1 || ROBERT T. EGLET, ESQ. Nevada Bar No. 3402 2 || ROBERT M. ADAMS, ESQ. Nevada Bar No. 6551 3 || RICHARD K. HY, ESQ. 4 || Nevada Bar No. 12406 EGLET ADAMS 5 || 400 South Seventh Street, Suite 400 6 Las Vegas, Nevada 89101 Telephone: (702) 450-5400 7 || Facsimile: (702) 450-5451 Email: eservice@egletlaw.com 8 || -and- 9 JONATHAN E. LOWY, ESQ. (Admitted Pro Hac Vice) WY 10 || District of Columbia Bar No. 418654 BRADY CENTER TO PREVENT GUN VIOLENCE 11 |) 840 1° Street, NE, #400 2 Washington, DC 20002 Q Telephone: 202-370-8104 < 13 || Email: jlowy @bradymail.org 4 Attorneys for Plaintiffs 15 DISTRICT COURT Ly ©4=«é6 CLARK COUNTY, NEVADA — 17 18 DEVAN PRESCOTT, individually and on behalf of all those similarly situated; BROOKE 19 || FREEMAN, individually and on behalf of all those similarly situated, 20 Case No.: 2:18-cv-00296-GMN-BNW 1 Plaintiffs, 99 vs. PLAINTIFFS’ MOTION TO CONTINUE TIME FOR FILING THE 23 || SLIDE FIRE SOLUTIONS, LP, a Foreign MOTION FOR CLASS Corporation, DOE MANUFACTURERS 1 CERTIFICATION AND EXTEND ALL 24 P oe DISCOVERY DEADLINES though 100, inclusive; ROE RETAILERS 1 25 || though 100, inclusive. 26 Defendants. 27 28
1 Plaintiffs, by and through their counsel of record, hereby submit the instant Motion □ 2 || Extend Time for Filing the Motion for Class Certification. 3} I. INTRODUCTION 4 In December 2019, the parties to this action agreed to a discovery schedule, which w: 5 ||entered by this Court on January 6, 2020.' Under that schedule, the Plaintiffs were to file t 6 || Motion for Class Certification by Friday, July 31, 2020.2 However, due to various circumstance 7 || the July 31, 2020 deadline for the Motion for Class Certification is not attainable. Accordingl 8 || Plaintiffs request that all deadlines within the Discovery Scheduling Order be continued by 9 || months, so that the Motion for Class Certification must be filed by April 30, 2021. w □□ )/KL. DISCOVERY HAS BEEN DELAYED 11 When the Parties agreed to a discovery schedule in December 2019, there was no way □□□ 12 || could have foreseen the upcoming pandemic. Discovery opened on January 6, 2020 with the filir a 13 || of the Discovery Scheduling Order. On February 20, 2020, Plaintiffs served Defendant with tl 14 || first sets of interrogatories, requests for production, and requests for admission.* On March 1 ? 15 || 2020, before Defendant’s time to respond had expired, the President of the United States declare 16 || a National State of Emergency due to the COVID19 pandemic. Defendant served its responses 17 || the interrogatories and requests for admission on April 14, 2020 and served the responses to tl [LJ 18 |/requests for production on April 28, 2020.4 On May 19, 2020, the Defendant served Plaintif 19 || with the first set of requests for production.* Plaintiffs’ responses are due August 21, 2020. 20 No other discovery has taken place. There have not been any depositions. Expert report 21 || have not been disclosed. The Nation continues to be in a state of emergency with no sign of relie 22 23 ||! See Document 72. 24 |? Id, at p. 3:26-27. Note, there is a clerical error in the schedule, stating “Thursday, July 31, 2020 25 ||? See Exhibit 1, Plaintiffs’ First Set of Interrogatories to Defendant; Exhibit 2, Plaintiffs’ First S 26 || of Requests for Admission to Defendant; and Exhibit 3, Plaintiffs’ First Requests for Productic 27 || to Defendant. 28 ||* See Exhibits 4, 5, and 6, Defendant’s responses to Written Discovery. > See Exhibit 7, Defendant’s First Requests for Production to Plaintiffs.
