1 STEVEN T. JAFFE, ESQ. Nevada Bar No. 007035 2 [email protected] KEVIN S. SMITH, ESQ. 3 Nevada Bar No. 007184 [email protected] 4 HALL JAFFE & CLAYTON, LLP 5 7425 PEAK DRIVE LAS VEGAS, NEVADA 89128-4338 6 (702) 316-4111 FAX (702) 316-4114 7 Attorneys for Fuelzone Mart 2, LLC 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 SHONDELL PITTS, individually and as legal guardian of P.P., CASE NO.: 2:19-cv-01974-JCM-VCF 12 Plaintiffs, 13 STIPULATION AND ORDER REGARDING vs. DISCOVERY EXTENSION 14 LAS VEGAS METROPOLITAN POLICE 15 DEPARTMENT, a political subdivision of Clark County, Nevada; JOSEPH LOMBARDO, 16 Sheriff of Clark County, Nevada; DAVID NESHEIWAT, individually and in his official 17 capacity; FUELZONE MART 2, LLC, a Nevada limited liability company; DOE CLERK, an 18 individual and DOES 1 through 10, 19 Defendants. 20 21 COME NOW Plaintiff SHONDELL PITTS, individually and as legal guardian of P.P., by and 22 through her attorney MITCHELL S. BISSON, ESQ. of LAW OFFICES OF MITCHELL S. BISSON; 23 Defendant FUELZONE MART 2, LLC, by and through its attorneys STEVEN T. JAFFE, ESQ. and 24 KEVIN S. SMITH, ESQ. of HALL JAFFE & CLAYTON, LLP; and Defendants LAS VEGAS 25 METROPOLITAN POLICE DEPARTMENT and DAVID NESHEIWAT, by and through their attorney 26 CRAIG R. ANDERSON, ESQ. of MARQUIS AURBACH COFFING; and hereby stipulate pursuant to 27 FRCP 16(b)(4) and LR 26-4 that good cause warrants an extension of the discovery deadlines set by 28 the Court’s Discovery Plan and Scheduling Order, entered on May 12, 2020 (ECF No. 28). 1 The parties jointly request that discovery be extended for the reasons set forth below. 2 I. INTRODUCTION AND PROCEDURAL POSTURE 3 Plaintiffs Shondell Pitts, individually and as the legal guardian of P.P., a minor, filed the instant 4 lawsuit on November 11, 2019 by filing the Complaint, naming the Las Vegas Metropolitan Police 5 Department (“Metro”), Sheriff Joseph Lombardo, Officer David Nesheiwat and FuelZone Mart 2, LLC 6 as named Defendants. The Plaintiffs also sued “DOE Clerk.” (ECF No. 1). 7 The parties held a discovery conference via telephone on May 8, 2020, in compliance with 8 FRCP 26(f) and LR 26-1. The Court entered the Discovery Plan and Scheduling Order on May 12, 9 2020, setting the following deadlines: 10 Last day to file a motion to amend pleadings or to add parties: February 8, 2021 11 Last day to file Interim Status Report: March 8, 2021 12 Last day for disclosures concerning experts: March 8, 2021 13 Last day for disclosures concerning rebuttal experts: April 8, 2021 14 Last day for filing dispositive motions: June 8, 2021 15 Last day to file Joint Pretrial Order: July 8, 2021 16 (ECF No. 28). 17 II. STATEMENT SPECIFYING THE DISCOVERY COMPLETED 18 A. Written Discovery 19 PROPOUNDED BY DATE SERVED DOCUMENT PARTY PROPOUNDED 20 UPON FuelZone Mart 2, LLC 06/18/2020 First Set of Requests for Plaintiff Shondell Pitts, 21 Admissions individually (Responses served 22 08/21/2020) 23 FuelZone Mart 2, LLC 06/18/2020 First Set of Interrogatories Plaintiff Shondell Pitts, individually 24 (Responses served 09/02/2020) 25 FuelZone Mart 2, LLC 06/18/2020 First Set of Requests for Plaintiff Shondell Pitts, 26 Production of Documents individually (Responses served 27 10/12/2020) 28 1 PROPOUNDED BY DATE SERVED DOCUMENT PARTY