1 CARRIE E. HURTIK, ESQ. 2 Nevada Bar No. 7028 HURTIK LAW & ASSOCIATES 3 6767 West Tropicana Ave. Suite #200 Las Vegas, NV 89103 4 (702) 966-5200 Telephone (702) 966-5206 Facsimile 5 [email protected] [email protected] 6 Attorneys for Plaintiff, LUIS CALDERON 7

8 UNITED STATES DISTRICT COURT

9 DISTRICT OF NEVADA, SOUTHERN DIVISION

10 LUIS CALDERON, an individual Case No.: 2:20-cv-1049-JCM-BNW

11 Plaintiff, PLAINTIFF’S MOTION TO EXTEND 12 vs. DISCOVERY DEADLINES

13 USAA CASUALTY INSURANCE [FIRST REQUEST] 14 COMPANY, a Foreign Corporation; DOES 1- 10 AND ROE ENTITIES 11-20, 15 INCLUSIVE,

16 Defendants.

17 PLAINTIFF’S FIRST MOTION TO EXTEND DISCOVERY DEADLINES 18 The parties have previously agreed to Three (3) discovery extensions. This is the Plaintiff’s first 19 contested motion to extend Discovery Deadlines. Pursuant to LR 26-3 a motion or stipulation to extend 20 any date set by the discovery plan, scheduling order, or other order must, in addition to satisfying the 21 requirements of LR IA 6-1, be supported by a showing of good cause for the extension. A request made 22 after the expiration of the subject deadline will not be granted unless the movant also demonstrates that 23 the failure to act was the result of excusable neglect. 24 A motion or stipulation to extend a discovery deadline or to reopen discovery must include: 25 (a) A statement specifying the discovery completed; 26 (b) A specific description of the discovery that remains to be completed; 27 (c) The reasons why the deadline was not satisfied or the remaining discovery was not completed 1 (d) A proposed schedule for completing all remaining discovery. 2 1. On March 19, 2020, Plaintiff filed his Complaint in the District Court, Clark County. 3 2. On April 24, 2020 Plaintiff filed his First Amended Complaint in District Court, 4 Clark County. 3. On June 12, 2020, Defendant removed the case to the United States District Court. 5 4. On June 19, 2020, Defendant filed its Answer to Complaint. 6 5. On August 17, 2020 the parties conducted an initial FRCP 26(f) conference 7 6. On August 31, 2020, the Court entered the Stipulated Discovery Order. 8 7. On September 9, 2020, Plaintiff served his FRCP 26 Initial Disclosures on 9 Defendant. 10 8. On September 17, 2020, Defendant served its FRCP 26 Initial Disclosures on 11 Plaintiff. 12 9. On November 24, 2020, the parties stipulated to their first extension to deadlines. 13 This Court granted the stipulation on December 1, 2020. 14 10. On November 30, 2020, Defendant served written discovery on Plaintiff. Plaintiff 15 served his responses on December 7, 2020. 16 11. On December 7, 2020, Plaintiff served his First Supplement to Initial Disclosures 17 on Defendant. 18 12. On January 21, 2021, Plaintiff served written discovery on Defendant. Defendant 19 served its responses on March 9, 2021. 20 13. On January 21, 2021, Plaintiff served his Second Supplement to Initial Disclosures 21 on Defendant. 22 14. On February 22, 2021, Defendant served its First Supplement to Initial Disclosures 23 on Plaintiff. 15. On February 23, 2021, the parties stipulated to their second extension to deadlines. 24 This Court granted the stipulation on February 25, 2021. 25 13. On January 21, 2021, Plaintiff served his Second Supplement to Initial 26 Disclosures on Defendant. 27 1 16. On May 31, 2021, Defendant served its Second Supplement to Initial Disclosures on 2 Plaintiff. 3 17. On July 29, 2021, Defendant took the deposition of Plaintiff Luis Calderon. 4 18. On August 16, 2021, Defendant served its Designation of Expert Witnesses, and a 5 supplement thereto was served on August 19, 2021. 6 19. On August 23, 2021, Defendant served its Third Supplement to Initial Disclosures on 7 Plaintiff. 8 9 DISCOVERY REMAINING 10 1. Production of rebuttal reports by Plaintiff’s Experts. 11 2. Depositions of Elida Calderon and Andres Artega in October 2021, schedules permitting. 12 3. Plaintiff will take the deposition of Jennifer Miller at a time when all parties are mutually 13 available, and or other USAA employees as discovery warrants. 14 4. Plaintiff will take the deposition of Mike Lofton of G4S COMPLIANCE & 15 INVESTIGATIONS, INC. 16 5. The parties will take the depositions of all designated experts at a time when all parties 17 are mutually available. 18 WHY REMAINING DISCOVERY HAS NOT BEEN COMPLETED 19 The Plaintiff avers, pursuant to Local Rule 26-4, that good cause exists for the following requested extension. This Request for an extension of time is not sought for any improper purpose or 20 other purpose of delay. Rather, it is sought by the parties solely for the purpose of allowing sufficient 21 time to conduct discovery. 22 Rule 16(b) of the Federal Rules of Civil Procedure requires the Court to enter a scheduling order 23 after the parties have conducted their Rule 26(f) conference. The Ninth Circuit has held that the purpose 24 25 of Rule 16 is “to encourage forceful judicial management.” Sherman v. United States,

