1 JOSH COLE AICKLEN Nevada Bar No. 7254 2 JESSELYN V. DE LUNA Nevada Bar No. 15031 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 4 Las Vegas, Nevada 89118 TEL: 702.893.3383 5 FAX: 702.893.3789 josh.aicklen@lewisbrisbois.com 6 jesselyn.deluna@lewisbrisbois.com 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10
11 HOLLY MARIE WOOD, an individual, CASE NO: 2-20-cv-02329-APG-BNW 12 Plaintiff, 13 vs. AMENDED STIPULATED DISCOVERY 14 PLAN AND SCHEDULING ORDER CARL’S JR., operated and owned by BTO (FOURTH REQUEST) 15 INVESTMENTS, a Delaware corporation; S.L. INVESTMENTS, a Nevada 16 corporation; CKE RESTAURANTS, INC., a Delaware corporation; CARL’S JR. 17 RESTAURANTS, LLC, a foreign limited liability company; CARL KARCHER 18 ENTERPRISES, INC., a foreign corporation; CKE RESTAURANTS 19 HOLDINGS, INC., a foreign corporation; RUCEY MOLINA CRUZ, an individual; 20 DOES 1 through 10, inclusive; ROE CORPORATIONS/ENTITIES 1 through 10, 21 inclusive;
22 Defendants.
24 25 Pursuant to Federal Rule of Civil Procedure (“FRCP”) 26 and Local Rule 26-1, the 26 parties in this action submit the following Amended Stipulated Discovery Plan and 27 Scheduling Order (Fourth Request) subject to the Court’s review and approval: 1 I. 2 INITIAL MATTERS 3 A. Meeting Between The Parties’ Counsel 4 Pursuant to FRCP 26(f), the undersigned parties, by and through their respective 5 counsel, conferred on December 17, 2021. Paul S. Padda, Esq. represented Plaintiff 6 Holly Marie Wood; Marcus Lee, Esq. and Jesselyn De Luna, Esq. represented Defendant 7 BTO Investments, Inc.; Rachel Wise, Esq. represented Defendant S.L. Investments; and 8 Julio Garcia, Esq. represented Defendants Carl’s Jr. Restaurants, LLC, CKE Restaurants 9 Holdings, Inc., CKE Restaurants, Inc., and Carl Karcher Enterprises, Inc. (hereinafter, the 10 “CKE Defendants”). 11 B. The Parties’ Position On Alternative Dispute Resolution 12 The parties hereby certify that they communicated regarding the possibility of 13 resolution of this case through means of alternative dispute resolution (i.e. arbitration, 14 mediation, early neutral evaluation). An Early Neutral Evaluation session was held in this 15 case on March 10, 2021 (ECF No. 36) but was unsuccessful. A mediation was conducted 16 with the Honorable Jennifer P. Togliatti (Ret.) on November 8, 2021, but was 17 unsuccessful. 18 C. The Parties’ Position On Trial By United States Magistrate Judge And/Or Short Trial Program 19 Pursuant to FRCP 73, a United States Magistrate Judge may “conduct a civil 20 action or proceedings” if “all parties consent.” The parties, by and through their 21 respective counsel, are in agreement that this case should proceed on the normal track 22 with the currently assigned United States District Judge presiding. 23 II. 24 DISCOVERY COMPLETED 25 The parties have conducted the following discovery to date: 26 1. Plaintiff served her Initial Disclosures on March 3, 2021; 27 2. Defendant BTO Investments, Inc. served its Initial Disclosures on March 5, 1 2021; 2 3. CKE Defendants served their Initial Disclosures on March 3, 2021; 3 4. Defendant BTO Investments, Inc. propounded its First Set of Interrogatories 4 and First Set of Requests for Production to Plaintiff on March 25, 2021; 5 5. Plaintiff served her First Supplement to Initial Disclosures on April 26, 2021; 6 6. Plaintiff served her Responses to Defendant BTO Investments, Inc.’s First 7 Set of Interrogatories and First Set of Requests for Production on April 26, 2021; 8 7. Plaintiff propounded her First Set of Interrogatories and First Set of 9 Requests for Production to Defendant BTO Investments, Inc. on April 27, 2021; 10 8. CKE