1 JOSHUA A. SLIKER, ESQ. Nevada Bar No. 12493 2 KATLYN M. BRADY, ESQ. Nevada Bar No. 14173 3 JACKSON LEWIS P.C. 300 S. Fourth Street, Suite 900 4 Las Vegas, Nevada 89101 Telephone: (702) 921-2460 5 Email: [email protected] 6 Email: [email protected] 7 Attorneys for Defendant AM Retail Group, Inc. d/b/a DKNY 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 NANDALYN REYES, an Individual, Case No. 2:21-cv-02110-JAD-BNW 11 Plaintiff, 12 DEFENDANTS’ REQUEST TO vs. EXTEND THE EXPERT REBUTTAL 13 DEADLINE AM RETAIL GROUP, INC., dba DKNY; a 14 Foreign Corporation; DOES 1 Through 25, inclusive; and ROE CORPORATIONS 1 (THIRD REQUEST) 15 Through 25, inclusive, 16 Defendants. 17 Defendant AM Retail Group, Inc. dba DKNY (“Defendant”), through its counsel Jackson 18 Lewis P.C., request this Court extend the expert rebuttal deadline from October 15, 2022, to October 19 25, 2022. 20 MEMORANDUM OF POINTS AND AUTHORITIES 21 I. BACKGROUND 22 This is an employment case in which Plaintiff alleges harassment, discrimination, 23 retaliation, tortious constructive discharge, intentional infliction of emotional distress, and 24 negligent hiring, training, and supervision. Plaintiff generally alleges she was subjected to sexually 25 harassing statements and that Defendant failed to take appropriate action after Plaintiff reported the 26 alleged harassment. 27 On January 1, 2022, the Court adopted the parties’ stipulated discovery plan. ECF No. 18. 1 requests. On June 17, 2022, Plaintiff served a Designation of Expert Witness. Plaintiff identified 2 her treating physician, Dr. Michael Elliot, as a non-retained treating physician and indicated Dr. 3 Elliot may provide expert opinions “regarding information learned during his treatment of 4 Plaintiff[.]” 5 On July 18, 2022, this Court granted the parties’ first request to extend the discovery 6 deadlines. ECF No. 25. Following the stipulation, Plaintiff provided her responses to Defendant’s 7 written discovery requests. In addition, defense counsel continued the process of retaining an expert 8 witness to ensure the rebuttal report was completed by September 15, 2022. 9 On August 29, 2022, this Court extended the deadline to file an expert rebuttal report to 10 October 15, 2022. ECF No. 27. Defendant noted that undersigned counsel had recently been 11 involved in a motor vehicle accident, which interrupted finalizing the selection of the rebuttal 12 expert. Following the stipulation, undersigned counsel selected a rebuttal expert, provided 13 necessary documentation, and had several discussions with the expert. The expert began working 14 on the rebuttal report. 15 To accommodate Plaintiff and Plaintiff’s Counsel’s schedule, Defendant took the deposition 16 of Plaintiff on October 4, 2022. On October 10, 2022, undersigned counsel was unexpectedly out 17 of the office as undersigned counsel was seeking treatment at an urgent care. Defendant received 18 an expedited transcript of Plaintiff’s deposition on October 12, 2022. Undersigned counsel then had 19 a follow-up medical appointment that same day and then underwent necessary bloodwork on 20 October 15, 2022. As a result, undersigned counsel was unable to communicate with the rebuttal 21 expert regarding the report until October 13, 2022. 22 Additionally, Defendant’s rebuttal expert also maintains a busy practice providing mental 23 health treatment to patients. As a result of the compressed time for Defendant’s rebuttal expert to 24 review Plaintiff’s deposition transcript and pertinent treating records, Defendant is seeking an 25 extension of time to allow the rebuttal expert sufficient time to complete reviewing these materials 26 and finalize their report. 27 The parties are scheduled to participate in the deposition of Defendant’s Rule 30(b)(6) 1 of Plaintiff’s treating psychologist. 2 Defendant’s counsel contacted Plaintiff’s counsel on October 14, 2022 and left a message 3 with the receptionist. Further, counsel followed up on this phone call on October 17, 2022, and 4 again left a message with the receptionist. Further, the receptionist stated only Patrick Kang could 5 approve an extension request and that Mr. Kang was unavailable. To date, counsel has not received 6 a response.1 7 II. LEGAL ARGUMENT 8 A. Good Cause Supports this Request. 9 When a motion requires the modification of the scheduling order, the movant must first 10 satisfy the “good cause” standard established by Rule 16(b). See Johnson v. Mammoth Recreations, 11 Inc.,

(9th Cir. 1992); see also Fed. R. Civ. P. 16(b)(4) (“A schedule may be 12 modified only for good cause and with the judge’s consent”). The good cause inquiry is focused on 13 the movant’s reasons for seeking to modify the scheduling order and primarily considers the 14 movant’s diligence. In re W. States Wholesale Nat. Gas Antitrust Litig.,

(9th Cir. 15 2013). The key determination is whether the subject deadline “cannot reasonably be met despite 16 the diligence of the party seeking the extension.” Johnson,

. The Court considers 17 whether relief from the scheduling order is sought based on the development of matters that could 18 not have been reasonably anticipated at the time the schedule was established. Jackson v. Laureate, 19 Inc.,

(E.D. Cal. 1999). Courts may also consider other pertinent circumstances, 20 including whether the movant was diligent in seeking modification of the scheduling order once it 21 became apparent that the movant required relief from the deadline at issue. Sharp v. Covenant Care 22 LLC,