1 || As this Court is aware, the impact of COVID19 can be felt in all areas of litigation. The pandem 2 || has significantly impaired the parties’ abilities to schedule or plan for the discovery necessary f 3 || the Plaintiffs to move for class certification and for Defendant to oppose such a motion. 4 Additionally, the parties recently began discussing the possibility of mediating this cas 5 || Mediating at this stage of litigation, where discovery has only just begun and costs are relative 6 || low, benefits all parties. An extension of all deadlines in the Discovery Scheduling Orde 7 □□ including the deadline for filing the motion for class certification, reduces expenses and wou. 8 || help facilitate mediation discussions. 9 Moreover, Defendants’ Motion for Reconsideration is pending before the Court. Th ___10 || Motion involves potentially case dispositive issues. It is more cost effective and efficient for < 11 || parties to delay expensive and time-consuming discovery until they receive a ruling on the issu 12 || presented in the Motion for Reconsideration. a 13 Discovery has been delayed to such an extent that the December 2020 close of □□□□□□□□ 14 |/is no longer practicable. The COVID19 pandemic has already lasted much longer than mar ? 15 || anticipated. It is unlikely that the pandemic will resolve in time to allow for the parties to comple 16 || the discovery according to the current deadlines. Accordingly, all parties would benefit from < 17 || extension of all discovery deadlines. 18 }|/TI. AMOTION FOR CLASS CERTIFICATION IS NOT PRACTICABLE WITHOU 19 DISCOVERY 20 In any class action, it is the plaintiffs’ burden to establish that certification is appropria 21 |}under FRCP 23. Generally, a class may not be certified based upon allegations in the pleadin; 22 || alone. In order to succeed on a motion for class certification, the plaintiffs must demonstrate the 23 (1) the class is so numerous that joinder of all members is impracticable; (2) there 24 are questions of law or fact common to the class; (3) the claims or defenses of the 25 representative parties are typical of the claims or defenses of the class; and (4) the 26 representative parties will fairly and adequately protect the interests of the class. 27 || FRCP 23(a); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). 28 Additionally, the plaintiffs are required to satisfy at least one of the three prongs of FRC 23(b):
1 1. There is a risk that the prosecution of individual actions would result in inconsiste 2 rulings “that would establish incompatible standards of conduct for the party opposi1 3 the class,” or that the adjudication of one individual’s action would dispose of tl 4 interests of other individuals and impede the ability of other individuals to protect the 5 interests; 6 2. The defendants are acting in such a way applicable to the entire class so that “fin 7 injunctive relief or corresponding declaratory relief is appropriate respecting the cla 8 as a whole;” or 9 3. “[Q]uestions of law or fact common to class members predominate over any questio: (10 affecting only individual members, and that a class action is superior to other availab 11 methods for fairly and efficiently adjudicating the controversy.” 12 Q FRCP 23(b). ° Plaintiffs must have the opportunity to conduct discovery in order to seek cla certification. The Ninth Circuit has recognized that “[t]he propriety of a class action cannot | ° determined in some cases without discovery, as, for example, where discovery is necessary □ 0 determine the existence of a class or set of subclasses.” Kamm yv. California City Developme UO Co., 509 F.2d 205, 210 (9th Cir. 1976). Additionally, the comments to FRCP 23 recognize th me importance of discovery in determining where class certification is appropriate. FRCP 23, Not ° of Advisory Committee on 2003 Amendments.
