1 RICK D. ROSKELLEY, ESQ., Bar No. 3192 ap pearing, IT IS ORDERED that ECF DIANA G. DICKINSON, ESQ., Bar No. 13477 No. 13 is GRANTED. IT IS FURTHER 2 LITTLER MENDELSON, P.C. ORDERED that the Early Neutral 3960 Howard Hughes Parkway Evaluation (ENE) is VACATED. IT IS 3 Suite 300 Las Vegas, Nevada 89169.5937 FURTHER ORDERED that the parties 4 Telephone: 702.862.8800 are to file a stipulation to reschedule Fax No.: 702.862.8811 the ENE, if the motion to compel 5 Email: rroskelley@littler.com arbitration and to dismiss is denied. ddickinson@littler.com 6 7 Attorneys for Defendant AMERICAN HOMES 4 RENT, L.P. 8 9 UNITED STATES DISTRICT COURT
10 DISTRICT OF NEVADA 11 12 JAEMON LEE, an Individual, Case No. 2:21-cv-01870-JAD-DJA
13 Plaintiff, DEFENDANT AMERICAN HOMES 4 14 v. RENT, L.P.’S MOTION TO STAY THE EARLY NEUTRAL EVALUATION 15 AMERICAN HOMES 4 RENT, L.P, a foreign limited partnership; BOYD 16 GAMING CORPORATION, a domestic corporation; DOES I-X; ROE 17 CORPORATIONS I-X, 18 Defendants. 19 20 Defendant AMERICAN HOMES 4 RENT, L.P. (“Defendant” or “AH4R”), by and through 21 its counsel of record, hereby moves for a stay of the Early Neutral Evaluation Session (“ENE”) 22 pending the Court’s order on Defendant’s Motion to Compel Arbitration and to Dismiss. ECF 23 Nos. 6, 7. Defendant contends that this Court lacks jurisdiction over this matter due to the parties’ 24 binding arbitration agreement and seeks dismissal of Plaintiff’s claims against AH4R with 25 prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1). In light of such, Defendant does 26 not intend to extend any monetary offer to resolve Plaintiff’s claims at the ENE. Therefore, good 27 cause exists to stay the ENE in order to conserve judicial resources and avoid any argument that 28 Defendant submitted itself to the Court’s jurisdiction while its Motion to Compel Arbitration is 1 pending. This Motion is made and based upon the accompanying Memorandum of Points and 2 Authorities, the supporting declaration of counsel, and all pleadings and papers on file herein. 3 MEMORANDUM OF POINTS AND AUTHORITIES 4 I. INTRODUCTION 5 On February 26, 2020, Plaintiff signed a valid and enforceable agreement to arbitrate all 6 claims that might arise out of his employment with AH4R. ECF No. 6, Exhibit 5. Instead of 7 demanding arbitration, Plaintiff Jaemon Lee (“Plaintiff”) filed his Complaint in this Court on 8 October 11, 2021, alleging claims against AH4R for: (1) sex and gender discrimination in violation 9 of Title VII and NRS 613.330 et. seq.; (2) retaliatory discharge in violation of Title VII and NRS 10 613.340; (3) intentional/negligent infliction of emotional distress. ECF No. 1. In response, AH4R 11 filed a Motion to Compel and Dismiss or, Alternatively, to Stay Litigation Pending Arbitration. 12 ECF Nos. 6, 7. AH4R’s Motion is currently pending before the Court. After AH4R’s Motion was 13 filed, the Court issued an Order Scheduling Early Neutral Evaluation Session (hereinafter “the ENE 14 Order”) to take place on January 26, 2022 before Judge Weksler. ECF No. 8. Accordingly, 15 Defendant seeks a stay of the ENE pending the Court’s order on Defendant’s Motion to Compel 16 Arbitration and to Dismiss. 17 II. LEGAL ARGUMENT 18 a. Applicable Legal Standard 19 Once a court is considering whether to grant a motion to compel arbitration and dismiss a 20 complaint, “a federal court may consider only issues relating to the making and performance of the 21 agreement to arbitrate.” Miceli v. Citigroup, Inc., 2016 WL 1170994, 2 (D. Nev. Mar. 22, 2016) 22 (citing Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999); see also Sparking v. Hoffman 23 Construction Co., 864 F.2d 635, 638 (9th Cir. 1988)). “To require the parties to proceed with the 24 action pending a ruling on the motion to compel arbitration and any appeal thereof would cause the 25 party seeking to enforce the arbitration clause to be ‘deprived of the inexpensive and expeditious 26 means by which the parties had agreed to resolve their disputes.’” Id. at *2. 