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