Nevada State Bar Number: 004632 Nevada State Bar Number: 14279 3960 Howard Hughes Parkway 4 Suite 300 Las Vegas, NV 89169-5937 5 Telephone: 702.862.8800 Fax No.: 702.862.8811 6 Email: phicks@littler.com Email: kstegall@littler.com 7 Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 1] 12 TANYA SPURBECK, Case No. 2:20-cv-00346-JAD-NJK 13 Plaintiff, DEFENDANT’S MOTION TO STAY 14 DISCOVERY AND VACATE THE EARLY vs. NEUTRAL EVALUATION 15 WYNDHAM VACATION OWNERSHIP, 16 || INC, 17 Defendant. 18 19 Defendant WYNDHAM VACATION OWNERSHIP, INC. (“Defendant” or “Wyndham”) by 29 || and through its counsel, Littler Mendelson, P.C., hereby moves this Court for an order staying 91 || discovery and vacating the Early Neutral Evaluation (“ENE”) session. Wyndham seeks the foregoing 22 || pursuant to the pending Motion to Dismiss Plaintiff TANYA SPURBECK’s (“Plaintiff”) Second 23 || Amended Complaint in its entirety with prejudice, (see ECF No. 9). The expense of participating in 34 || discovery and preparing for the ENE will likely be wasted given the strong chance that Plaintiff's case 25 || will be dismissed with prejudice pending the Court’s ruling on the Motion to Dismiss because Plaintiff 26 || did not timely file her case within the ninety-day timeframe upon receiving her Notice of Right to Sue. 27 28
3 Plaintiff's lawsuit is time-barred. Because of this, Defendant moves to stay discovery and 4 || vacate the ENE to alleviate the expenses that will be incurred from participating in both. See Fed. 5 || R. Civ. P. 1 [The Federal Rules of Civil Procedure] should be construed, administered, and 6 || employed by the court and the parties to secure the speedy . . . and inexpensive determination of 7 || every action.”). Specifically, Plaintiff failed to file her suit within the statutory deadline of ninety 8 || days provided in her Notice of Right to Sue. Rather, Plaintiff filed her case more than a year after 9 || receiving her Notice, rendering the entire case time-barred. Because of this, there is a strong 10 || likelihood that the Court will dismiss Plaintiff's case with prejudice, and requiring Defendant to 11 || participate in either discovery or the ENE will prejudice Defendant. Wyndham therefore moves to 12 || stay discovery pending the decision on the Motion to Dismiss and to vacate the ENE. 13 Il. BACKGROUND 14 Plaintiff began working for Wyndham on November 27, 2017, and she was terminated for 15 || her failure to perform to the Company’s standards on June 13, 2018. Plaintiff filed her Charge of 16 || Discrimination (the “Charge”) against Defendant on August 18, 2018. On February 7, 2019, the 17 || EEOC sent Plaintiff her Notice of Right to Sue (the “Notice”) at her request, giving her ninety days 18 || to file suit. Notwithstanding the fact that she requested this Notice so she could proceed with filing 19 || her lawsuit, Plaintiff then filed a second Charge of Discrimination (the “Second Charge”) on March 20 || 21, 2019. Upon receiving the notice of the Second Charge, Wyndham contacted the EEOC on June 21 || 17, 2019, and notified it that the Second Charge was a duplicate of the original Charge, and 22 || Wyndham had already responded to the original Charge. On June 19, 2019, the EEOC sent a letter 23 || to Plaintiff, notifying Plaintiff that it would be closing the Second Charge because “[t]his was a 24 || duplicate file to [the original Charge].” In spite of this correspondence, Plaintiff took no action on 25 || her allegations until filing the instant case on February 18, 2020—over a year after receiving her 26 || Notice of Right to Sue. Because Plaintiff's Right to Sue expired, and the right-to-sue deadline acts 27 || asa statute of limitations, her case should be dismissed with prejudice. 28