27 Local Rule 16-6(c) provides that parties may file a motion for exemption from the Early 28 Neutral Evaluation Program within seven days from entry of an order scheduling the ENE session. 1 See also ECF No. 8 at p. 1 (“Pursuant to the Local Rules, a motion for exemption from the ENE 2 program must be filed no later than 7 days after entry of this order.”). The rule also makes clear 3 that the “evaluating magistrate judge has final authority to grant or deny any motion requesting 4 exemption from the program” and that such orders are not appealable. Local Rule 16-6(c). 5 b. The Case Should Be Exempted from ENE Program Pending Decision on Defendant’s Motion to Compel Arbitration and Dismiss 6 AH4R filed its Motion to Dismiss and Compel Arbitration based on the fact that Plaintiff 7 agreed to arbitrate any dispute he may have with AH4R arising out of his employment. The Court 8 should issue stay the ENE pending the resolution of the Motion to Dismiss and Compel Arbitration 9 in order to avoid any argument that Defendant submitted itself to the jurisdiction of this Court when 10 Defendant contends that this Court lacks jurisdiction over Plaintiff’s claims against AH4R. 11 Additionally, while Defendant would participate in the ENE in good faith if compelled to do so, 12 Defendant does not intend to extend any monetary offer to Plaintiff to resolve his claims at this 13 time. Thus, good cause exists to stay the ENE currently scheduled for January 26, 2022 until after 14 the Court issues a decision regarding the arbitrability of Plaintiff’s claims. Accordingly, Defendant 15 respectfully requests that this Court grant its Motion to Stay Early Neutral Evaluation Session. 16 In an effort to avoid judicial intervention, counsel for AH4R contacted Plaintiff’s counsel 17 and Boyd Gaming Corporation’s counsel to request a stay of the ENE pending AH4R’s Motion. 18 (See Declaration of Diana G. Dickinson, Esq. in Support of Motion to Stay the ENE attached hereto 19 as Exhibit A). Despite Boyd Gaming Corporation’s willingness to enter a stipulation to stay the 20 ENE, Plaintiff’s counsel refused.1 Since the benefit of staying the ENE clearly outweighs the 21 minimal burden, if any, of delaying it, AH4R seeks a stay of the ENE in this action until the Court 22 adjudicates the Motion to Compel and Dismiss. 23
26 1 Given the jurisdictional issues in AH4R’s Motion to Compel, Plaintiff’s counsel did agree to 27 stipulate to a stay of discovery as to AH4R pending the Court’s order on Defendant’s Motion to Compel Arbitration and to Dismiss. AH4R has sent Plaintiff’s counsel a draft stipulation and will 28 1 | I. CONCLUSION 2 Based upon the foregoing, AH4R respectfully requests that the Court grant Defendant’s 3 || Motion to Stay the Early Neutral Evaluation until such time as the Court can rule upon the pending 4 || Motion to Compel Arbitration and Dismiss. 5 Dated: November 10, 2021 LITTLER MENDELSON. P.C. 6 . 7 Sena. ob hichunnon 8 RICK D. ROSKELLEY, ESQ. DIANA G. DICKINSON, ESQ. ? Attorneys for Defendant 10 AMERICAN HOMES 4 RENT, L.P. 11 D Order The Court reviewed the parties' briefs at ECF Nos. 13 13 and 18. Good cause appearing, IT IS ORDERED that ECF No. 13 is GRANTED. IT IS FURTHER ORDERED 14 that the Early Neutral Evaluation (ENE) is VACATED. IT 15 IS FURTHER ORDERED that the parties are to file a stipulation to reschedule the ENE, if the motion to 16 compel arbitration and to dismiss is denied. IT IS SO ORDERED 17 DATED: 10:58 am, November 29, 2021 18 uy .
