GALLIAN WELKER & ASSOCIATES, L.C. 1 Michael I. Welker, NBN 7950 2 Travis N. Barrick, NBN 9257 Nathan E. Lawrence, NBN 15060 3 730 Las Vegas Blvd. S., Ste. 104 4 Las Vegas, Nevada 89101 5 Telephone: 702-892-3500 Facsimile: 702-386-1946 6 nlawrence@vegascase.com 7 Attorneys for Plaintiff
8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10
11 STERLING HARDISTY TAYLOR, an 12 individual, Case No.: 2:22-cv-00435-APG-BNW
13 Plaintiff, STIPULATION AND ORDER TO EXTEND THE DISCOVERY 14 v. DEADLINES 15 UNITED STATES OF AMERICA and DOES 16 I to X, inclusive; collectively, (Third Request)
17 Defendants. 18
19 Pursuant to Fed. R. Civ. P. (“FRCP) 6(b)(1) and Local Rules IA 6-1, IA 6-2, and 26-3, 20 Plaintiff STERLING HARDISTY TAYLOR (“Plaintiff” or “Mr. Taylor”), by and through his 21 attorneys of the law firm of GALLIAN WELKER & ASSOCIATES, L.C., and Defendant UNITED 22 STATES OF AMERICA (“Defendant” or “United States”), by and through its counsel, Virginia 23 T. Tomova, Esq., Assistant United States Attorney for the District of Nevada, and Alan W. 24 Westbrook of the law firm of PERRY & WESTBROOK, hereby submit this Stipulation and Order 25 to Extend the Discovery Deadlines. 26 This is the third stipulation to extend the discovery deadline, and this stipulation is 27 presented to the Court in advance of the currently calendared close of discovery on October 25, 28 2024. For the foregoing reasons and as is more fully explicated below, the Parties stipulate to 1 and respectfully request that this Court extend the discovery and associated deadlines in this 2 matter. 3 4 I. PROCEDURAL HISTORY 5 1. On March 9, 2022, Plaintiff initiated this action by filing his Complaint [ECF No. 1], 6 as later amended on January 31, 2023 [ECF No. 33]. 7 2. On January 7, 2022, Defendant filed a Motion to Transfer Venue to District of Utah 8 [ECF No. 9], to which Plaintiff duly responded on August 11, 2022 [ECF No. 10]. 9 3. On November 4, 2022, oral arguments were heard by the Court on the Motion to 10 Transfer Venue, further to which supplemental briefing was ordered and scheduled. See ECF 11 Nos. 21 -23. 12 4. On December 16, 2022, Plaintiff and Defendant submitted the ordered 13 supplemental briefing [ECF Nos. 24 and 25], following which the Court denied the Motion to 14 Transfer Venue on January 7, 2023 [ECF No. 30]. 15 5. On May 22, 2023, following various stipulations to extend the deadline for 16 Defendant’s responsive pleading [ECF Nos. 35, 37, 39, 41, and 43], on May 22, 2023, Defendant 17 filed its Motion to Dismiss for Lack of Subject-Matter-Jurisdiction [ECF No. 45], to which 18 Plaintiff duly responded on June 25, 2023 [ECF No. 46], with Defendant’s Reply in Support of 19 the Motion to Dismiss [ECF No. 52] filed on June 23, 2023. 20 6. On June 26, 2023, counsel for the parties conducted the requisite FRCP 26 21 conference and filed their proposed Joint Discovery Plan and Scheduling Order on the same day. 22 7. On June 28, 2023, the Court entered its Order confirming the Joint Discovery Plan 23 and Scheduling Order [ECF No. 54]. 24 8. On December 19, 2023, the Court entered its Order denying Defendant’s Motion to 25 Dismiss for Lack of Subject-Matter-Jurisdiction [ECF No. 56]. 26 9. On December 27, 2023, the Court entered its Order extending Defendant’s time to 27 file their Answer [ECF No. 58]. 28 10. On January 2, 2024, Court entered its Order [ECF No. 60] establishing the present 1 discovery Deadlines. 2 11. On January 26, 2024, Defendant filed its Answer [ECF No. 61]. 3 12. On August 9, 2024, the parties submitted related Stipulations for a settlement 4 conference [ECF No. 63] and for a second extension of discovery deadlines [ECF No. 62]. 