Defendants served their First Supplement to Initial Disclosures on April 11 30, 2021; 12 9. CKE Defendants propounded their First Set of Interrogatories and First Set 13 of Requests for Production to Plaintiff on June 10, 2021; 14 10. Defendant S.L. Investments served Initial Disclosures on June 19, 2021; 15 11. Defendant BTO Investments, Inc. served its First Supplement to Initial 16 Disclosures on June 25, 2021; 17 12. Defendant BTO Investments, Inc. served its Responses to Plaintiff’s First 18 Set of Interrogatories and First Set of Requests for Production on June 25, 2021; 19 13. Plaintiff served her Responses to the CKE Defendants’ First Set of 20 Interrogatories and First Set of Requests for Production on July 12, 2021; 21 14. Plaintiff propounded her Second Set of Interrogatories to Defendant BTO 22 Investments, Inc. on July 28, 2021; 23 15. Plaintiff propounded her First Set of Requests for Production to Defendant 24 S.L. Investments on July 28, 2021; 25 16. Defendant S.L. Investments propounded its First Set of Requests for 26 Admissions to Defendant BTO Investments, Inc. on August 6, 2021; 27 17. CKE Defendants served their Second Supplement to Initial Disclosures on 1 18. Defendant BTO Investments, Inc. served its Responses to Plaintiff’s Second 2 Set of Interrogatories on August 27, 2021; 3 19. CKE Defendants served their Third Supplement to Initial Disclosures on 4 September 2, 2021; 5 20. Defendant BTO Investments, Inc. served its Responses to S.L. Investments’ 6 First Set of Requests for Admissions on September 7, 2021; 7 21. Plaintiff served her Second Supplement to Initial Disclosures on September 8 9, 2021; 9 22. Plaintiff served her Third Supplement to Initial Disclosures on September 10 20, 2021; 11 23. Plaintiff served her First Supplemental Responses to Defendant BTO 12 Investments, Inc.’s First Set of Interrogatories and First Set of Requests for Production on 13 September 21, 2021; 14 24. Defendant BTO Investments, Inc. served its Second Supplement to Initial 15 Disclosures on October 1, 2021; 16 25. Defendant BTO Investments, Inc. served its First Supplemental Responses 17 to Plaintiff’s First Set of Requests for Production on October 1, 2021; 18 26. Plaintiff Holly Wood was deposed on October 8, 2021; 19 27. Defendant BTO Investments, Inc. served its First Supplemental Responses 20 to Plaintiff’s First Set of Interrogatories on October 15, 2021. 21 28. BTO District Manager was deposed on October 29, 2021; 22 29. Plaintiff served her Fourth Supplement to Initial Disclosures on October 29, 23 2021; and 24 30. Celene Molina was deposed on December 17, 2021. 25 III. 26 AREAS OF DISCOVERY 27 The undersigned parties agree that the areas of discovery should include, but not 1 including issues of liability and damages. 2 IV. 3 DISCOVERY DEADLINES 4 Local Rule 26-1(b)(1) provides that “unless otherwise ordered, discovery periods 5 longer than one hundred and eighty (180) days from the date the first defendant answers 6 or appears will require special scheduling review.” On February 23, 2021, the Court 7 granted the parties’ Proposed Discovery Plan and Scheduling Order, approving the 8 parties’ request for a 240-day discovery period, as reasonable and necessary, in light of 9 the impact of the COVID-19 pandemic. (Doc. 30). On June 25, 2021, the Court granted 10 the parties’ Amended Plan and Scheduling Order, approving the parties’ request that an 11 additional 90 days be added to the discovery period, for a total of 330 days, based on 12 certain extenuating circumstances, including the unsuccessful Early Neutral Evaluation 13 on March 10, 2021, followed by entry of Defendant S.L.