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1 || ROBERT T. EGLET, ESQ. Nevada Bar No. 3402 2 || ROBERT M. ADAMS, ESQ. Nevada Bar No. 6551 3 || RICHARD K. HY, ESQ. 4 || Nevada Bar No. 12406 EGLET ADAMS 5 || 400 South Seventh Street, Suite 400 6 Las Vegas, Nevada 89101 Telephone: (702) 450-5400 7 || Facsimile: (702) 450-5451 Email: eservice@egletlaw.com 8 || -and- 9 JONATHAN E. LOWY, ESQ. (Admitted Pro Hac Vice) WY 10 || District of Columbia Bar No. 418654 BRADY CENTER TO PREVENT GUN VIOLENCE 11 |) 840 1° Street, NE, #400 2 Washington, DC 20002 Q Telephone: 202-370-8104 < 13 || Email: jlowy @bradymail.org 4 Attorneys for Plaintiffs 15 DISTRICT COURT Ly ©4=«é6 CLARK COUNTY, NEVADA — 17 18 DEVAN PRESCOTT, individually and on behalf of all those similarly situated; BROOKE 19 || FREEMAN, individually and on behalf of all those similarly situated, 20 Case No.: 2:18-cv-00296-GMN-BNW 1 Plaintiffs, 99 vs. PLAINTIFFS’ MOTION TO CONTINUE TIME FOR FILING THE 23 || SLIDE FIRE SOLUTIONS, LP, a Foreign MOTION FOR CLASS Corporation, DOE MANUFACTURERS 1 CERTIFICATION AND EXTEND ALL 24 P oe DISCOVERY DEADLINES though 100, inclusive; ROE RETAILERS 1 25 || though 100, inclusive. 26 Defendants. 27 28
1 Plaintiffs, by and through their counsel of record, hereby submit the instant Motion □ 2 || Extend Time for Filing the Motion for Class Certification. 3} I. INTRODUCTION 4 In December 2019, the parties to this action agreed to a discovery schedule, which w: 5 ||entered by this Court on January 6, 2020.' Under that schedule, the Plaintiffs were to file t 6 || Motion for Class Certification by Friday, July 31, 2020.2 However, due to various circumstance 7 || the July 31, 2020 deadline for the Motion for Class Certification is not attainable. Accordingl 8 || Plaintiffs request that all deadlines within the Discovery Scheduling Order be continued by 9 || months, so that the Motion for Class Certification must be filed by April 30, 2021. w □□ )/KL. DISCOVERY HAS BEEN DELAYED 11 When the Parties agreed to a discovery schedule in December 2019, there was no way □□□ 12 || could have foreseen the upcoming pandemic. Discovery opened on January 6, 2020 with the filir a 13 || of the Discovery Scheduling Order. On February 20, 2020, Plaintiffs served Defendant with tl 14 || first sets of interrogatories, requests for production, and requests for admission.* On March 1 ? 15 || 2020, before Defendant’s time to respond had expired, the President of the United States declare 16 || a National State of Emergency due to the COVID19 pandemic. Defendant served its responses 17 || the interrogatories and requests for admission on April 14, 2020 and served the responses to tl [LJ 18 |/requests for production on April 28, 2020.4 On May 19, 2020, the Defendant served Plaintif 19 || with the first set of requests for production.* Plaintiffs’ responses are due August 21, 2020. 20 No other discovery has taken place. There have not been any depositions. Expert report 21 || have not been disclosed. The Nation continues to be in a state of emergency with no sign of relie 22 23 ||! See Document 72. 24 |? Id, at p. 3:26-27. Note, there is a clerical error in the schedule, stating “Thursday, July 31, 2020 25 ||? See Exhibit 1, Plaintiffs’ First Set of Interrogatories to Defendant; Exhibit 2, Plaintiffs’ First S 26 || of Requests for Admission to Defendant; and Exhibit 3, Plaintiffs’ First Requests for Productic 27 || to Defendant. 28 ||* See Exhibits 4, 5, and 6, Defendant’s responses to Written Discovery. > See Exhibit 7, Defendant’s First Requests for Production to Plaintiffs.
1 || As this Court is aware, the impact of COVID19 can be felt in all areas of litigation. The pandem 2 || has significantly impaired the parties’ abilities to schedule or plan for the discovery necessary f 3 || the Plaintiffs to move for class certification and for Defendant to oppose such a motion. 4 Additionally, the parties recently began discussing the possibility of mediating this cas 5 || Mediating at this stage of litigation, where discovery has only just begun and costs are relative 6 || low, benefits all parties. An extension of all deadlines in the Discovery Scheduling Orde 7 □□ including the deadline for filing the motion for class certification, reduces expenses and wou. 8 || help facilitate mediation discussions. 9 Moreover, Defendants’ Motion for Reconsideration is pending before the Court. Th ___10 || Motion involves potentially case dispositive issues. It is more cost effective and efficient for < 11 || parties to delay expensive and time-consuming discovery until they receive a ruling on the issu 12 || presented in the Motion for Reconsideration. a 13 Discovery has been delayed to such an extent that the December 2020 close of □□□□□□□□ 14 |/is no longer practicable. The COVID19 pandemic has already lasted much longer than mar ? 