, 26 1135 (9th Cir. 1986). A scheduling order may be modified “only for good cause and with the judge’s 27 consent.” Fed.R.Civ.P. 16(b)(4). The good cause inquiry focuses primarily on the movant’s diligence. 1 See Coleman v. Quaker Oats Co.,

(9th Cir. 2000). “All motions or stipulations 2 to extend a deadline set forth in a discovery plan shall be received by the Court no later than twenty-one 3 (21) days before the expiration of the subject deadline.” Local Rule 26-4. Requests received less than 21 4 days before the expiration of the subject deadline must also include a showing that the failure to act was 5 the result of excusable neglect.

“Excusable neglect ‘encompass[es] situations in which the failure to 6 comply with a filing deadline is attributable to negligence,’. . . and includes ‘omissions caused by 7 8 carelessness.’” Lemoge v. United States,

(9th Cir. 2009) (citing Pioneer Inv. Servs. 9 Co. v. Brunswick Assocs. Ltd.,

(1993) (internal citations omitted). “The 10 determination of whether neglect is excusable is an equitable one that depends on at least four factors: 11 (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on 12 the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith.” Bateman 13 v. U.S. Postal Service,

, 1223–24 (9th Cir. 2000) (citing Pioneer Investment Services Co. 14 15 v. Brunswick Assoc. Ltd. Partnership,

(1993)). The determination of whether neglect 16 is excusable is ultimately an equitable one, taking account of all relevant circumstances surrounding the 17 party’s omission. Pioneer,

. This equitable determination is left to the discretion of the 18 district court. Pincay v. Andrews,

(9th Cir. 2004). 19 Good cause exists to extend the deadlines at issue. This is the first extension of expert discovery 20 deadlines solely sought by either party. Additionally, Counsel for the Plaintiff has had turnover in the 21 primary attorney handling the file as Johnathon Toston has moved on to another firm. See Liguori v. 22 23 Hansen,

, at *7 (D. Nev. Mar. 6, 2012) see also Nelson v. Safeco Ins. Co. of Illinois, 24