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1 RICK D. ROSKELLEY, ESQ., Bar No. 3192 ap pearing, IT IS ORDERED that ECF DIANA G. DICKINSON, ESQ., Bar No. 13477 No. 13 is GRANTED. IT IS FURTHER 2 LITTLER MENDELSON, P.C. ORDERED that the Early Neutral 3960 Howard Hughes Parkway Evaluation (ENE) is VACATED. IT IS 3 Suite 300 Las Vegas, Nevada 89169.5937 FURTHER ORDERED that the parties 4 Telephone: 702.862.8800 are to file a stipulation to reschedule Fax No.: 702.862.8811 the ENE, if the motion to compel 5 Email: rroskelley@littler.com arbitration and to dismiss is denied. ddickinson@littler.com 6 7 Attorneys for Defendant AMERICAN HOMES 4 RENT, L.P. 8 9 UNITED STATES DISTRICT COURT
10 DISTRICT OF NEVADA 11 12 JAEMON LEE, an Individual, Case No. 2:21-cv-01870-JAD-DJA
13 Plaintiff, DEFENDANT AMERICAN HOMES 4 14 v. RENT, L.P.’S MOTION TO STAY THE EARLY NEUTRAL EVALUATION 15 AMERICAN HOMES 4 RENT, L.P, a foreign limited partnership; BOYD 16 GAMING CORPORATION, a domestic corporation; DOES I-X; ROE 17 CORPORATIONS I-X, 18 Defendants. 19 20 Defendant AMERICAN HOMES 4 RENT, L.P. (“Defendant” or “AH4R”), by and through 21 its counsel of record, hereby moves for a stay of the Early Neutral Evaluation Session (“ENE”) 22 pending the Court’s order on Defendant’s Motion to Compel Arbitration and to Dismiss. ECF 23 Nos. 6, 7. Defendant contends that this Court lacks jurisdiction over this matter due to the parties’ 24 binding arbitration agreement and seeks dismissal of Plaintiff’s claims against AH4R with 25 prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1). In light of such, Defendant does 26 not intend to extend any monetary offer to resolve Plaintiff’s claims at the ENE. Therefore, good 27 cause exists to stay the ENE in order to conserve judicial resources and avoid any argument that 28 Defendant submitted itself to the Court’s jurisdiction while its Motion to Compel Arbitration is 1 pending. This Motion is made and based upon the accompanying Memorandum of Points and 2 Authorities, the supporting declaration of counsel, and all pleadings and papers on file herein. 3 MEMORANDUM OF POINTS AND AUTHORITIES 4 I. INTRODUCTION 5 On February 26, 2020, Plaintiff signed a valid and enforceable agreement to arbitrate all 6 claims that might arise out of his employment with AH4R. ECF No. 6, Exhibit 5. Instead of 7 demanding arbitration, Plaintiff Jaemon Lee (“Plaintiff”) filed his Complaint in this Court on 8 October 11, 2021, alleging claims against AH4R for: (1) sex and gender discrimination in violation 9 of Title VII and NRS 613.330 et. seq.; (2) retaliatory discharge in violation of Title VII and NRS 10 613.340; (3) intentional/negligent infliction of emotional distress. ECF No. 1. In response, AH4R 11 filed a Motion to Compel and Dismiss or, Alternatively, to Stay Litigation Pending Arbitration. 12 ECF Nos. 6, 7. AH4R’s Motion is currently pending before the Court. After AH4R’s Motion was 13 filed, the Court issued an Order Scheduling Early Neutral Evaluation Session (hereinafter “the ENE 14 Order”) to take place on January 26, 2022 before Judge Weksler. ECF No. 8. Accordingly, 15 Defendant seeks a stay of the ENE pending the Court’s order on Defendant’s Motion to Compel 16 Arbitration and to Dismiss. 17 II. LEGAL ARGUMENT 18 a. Applicable Legal Standard 19 Once a court is considering whether to grant a motion to compel arbitration and dismiss a 20 complaint, “a federal court may consider only issues relating to the making and performance of the 21 agreement to arbitrate.” Miceli v. Citigroup, Inc., 2016 WL 1170994, 2 (D. Nev. Mar. 22, 2016) 22 (citing Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999); see also Sparking v. Hoffman 23 Construction Co., 864 F.2d 635, 638 (9th Cir. 1988)). “To require the parties to proceed with the 24 action pending a ruling on the motion to compel arbitration and any appeal thereof would cause the 25 party seeking to enforce the arbitration clause to be ‘deprived of the inexpensive and expeditious 26 means by which the parties had agreed to resolve their disputes.’” Id. at *2. 27 Local Rule 16-6(c) provides that parties may file a motion for exemption from the Early 28 Neutral Evaluation Program within seven days from entry of an order scheduling the ENE session. 1 See also ECF No. 8 at p. 1 (“Pursuant to the Local Rules, a motion for exemption from the ENE 2 program must be filed no later than 7 days after entry of this order.”). The rule also makes clear 3 that the “evaluating magistrate judge has final authority to grant or deny any motion requesting 4 exemption from the program” and that such orders are not appealable. Local Rule 16-6(c). 