pretrial deadlines in this case for a period of ninety (90) days. 27 / / / 28 / / / 1 II. ARGUMENTS AND AUTHORITIES 2 A. The Court Has Authority to Grant the Requested Stay. 3 Pursuant to Federal Rules of Civil Procedure 6(b) and 26, and the Court’s inherent 4 authority and discretion to manage its own docket, this Court has the authority to grant the 5 requested stay. Fed. R. Civ. P. 6(b) (“When an act may or must be done within a specified 6 time the court may, for good cause, extend the time . . .”); Fed. R. Civ. P. 26(a) (“A party or 7 any person from whom discovery is sought may move for a protective order in the court where 8 the action is pending . . . The court may, for good cause, issue an order to protect a party or 9 person from annoyance, embarrassment, oppression, or undue burden or expense.”). This 10 Court therefore has broad discretion to stay proceedings as incidental to its power to control 11 its own docket – particularly where, as here, a stay would promote judicial economy and 12 efficiency. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Sierra Club v. U.S. Army Corps 13 of Engineers, 446 F.3d 808, 816 (8th Cir. 2006) (citing, Clinton v. Jones, 520 U.S. 681, 706 14 (1997)). 15 A stipulation to stay proceedings, like the Parties seek here, is an appropriate exercise 16 of this Court’s jurisdiction. See, Landis v. N. Am. Co., 299 U.S. 248, 254-255 (1936) 17 (explaining a court’s power to stay proceedings is incidental to its inherent power to control 18 the disposition of the cases on its docket to save the time and effort of the court, counsel, and 19 the parties). 20 The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with 21 economy of time and effort for itself, for counsel, and for litigants. 22 How this can best be done calls for the exercise of judgment, which 23 must weigh competing interests and maintain an even balance. 24 Id. (citing, Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931)); see also, 25 CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (district courts possess “inherent power 26 to control the disposition of the causes on its docket in a manner which will promote economy 27 of time and effort for itself, for counsel, and for litigants”); Garlock Sealing Tech., LLC v. 28 Pittsburgh Corning Corp. (In re Pittsburgh Corning Corp.), No. 11-1406, 11-1452 2012 U.S. 1 Dist. LEXIS 86193, *11 (W.D. Mo. June 21, 2012) (noting that a court’s power to stay 2 proceedings is incidental to its power to control the disposition of causes on its docket). 3 Furthermore, Federal Rules of Civil Procedure 26(c) and 26(d) also vest the Court with 4 authority to limit the scope of discovery or control its sequence and may grant a stay to allow 5 parties to negotiate a settlement. Britton, 523 U.S. at 598. 6 B. Good Cause Exists to Grant the Requested Stay. 7 Plaintiff and Defendants are actively engaging in settlement negotiations. The Parties 8 further and in good faith believe that a final settlement is forthcoming that shall resolve this 9 and other cases within the inventory, especially given their past history of successful 10 settlement discussions relating to cases in this MDL. The Parties do not seek a stay in bad 11 faith, to unduly burden any party or the Court or cause unnecessary delay, but to support the 12 efficient and expeditious resolution of this litigation. Granting the stay here will certainly 13 save the time and effort of the Court, counsel, and the parties, promote judicial economy and 14 effectiveness, and provide counsel an opportunity to resolve their issues without additional 15 litigation expenses for their clients. 16 Facilitating the Parties’ efforts to resolve their dispute entirely through settlement 17 negotiations is reasonable and constitutes good cause for granting the requested stay of 18 discovery and other pretrial deadlines. The Parties agree that the relief sought herein is 19 necessary to handle the case in the most economical fashion, and that the relief sought in this 20 Agreed Stipulation is not for delay, but so that justice may be done. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. CONCLUSION 2 For the foregoing reasons, the Parties respectfully request that the Court enter a stay ¢ 3 |/all activity in this case, for a period of ninety (90) days. If Plaintiff has not filed dismiss: 4 || papers within ninety (90) days from the stay being granted, the Parties request the opportunit 5 || to file a joint status report regarding the status of the settlement. 6 Respectfully submitted, 7 DATED this 26" day of March 2021. 8 AYLSTOCK WITKIN KREIS GREENBERG TRAURIG, LLP 9 OVERHOLTZ, PLLC 10 || By: /3/ Douglass A. Kreis By: /s/ Eric W. Swaniy DOUGLASS A. KREIS, ESQ. ERIC W. SWANIS, ESQ. dkreis@awkolaw.com Nevada Bar No. 6840 12 17 East Main Street, Suite 200 swanise@gtlaw.com 13 Pensacola, Florida 32502 10845 Griffith Peak Drive 388 Suite 600 14 Counsel for Plaintiff Las Vegas, Nevada 89135 Telephone: (702) 792-3773 15 Facsimile: (702) 792-9002 6 Counsel for Defendants 17 ORDER 18 19 IT IS SO ORDERED DATED: 10:52 am, March 30, 2021 20 21 Gra Les reat, 22 BRENDA WEKSLER 53 UNITED STATES MAGISTRATE JUDGE
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