1 | ARGUMENT 2 i. Because Plaintiff Failed to Timely File Her Lawsuit after Receiving her Notice of Right to Sue, Her Case Will Likely Be Dismissed, and An 3 Order Staying Discovery and Vacating the ENE is Therefore 4 Appropriate. 5 Courts have broad discretion to determine whether a stay of litigation, including a stay of 6 || discovery is appropriate. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). When deciding 7 || whether to stay discovery while a dispositive motion is pending, courts consider: (1) whether the g || motion is “potentially dispositive of the entire case or at least dispositive of the issue on which g || discovery is sought,” and (2) “whether the pending potentially dispositive motion can be decided 10 without additional discovery.” Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 1 500, 506 (D. Nev. 2013); see also, e.g., Klaizner, v. Ditech Financial LLC, 2016 WL 3176579 (D. 12 || Nev. June 2, 2016). In applying this two-pronged test, courts take a “preliminary peek” at the merits 13 || of the pending dispositive motion to assess whether a stay is warranted. Tradebay, LLC, v. Ebay, Inc., 14 || 278 F.R.D. 597, 603 (D. Nev. 2011). 15 Both prongs of the Ministerio test are satisfied here. Not only is the pending Motion to 16 || Dismiss dispositive of the entire case, but also the Motion to Dismiss can be decided without 17 || additional discovery. The dismissal of Plaintiff's case is grounded purely in a statute of limitations 1g || defense barring Plaintiff from bringing her suit outright. Moreover, the law is clear that a plaintiff 19 || must file her lawsuit within the ninety days provided by the Notice of Right to Sue, and a failure to 20 do so results in the suit being time-barred. See Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 91 || F.3d 1119, 1121 (th Cir. 2007) (“Tf a litigant does not file suit within ninety days ‘[of] the date 97 || EEOC dismisses a claim,’ then the action is time-barred.”) (emphasis added). Further, no additional 93 || discovery is necessary because all the information supporting Defendant’s argument is judicially 94 || noticeable. Because Plaintiff failed to timely file her lawsuit, Defendant moved to dismiss her suit 95 || entirely. Therefore, a preliminary peek at the Motion to Dismiss resolves any doubt as to whether 6 || Plaintiff’s case against Defendant will be dismissed. 07 Because of this, Defendant requests that discovery is stayed until the Motion to Dismiss is 28 decided and that the ENE is vacated. Plaintiff’s claims are time-barred, and therefore, an ENE 3.
1 || would neither be productive nor effective. Accordingly, Defendant should not have to bear the 2 || burden of the time and cost for both discovery and the ENE pending the Court’s decision on the 3 || Motion to Dismiss. 4 | IV. CONCLUSION 5 For the foregoing reasons, Wyndham respectfully requests that the Court stay discovery 6 || pending the decision on the Motion to Dismiss, (ECF No. 9), and vacate the ENE. 7 || Dated: March 23, 2020 8 Respectfully submitted, 9 Gers? 10 PATRICK H. HICKS, ESQ. 1 KELSEY E. STEGALL, ESQ. D LITTLER MENDELSON, P.C. Attorneys for Defendant 13 WYNDHAM VACATION OWNERSHIP, INC. 14 IT IS ORDERED that ECF No. 13s IT IS SO ORDERED 15 || GRANTED only to the extent that it seeks to have the ENE vacated. DATED: April 08, 2020 16 || (Whether or not discovery will be P ° stayed will be decided by Judge 7 Koppe.) While Plaintiff filed a motion to 1g || dismiss ECF No. 13 (see ECF No. 20), Sx she did not argue that the ENE should Les AOR, 19 take place. Accordingly, ECF No. 13 BRENDA WEKSLER will be granted to the extent it requests 20 that the ENE be vacated under LR UNITED STATES MAGISTRATE JUDGE 21 || 7-2(d). 22 || IT IS FURTHER ORDERED that ECF 74 No. 20 is DENIED under LR 7-2(d). Again, Plaintiff does not provide points 24 || and authorities regarding why the ENE should be held or ECF No. 13 should 25 || be dismissed.
