1 FRANK M. FLANSBURG III, ESQ., Nevada Bar No. 6974 fflansburg@bhfs.com 2 EMILY A. ELLIS, ESQ., Nevada Bar No. 11956 eellis@bhfs.com 3 TROY P. DOMINA, ESQ., Nevada Bar No. 13862 tdomina@bhfs.com 4 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 5 Las Vegas, Nevada 89106 Telephone: 702.382.2101 6 Facsimile: 702.382.8135
7 Attorneys for Plaintiff Lausteveion Johnson
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF NEVADA
10 LAUSTEVEION JOHNSON, CASE NO. 2:17-cv-01671-APG-EJY
11 Plaintiff, JOINT STIPULATION AND ORDER 12 v. TO PRELIMINARILY EXTEND DEADLINES AND REQUEST FOR 13 JAMES DZURENDA; FRANK DREESEN; STATUS CONFERENCE ON ORDER REGINA BARRETT; JOSEPH LEWIS; SHORTENING TIME 14 TIMOTHY KNATZ; DAVID WILLIS AND JO GENTRY, (FIRST REQUEST) 15 Defendants. 16 17 Plaintiff, Lausteveion Johnson (“Plaintiff”), by and through his appointed counsel, Frank 18 M. Flansburg, III, Esq., Emily A. Ellis, Esq., and Troy P. Domina, Esq., of the law firm Brownstein 19 Hyatt Farber Schreck, LLP, and Defendants, James Dzurenda, Frank Dreesen, Regina Barrett, 20 Joseph Lewis, Timothy Knatz, David Willis, and Jo Gentry (“Defendants”) by and through their 21 counsel Aaron D. Ford, Esq., and Austin T. Barnum, Esq., hereby submit this Joint Stipulation and 22 Order to Preliminarily Extend Deadlines and Request for Status Conference on Order Shortening 23 Time. Pursuant to Local Rule IA 6-1and Local Rule 7-1, the Parties request the deadline for 24 motions in limine be extended from May 9, 2022 to May 23, 2022. 25 MEMORANDUM OF POINTS AND AUTHORITIES 26 I. RELEVANT BACKGROUND 27 On May 4, 2022, this Court entered an order (the “Order”) appointing Frank M. Flansburg, 28 Emily A. Ellis, and Troy P. Domina as pro bono counsel for Plaintiff, Lausteveion Johnson (“Pro 1 Bono Counsel”).1 Pro Bono Counsel entered their notices of appearance on May 5, 2022.2 The 2 Order stated the scope of Pro Bono Counsel’s representation was limited to “preparing a joint 3 pretrial order and advising Plaintiff in the course of preparing for and conducting trial.”3 4 This matter is set for a jury trial on the stacked calendar on June 6, 2022, at 9:00am, and the 5 corresponding calendar call is scheduled for May 31, 2022, at 9:00am. 6 Just before and just after the time Pro Bono Counsel was appointed, the Plaintiff, acting pro 7 se, filed various motions to which Defendants must respond. These motions include: 8 • ECF No. 165 – Motion for jury to visit the prison; 9 • ECF No. 166 – Motion for a diverse jury; 10 • ECF No. 167 – Emergency Writ of Habeas Corpus Ad Testificadum; 11 • ECF No. 180- Motion in Limine; 12 • ECF No. 181- Motion in Limine; 13 • ECF No. 182- Motion in Limine; 14 • ECF No. 183- Motion in Limine; 15 • ECF No. 184- Motion in Limine; 16 • ECF No. 185- Motion in Limine; and 17 • ECF No. 186- Motion in Limine 18 In addition, the deadline to file motions in limine expires May 9, 2022. 19 II. LEGAL DISCUSSION