(S.D. Cal. 2012). 23 As an initial matter, Defendant’s motion to extend the deadline is timely. The prior deadline, 24 October 15, 2022, fell on a Saturday. Pursuant to Fed.R.Civ.P. 6(a)(1)(C), if the deadline falls on a 25 26 1 Defendant notes this is not the first time Plaintiff’s counsel has not responded to a request for an extension. Defendant was forced to file a motion for an extension of time to respond to Plaintiff’s written discovery requests after Plaintiff’s 27 counsel failed to respond to a request. See ECF No. 22 at 2:10-12 (noting Plaintiff’s counsel indicated he would discuss the extension request with his client but then failed to provide any further response). In addition, Defendant was forced 1 Saturday, the deadline is extended to “the next day that is not a Saturday, Sunday, or legal holiday.” 2 Accordingly, the deadline for the expert rebuttal was moved from Saturday October 15, 2022, to 3 Monday, October 17, 2022. 4 Defendant respectfully asserts good cause supports the request to extend the rebuttal expert 5 deadline. Defendant has diligently conducted discovery in this matter. Defendant has deposed 6 Plaintiff, subpoenaed relevant medical providers, scheduled the deposition of Defendant’s Rule 7 30(b)(60 deponent, and completed written discovery requests. In addition, Defendant retained an 8 expert in this matter and provided the relevant information for the expert’s review. 9 However, undersigned counsel was unexpectedly out of the office the week of October 10th 10 as counsel sought treatment at an urgent care. This, and the follow-up appointments impacted 11 counsel’s ability to finalize the rebuttal report with the expert. In addition, counsel has another 12 medical appointment scheduled for October 18, 2022. Despite this medical issue, undersigned 13 counsel attempted to work with the expert over the weekend to finalize the rebuttal report, but was 14 unable to. Accordingly, Defendant respectfully asserts good cause supports this request. 15 B. Discovery Completed to Date. 16 To date, the Parties have exchanged initial and supplemental disclosures of documents and 17 witnesses pursuant to FRCP 26(a)(1). Plaintiff has propounded written discovery including 18 interrogatories, requests for production, and requests for admission. Defendant has served responses 19 to Plaintiff’s written discovery requests. Defendant has propounded Defendant’s First Set of 20 Requests for Production of Documents, Defendant’s First Set of Interrogatories, and Defendant’s 21 First Set of Requests for Admissions. Plaintiff has served responses to Defendant’s written 22 discovery requests. Defendant deposed Plaintiff on October 4, 2022. 23 C. Discovery Which Still Needs to Occur. 24 Defendant is in the process of finalizing the rebuttal expert report. In addition, the parties 25 have scheduled the deposition of Defendants’ Rule 30(b)(6) deponent for November 1, 2022. 26 Defendant is in the process of scheduling the deposition of Plaintiff’s treating physician. In addition, 27 Plaintiff disclosed a new treating physician during the deposition and Defendant is in the process 1 D. Proposed Schedule for Completing Remaining Discovery. 2 Discovery Cut-Off Date — November 15, 2022, discovery cut-off date shall remain th 3 || same. 4 Rebuttal Expert Deadline — The October 15, 2022, rebuttal expert disclosure deadline shal 5 || be extended to October 26, 2022. 6 Dispositive Motions — the December 15, 2022, dispositive motions deadline shall remai 7 || the same. 8 Pretrial Order — If no dispositive motions are filed, the Joint Pretrial Order shall be file g || thirty (30) days after the date set for the filing of the dispositive motions. In the event dispositiv 10 || motions are filed, the date for filing the Joint Pretrial Order shall be suspended until thirty (30) day 11 || after the decision on the dipositive motions or by further order of the Court. 12 Il. CONCLUSION 13 Defendant respectfully requests an eight (8) day extension to the deadline to produce | 14 || rebuttal expert. Defendant has worked diligently to complete discovery in this matter, but due t 15 || counsel’s unexpected medical issues, Defendant has been unable to do so. 16 Dated this 17th day of October, 2022. 17 JACKSON LEWIS P.C. 18 /s/ Katlyn M. Brady Joshua A. Sliker, Bar No. 12493 19 Katlyn M. Brady, Bar No. 14173 20 300 S. Fourth Street, Suite 900 Las Vegas, Nevada 89101 21 Attorneys for Defendant 22 ORDER 23 For good cause shown, IT IS ORDERED that ECF No. 28 is GRANTED. 25 DATED: 3:37 pm, October 18, 2022 ag la weeny | 26 UNITED STATES MAGISTRATE JUDGE 27 28

1 CERTIFICATE OF SERVICE 2 I HEREBY CERTIFY that I am an employee of Jackson Lewis, P.C. and that on this 17th 3 day of October, 2022, I caused to be served via this Court’s electronic filing system, a true and 4 correct copy of the above foregoing DEFENDANTS’ REQUEST TO EXTEND THE EXPERT 5 REBUTTAL DEADLINE properly addressed to the following: 6 Patrick W. Kang, Esq. [email protected] 7 Kyle R. Tatum, Esq. [email protected] 8 Tiffany S. Yang, Esq. 9 [email protected] KANG & ASSOCIATES, PLLC 10 6480 West Spring Mountain Road, Suite 1 Las Vegas, Nevada 89146 11 Attorney for Plaintiffs 12 13 /s/ Katlyn M. Brady Employee of Jackson Lewis, P.C. 14 15 16 4888-5440-0048, v. 2 17 18 19 20 21 22 23 24 25 26 27