PROPOUNDED 2 UPON 3 FuelZone Mart 2, LLC 06/18/2020 First Set of Requests Plaintiff Shondell Pitts for Admissions as legal guardian of 4 P.P. (Responses served 5 08/21/2020) 6 FuelZone Mart 2, LLC 06/18/2020 First Set of Plaintiff Shondell Pitts Interrogatories as legal guardian of 7 P.P. (Responses served 8 09/02/2020) 9 FuelZone Mart 2, LLC 06/18/2020 First Set of Requests Plaintiff Shondell Pitts for Production of as legal guardian of 10 Documents P.P. (Responses served 11 10/12/2020) Las Vegas First Set of Plaintiff Shondell Pitts, 12 Metropolitan Police Interrogatories individually Department (Responses served 13 08/19/2020) 14 Las Vegas First Set of Requests Plaintiff Shondell Pitts, Metropolitan Police for Production of individually 15 Department Documents (Responses served 10/13/2020) 16 Las Vegas First Set of Plaintiff Shondell Pitts 17 Metropolitan Police Interrogatories as legal guardian of Department P.P. 18 (Responses served 08/19/2020) 19 Las Vegas First Set of Requests Plaintiff Shondell Pitts 20 Metropolitan Police for Production of as legal guardian of Department Documents P.P. 21 (Responses served 10/13/2020) 22 B. FRCP 26 Disclosure Statements 23 PARTY DISCLOSURE DATE SERVED 24 Plaintiff Shondell Pitts Initial Disclosure 08/31/2020 25 individually and as legal 26 guardian of P.P. 27 28 1 PARTY DISCLOSURE DATE SERVED 2 Plaintiff Shondell Pitts Initial Disclosure 08/31/2020 3 individually and as legal 4 guardian of P.P. 5 Defendant FuelZone Mart 2, Second Supplemental 07/09/20 6 Disclosure LLC 7 Defendants Las Vegas Third Supplemental 08/20/20 8 Disclosure Metropolitan Police Department 9 and Officer David Nesheiwat 10 Plaintiff Initial Disclosure 10/15/19 11 12 C. Depositions 13 The parties completed the depositions of Plaintiff Shondell Pitts and Portia Pitts on December 14 21, 2020. 15 III. SPECIFIC DESCRIPTION OF DISCOVERY THAT REMAINS TO BE COMPLETED 16 Defendants have been continuing to obtain additional medical records, as it is Defendants’ 17 understanding that Plaintiffs are continuing to undergo medical treatment. Therefore, the parties seek 18 additional time to identify and obtain the pertinent medical records. Further, Defendants are currently 19 investigating whether any additional appropriate parties should be added to this action. The parties also 20 anticipate the following discovery will be necessary: 21 1. Identification of and obtaining additional medical treatment records from additional 22 providers for Plaintiffs not identified in Plaintiffs disclosures to date; 23 2. Depositions of percipient witnesses to the incident, including the police officers 24 involved; 25 3. Depositions of the parties, including representatives of LVMPD and FuelZone Mart 2, 26 LLC; 27 4. Identification and disclosure of the parties' respective expert/rebuttal expert witnesses; 28 1 5. Depositions of Plaintiff's treating physicians and the parties respective designated 2 experts; 3 6. Further Discovery as needed, which may not have been specifically addressed herein. 4 IV. LEGAL AUTHORITY FOR REOPENING AND CONTINUING DISCOVERY 5 DEADLINES 6 Pursuant to FRCP 16(b), a movant must establish “good cause” for amending any scheduling 7 order, including the deadline for the close of discovery. See Johnson v. Mammoth Recreations, Inc., 8