15 || anticipated. It is unlikely that the pandemic will resolve in time to allow for the parties to comple 16 || the discovery according to the current deadlines. Accordingly, all parties would benefit from < 17 || extension of all discovery deadlines. 18 }|/TI. AMOTION FOR CLASS CERTIFICATION IS NOT PRACTICABLE WITHOU 19 DISCOVERY 20 In any class action, it is the plaintiffs’ burden to establish that certification is appropria 21 |}under FRCP 23. Generally, a class may not be certified based upon allegations in the pleadin; 22 || alone. In order to succeed on a motion for class certification, the plaintiffs must demonstrate the 23 (1) the class is so numerous that joinder of all members is impracticable; (2) there 24 are questions of law or fact common to the class; (3) the claims or defenses of the 25 representative parties are typical of the claims or defenses of the class; and (4) the 26 representative parties will fairly and adequately protect the interests of the class. 27 || FRCP 23(a); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). 28 Additionally, the plaintiffs are required to satisfy at least one of the three prongs of FRC 23(b):
1 1. There is a risk that the prosecution of individual actions would result in inconsiste 2 rulings “that would establish incompatible standards of conduct for the party opposi1 3 the class,” or that the adjudication of one individual’s action would dispose of tl 4 interests of other individuals and impede the ability of other individuals to protect the 5 interests; 6 2. The defendants are acting in such a way applicable to the entire class so that “fin 7 injunctive relief or corresponding declaratory relief is appropriate respecting the cla 8 as a whole;” or 9 3. “[Q]uestions of law or fact common to class members predominate over any questio: (10 affecting only individual members, and that a class action is superior to other availab 11 methods for fairly and efficiently adjudicating the controversy.” 12 Q FRCP 23(b). ° Plaintiffs must have the opportunity to conduct discovery in order to seek cla certification. The Ninth Circuit has recognized that “[t]he propriety of a class action cannot | ° determined in some cases without discovery, as, for example, where discovery is necessary □ 0 determine the existence of a class or set of subclasses.” Kamm yv. California City Developme UO Co., 509 F.2d 205, 210 (9th Cir. 1976). Additionally, the comments to FRCP 23 recognize th me importance of discovery in determining where class certification is appropriate. FRCP 23, Not ° of Advisory Committee on 2003 Amendments. For example, in the Dukes case, the plaintif *° presented discovery in the form of “statistical evidence about pay and promotion dispariti I between men and women .. ., anecdotal reports of discrimination from about 120 of Wal-Mart * female employees, and the testimony of a sociologist,” regarding Wal-Mart’s culture ar °° personnel practices. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 346. As discussed, supra, the parties have not had the opportunity to engage in significar * meaningful discovery. Not only does the lack of discovery hinder Plaintiffs’ ability to support *° motion for class certification, it also hinders the Defendant’s ability to provide a meaningf response to any such motion. Thus, Plaintiff requests that all dates within the Discove:
1 || Scheduling Order be continued for a period of 9 months, including the deadline for the motion f 2 || class certification. 3 ||IV. CONCLUSION □ Based on the foregoing, Plaintiffs respectfully request that all deadlines within tl Discovery Scheduling Order be continued by a period of 9 months, thus rendering the Motion f Class Certification due on, or before, April 30, 2021. 8 DATED this 31st day of July, 2020. /s/ Robert M. Adams (10 ROBERT T. EGLET, ESQ. ll Nevada Bar No. 3402 ROBERT M. ADAMS, ESQ. 12 Nevada Bar No. 6551 Q RICHARD K. HY, ESQ. < 13 Nevada Bar No. 12406 14 EGLET ADAMS 400 South Seventh Street, Suite 400 15 Las Vegas, Nevada 89101 Telephone: (702) 450-5400 16 Facsimile: (702) 450-5451 pe] 7 Email: eservice@egletlaw.com UO -and- IL] 18 JONATHAN E. LOWY, ESQ. (Admitted Pro Hac Vice) 19 District of Columbia Bar No. 418654 20 BRADY CENTER TO PREVENT GUN VIOLENCE 840 1* Street, NE, #400 21 Washington, DC 20002 Telephone: 202-370-8104 22 Email: jlowy @bradymail.org 23 Attorneys for Plaintiffs The Court notes that defendant does not intend to oppose this motion. See ECF No. 24 |! 81 at 3. Further, the Court finds finds that there exists good cause for the requested 25 || extension. Therefore, IT IS ORDERED that plaintiffs’ motion is GRANTED. The deadlines in the DPSO shall be continued by a period of 9 months, which means that 26 || the deadline for the motion for class certification is now April 30, 2021. 27 IT 1S SO ORDERED 28 DATED: 5:31 pm, August 06, 2020 ron