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1 JOSH COLE AICKLEN Nevada Bar No. 7254 2 JESSELYN V. DE LUNA Nevada Bar No. 15031 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 4 Las Vegas, Nevada 89118 TEL: 702.893.3383 5 FAX: 702.893.3789 josh.aicklen@lewisbrisbois.com 6 jesselyn.deluna@lewisbrisbois.com 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10
11 HOLLY MARIE WOOD, an individual, CASE NO: 2-20-cv-02329-APG-BNW 12 Plaintiff, 13 vs. AMENDED STIPULATED DISCOVERY 14 PLAN AND SCHEDULING ORDER CARL’S JR., operated and owned by BTO (FOURTH REQUEST) 15 INVESTMENTS, a Delaware corporation; S.L. INVESTMENTS, a Nevada 16 corporation; CKE RESTAURANTS, INC., a Delaware corporation; CARL’S JR. 17 RESTAURANTS, LLC, a foreign limited liability company; CARL KARCHER 18 ENTERPRISES, INC., a foreign corporation; CKE RESTAURANTS 19 HOLDINGS, INC., a foreign corporation; RUCEY MOLINA CRUZ, an individual; 20 DOES 1 through 10, inclusive; ROE CORPORATIONS/ENTITIES 1 through 10, 21 inclusive;
22 Defendants.
24 25 Pursuant to Federal Rule of Civil Procedure (“FRCP”) 26 and Local Rule 26-1, the 26 parties in this action submit the following Amended Stipulated Discovery Plan and 27 Scheduling Order (Fourth Request) subject to the Court’s review and approval: 1 I. 2 INITIAL MATTERS 3 A. Meeting Between The Parties’ Counsel 4 Pursuant to FRCP 26(f), the undersigned parties, by and through their respective 5 counsel, conferred on December 17, 2021. Paul S. Padda, Esq. represented Plaintiff 6 Holly Marie Wood; Marcus Lee, Esq. and Jesselyn De Luna, Esq. represented Defendant 7 BTO Investments, Inc.; Rachel Wise, Esq. represented Defendant S.L. Investments; and 8 Julio Garcia, Esq. represented Defendants Carl’s Jr. Restaurants, LLC, CKE Restaurants 9 Holdings, Inc., CKE Restaurants, Inc., and Carl Karcher Enterprises, Inc. (hereinafter, the 10 “CKE Defendants”). 11 B. The Parties’ Position On Alternative Dispute Resolution 12 The parties hereby certify that they communicated regarding the possibility of 13 resolution of this case through means of alternative dispute resolution (i.e. arbitration, 14 mediation, early neutral evaluation). An Early Neutral Evaluation session was held in this 15 case on March 10, 2021 (ECF No. 36) but was unsuccessful. A mediation was conducted 16 with the Honorable Jennifer P. Togliatti (Ret.) on November 8, 2021, but was 17 unsuccessful. 18 C. The Parties’ Position On Trial By United States Magistrate Judge And/Or Short Trial Program 19 Pursuant to FRCP 73, a United States Magistrate Judge may “conduct a civil 20 action or proceedings” if “all parties consent.” The parties, by and through their 21 respective counsel, are in agreement that this case should proceed on the normal track 22 with the currently assigned United States District Judge presiding. 23 II. 24 DISCOVERY COMPLETED 25 The parties have conducted the following discovery to date: 26 1. Plaintiff served her Initial Disclosures on March 3, 2021; 27 2. Defendant BTO Investments, Inc. served its Initial Disclosures on March 5, 1 2021; 2 3. CKE Defendants served their Initial Disclosures on March 3, 2021; 3 4. Defendant BTO Investments, Inc. propounded its First Set of Interrogatories 4 and First Set of Requests for Production to Plaintiff on March 25, 2021; 5 5. Plaintiff served her First Supplement to Initial Disclosures on April 26, 2021; 6 6. Plaintiff served her Responses to Defendant BTO Investments, Inc.’s First 7 Set of Interrogatories and First Set of Requests for Production on April 26, 2021; 8 7. Plaintiff propounded her First Set of Interrogatories and First Set of 9 Requests for Production to Defendant