5 13. On August 14, 2024, the Court entered its Orders [ECF Nos. 64, 65] granting both 6 Stipulations, setting a settlement conference for 10:00 a.m. on September 26, 2024, with close of 7 discovery about a month thereafter, on October 25, 2024. 8 14. On August 27, 2024, due to a conflict in the Court’s calendar, the settlement 9 conference was rescheduled for 10:00 a.m. on December 4, 2024. 10 11 II. LEGAL STANDARD 12 Fed. R. Civ. P. Rule 6(b)(1) governs extensions of time and allows, in relevant part, that 13 “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend 14 the time: (A) with or without motion or notice if the court acts, or if a request is made, before the 15 original time or its extension expires.” If additional time for any purpose is needed, the proper 16 procedure is to present a request for extension of time before the time fixed has expired. Canup 17 v. Mississippi Val. Barge Line Co., 31 F.R.D. 282 (W.D. Pa. 1962). An extension of time may 18 always be sought and is usually granted on a showing of good cause if timely made under 19 subdivision (b)(1) of [FRCP 6]. Creedon v. Taubman, 8 F.R.D. 268 (N.D. Ohio 1947). Also, a 20 district court possesses the inherent power to control its own docket. Hamilton Copper & Steel 21 Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990); Olivia v. Sullivan, 958 F.2d 22 272, 273 (9th Cir. 1992). 23 LR IA 6-1 additionally requires that a motion to extend time must state the reasons for the 24 extension requested and will not be granted if requested after the expiration of the specified period 25 unless the movant demonstrates that the failure to file the motion before the deadline expired 26 resulted because of excusable neglect. LR 26-3 requires that a motion to extend any date set by 27 the discovery plan, scheduling order, or other order must, as well as satisfying the requirements 28 of LR IA 6-1, demonstrate good cause for the extension, and such a motion filed after the 1 expiration of the deadline will not be granted unless the movant demonstrates that the failure to 2 act resulted from excusable neglect. 3 Finally, LR 26-3 lists four factors that are considered upon adjudication of a motion to 4 extend a discovery deadline: (a) a statement specifying the discovery completed; (b) a specific 5 description of the discovery that remains to be completed; (c) the reasons why the deadline was 6 not satisfied or the remaining discovery was not completed within the time limits set by the 7 discovery plan; and (d) a proposed schedule for completing all remaining discovery. 8 9 III. ARGUMENT 10 A. The Four Factors Contained Within LR 26-3 Are Satisfied, and the Parties 11 Show Good Cause for Modifying the Scheduling Order. 12 1. Discovery Completed to Date: 13 1. On July 10, 2023, pursuant to FRCP 26(a)(1), Plaintiff and Defendant exchanged 14 their respective initial disclosures of persons likely to have discoverable information; documents, 15 electronically stored information, and tangible things; computation of damages, and applicable 16 insurance coverage. Plaintiff and Defendant have each supplemented their FRCP 26 disclosures 17 as required over the course of the intervening months. 18 2. On September 14, 2023, Defendant propounded written discovery to which 19 Plaintiff timely responded on October 14, 2023. 20 3. On, respectively, December 11 and 12, 2023, depositions of Mr. Taylor and 21 witnesses Michal Taylor (Mr. Taylor’s wife) and Mark Taylor (Mr. Taylor’s son) were conducted. 22 4. On February 14, 2024, an FRCP 35 defense medical exam of Mr.