(9th Cir. 1992); see also Local Rule 26-4; Werbicky v. Green Tree Servicing, 9 LLC, No. 2:12-CV-01567-JAD,

, at *1 (D. Nev. Oct. 27, 2014). When the deadline 10 has already expired, a movant must also demonstrate that the failure to act was the result of excusable 11 neglect. See Local Rule 26-4; Werbicky, supra (citing Nunez v. Harper, 2014 U.S. Dist. Lexis 84287, 12 *6,

(D. Nev. June 20, 2014)). 13 In determining whether “good cause” exists, the Court “[p]rimarily considers the diligence of the 14 party seeking the amendment." Johnson,

. "The district court may modify the pretrial 15 schedule “[i]f it cannot reasonably be met despite the diligence of the party seeking the extension.”

16 (quoting Fed. R. Civ. P. 16). The Court may also consider the prejudice the party will suffer as a result 17 of not obtaining that discovery, although such a factor is secondary to due diligence.

The district 18 court has discretion in making such a determination.

19 Should the Court find “good cause” exists, it must then consider whether there is a showing of 20 excusable neglect as to why the deadline was not completed before it passed. Nunez, supra. “Excusable 21 neglect encompasses situations in which the failure to comply with a filing deadline is attributable to 22 negligence.” Id. (citing Lemoge v. U.S.,

(9th Cir. 2009). “There are at least four 23 factors in determining whether neglect is excusable: (1) the danger of prejudice to the opposing party; (2) 24 the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) 25 whether the movant acted in good faith.”

(citing Bateman v. U.S. Postal Serv., 231 F.23d 1220, 1223-24 26 (9th Cir. 2000)). “The determination of whether neglect is excusable is ultimately an equitable one, taking 27 account of all relevant circumstances surrounding the party's omission.”