5 b. The Case Should Be Exempted from ENE Program Pending Decision on Defendant’s Motion to Compel Arbitration and Dismiss 6 AH4R filed its Motion to Dismiss and Compel Arbitration based on the fact that Plaintiff 7 agreed to arbitrate any dispute he may have with AH4R arising out of his employment. The Court 8 should issue stay the ENE pending the resolution of the Motion to Dismiss and Compel Arbitration 9 in order to avoid any argument that Defendant submitted itself to the jurisdiction of this Court when 10 Defendant contends that this Court lacks jurisdiction over Plaintiff’s claims against AH4R. 11 Additionally, while Defendant would participate in the ENE in good faith if compelled to do so, 12 Defendant does not intend to extend any monetary offer to Plaintiff to resolve his claims at this 13 time. Thus, good cause exists to stay the ENE currently scheduled for January 26, 2022 until after 14 the Court issues a decision regarding the arbitrability of Plaintiff’s claims. Accordingly, Defendant 15 respectfully requests that this Court grant its Motion to Stay Early Neutral Evaluation Session. 16 In an effort to avoid judicial intervention, counsel for AH4R contacted Plaintiff’s counsel 17 and Boyd Gaming Corporation’s counsel to request a stay of the ENE pending AH4R’s Motion. 18 (See Declaration of Diana G. Dickinson, Esq. in Support of Motion to Stay the ENE attached hereto 19 as Exhibit A). Despite Boyd Gaming Corporation’s willingness to enter a stipulation to stay the 20 ENE, Plaintiff’s counsel refused.1 Since the benefit of staying the ENE clearly outweighs the 21 minimal burden, if any, of delaying it, AH4R seeks a stay of the ENE in this action until the Court 22 adjudicates the Motion to Compel and Dismiss. 23
26 1 Given the jurisdictional issues in AH4R’s Motion to Compel, Plaintiff’s counsel did agree to 27 stipulate to a stay of discovery as to AH4R pending the Court’s order on Defendant’s Motion to Compel Arbitration and to Dismiss. AH4R has sent Plaintiff’s counsel a draft stipulation and will 28 1 | I. CONCLUSION 2 Based upon the foregoing, AH4R respectfully requests that the Court grant Defendant’s 3 || Motion to Stay the Early Neutral Evaluation until such time as the Court can rule upon the pending 4 || Motion to Compel Arbitration and Dismiss. 5 Dated: November 10, 2021 LITTLER MENDELSON. P.C. 6 . 7 Sena. ob hichunnon 8 RICK D. ROSKELLEY, ESQ. DIANA G. DICKINSON, ESQ. ? Attorneys for Defendant 10 AMERICAN HOMES 4 RENT, L.P. 11 D Order The Court reviewed the parties' briefs at ECF Nos. 13 13 and 18. Good cause appearing, IT IS ORDERED that ECF No. 13 is GRANTED. IT IS FURTHER ORDERED 14 that the Early Neutral Evaluation (ENE) is VACATED. IT 15 IS FURTHER ORDERED that the parties are to file a stipulation to reschedule the ENE, if the motion to 16 compel arbitration and to dismiss is denied. IT IS SO ORDERED 17 DATED: 10:58 am, November 29, 2021 18 uy . BRENDA WEKSLER 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 R MENDELSON P.c.
1 2 PROOF OF SERVICE 3 I am a resident of the State of Nevada, over the age of eighteen years, and not a party to the 4 within action. My business address is 3960 Howard Hughes Parkway, Suite 300, Las Vegas, 5 Nevada 89169. On November 10, 2021, I served the within document(s): 6 MOTION TO STAY DISCOVERY AND FOR EXEMPTION FROM THE EARLY NEUTRAL EVALUATION PROGRAM 7 8 B doy c uC mM en/E t C wF as F eli eli cn tg ro n– i cP alu lr ys u fa iln et d t ao n dF R seC rvP e d5 ( ub p)( o3 n) ta hn ed p aL rR tie s5 - l1 is, tet dh e b ea lb oo wv e t- hr re ofe ur ge hn c thed e Court’s Case Management and Electronic Case Filing (CM/ECF) system: 9 Jenny L. Foley, Ph.D., Esq. R. Todd Creer, Esq. 10 HKM Employment Attorneys LLP Kaitlin H. Paxton, Esq. 11 1785 East Sahara, Suite 300 KAMER ZUCKER ABBOTT Las Vegas, Nevada 89104 3000 West Charleston Blvd., Suite 3 12 Email: jfoley@hkm.com Las Vegas, Nevada 89102 13 Attorney for Plaintiff Attorneys for Defendant 14 Boyd Gaming Corporation 15 I am readily familiar with the firm’s practice of collection and processing correspondence 16 for mailing and for shipping via overnight delivery service. Under that practice it would be 17 deposited with the U.S. Postal Service or if an overnight delivery service shipment, deposited in an 18 overnight delivery service pick-up box or office on the same day with postage or fees thereon fully 19 prepaid in the ordinary course of business. 20 I declare under penalty of perjury that the foregoing is true and correct. Executed on 21 November 10, 2021, at Las Vegas, Nevada. 22
23 /s/ Yvonne Feher 24 Yvonne Feher
25 26 27 28