BTO Investments, Inc. on April 27, 2021; 10 8. CKE Defendants served their First Supplement to Initial Disclosures on April 11 30, 2021; 12 9. CKE Defendants propounded their First Set of Interrogatories and First Set 13 of Requests for Production to Plaintiff on June 10, 2021; 14 10. Defendant S.L. Investments served Initial Disclosures on June 19, 2021; 15 11. Defendant BTO Investments, Inc. served its First Supplement to Initial 16 Disclosures on June 25, 2021; 17 12. Defendant BTO Investments, Inc. served its Responses to Plaintiff’s First 18 Set of Interrogatories and First Set of Requests for Production on June 25, 2021; 19 13. Plaintiff served her Responses to the CKE Defendants’ First Set of 20 Interrogatories and First Set of Requests for Production on July 12, 2021; 21 14. Plaintiff propounded her Second Set of Interrogatories to Defendant BTO 22 Investments, Inc. on July 28, 2021; 23 15. Plaintiff propounded her First Set of Requests for Production to Defendant 24 S.L. Investments on July 28, 2021; 25 16. Defendant S.L. Investments propounded its First Set of Requests for 26 Admissions to Defendant BTO Investments, Inc. on August 6, 2021; 27 17. CKE Defendants served their Second Supplement to Initial Disclosures on 1 18. Defendant BTO Investments, Inc. served its Responses to Plaintiff’s Second 2 Set of Interrogatories on August 27, 2021; 3 19. CKE Defendants served their Third Supplement to Initial Disclosures on 4 September 2, 2021; 5 20. Defendant BTO Investments, Inc. served its Responses to S.L. Investments’ 6 First Set of Requests for Admissions on September 7, 2021; 7 21. Plaintiff served her Second Supplement to Initial Disclosures on September 8 9, 2021; 9 22. Plaintiff served her Third Supplement to Initial Disclosures on September 10 20, 2021; 11 23. Plaintiff served her First Supplemental Responses to Defendant BTO 12 Investments, Inc.’s First Set of Interrogatories and First Set of Requests for Production on 13 September 21, 2021; 14 24. Defendant BTO Investments, Inc. served its Second Supplement to Initial 15 Disclosures on October 1, 2021; 16 25. Defendant BTO Investments, Inc. served its First Supplemental Responses 17 to Plaintiff’s First Set of Requests for Production on October 1, 2021; 18 26. Plaintiff Holly Wood was deposed on October 8, 2021; 19 27. Defendant BTO Investments, Inc. served its First Supplemental Responses 20 to Plaintiff’s First Set of Interrogatories on October 15, 2021. 21 28. BTO District Manager was deposed on October 29, 2021; 22 29. Plaintiff served her Fourth Supplement to Initial Disclosures on October 29, 23 2021; and 24 30. Celene Molina was deposed on December 17, 2021. 25 III. 26 AREAS OF DISCOVERY 27 The undersigned parties agree that the areas of discovery should include, but not 1 including issues of liability and damages. 2 IV. 3 DISCOVERY DEADLINES 4 Local Rule 26-1(b)(1) provides that “unless otherwise ordered, discovery periods 5 longer than one hundred and eighty (180) days from the date the first defendant answers 6 or appears will require special scheduling review.” On February 23, 2021, the Court 7 granted the parties’ Proposed Discovery Plan and Scheduling Order, approving the 8 parties’ request for a 240-day discovery period, as reasonable and necessary, in light of 9 the impact of the COVID-19 pandemic. (Doc. 30). On June 25, 2021, the Court granted 10 the parties’ Amended Plan and Scheduling Order, approving the parties’ request that an 11 additional 90 days be added to the discovery period, for a total of 330 days, based on 12 certain extenuating circumstances, including the unsuccessful Early Neutral Evaluation 13 on March 10, 