Hrabe-Kinzer v. The Vons Companies, Inc.

Opinion

1 SAO Jonathan B. Lee, Esq. 2 Nevada Bar No. 13524 RICHARD HARRIS LAW FIRM 3 801 South Fourth Street Las Vegas, Nevada 89101 4 Phone: (702) 444-4444 Fax: (702) 444-4455 5 Email: jlee@richardharrislaw.com 6 Attorney for Plaintiff Nereida Hrabe-Kinzer

7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 NEREIDA HRABE-KINZER, individually; CASE NO. 2:24-cv-00691-ART-MDC 10 Plaintiff,

11 vs. STIPULATION AND ORDER TO 12 THE VONS COMPANIES, INC., dba Vons EXTEND DISCOVERY DEADLINES Grocery Co #1970, a foreign limited-liability 13 company; DOE EMPLOYEE; ROE (Fourth Request) 14 OWNER/OPERATOR; DOE INDIVIDUALS 2- 10; ROE BUSINESS ENTITIES 2-10, inclusive 15 jointly and severally,

16 Defendants. 17 18 Pursuant to Local Rules of Practice for the United States District Court for the District of 19 Nevada (“LR”) 26-3, it is hereby stipulated and agreed by and between the parties and their 20 respective counsel that the discovery deadlines shall be extended in this matter by an additional 21 sixty (60) days. The parties propose the following revised discovery plan: 22 Pursuant to Local Rule 6-1(b), the Parties hereby believe this is the fourth discovery 23 extension requested. Further: 1) there is no danger of prejudice as the Parties stipulate the 24 extension; 2) a sixty (60) day extension will not impact the trial date because the same has not 25 been scheduled; and 3) the requested extension is made in good faith by both Parties. Pioneer 26 Investment Services v. Brunswick Associate’s, Ltd., 507 U.S. 380, 395 (1993). 27 28 Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC Because the parties are submitting this stipulation later than 21 days before the expiration 2 | of the first deadline, they are requesting the Court to extend the excusable neglect standard. Local 3 | Rule 26-3 indicates in relevant part: 4 LR 26-3. EXTENSION OF SCHEDULED DEADLINES 5 A motion or stipulation to extend any date set by the discovery plan, scheduling order, or other order must, in addition to satisfying the requirements of LR JA 6-1, 6 be supported by a showing of good cause for the extension. A motion or stipulation to extend a deadline set forth in a discovery plan must be received by the court no 7 later than 21 days before the expiration of the subject deadline. A request made within 21 days of the subject deadline must be supported by a showing of good cause. A request made after the expiration of the subject deadline will not be 9 granted unless the movant also demonstrates that the failure to act was the result of excusable neglect. A motion or stipulation to extend a discovery deadline or to 10 reopen discovery must include: (a) A statement specifying the discovery completed; D (b) A specific description of the discovery that remains to be completed; B (c) The reasons why the deadline was not satisfied or the remaining discovery was not completed within the time limits set by the discovery plan; and 14 (d) A proposed schedule for completing all remaining discovery. 15 = Under Nevada federal law, excusable neglect in the context of LR 26-3 is a flexible and 16 = equitable concept. Burton v. Fonseca, 2023 WL 2717326, at *2 (D. Nev. Mar. 30, 2023) (citing 17 Kyle v. Campbell Soup Co., 28 F.3d 928, 931 (9th Cir. 1994). In determining whether neglect is 18 excusable, Federal Courts assess four factors: (1) the danger of prejudice to the opposing party; 19 (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; 20 and (4) whether the movant acted in good faith. /d. (citing Bateman v. U.S. Postal Service, 231 21 F.3d 1220, 1223-24 (9th Cir. 2000)). The parties address each factor below. 22 1. The Danger of Prejudice to the Opposing Party 23 There is no danger of prejudice to the opposing party. This is a joint request. Thus, this 24 factor favors satisfaction of the excusable neglect standard. 25 2. The Length of the Delay and Its Impact on the Proceedings 26 The additional time the parties are requesting does not create an unreasonable delay or hav 27 a negative impact on the proceedings. The subject incident occurred on July 19, 2023, and the 28 the Store permanently closed a few months afterwards. On March 11, 2024, Plaintiff filed he

Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC 1 |complaint in state court, which was subsequently removed to federal court on April 10, 2024, 2 | Accordingly, this matter has only been pending before this Court for slightly over a year. Thus, 3 | this factor also favors satisfaction of the excusable neglect standard. 4 3. The Reason for the Request for Additional Time 5 As Section III indicates, Plaintiff is still undergoing extensive pain management treatmen 6 for her alleged incident-related injuries, obtaining a left lumbar sympathetic ganglion block (L2 7 |L4) (March 20, 2025), a diagnostic facet injection (bilateral) of the cervical spine (C3-C7 8 | (February 20, 2025), and bilateral bone marrow aspirate concentrate and platelet-rich plasma facet 9 injections in her cervical spine (C3-C7) and left foot. Mrs. Hrabe anticipates undergoing additiona 10 pain management treatment soon due to the results of her recent injections. Additionally, th 11 |Defendant has been waiting for its third-party insurance administrator to provide the relevan 12 | documentation related to the Store’s prior slip and fall incidents that the Defendant □□□□□□□□□ 13 | identified in prior discovery. Unfortunately, Defendant cannot access these documents because th: 14 | Store closed a few months after the subject incident transpired and requested them from its third 15 | party insurance administrator months ago. Defendant believes that at least the first set of thes 16 | documents will be available to disclose and be analyzed by the parties’ legal counsel and liabilit 17 | experts within weeks. Lastly, Defendant is still trying to coordinate the depositions of Defendant’ 18 Fed. R. Civ. P. 30(b)(6) designees,! along with a few of the Defendant’s former employees wh: 19 | were present at the Store when the subject incident transpired and investigated the incident — i.e., 20 Keitha Jackson, Kayla Toroda, and Gary Quesnell. Thus, the requested extension, the length o 21 | the delay, and the related impact on the proceedings will not be substantive or material. Instead, 22 the additional time will positively impact the proceedings and potentially allow the parties t 23 | consider alternative dispute resolution options and appropriately prepare for trial. Thus, there is n 24 faith or inappropriate delay involved and the reason for the additional time favors satisfactio 25 | of the excusable neglect standard. 26 27 ei Defendant has already identified the designees for the topics noticed in the Fed. R. Civ. P. 30(b)(6) deposition notice.

Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC 1 4. Whether the Movant Acted in Good Faith 2 Both parties are acting in good faith with this joint request. As indicated, the parties are no 3 | making this extension request for the purpose of delay or any bad faith reason. There is nothin 4 |nefarious going on amongst the parties. The parties need additional time to obtain the relevan 5 | discovery,” coordinate potential alternative dispute resolution, and properly prepare the case fo 6 trial if the parties cannot resolve this matter. Thus, this factor favors satisfaction of the excusabl 7 neglect standard. 8 5. Excusable Neglect Conclusion 9 Considering the above four factors and the remaining circumstances, the parties believ 10 |they have satisfied the excusable neglect standard. Further, as the Court knows, the excusabl 11 neglect standard is an equitable concept, which, in this scenario, essentially means fairness that i 12 | not hampered by technical requirements. Also, the requested extension is fair for both sides; the 13 | both benefit from it. Thus, not only do the related factors favor a finding of excusable neglect, bu 14 the equities in the case do as well. 15 I. DISCOVERY COMPLETED TO DATE 16 The parties have participated in the following discovery to date: 17 1. The parties have conducted a Rule 26(f) conference and served their respective 18 | Rule 26(a)(1) disclosures. 19 2. Plaintiff?s Fed. R. Civ. P. 26(a)(1) initial disclosures; 20 3. Plaintiff's First Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 21 4. Plaintiff's Second Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 22 5. Plaintiff's Third Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 23 6. Plaintiff's Fourth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 24 7. Plaintiffs Fifth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 25 8. Plaintiff's Sixth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 26 9. Plaintiff's Seventh Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 27 |e The deposition notice of Defendant’s Fed. R. Civ. P. 30(b)(6) designee has been provided to Defense counsel and two designees have been identified. One designee is in Arizona; the other designee is local.

Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC 1 10. —— Plaintiffs Eighth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 2 11. — Plaintiff?s Ninth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 3 12. —— Plaintiff's Tenth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 4 13.‘ Plaintiff’s Eleventh Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 5 14. —— Plaintiff's Twelfth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 6 15. Plaintiffs Thirteenth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 7 16. Plaintiff’s Fourteenth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 8 17. Plaintiffs Fifteenth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures 9 18. Defendant’s Fed. R. Civ. P. 26(a)(1) initial disclosures; 10 19. Defendant’s First Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; M1 20. Defendant’s Second Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 12 21. Defendant’s Third Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 13 22. ~~ Plaintiffs First Set of Interrogatories to Defendant; 14 23. Plaintiffs First Set of Requests for Production of Documents to Defendant; 15 24. ‘Plaintiff's First Set of Requests for Admissions to Defendant; 16 25. Defendant’s Responses to Plaintiff's First Set of Interrogatories to Defendant; 17 26. Defendant’s Responses to Plaintiffs First Set of Requests for Production of 18 Documents to Defendant; 19 27. Defendant’s Responses to Plaintiffs First Set of Requests for Admissions to 20 | Defendant; 21 28. ‘Plaintiffs Second Set of Interrogatories to Defendant; 22 29. Plaintiffs Second Set of Requests for Production of Documents to Defendant; 23 30. Plaintiff's Second Set of Requests for Admissions to Defendant; 24 31. Defendant’s Responses to Plaintiff's Second Set of Interrogatories to Defendant; 25 32. Defendant’s Responses to Plaintiff's Second Set of Requests for Production of 26 Documents to Defendant; 27 33. Defendant’s Responses to Plaintiff's Second Set of Requests for Admissions to 28 | Defendant;

Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC 1 34. —— Plaintiff's Third Set of Requests for Production of Documents to Defendant; 2 35. Correspondence to the Current Property Owner relating to Coordinating Site 3 | Inspection; 4 36. The Parties stipulated to a Confidentiality and Protective Order; 5 37. Defendant took Plaintiffs deposition on November 26, 2024; 6 38. Plaintiffs retention of forensic medical expert, Thomman Kuruvilla; 7 39.‘ Plaintiff’s retention of safety expert, John Peterson; 8 40. Defendant’s Responses to Plaintiff’s Third Set of Requests for Production of 9 |Documents to Defendant; 10 41. _—_— Plaintiff’s Sixteenth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; M1 42. _ Plaintiff’s Seventeenth Supplement to Fed. R. Civ. P. 26(a)(1) initial 12 | disclosures; 13 43. Plaintiff's Eighteenth Supplement to Fed. R. Civ. P. 26(a)(1) initial 14 | disclosures; 15 44. Defendant’s Fourth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 16 45. Defendant’s Fifth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 17 46. Defendant’s Sixth Supplement to Fed. R. Civ. P. 26(a)(1) initial disclosures; 18 47. _Defendant’s Supplemental Responses to Plaintiff’s Second Set of Requests for 19 | Production of Documents to Defendant; 20 48. Defendant’s Responses to Plaintiff’s Third Set of Requests for Production of 21 Documents to Defendant; and 22 49, _— Plaintiff’s disclosure of Dr. Thomman Kuruvilla’s forensic medical expert 23 | report. {TL DISCOVERY REMAINING TO BE COMPLETED 25 1. Deposition of Defendant’s 30(b)(6) designees; 26 2. Depositions of former store employees Kalya Todora, Gary Quesnell, Keitha 27 Jackson, and potentially other current/former employees of Defendant; 28 3. Obtaining the documentation of the prior incidents from Defendant’s third-party

Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC | insurance administrators; 2 4. Initial Designation of Experts; 3 5. Rebuttal of Experts; 4 6. Depositions of other fact witnesses; 5 7. Supplemental NRCP 16.1 disclosures; 6 8. Supplemental written discovery responses; 7 9. Supplemental expert disclosures; and 8 10. Any additional discovery is necessary as the parties proceed through discovery. 9 |TIT. REASONS WHY DISCOVERY WAS NOT COMPLETED WITHIN THE TIME SET BY THE 10 DISCOVERY PLAN. As mentioned above, the parties need additional time to complete the depositions for multiple reasons. First, Mrs. Hrabe is still undergoing extensive pain management treatment for 3 her alleged incident-related injuries and was recently recommended to undergo more medical 4 treatment that could significantly impact the opinions of the medical experts retained in this matter. ,, Secondly, the Defendant has been waiting for its third-party insurance administrator to provide the = 16 relevant documentation related to the Store’s prior slip and fall incidents that the Defendant 7 previously identified in prior discovery. Unfortunately, Defendant cannot access these documents ig because the Store closed a few months after the subject incident transpired and requested them| 9 from its third-party insurance administrator months ago. Defendant believes that at least the first set of these documents will be available to disclose and be analyzed by the parties’ legal counsel and liability experts within weeks. Plaintiff's liability expert, John Peterson, believes that these 9 documents are important to examining the Store’s pattern recognition of hazard, incident response 3 and investigation procedures, the Defendant’s awareness of potential hazards and their response to recurring issues, safety management practices at the Store, employee risk alertness, any 45 potential behavioral complacency at the Store related to hazard management and safety practices, potential cultural deficiencies, among other important factors. Lastly, Defendant is still trying to 4 coordinate the depositions of Defendant’s Fed. R. Civ. P. 30(b)(6) designees,’ along with a few o 280 3 Defendant has already identified the designees for the topics noticed in the Fed. R. Civ. P. 30(b)(6) deposition notice.

Hrabe-Kinzer v. The Vons Companies, Inc. Case No. 2:24-cv-00691-ART-MDC 1 |the Defendant’s former employees who were present at the Store when the subject inciden 2 transpired and investigated the incident —i.e., Keitha Jackson, Kayla Toroda, and Gary Quesnell. 3 | Significantly, the foregoing information and documents will be critical to the opinions of th 4 parties’ liability experts. 5 |IV. PROPOSED SCHEDULE FOR COMPLETING DISCOVERY 6 Based on the foregoing, the proposed schedule for completing discovery is as follows: 7 Discovery Deadline Proposed Deadline Motion to Amend/Add Parties 05.06.2025 07.07.2025 Initial Expert Disclosures 05.06.2025 07.07.2025 9 Rebuttal Expert Disclosures 06.05.2025 08.06.2025 0 Discovery Cut-Off Date 08.04.2025 10.03.2025 09.03.2025 11.03.2025 11 Joint Pre-trial Order, if no 10.03.2025 12.02.2025 Dispositive Motions 12 Dated 6" day of May 2025. Dated 6" day of May 2025. 13 RICHARD HARRIS LAW FIRM BACKUS | BURDEN 14 /s/ Jonathan B. Lee /s/ Jacquelyn Franco

16 Jonathan B. Lee, Esq. Jack P. Burden, Esq. = Nevada Bar Number 13524 Nevada Bar Number 6918 17 801 South Fourth Street Jacquelyn Franco, Esq. 13 Las Vegas, Nevada 89101 Nevada Bar Number 13484 Attorneys for Plaintiff Nereida 3050 South Durango Drive 19 Hrabe-Kinzer Las Vegas, Nevada 89117 Attorneys for Defendant The Vons 20 Companies, Inc., Dba Vons Grocery Co. #1970 21 2 ORDER 23 IT IS SO ORDERED. Af!’ 24 fx 25 9 - Maximilighd D. Qbuvillier I 26 United States Magistrate Judge Date: 5/8/202 28