(citing Pioneer Inv. Servs. Co. 28 v.Brunswick Assoc. Ltd. P'ship,

(1993)) (emphasis added). The circumstances in this 1 case meet each requirement and merit reopening the expired discovery deadlines and continuing the 2 remaining dates. For the reasons set forth below, as well as an examination of the Bateman factors weighs 3 in favor of granting the parties’ stipulation to reopen and extend the discovery deadlines. 4 1. The Dangers of Prejudice to the Opposing Party 5 In the instant circumstance there is no danger to the opposing party. All parties are in agreement 6 to extend all the deadlines in this case. It appears Plaintiffs continue to treat, and additional medical 7 records and providers will need to be identified and obtained. It would be prejudicial, especially where 8 both sides agree that additional discovery is necessary in this case, and when the parties have acted 9 diligently and promptly since discovery has opened. Moreover, the Court recently allowed the Plaintiffs 10 to substitute Allen Jackson as a named Defendant in the place of “DOE Clerk.” (ECF No. 44). The 11 parties respectfully submit it would be prejudicial to this new Defendant if he is not permitted sufficient 12 time to become familiar with the facts and allegations of this case, and to conduct discovery in his 13 defense. 14 2. The Length and Reason for the Delay and Its Potential Impact on the Proceedings. 15 The parties have exercised reasonable diligence and are moving forward with the discovery 16 process. The Court only recently allowed the substitution of Defendant Jackson. Indeed, Defendant 17 Jackson has not yet been served with the summons and complaint, the Plaintiffs having until May 30, 18 2021 to effect service of process in compliance with the Court’s Order. Therefore, the length of delay is 19 necessary, but for the bases set forth herein, would not be a burden to either the Court or to the parties. 20 The potential impact on the proceedings is also minimal, as there is no trial date set in this case yet, and 21 the parties all are in complete agreement that the instant extension is necessary. 22 3. Whether the Movants Acted in Good Faith 23 There is no other motion pending before the Court, as all parties to the case have agreed a 24 stipulation to continue the discovery deadlines are necessary and warranted. The parties agree that in the 25 absence of a stipulation, the parties would equally prejudiced in terms of being unable to conduct the 26 necessary discovery to both prosecute and defend the case at bar. 27 Therefore, the parties jointly submit the length of the delay in seeking the extension (although 28 less than twenty-one (21) days before the expiration of the deadline to designate expert witnesses and 1 after the deadline to amend pleadings and add parties) as required by Local Rule 26-4 was negligible 2 and that the negative impact on the parties in granting the jointly sought extension is not an issue at this 3 time. Therefore, the parties respectfully submit that as joint movants, who are continuing to actively 4 obtain records and discovery, have acted in good faith in seeking the extension requested herein. For 5 these reasons, the parties jointly submit that the failure to request a discovery extension within the 21 6 days prior to the expiration of the deadline requested to be extend has sufficient good cause and was 7 caused by excusable neglect sufficient for this Court to extend the deadlines as requested herein. 8 V. CURRENT AND PROPOSED DISCOVERY SCHEDULE AND TRIAL DATE: 9 The current discovery schedule is as follows: 10 Last day to file a motion to amend pleadings or to add parties: February 8, 2021 11 Last day to file Interim Status Report: March 8, 2021 12 Last day for disclosures concerning experts: March 8, 2021 13 Last day for disclosures concerning rebuttal experts: April 8, 2021 14 Last day for filing dispositive motions: June 8, 2021 15 Last day to file Joint Pretrial Order: July 8, 2021 16 (ECF No. 28). 17 The parties propose the following Discovery Schedule: 18 Last day to file a motion to amend pleadings or to add parties: June 8, 2021 19 Last day to file Interim Status Report: July 8, 2021 20 Last day for disclosures concerning experts: July 8, 2021 21 Last day for disclosures concerning rebuttal experts: August 9, 2021 22 Last day for filing dispositive motions: October 8, 2021 23 Last day to file Joint Pretrial Order: November 8, 2021 24 (or thirty (30) days after the Court’s 25 ruling the parties’ final dispositive motion) 26 Said request is not being made for the purpose of unduly delaying discovery or the trial of this 27 matter. Further, given the recent addition of Defendant Jackson as a named Defendant in place of “DOE 28 1 Clerk,” the parties respectfully submit that an additional discovery extension may be required to permit 2 Defendant Jackson the opportunity to participate fully in discovery in this action. 3 Accordingly, based on the foregoing, the Parties respectfully request this Court grant the instant 4 Stipulation. 5 IT IS HEREBY STIPULATED: 6 DATED this 2nd day of March, 2021. DATED this 2nd day of March, 2021. 7 HALL JAFFE & CLAYTON, LLP LAW OFFICES OF MITCHELL S. BISSON 8 /s/ Kevin S. Smith /s/ Mitchell s. Bisson _________________________ _________________________________ 9 STEVEN T. JAFFE, ESQ. MITCHELL S. BISSON, ESQ. Nevada Bar No. 007035 Nevada Bar No. 011920 10 KEVIN S. SMITH, ESQ. 911 North Buffalo Drive, Ste. 201 Nevada Bar No. 007184 Las Vegas, NV 89128 11 7425 Peak Drive Attorneys for Plaintiffs SHONDELL PITTS, 12 Las Vegas, Nevada 89128 individually and as legal guardian of P.P. Attorneys for Defendant Fuelzone Mart 2, LLC 13 DATED this 2nd day of March, 2021. 14 MARQUIS AURBACH COFFING 15 /s/ Craig R. Anderson 16 _________________________________ CRAIG R. ANDERSON, ESQ. 17 Nevada Bar No. 006882 10001 Park Run Drive 18 Las Vegas, Nevada 89145 Attorneys for Defendants Las Vegas Metropolitan 19 Police Department and Officer David Nesheiwat 20 21 22 23 24 25 26 27 28 Pitts vs. LVMPD et al SAO to Extend Discovery 1 [PROPOSED] ORDER 2 In accordance with the stipulation of the parties, the Court orders as follows: 3 IT IS ORDERED that the discovery deadlines are continued as follows: 4 Last day to file a motion to amend pleadings or to add parties: June-82024 Expired 5 6 7 Last day for disclosures concerning experts: July 8, 2021 8 Last day for disclosures concerning rebuttal experts: August 9, 2021 9 Last day for filing dispositive motions: October 8, 2021 10 Last day to file Joint Pretrial Order: November 8, 2021 (or thirty (30) days after the Court’s 12 ruling the parties’ final dispositive motion) 13 14 IT IS SO ORDERED.

17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28