2021, followed by entry of Defendant S.L. Investments into the suit, the 14 withdrawal of CKE Defendants’ former attorneys and the appearance of their current 15 attorneys, the pending service of Defendant Rucey Molina Cruz, written discovery 16 extensions, the continuation of Plaintiff’s deposition, the anticipated need for the 17 depositions of additional fact witnesses and Plaintiff’s treating physicians, and inadvertent 18 errors in the calculation of the original Order. (Doc. 48). On September 8, 2021, the 19 Court granted the parties’ Amended Plan and Scheduling Order (Second Request), 20 approving the parties’ request that an additional 60 days be added to the discovery 21 period, for a total of 390 days, based on extenuating circumstances, including a pending 22 mediation, new handling attorneys for Defendant BTO Investments, Inc., the pending 23 service of Defendant Rucey Molina Cruz, and the anticipated need for the depositions of 24 additional fact witnesses and Plaintiff’s treating physicians. (Doc. 55). The Court granted 25 the parties’ request that an additional 30 days be added to the discovery period, for a total 26 of 420 days, based on extenuating circumstances, including delays related to an 27 unsuccessful mediation, the potential need for an independent medical examination and 1 rescheduling of certain depositions, and the anticipated need for the depositions of 2 additional fact witnesses and expert witnesses. (Doc. 69). 3 The parties now propose that an additional 30 days be added to the 420-day 4 discovery period, for a total of 450 days. The parties have been diligently working to 5 complete discovery in accordance with the current deadlines. However, certain factors 6 have necessitated an extension of the current deadlines. Though the parties recognize 7 the Court’s disinclination to grant another extension, the parties contend that the following 8 factors constitute good reason. 9 First, due to a medical issue, Plaintiff’s expert, Michael Elliott, Ph.D., needs 10 additional time to finalize his initial report. 11 Second, the parties also anticipate the need for the depositions of additional fact 12 witnesses and expert witnesses. The parties anticipate that coordinating these 13 depositions and accommodating the work and vacation schedules for the witnesses and 14 the attorneys involved is expected to necessitate additional discovery time, especially 15 during the holiday season and COVID-19 pandemic. 16 For all these reasons, the parties respectfully request that the applicable discovery 17 deadlines be extended an additional 30 days. Upon a showing of good cause, this Court 18 is authorized to modify the discovery schedule. See, FRCP 6(b)(1)(A); LR 26-4. “The 19 district court may modify the pretrial schedule if it cannot reasonably be met despite the 20 diligence of the party seeking the extension.” Johnson v. Mammoth Recreations, Inc., 21 975 F.2d 604, 609 (9th Cir. 1992). Based upon the date the first Defendant answered or 22 otherwise appeared (December 23, 2020) (Doc. 1), the undersigned parties hereby 23 propose the following discovery schedule pursuant to the LR 26-1 (April 17, 2020): 24 /// 25 /// 26 /// 27 /// 1 Current Discovery Plan & Scheduling Amended Discovery Plan Order & Scheduling Order 2 Event Current Deadline Proposed Deadline 3 Discovery February 16, 2022 March 18, 2022 4 Cut-Off (Wednesday) (Friday)
5 [450 Days from date first defendant answers or appears – LR 26-1 6 (b)(1)] 7
8 Amending November 18, 2021 CLOSED Pleadings (Thursday) 9 Adding [90 Days Before Close of Discovery Parties – LR 26-1(b)(2)] 10
11 Initial Expert December 17, 2021 January 17, 2022 12 Disclosures (Friday) (Monday)