20 A. EXTENDING TIME. 21 (1) In General. When an act may or must be done within a specified time, the 22 court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request 23 is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act 24 because of excusable neglect. 25 26 27 1 See ECF No. 177, at 1, filed herein. 28 2 See ECF No. 178, at 1, filed herein. 1 Fed.R.Civ.P. 6(b)(1).4 2 The United States Supreme Court has recognized, “Rule 6(b) gives the court extensive 3 flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is 4 sought before or after the actual termination of the allotted time.” Lujan v. Nat'l Wildlife Fed., 497 5 U.S. 871, 906 n. 7 (1990) (internal quotation marks and citation omitted) (emphasis added); see 6 also Perez-Denison v. Kaiser Found. Health Plan of the Nw., 868 F. Supp. 2d 1065, 1079 (D. Or. 7 2012) (citing and quoting Lujan, 497 U.S. at 906). Further, this rule, like all the Federal Rules of 8 Civil Procedure is to be liberally construed to effectuate the general purpose of seeing that cases 9 are tried on the merits. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010). 10 Regarding “good cause,” it is a non-rigorous standard that has been construed broadly across 11 procedural and statutory contexts. Id. (citing several circuits Venegas–Hernandez v. Sonolux 12 Records, 370 F.3d 183, 187 (1st Cir.2004); Thomas v. Brennan, 961 F.2d 612, 619 (7th Cir.1992); 13 Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir.1987)). 14 Consequently, requests for extensions of time made before the applicable deadline has 15 passed should “normally ... be granted in the absence of bad faith on the part of the party seeking 16 relief or prejudice to the adverse party.” Ahanchian, 624 F.3d at 1259 (quoting 4B Charles Alan 17 Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed. 2004). 18 Pro Bono Counsel was appointed on May 4, 2022, and they entered their appearances on 19 May 5, 2022. Pro Bono Counsel needs adequate time to review the filings in this matter and 20 properly assess and analyze the needs of the case. Pro Bono Counsel also needs adequate time to 21 make contact with Plaintiff to discuss strategy. As such, the Parties submit that good cause exists 22 for the extension requested herein, which is not brought for delay or any other improper purpose. 23 Therefore, the Parties hereby stipulate and request the Court grant a short, two-week, 24 preliminary extension of the deadline for motions in limine and the deadlines to respond to the 25 following ECF numbered documents to provide Pro Bono Counsel the time to accomplish the tasks 26 4 LR IA 6-1(a): “A motion or stipulation to extend time must state the reasons for the 27 extension requested and must inform the court of all previous extensions of the subject deadline the court granted.” Further, a “stipulation or motion seeking to extend the time to file an opposition or 28 reply to a motion, or to extend the time fixed for hearing a motion, must state in its opening 1 described above: ECF No. 165 – Motion for jury to visit the prison, ECF No. 166 – Motion for a 2 diverse jury, ECF No. 167 – Emergency Writ of Habeas Corpus Ad Testificadum, ECF No. 180- 3 Motion in Limine, ECF No. 181- Motion in Limine, ECF No. 182- Motion in Limine, ECF No. 183- 4 Motion in Limine, ECF No. 184- Motion in Limine, ECF No. 185- Motion in Limine, ECF No. 186- 5 Motion in Limine. 6 B. REQUEST FOR STATUS CONFERENCE. 7 The order appointing Pro Bono Counsel states their representation is limited to “preparing 8 a joint pretrial order and advising Plaintiff in the course of preparing for and conducting trial.”5 9 Trial is scheduled to commence on a trial stack beginning on June 6, 2022, and calendar call is 10 scheduled for May 31, 2022.
