1 SUZANNE L. MARTIN Nevada Bar No. 8833 2 [email protected] OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 3 Wells Fargo Tower 4 Suite 1500 3800 Howard Hughes Parkway 5 Las Vegas, NV 89169 Telephone: 702.369.6800 6 Fax: 702.369.6888 7 Attorneys for Defendant Great Clips, Inc. 8 UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF NEVADA 10 11 DESTINIE MULLEN, an Individual, Case No.: 2:19-cv-01109-GMN-EJY 12 Plaintiff, STIPULATION AND ORDER FOR AN 13 EXTENSION TO STAY DISCOVERY vs. DURING PENDENCY OF DEFENDANT 14 GREAT CLIPS, INC.’S MOTION TO NUGENT, LLC, a Nevada limited liability 15 company; GREAT CLIPS INC, a foreign DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT corporation, DOES I-X; and ROE 16 CORPORATIONS I-X. (FIRST REQUEST) 17 Defendant. 18 Pursuant to LR IA 6-1, LR IA 6-2 and LR 7-1, Plaintiff Destinie Mullen (“Plaintiff”) and 19 Defendant Great Clips, Inc. (“Great Clips”), by and through their respective counsel of record, 20 hereby stipulate and agree to stay discovery in this matter during the pendency of Great Clip’s 21 Motion to Dismiss Plaintiff’s Second Amended Complaint (“Motion”) (ECF No. 54). 22 Courts have broad discretion to control discovery. When a court considers a request to stay 23 discovery, the Court must consider whether (1) the underlying motion is dispositive of the entire 24 case and (2) whether the motion can be decided without additional discovery. Tradebay, LLC. V. 25 eBay, Inc.,

(D. Nev. 2011). While Great Clips’ Motion is not dispositive of 26 the entire case as against both Defendants, Nugent, LLC and Great Clips, the Motion is dispositive 27 of all of Plaintiff’s claims as against Great Clips. And, regardless of whether the case is dispositive 28 1 of the “entire case,” the Court may also consider and has the authority to stay discovery if the 2 Court finds a reasonable basis to do so, and if the Court is convinced that Plaintiff cannot state a 3 claim for relief. Kor Media Group, LLC v. Green,

(D. Nev. 2013). 4 As articulated in Great Clips’ Motion (ECF No. 54), this is an employment case. Each of 5 Plaintiff’s claims against Great Clips in the Second Amended Complaint requires her to allege 6 (and ultimately demonstrate) that she was an employee of Great Clips. She does not allege that 7 she is an employee Great Clips. (See ECF No. 40, Second Amended Complaint). Rather, she has 8 alleged, and Nugent, LLC has admitted, that she is an employee of Nugent, LLC. (See ECF No. 9 40, ¶ 13, Second Amended Complaint, and ECF No. 48, General Allegations, ¶ 1 Defendant 10 Nugent, LLC’s Answer to Second Amended Complaint (Nugent admits that Plaintiff began 11 working for it as a hairstylist on September 21, 2017.).) Indeed, although Plaintiff named “Great 12 Clips, Inc.” as the defendant employer in the original Complaint (ECF No. 1), she soon voluntary 13 dismissed “Great Clips, Inc.,” stating that Defendant Nugent, LLC was the “proper entity subject 14 to suit.” (ECF No. 6, Notice of Voluntary Dismissal of Great Clips.) 15 Otherwise, also as discussed in Great Clips’ Motion, Plaintiff has failed to adequately state 16 any claim against Great Clips. There are no allegations in the Second Amended Complaint 17 specifically directed at Great Clips or that allege any specific wrongdoing or improper action by 18 Great Clips in support of the asserted claims. The one-and-only allegation in the Second 19 Amended Complaint about Great Clips is in reference to a franchise agreement with Nugent, 20 LLC. It is Great Clips’ position that this lone allegation is simply not enough to state a claim 21 against Great Clips, and, as a matter of law, franchisors are not automatically deemed joint 22 employers with their franchisees. (See ECF No. 54, p. 5-9, Great Clips’ Motion to Dismiss, and 23 ECF No. 40, at ¶ 11, Plaintiff’s Second Amended Complaint). 24 Great Clips further contends Plaintiff’s claims are subject to dismissal because the statute 25 of limitations on all of her claims, including her statutory and tort claims, has expired. (ECF No. 26 54, p. 9-13, Great Clips Motion to Dismiss). Although Plaintiff first named “Great Clips, Inc.” as 27 the defendant-employer in the original lawsuit, when she chose to voluntarily dismiss it, 28 identifying her employer and the “real party in interest” as Nugent, LLC, the statute of limitations 1 on her claims continued to run. Wang and Wang LLP, v. Baco do Brasil S.A., Civil Case No. 2 2:06-cv-00761-JAM-KJM,

