Henderson v. Aria Resort and Casino Holdings, LLC

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5

6 RHODNEY HENDERSON, et al., Case No. 2:21-cv-00280-JAD-NJK 7 Plaintiff(s), ORDER TO SHOW CAUSE 8 v. 9 ARIA RESORT & CASINO HOLDINGS, 10 LLC, et al., 11 Defendant(s). 12 “A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly 13 disregarded by counsel without peril.” Johnson v. Mammoth Recs., Inc., 975 F.2d 604, 610 (9th 14 Cir. 1992). As this Court recounted only a few weeks ago, “[d]ecades of Ninth Circuit precedent 15 reflect that case management deadlines established in the scheduling order . . . must be taken 16 seriously.” Docket No. 84 at 3 n.2 (collecting cases). Indeed, the failure to abide by the Court’s 17 scheduling order may result in the imposition of sanctions. See, e.g., Fed. R. Civ. P. 16(f)(1)(C); 18 Local Rule IA 11-8(e). 19 The discovery cutoff expired in this case on April 13, 2023. Docket No. 77. The Court 20 cautioned in the order setting that deadline that “NO FURTHER EXTENSIONS WILL BE 21 GRANTED.” Id. at 6 (emphasis in original); see also Docket No. 68 at 5 (“THE COURT IS 22 NOT INCLINED TO GRANT FURTHER EXTENSIONS” (emphasis in original)); Docket 23 No. 56 at 1 (finding diligence lacking for a discovery extension, but allowing “this last extension” 24 as a “final courtesy to the parties” (emphasis in original)). Hence, it has been crystal clear for 25 months that the parties were required to complete discovery by April 13, 2023. Recent filings 26 reveal, however, that the parties have not abided by that cutoff. As an example, Defendant Aria 27 apparently served a subpoena duces tecum on the date of the discovery cutoff, see Docket No. 86 28 at 4, despite the fact that “nonparty discovery must be completed before the discovery cutoff just 1} like other discovery,” V5 Techs. v. Switch, Ltd., 332 F.R.D. 356, 361 n.5 (D. Nev. 2019) (quoting 2|| Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 561 (S.D. Cal. 1999) and Marvin 3 Lumber & Cedar Co. v. PPG Indus., Inc., 177 F.R.D. 443, 445 (D. Minn. 1997)). As another 4] example, the parties apparently agreed without seeking or obtaining judicial approval to take 5| depositions after the discovery cutoff, Docket No. 87 at 2, even though engaging in untimely discovery pursuant to an unapproved agreement violates the scheduling order and the Federal 7|| Rules of Civil Procedure, e.g., Fed. R. Civ. P. 29(b).! That counsel chose to engage in this course 8|| of conduct immediately after the Court emphasized the importance of scheduling orders and the 9] need for compliance only heightens the concerns that stem from this conduct. See Docket No. 84 10} at 3 n.2. 11 Accordingly, all attorneys of record (Gia Marina, Paola Armeni, Christopher Kircher, 12] Jarrod Rickard, Katie Lynn Cannata, and Lawrence Semeza, III) are hereby ORDERED to show cause in writing, no later than May 5, 2023, why they should not be sanctioned in a court fine of 14] up to $500 for violating the scheduling order. See, e.g., Fed. R. Civ. P. 16(f)(1)(C); Local Rule IA 11-8(e). 16 IT IS SO ORDERED. 17 Dated: April 21, 2023

Nancy J Koppe 19 United Statés Magistrate Judge 20 21) ____ ! “1 A] stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery.” Fed. R. Civ. P. 29(b) (emphasis added). “To take a deposition after court-imposed deadlines requires a stipulation approved by the 23} court, or an order granting a motion to re-open discovery.” Rakhra v. PHW Las Vegas, LLC, 2014 WL 99302, at *3 (D. Nev. Jan. 3, 2014) (emphasis added). Agreements to take depositions after the discovery cutoff made without seeking or obtaining judicial approval are improper and unenforceable. See, e.g., Wyles v. Sussman, 445 F. Supp. 3d 751, 756 (C.D. Cal. 2020); 25|| Bella+Canvas, LLC vy. Fountain Set Ltd., 2023 WL 1997702, at *4 (C.D. Cal. Feb. 14, 2023); Lee v. Lee, 2022 WL 17096696, at *2 (C.D. Cal. Jan. 24, 2022); Linksmart Wireless Tech., LLC v. Gogo Inc., 2021 WL 4895738, at *3 (C.D. Cal. Mar. 25, 2021); Adinolfi by and through Adinolfi v. Omni La Costa Resort & Spa, LLC, 2019 WL 2269881, at *4-5 (S.D. Cal. May 28, 2019); 27| AmeriPOD, LLC vy. davisREED Constr., Inc., 2018 WL 4612544, at *2 (S.D. Cal. Sept. 26, 2018); accord Garcia v. Serv. Emps. Int’! Union, No. 2:17-cv-01340-APG-NJK, Docket No. 178 at 1, n.1 28] (D. Nev. Sept. 20, 2018).