, at *2 (D. Nev. Jan. 4, 2011) (granting extension necessitated by “staff turnover” to 25 facilitate “the public’s interest in having cases decided on the merits”). Additionally, the experts that 26 Plaintiff has retained had stated that the time needed to analyze the data relied upon by Defendant will 27 take several weeks to input manually. (See Exhibit 2). 1 The requested extension of the initial expert deadline requires a showing of excusable neglect. 2 Accordingly, pursuant to Local Rule 26-4, Plaintiff must establish hisneglect is excusable under the 3 Bateman factors. The risk of prejudice to the non-moving party is minimal. The sole prejudice that 4 Defendant identifies is that it will have to continue to defend this litigation and that an extension of this 5 deadline would extend the Discovery phases of this case. However, “[p]rejudice requires greater harm 6 than simply that relief would delay resolution of the case.” Lemoge, 587 F.3d at 1191–92. The 7 8 Defendant has already indicated a willingness to extend the current Discovery Deadline. Counsel have 9 tried to work together to extend discovery deadlines but have not agreed on a compromise (Exhibit 2- 10 Proposed Fourth Extension) Counsel for Defendants did agree to extend deadlines for rebuttal reports 11 but the extension was only given to September 27, 2021, and was not sufficient due to the amount of 12 data required to be manually input by the experts. 13 Additionally, counsel for the Defendant has recently subpoenaed records from BMW Financial 14 15 (Exhibit 3) which could and should have an impact on any expert analysis in this bad faith litigation. 16 The Deposition of the insurance adjuster handling the underlying insurance claim has also not been 17 scheduled. Their testimony should also have an impact on any expert opinion regarding bad faith 18 litigation. In hindsight the early expert disclosure dates were premature and should require supplemental 19 reporting in any event. 20 Scheduled Event Current Deadline Proposed Deadline 21

22 Discovery Cut-off Thursday, October 14, 2021 Wednesday, January 12, 2022 23 Deadline to Amend Closed Closed 24 Pleadings or Add Parties 25 Expert Disclosure Monday, August 16, 202 Closed pursuant to FRCP26 26 (a)(2) 27 Rebuttal Expert Wednesday, September 15, 2021 October 29, 2021, Disclosure pursuant to Friday, November 12, 2021 Friday, February 11, 2022 2 Joint Pretrial Order Monday, December 13, 2021 Monday, March 14, 2022 3 4 As to the length of the delay and its potential impact on the proceedings, Defendant has alread: 5 || proposed a revised discovery deadline of January 12, 2022 and several items of discovery remai 6 || unfinished upon the filing of Plaintiff's motion. The impact on the Plaintiff by the loss of his expe witnesses would be severe. Granting Plaintiff, a brief extension will have de miminis impact on th 8 proceedings. Finally, there is no evidence of bad faith. Taking all these circumstances together equit 9 10 weighs in favor of extending the rebuttal expert disclosure deadline.

11 HURTIK LAW & ASSOCIATES 12 /s/: Jonathon R. Patterson 13 CARRIE E. HURTIK, ESQ. 14 Nevada Bar No. 7028 JONATHON R. PATTERSON, ESQ. 15 Nevada Bar No. 9644 6767 West Tropicana Ave. #200 16 Las Vegas, NV 89103 Attorneys for Plaintiff 17 LUIS CALDERON 18 19 Order 0 IT IS ORDERED that ECF No. 18 is DENIED without prejudice under 21 Local Rule 26-6(c). IT IS SO GRDERED 22 DATED: 2:28 pm, October 01, 2021 23 rn le wenn | UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28

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2 PROOF OF SERVICE 3

4 I am employed in the County of Clark, State of Nevada. I am over the age of 18 and not a party 5 to the within action. My business address is 6767 West Tropicana Ave., Suite #200, Las Vegas, Nevada 89103. My business e-mail is [email protected]. 6 On I served the within document(s) described as: 7

8

9 on the interested parties in this action as stated on the attached mailing list.

10 X (BY MAIL) By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the ordinary course of business for collection and mailing that same day at 11 Hurtik Law & Associates, 6767 West Tropicana Ave., Suite #200, Las Vegas, Nevada 89103. I 12 declare that I am readily familiar with the business practice of Hurtik Law & Associates for collection and processing of correspondence for mailing with the U.S. Postal Service and that the 13 correspondence would be deposited within the U.S. Postal Service that same day in the ordinary course of business. 14

15 X (BY ELECTRONIC MAIL SERVICE) Based upon CRC Rule 2.251 or an agreement of the parties to accept electronic service I caused such document(s) to be Electronically Mailed 16 through Hurtik Law & Associates electronic mail system for the above-entitled case. Should your office require a hard copy of said document, please contact our office. 17 Executed on at Las Vegas, Nevada. 18

19 I declare under the penalty of perjury under the laws of the State of Nevada that the foregoing is true and correct. 20

21 /s/: Jonathon R. Patterson ___________________________ 22 Jonathon Patterson, an employee at 23 HURTIK LAW & ASSOCIATES

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