13 [60 Days Before Close of Discovery – LR 26-1(b)(3) is a Saturday, 14 12/18/21] 15
16 Rebuttal January 17, 2021 February 16, 2022 Expert (Monday) (Wednesday) 17 Disclosures [30 days after the Initial Disclosure 18 of Experts - LR 26-1(b)(3) is a 19 Sunday, 1/16/21]
20 Dispositive March 18, 2022 April 18, 2022 21 Motions (Friday) (Monday)
22 [30 Days After Close of Discovery – 23 LR 26-1(b)(4) – is a Sunday 4/17/22]
24 Pre-Trial April 18, 2022 May 18, 2022 25 Order (Monday) (Wednesday)
26 [30 Days After the Dispositive Motion Deadline - LR 26-1(b)(5)] 27 1 With respect to the Pre-Trial Order, if dispositive motions are filed, the deadline for filing a 2 Joint Pre-Trial Order will be suspended until 30-days after a decision on the dispositive 3 motion(s) is/are rendered or until further Court notice. See, Local Rule 26-1 (b)(5). 4 V. 5 DISCOVERY DEADLINES 6 If the Court has questions regarding the dates proposed by the parties, the parties 7 request an opportunity for a conference with the Court before entry of this proposed 8 amended Scheduling Order. If the Court does not have questions, the parties do not 9 request a conference with the Court. All written discovery previously served with 10 responses that are otherwise outstanding shall not be affected by any subsequent 11 amended Order, unless the parties agree otherwise in writing. 12 VI. 13 EXTENSIONS OR MODIFICATIONS OF DISCOVERY DATES 14 This Court’s Local Rule 26-3 governs modifications or extensions of this Discovery 15 Plan and Scheduling Order. According to the rule, “[a]ll motions or stipulations to extend 16 a deadline set forth in a discovery plan shall be received by the court no later than twenty- 17 one (21) days before the expiration of the subject deadline.” 18 VII. 19 FORMAT OF DISCOVERY 20 Pursuant to the electronic discovery amendments to the Federal Rules of Civil 21 Procedure effective December 1, 2006, the undersigned parties addressed the e- 22 discovery issues pertaining to the format of discovery at the FRCP 26(f) conference. The 23 parties agree that to the extent electronic discovery is requested or produced, such 24 discovery shall be carried out in accordance with the procedures set forth in FRCP 34(b) 25 and 26(b). 26 /// 27 /// 1 VIII. 2 DISCOVERY DISPUTES 3 All discovery disputes in this case shall be governed by the provisions of Local 4||Rule 26-6. The parties agree to employ good faith efforts to resolve all discovery 5 || disputes prior to seeking intervention by the Court. 6 IX. 7 PRESENTATION OF ELECTRONIC EVIDENCE TO A JURY 8 The parties certify that they communicated whether they intend to present 9 || evidence in electronic format to jurors for the purpose of jury deliberations. At this time, 10 || the parties have not made any stipulations regarding providing discovery in an electronic 11 || format compatible with the Court’s electronic jury evidence display system. 12 13 || Respectfully Submitted by: Respectfully Submitted by: 14 |} PAUL PADDA LAW LEWIS BRISBOIS BISGAARD & SMITH 15 || /s/ Paul S. Padda /s/_ Josh Cole Aicklen PAUL S. PADDA, ESQ. JOSH COLE AICKLEN 16 || Nevada Bar No. 10417 Nevada Bar No. 7254 TONY L. ABBATANGELO, ESQ. JESSELYN V. DE LUNA 17 || Nevada Bar No. 3897 Nevada Bar No. 15031 4560 S. Decatur Boulevard, Ste. 300 6385 S. Rainbow Boulevard, Suite 600 18 || Las Vegas, Nevada 89103 Las Vegas, Nevada 89118 Attorneys for Plaintiffs Attorneys for Defendant BTO Investments, 19 Inc. Dated: December 17, 2021. 20 Dated: December 17, 2021. 21 22 Order 3 IT IS SO ORDERED 4 DATED: 4:01 pm, December 20, 2021
26 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 27 78