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1 FRANK M. FLANSBURG III, ESQ., Nevada Bar No. 6974 fflansburg@bhfs.com 2 EMILY A. ELLIS, ESQ., Nevada Bar No. 11956 eellis@bhfs.com 3 TROY P. DOMINA, ESQ., Nevada Bar No. 13862 tdomina@bhfs.com 4 BROWNSTEIN HYATT FARBER SCHRECK, LLP 100 North City Parkway, Suite 1600 5 Las Vegas, Nevada 89106 Telephone: 702.382.2101 6 Facsimile: 702.382.8135
7 Attorneys for Plaintiff Lausteveion Johnson
8 UNITED STATES DISTRICT COURT
9 DISTRICT OF NEVADA
10 LAUSTEVEION JOHNSON, CASE NO. 2:17-cv-01671-APG-EJY
11 Plaintiff, JOINT STIPULATION AND ORDER 12 v. TO PRELIMINARILY EXTEND DEADLINES AND REQUEST FOR 13 JAMES DZURENDA; FRANK DREESEN; STATUS CONFERENCE ON ORDER REGINA BARRETT; JOSEPH LEWIS; SHORTENING TIME 14 TIMOTHY KNATZ; DAVID WILLIS AND JO GENTRY, (FIRST REQUEST) 15 Defendants. 16 17 Plaintiff, Lausteveion Johnson (“Plaintiff”), by and through his appointed counsel, Frank 18 M. Flansburg, III, Esq., Emily A. Ellis, Esq., and Troy P. Domina, Esq., of the law firm Brownstein 19 Hyatt Farber Schreck, LLP, and Defendants, James Dzurenda, Frank Dreesen, Regina Barrett, 20 Joseph Lewis, Timothy Knatz, David Willis, and Jo Gentry (“Defendants”) by and through their 21 counsel Aaron D. Ford, Esq., and Austin T. Barnum, Esq., hereby submit this Joint Stipulation and 22 Order to Preliminarily Extend Deadlines and Request for Status Conference on Order Shortening 23 Time. Pursuant to Local Rule IA 6-1and Local Rule 7-1, the Parties request the deadline for 24 motions in limine be extended from May 9, 2022 to May 23, 2022. 25 MEMORANDUM OF POINTS AND AUTHORITIES 26 I. RELEVANT BACKGROUND 27 On May 4, 2022, this Court entered an order (the “Order”) appointing Frank M. Flansburg, 28 Emily A. Ellis, and Troy P. Domina as pro bono counsel for Plaintiff, Lausteveion Johnson (“Pro 1 Bono Counsel”).1 Pro Bono Counsel entered their notices of appearance on May 5, 2022.2 The 2 Order stated the scope of Pro Bono Counsel’s representation was limited to “preparing a joint 3 pretrial order and advising Plaintiff in the course of preparing for and conducting trial.”3 4 This matter is set for a jury trial on the stacked calendar on June 6, 2022, at 9:00am, and the 5 corresponding calendar call is scheduled for May 31, 2022, at 9:00am. 6 Just before and just after the time Pro Bono Counsel was appointed, the Plaintiff, acting pro 7 se, filed various motions to which Defendants must respond. These motions include: 8 • ECF No. 165 – Motion for jury to visit the prison; 9 • ECF No. 166 – Motion for a diverse jury; 10 • ECF No. 167 – Emergency Writ of Habeas Corpus Ad Testificadum; 11 • ECF No. 180- Motion in Limine; 12 • ECF No. 181- Motion in Limine; 13 • ECF No. 182- Motion in Limine; 14 • ECF No. 183- Motion in Limine; 15 • ECF No. 184- Motion in Limine; 16 • ECF No. 185- Motion in Limine; and 17 • ECF No. 186- Motion in Limine 18 In addition, the deadline to file motions in limine expires May 9, 2022. 19 II. LEGAL DISCUSSION
20 A. EXTENDING TIME. 21 (1) In General. When an act may or must be done within a specified time, the 22 court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request 23 is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act 24 because of excusable neglect. 25 26 27 1 See ECF No. 177, at 1, filed herein. 28 2 See ECF No. 178, at 1, filed herein. 1 Fed.R.Civ.P. 6(b)(1).4 2 The United States Supreme Court has recognized, “Rule 6(b) gives the court extensive 3 flexibility to modify the fixed time periods found throughout the rules, whether the enlargement is 4 sought before or after the actual termination of the allotted time.” Lujan v. Nat'l Wildlife Fed., 497 5 U.S. 871, 906 n. 7 (1990) (internal quotation marks and citation omitted) (emphasis added); see 6 also Perez-Denison v. Kaiser Found. Health Plan of the Nw., 868 F. Supp. 2d 1065, 1079 (D. Or. 7 2012) (citing and quoting Lujan, 497 U.S. at 906). Further, this rule, like all the Federal Rules of 8 Civil Procedure is to be liberally construed to effectuate the general purpose of seeing that cases 9 are tried on the merits. Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010). 