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GALLIAN WELKER & ASSOCIATES, L.C. 1 Michael I. Welker, NBN 7950 2 Travis N. Barrick, NBN 9257 Nathan E. Lawrence, NBN 15060 3 730 Las Vegas Blvd. S., Ste. 104 4 Las Vegas, Nevada 89101 5 Telephone: 702-892-3500 Facsimile: 702-386-1946 6 nlawrence@vegascase.com 7 Attorneys for Plaintiff
8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10
11 STERLING HARDISTY TAYLOR, an 12 individual, Case No.: 2:22-cv-00435-APG-BNW
13 Plaintiff, STIPULATION AND ORDER TO EXTEND THE DISCOVERY 14 v. DEADLINES 15 UNITED STATES OF AMERICA and DOES 16 I to X, inclusive; collectively, (Third Request)
17 Defendants. 18
19 Pursuant to Fed. R. Civ. P. (“FRCP) 6(b)(1) and Local Rules IA 6-1, IA 6-2, and 26-3, 20 Plaintiff STERLING HARDISTY TAYLOR (“Plaintiff” or “Mr. Taylor”), by and through his 21 attorneys of the law firm of GALLIAN WELKER & ASSOCIATES, L.C., and Defendant UNITED 22 STATES OF AMERICA (“Defendant” or “United States”), by and through its counsel, Virginia 23 T. Tomova, Esq., Assistant United States Attorney for the District of Nevada, and Alan W. 24 Westbrook of the law firm of PERRY & WESTBROOK, hereby submit this Stipulation and Order 25 to Extend the Discovery Deadlines. 26 This is the third stipulation to extend the discovery deadline, and this stipulation is 27 presented to the Court in advance of the currently calendared close of discovery on October 25, 28 2024. For the foregoing reasons and as is more fully explicated below, the Parties stipulate to 1 and respectfully request that this Court extend the discovery and associated deadlines in this 2 matter. 3 4 I. PROCEDURAL HISTORY 5 1. On March 9, 2022, Plaintiff initiated this action by filing his Complaint [ECF No. 1], 6 as later amended on January 31, 2023 [ECF No. 33]. 7 2. On January 7, 2022, Defendant filed a Motion to Transfer Venue to District of Utah 8 [ECF No. 9], to which Plaintiff duly responded on August 11, 2022 [ECF No. 10]. 9 3. On November 4, 2022, oral arguments were heard by the Court on the Motion to 10 Transfer Venue, further to which supplemental briefing was ordered and scheduled. See ECF 11 Nos. 21 -23. 12 4. On December 16, 2022, Plaintiff and Defendant submitted the ordered 13 supplemental briefing [ECF Nos. 24 and 25], following which the Court denied the Motion to 14 Transfer Venue on January 7, 2023 [ECF No. 30]. 15 5. On May 22, 2023, following various stipulations to extend the deadline for 16 Defendant’s responsive pleading [ECF Nos. 35, 37, 39, 41, and 43], on May 22, 2023, Defendant 17 filed its Motion to Dismiss for Lack of Subject-Matter-Jurisdiction [ECF No. 45], to which 18 Plaintiff duly responded on June 25, 2023 [ECF No. 46], with Defendant’s Reply in Support of 19 the Motion to Dismiss [ECF No. 52] filed on June 23, 2023. 20 6. On June 26, 2023, counsel for the parties conducted the requisite FRCP 26 21 conference and filed their proposed Joint Discovery Plan and Scheduling Order on the same day. 22 7. On June 28, 2023, the Court entered its Order confirming the Joint Discovery Plan 23 and Scheduling Order [ECF No. 54]. 24 8. On December 19, 2023, the Court entered its Order denying Defendant’s Motion to 25 Dismiss for Lack of Subject-Matter-Jurisdiction [ECF No. 56]. 26 9. On December 27, 2023, the Court entered its Order extending Defendant’s time to 27 file their Answer [ECF No. 58]. 28 10. On January 2, 2024, Court entered its Order [ECF No. 60] establishing the present 1 discovery Deadlines. 2 11. On January 26, 2024, Defendant filed its Answer [ECF No. 61]. 3 12. On August 9, 2024, the parties submitted related Stipulations for a settlement 4 conference [ECF No. 63] and for a second extension of discovery deadlines [ECF No. 62]. 