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Nevada State Bar Number: 004632 Nevada State Bar Number: 14279 3960 Howard Hughes Parkway 4 Suite 300 Las Vegas, NV 89169-5937 5 Telephone: 702.862.8800 Fax No.: 702.862.8811 6 Email: phicks@littler.com Email: kstegall@littler.com 7 Attorneys for Defendant 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 1] 12 TANYA SPURBECK, Case No. 2:20-cv-00346-JAD-NJK 13 Plaintiff, DEFENDANT’S MOTION TO STAY 14 DISCOVERY AND VACATE THE EARLY vs. NEUTRAL EVALUATION 15 WYNDHAM VACATION OWNERSHIP, 16 || INC, 17 Defendant. 18 19 Defendant WYNDHAM VACATION OWNERSHIP, INC. (“Defendant” or “Wyndham”) by 29 || and through its counsel, Littler Mendelson, P.C., hereby moves this Court for an order staying 91 || discovery and vacating the Early Neutral Evaluation (“ENE”) session. Wyndham seeks the foregoing 22 || pursuant to the pending Motion to Dismiss Plaintiff TANYA SPURBECK’s (“Plaintiff”) Second 23 || Amended Complaint in its entirety with prejudice, (see ECF No. 9). The expense of participating in 34 || discovery and preparing for the ENE will likely be wasted given the strong chance that Plaintiff's case 25 || will be dismissed with prejudice pending the Court’s ruling on the Motion to Dismiss because Plaintiff 26 || did not timely file her case within the ninety-day timeframe upon receiving her Notice of Right to Sue. 27 28
3 Plaintiff's lawsuit is time-barred. Because of this, Defendant moves to stay discovery and 4 || vacate the ENE to alleviate the expenses that will be incurred from participating in both. See Fed. 5 || R. Civ. P. 1 [The Federal Rules of Civil Procedure] should be construed, administered, and 6 || employed by the court and the parties to secure the speedy . . . and inexpensive determination of 7 || every action.”). Specifically, Plaintiff failed to file her suit within the statutory deadline of ninety 8 || days provided in her Notice of Right to Sue. Rather, Plaintiff filed her case more than a year after 9 || receiving her Notice, rendering the entire case time-barred. Because of this, there is a strong 10 || likelihood that the Court will dismiss Plaintiff's case with prejudice, and requiring Defendant to 11 || participate in either discovery or the ENE will prejudice Defendant. Wyndham therefore moves to 12 || stay discovery pending the decision on the Motion to Dismiss and to vacate the ENE. 13 Il. BACKGROUND 14 Plaintiff began working for Wyndham on November 27, 2017, and she was terminated for 15 || her failure to perform to the Company’s standards on June 13, 2018. Plaintiff filed her Charge of 16 || Discrimination (the “Charge”) against Defendant on August 18, 2018. On February 7, 2019, the 17 || EEOC sent Plaintiff her Notice of Right to Sue (the “Notice”) at her request, giving her ninety days 18 || to file suit. Notwithstanding the fact that she requested this Notice so she could proceed with filing 19 || her lawsuit, Plaintiff then filed a second Charge of Discrimination (the “Second Charge”) on March 20 || 21, 2019. Upon receiving the notice of the Second Charge, Wyndham contacted the EEOC on June 21 || 17, 2019, and notified it that the Second Charge was a duplicate of the original Charge, and 22 || Wyndham had already responded to the original Charge. On June 19, 2019, the EEOC sent a letter 23 || to Plaintiff, notifying Plaintiff that it would be closing the Second Charge because “[t]his was a 24 || duplicate file to [the original Charge].” In spite of this correspondence, Plaintiff took no action on 25 || her allegations until filing the instant case on February 18, 2020—over a year after receiving her 26 || Notice of Right to Sue. Because Plaintiff's Right to Sue expired, and the right-to-sue deadline acts 27 || asa statute of limitations, her case should be dismissed with prejudice. 28
1 | ARGUMENT 2 i. Because Plaintiff Failed to Timely File Her Lawsuit after Receiving her Notice of Right to Sue, Her Case Will Likely Be Dismissed, and An 3 Order Staying Discovery and Vacating the ENE is Therefore 4 Appropriate. 5 Courts have broad discretion to determine whether a stay of litigation, including a stay of 6 || discovery is appropriate. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). When deciding 7 || whether to stay discovery while a dispositive motion is pending, courts consider: (1) whether the g || motion is “potentially dispositive of the entire case or at least dispositive of the issue on which g || discovery is sought,” and (2) “whether the pending potentially dispositive motion can be decided 10 without additional discovery.” Ministerio Roca Solida v. U.S. Dep't of Fish & Wildlife, 288 F.R.D. 1 500, 506 (D. Nev. 2013); see also, e.g., Klaizner, v. Ditech Financial LLC, 2016 WL 3176579 (D. 12 || Nev. June 2, 2016). In applying this two-pronged test, courts take a “preliminary peek” at the merits 13 || of the pending dispositive motion to assess whether a stay is warranted. Tradebay, LLC, v. Ebay, Inc., 14 || 278 F.R.D. 597, 603 (D. Nev. 2011). 15 Both prongs of the Ministerio test are satisfied here. Not only is the pending Motion to 16 || Dismiss dispositive of the entire case, but also the Motion to Dismiss can be decided without 17 || additional discovery. The dismissal of Plaintiff's case is grounded purely in a statute of limitations 1g || defense barring Plaintiff from bringing her suit outright. Moreover, the law is clear that a plaintiff 19 || must file her lawsuit within the ninety days provided by the Notice of Right to Sue, and a failure to 20 do so results in the suit being time-barred. See Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 91 || F.3d 1119, 1121 (th Cir. 2007) (“Tf a litigant does not file suit within ninety days ‘[of] the date 97 || EEOC dismisses a claim,’ then the action is time-barred.”) (emphasis added). Further, no additional 93 || discovery is necessary because all the information supporting Defendant’s argument is judicially 94 || noticeable. Because Plaintiff failed to timely file her lawsuit, Defendant moved to dismiss her suit 95 || entirely. Therefore, a preliminary peek at the Motion to Dismiss resolves any doubt as to whether 6 || Plaintiff’s case against Defendant will be dismissed. 07 Because of this, Defendant requests that discovery is stayed until the Motion to Dismiss is 28 decided and that the ENE is vacated. Plaintiff’s claims are time-barred, and therefore, an ENE 3.