, at *2 (E.D. Cal., Nov. 26, 2008). She filed the 3 original Complaint on June 26, 2019. (ECF No. 1). She dismissed “Great Clips, Inc.” on July 7, 4 2019. (ECF No. 6). She did not attempt to bring “Great Clips, Inc.” back into the litigation until 5 one and one-half years later, on February 26, 2021, with the filing of the Second Amended 6 Complaint. (ECF No. 40). By that time, assuming (arguendo) she exhausted her administrative 7 remedies against “Great Clips, Inc.”, her 90-day window within which to file her statutory claims 8 had lapsed. The two year statute of limitations on her tort claims has also lapsed. Plaintiff alleges 9 that her last date of employment was February 6, 2018. (ECF No. 40, at ¶ 40). Thus, she had 10 until February 6, 2018 to file her tort claims. Taking into consideration the nine (9) days “Great 11 Clips, Inc.” was in the case before being dismissed, thus tolling the statute of limitation for that 12 brief period of time, the statute of limitations would be extended to February 29, 2020. But again, 13 she did not bring Great Clips back into the case until February 26, 2021, approximately one year 14 after the statute of limitations on the tort claims also lapsed. 15 Lastly, as set forth in detail in Great Clips Motion, Plaintiff did not exhaust her 16 administrative remedies against it. Her administrative charge named “Great Clips, Inc.” but was 17 addressed to Nugent, LLC, described her experiences as an employee of Nugent, LLC, and the 18 Notice of Right to Sue was sent to Nugent, LLC. (See ECF No. 54, p. 14-17). Her failure to 19 exhaust her administrative remedies against the franchisor Great Clips legally bars her claims 20 against it. See e.g., Andrade v. Arby’s Restaurant Group, Inc., No. 15-CV-03175 NC,

6689475 (N.D. Cal. Nov. 3, 2015). 22 Ultimately, as discussed, a stay of discovery during the pendency of its Motion is 23 warranted consistent with applicable precedent in this jurisdiction. See e.g., Laborers’ 24 International Union North America, Local 872 v. City of Las Vegas,

, Case 25 No.: 2-19-CV-00322-GMN-NJK, *1-2 (April 23, 2019, D. Nev.); Goldberger v. Smartcare OS, 26 LLC, Case No. 2:16-CV-01884-RFB-NJK,

, *1-2 (March 14, 2017). 27 Great Clips is also confident that no additional discovery will demonstrate that (1) it is 28 Plaintiff’s employer; (2) Plaintiff’s claims are not barred by the applicable statute of limitations; 1 | or (3) that Plaintiff did not fail to exhaust her administrative remedies as to Great Clips. Further, Great Clips believes that a stay in this instance will accomplish the objectives of Rule 1, i.e. “to 3] secure the just, speedy and inexpensive determination of this action.” See Tradebay,

} at 603, 608 (‘[T]his court’s role is to evaluate the proprietary of an order staying or limiting 5 | discovery with the goal of accomplishing the objectives of Rule 1.”); see also Fed. R. Civ. R. 1. 6 Lastly, as this Stipulation demonstrates, while Plaintiff may not be in agreement with 7 | Great Clips’ legal position, and reserves the right and intends to respond to its Motion to Dismiss, 8 | Plaintiff has nevertheless stipulated to a stay of discovery with Great Clips pending a decision on 9 | the Motion. 10 This Stipulation is made in good faith and is not intended for purposes of delay. 11 | DATED this 25th day of May, 2021. DATED this 25th day of May, 2021. 12 | HKM EMPLOYMENT ATTORNEYS LLP OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. : 13 14 /s/ Jenny L. Foley /s/ Suzanne L. Martin : 3 Jenny L. Foley, Ph.D. Suzanne L. Martin Nevada Bar No. 9017 Nevada Bar No. 8833 3 i 1785 East Sahara, Suite 325 Wells Fargo Tower 16] Las Vegas, NV 89104 Suite 1500 17 | Attorney for Plaintiff 3800 Howard Hughes Parkway Las Vegas, NV 89169 a 18 Attorneys for Defendant Great Clips, Inc. 19 20 ORDER 21 IT IS SO ORDERED. 22 . 73 UNITED/$TATE ISTRATE JUDGE May 26, 2021 24 ——— DATED 25 26 27 28