5 13. On August 14, 2024, the Court entered its Orders [ECF Nos. 64, 65] granting both 6 Stipulations, setting a settlement conference for 10:00 a.m. on September 26, 2024, with close of 7 discovery about a month thereafter, on October 25, 2024. 8 14. On August 27, 2024, due to a conflict in the Court’s calendar, the settlement 9 conference was rescheduled for 10:00 a.m. on December 4, 2024. 10 11 II. LEGAL STANDARD 12 Fed. R. Civ. P. Rule 6(b)(1) governs extensions of time and allows, in relevant part, that 13 “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend 14 the time: (A) with or without motion or notice if the court acts, or if a request is made, before the 15 original time or its extension expires.” If additional time for any purpose is needed, the proper 16 procedure is to present a request for extension of time before the time fixed has expired. Canup 17 v. Mississippi Val. Barge Line Co., 31 F.R.D. 282 (W.D. Pa. 1962). An extension of time may 18 always be sought and is usually granted on a showing of good cause if timely made under 19 subdivision (b)(1) of [FRCP 6]. Creedon v. Taubman, 8 F.R.D. 268 (N.D. Ohio 1947). Also, a 20 district court possesses the inherent power to control its own docket. Hamilton Copper & Steel 21 Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990); Olivia v. Sullivan, 958 F.2d 22 272, 273 (9th Cir. 1992). 23 LR IA 6-1 additionally requires that a motion to extend time must state the reasons for the 24 extension requested and will not be granted if requested after the expiration of the specified period 25 unless the movant demonstrates that the failure to file the motion before the deadline expired 26 resulted because of excusable neglect. LR 26-3 requires that a motion to extend any date set by 27 the discovery plan, scheduling order, or other order must, as well as satisfying the requirements 28 of LR IA 6-1, demonstrate good cause for the extension, and such a motion filed after the 1 expiration of the deadline will not be granted unless the movant demonstrates that the failure to 2 act resulted from excusable neglect. 3 Finally, LR 26-3 lists four factors that are considered upon adjudication of a motion to 4 extend a discovery deadline: (a) a statement specifying the discovery completed; (b) a specific 5 description of the discovery that remains to be completed; (c) the reasons why the deadline was 6 not satisfied or the remaining discovery was not completed within the time limits set by the 7 discovery plan; and (d) a proposed schedule for completing all remaining discovery. 8 9 III. ARGUMENT 10 A. The Four Factors Contained Within LR 26-3 Are Satisfied, and the Parties 11 Show Good Cause for Modifying the Scheduling Order. 12 1. Discovery Completed to Date: 13 1. On July 10, 2023, pursuant to FRCP 26(a)(1), Plaintiff and Defendant exchanged 14 their respective initial disclosures of persons likely to have discoverable information; documents, 15 electronically stored information, and tangible things; computation of damages, and applicable 16 insurance coverage. Plaintiff and Defendant have each supplemented their FRCP 26 disclosures 17 as required over the course of the intervening months. 18 2. On September 14, 2023, Defendant propounded written discovery to which 19 Plaintiff timely responded on October 14, 2023. 20 3. On, respectively, December 11 and 12, 2023, depositions of Mr. Taylor and 21 witnesses Michal Taylor (Mr. Taylor’s wife) and Mark Taylor (Mr. Taylor’s son) were conducted. 22 4. On February 14, 2024, an FRCP 35 defense medical exam of Mr. Taylor was 23 conducted, further to which exam Defendant issued an expert medical report by Steven M. 24 Sanders, M.D. on March 15, 2024. 25 5. On May 3, 2024, the Parties conducted a site visit and inspection of the Shower 26 (as defined in the Complaint). 