1 || would neither be productive nor effective. Accordingly, Defendant should not have to bear the 2 || burden of the time and cost for both discovery and the ENE pending the Court’s decision on the 3 || Motion to Dismiss. 4 | IV. CONCLUSION 5 For the foregoing reasons, Wyndham respectfully requests that the Court stay discovery 6 || pending the decision on the Motion to Dismiss, (ECF No. 9), and vacate the ENE. 7 || Dated: March 23, 2020 8 Respectfully submitted, 9 Gers? 10 PATRICK H. HICKS, ESQ. 1 KELSEY E. STEGALL, ESQ. D LITTLER MENDELSON, P.C. Attorneys for Defendant 13 WYNDHAM VACATION OWNERSHIP, INC. 14 IT IS ORDERED that ECF No. 13s IT IS SO ORDERED 15 || GRANTED only to the extent that it seeks to have the ENE vacated. DATED: April 08, 2020 16 || (Whether or not discovery will be P ° stayed will be decided by Judge 7 Koppe.) While Plaintiff filed a motion to 1g || dismiss ECF No. 13 (see ECF No. 20), Sx she did not argue that the ENE should Les AOR, 19 take place. Accordingly, ECF No. 13 BRENDA WEKSLER will be granted to the extent it requests 20 that the ENE be vacated under LR UNITED STATES MAGISTRATE JUDGE 21 || 7-2(d). 22 || IT IS FURTHER ORDERED that ECF 74 No. 20 is DENIED under LR 7-2(d). Again, Plaintiff does not provide points 24 || and authorities regarding why the ENE should be held or ECF No. 13 should 25 || be dismissed. 26 27 28
2 I am a resident of the State of Nevada, over the age of eighteen years, and not a party 3 || to the within action. My business address is 3960 Howard Hughes Parkway, Suite 300, Las Vegas, 4 || Nevada 89169-5937. On March 23, 2020, I served the within document(s): 5 DEFENDANT’S MOTION TO STAY DISCOVERY AND ‘ VACATE THE EARLY NEUTRAL EVALUATION
7 by serving the following parties electronically through CM/ECF 8 by email: tanyaspurbeck@gmail.com ae 10 1] . by facsimile transmission at or about on that date. The 12 transmission was reported as complete and without error. A copy of the transmission report, properly issued by the transmitting machine, is attached. The names and 13 facsimile numbers of the person(s) served are as set forth below. 14 by depositing a true copy of the same enclosed in a sealed envelope, with delivery 15 fees provided for, in an overnight delivery service pick up box or office designated for overnight delivery, and addressed as set forth below. 16 by personally delivering a copy of the document(s) listed above to the person(s) at 17 the address(es) set forth below. 18 Tanya Spurbeck 5970 Belcastro Street 19 Las Vegas, NV 89113 20 I am readily familiar with the firm's practice of collection and processing 21 correspondence for mailing and for shipping via overnight delivery service. Under that practice it 22 || would be deposited with the U.S. Postal Service or if an overnight delivery service shipment, deposited 23 || in an overnight delivery service pick-up box or office on the same day with postage or fees thereon 24 fully prepaid in the ordinary course of business. I declare under penalty of perjury that the foregoing 25 || is true and correct. Executed on March 23, 2020, at Las Vegas, Nevada. 26 /s/ Maribel Rodriguez 27 Maribel Rodriguez 28