10 Regarding “good cause,” it is a non-rigorous standard that has been construed broadly across 11 procedural and statutory contexts. Id. (citing several circuits Venegas–Hernandez v. Sonolux 12 Records, 370 F.3d 183, 187 (1st Cir.2004); Thomas v. Brennan, 961 F.2d 612, 619 (7th Cir.1992); 13 Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir.1987)). 14 Consequently, requests for extensions of time made before the applicable deadline has 15 passed should “normally ... be granted in the absence of bad faith on the part of the party seeking 16 relief or prejudice to the adverse party.” Ahanchian, 624 F.3d at 1259 (quoting 4B Charles Alan 17 Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (3d ed. 2004). 18 Pro Bono Counsel was appointed on May 4, 2022, and they entered their appearances on 19 May 5, 2022. Pro Bono Counsel needs adequate time to review the filings in this matter and 20 properly assess and analyze the needs of the case. Pro Bono Counsel also needs adequate time to 21 make contact with Plaintiff to discuss strategy. As such, the Parties submit that good cause exists 22 for the extension requested herein, which is not brought for delay or any other improper purpose. 23 Therefore, the Parties hereby stipulate and request the Court grant a short, two-week, 24 preliminary extension of the deadline for motions in limine and the deadlines to respond to the 25 following ECF numbered documents to provide Pro Bono Counsel the time to accomplish the tasks 26 4 LR IA 6-1(a): “A motion or stipulation to extend time must state the reasons for the 27 extension requested and must inform the court of all previous extensions of the subject deadline the court granted.” Further, a “stipulation or motion seeking to extend the time to file an opposition or 28 reply to a motion, or to extend the time fixed for hearing a motion, must state in its opening 1 described above: ECF No. 165 – Motion for jury to visit the prison, ECF No. 166 – Motion for a 2 diverse jury, ECF No. 167 – Emergency Writ of Habeas Corpus Ad Testificadum, ECF No. 180- 3 Motion in Limine, ECF No. 181- Motion in Limine, ECF No. 182- Motion in Limine, ECF No. 183- 4 Motion in Limine, ECF No. 184- Motion in Limine, ECF No. 185- Motion in Limine, ECF No. 186- 5 Motion in Limine. 6 B. REQUEST FOR STATUS CONFERENCE. 7 The order appointing Pro Bono Counsel states their representation is limited to “preparing 8 a joint pretrial order and advising Plaintiff in the course of preparing for and conducting trial.”5 9 Trial is scheduled to commence on a trial stack beginning on June 6, 2022, and calendar call is 10 scheduled for May 31, 2022. 11 The Parties seek clarification on the extent of Pro Bono Counsel’s representation regarding 12 advising Plaintiff in the course of preparing for and conducting trial.6 More specifically, the Parties 13 seek clarification whether the advisory role of Pro Bono Counsel includes preparing for and 14 conducting opening and closing arguments, direct and cross examination of witnesses, and 15 introducing exhibits into evidence at trial on Plaintiff’s behalf.7 Because of the compressed time 16 frame before trial, the Parties seek a status conference on order shortening time to receive this 17 clarification.8 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 5 See ECF No. 177, at 1:13-15; see also Decl. of T. Domina, at ¶ 5, May 9, 2022, attached as 27 Exhibit 1. 6 See Ex. 1, at ¶ 8. 28 7 Id. at ¶ 9. 1 | 1. CONCLUSION 2 For the reasons stated above, the Parties request this Court grant a two-week extension of 3 || the deadline to file motions in limine (to May 23, 2022) and for Defendant to respond to the 4 || documents identified herein. The Parties also request a status conference to specify the parameters 5 || of Pro Bono Counsel’s representation on an order shortening time. 6 7 DATED this 9" day of May, 2022 DATED this 9" day of May, 2022 BROWNSTEIN HYATT FARBER SCHRECK, LLP STATE OF NEVADA OFFICE OF 9 BY:_/s/ Emily A. Ellis ATTORNEY GENERAL FRANK M. FLANSBURG III, ESQ., BY: _/s/ Austin T. Barnum 10 EMILY A. ELLIS, ESQ., AARON D. FORD, Attorney General TROY P. DOMINA, ESQ., AUSTIN T. BARNUM _ Deputy 11 Attorneys for Plaintiff Lausteveion Johnson Attorney General 2 Attorneys for Defendants Regina a 12 Barrett, Frank Dreesen, James Dzurenda, Timothy Knatz, Joseph 13 Lewis, and David Willis
3 15 16 17 IT IS SO ORDERED. 18 19 ( So UNITED STATES DISTRICT JUDGE
21 DATE: May 10, 2022 22 23 24 25 26 27 28 24127289.1 -5-