27 6. On May 22, 2024, Plaintiff served his expert medical report from Dr. Roger A. 28 Russell, DC, MS, DIANM, along with expert safety report of F. David Pierce, MSPH, CIH, CSP. 1 7. On June 21, 2024, Defendant served its expert safety report of Lane Swainston 2 CBO, CVLT. 3 8. On July 13, 2024, Defendant served its rebuttal expert reports. 4 9. On July 24, 2024, Plaintiff propounded various written discovery, the responses 5 to which are pending and will reasonably necessitate an extension of time to answer, beyond the 6 present close of discovery. 7 10. On August 7, 2024, Defendant deposed Plaintiff’s safety expert, F. David Pierce. 8 9 2. Discovery Remaining: 10 Defendant’s written discovery responses are still pending, and a thirty-day extension 11 therefor has been granted by Plaintiff’s counsel. Depositions of remaining party experts, listed 12 below, were vacated following the prior extension of discovery deadlines and, in the interest of 13 conservation of time and money, will only be rescheduled, as needed, following the December 4, 14 2024, settlement conference. 15 • Steven M. Sanders, M.D. 16 • Dr. Roger A. Russell, DC, MS, DIANM 17 • Lane Swainston CBO, CVLT 18 19 3. Reasons Why Deadline Will Not Be Satisfied or Remaining Discovery 20 Cannot Be Completed Within Current Time Limits 21 As noted above in the prior request for extension of discovery deadlines, the parties have 22 agreed to defer depositions of the remaining experts in the interest of controlling undue expenses 23 for both parties until after the settlement conference. As rescheduled, the settlement conference 24 will now occur after discovery cutoff and the dispositive motion deadline. Accordingly, the 25 parties seek an extension until after that date to accommodate the new schedule and the 26 contemporaneous holidays. 27 28 / / / 1 4. Proposed Schedule for Completing Remaining Discovery: 2 Current Deadlines Proposed New Deadlines 3 ||| Discovery Cutoff October 25, 2024 January 17, 2025 * Ill Deadline to Disclose Experts June 21, 2024 5 Deadline for Rebuttal Experts July 22, 2024 6 Dispositive Motion Deadline November 25, 2024 February 17, 2025 7 Joint Pretrial Order Deadline December 26, 2024 March 19, 2025 *
9 ||* In the event a dispositive motion is under submission by February 17, 2025, the Joint Pre-Trial 10 || Order shall be due no later than 30 days after entry of the Court’s order ruling on same. 11 All other discovery dates not referenced herein remain unchanged. 12 3284 IT IS SO STIPULATED. 3 14 || DATED this 29" day of August 2024. DATED this 29" day of August 2024. 2= 15 || GALLIAN met) SSOCIATES, L.C. —_ United States Attorney District of Nevada
23 16 > f
17 Li WV osxhy /s/ Alan W. Westbrook ig || MichheH-welief, NBN 7950 PERRY & WESTBROOK Travis N. Bastick, NBN 9257 Alan W. Westbrook, NBN 6167 19 ll Nathan E. Lawrence, NBN 15060 11500 S. Eastern Ave., Suite 140 29 730 Las Vegas Blvd. S., Ste. 104 Henderson, Nevada 89052 Las Vegas, Nevada 89101 Telephone: 102-870-2400 21 Telephone: 702-892-3500 Facsimile: 702-870-8220 || Facsimile: 702-386-1946 awestbrook@perrywestbrook.com nlawrence@vegascase.com 23 oe JASON M. FRIERSON, NBN 7709 Attorneys for Plaintiff Virginia T. Tomova, NBN 12504 Assistant United States Attorney 25 501 Las Vegas Blvd. So., Suite 1100 26 Las Vegas, Nevada 89101 Telephone: (702) 388-6336 77 Virginia. Tomova@usdoj.gov 28 Attorneys for Defendant
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I ORDER 2 IT IS HEREBY ORDERED that the Stipulation of the parties is GRANTED, and the 3 || discovery deadlines shall be amended as follows: 4
°
12 = 13 IT IS SO ORDERED. a8 14 Ze 15 DATED: _ 8/30/2024
17 18 10 iNttn STATES MAGISTRATE JUDGE. 20 21 22 23 24 25 26 27 28
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