Whittingham v. Attorney General's Office

Nevada Attorney General MICHELLE DI SILVESTRO ALANIS (Bar No. 10024) Supervising Senior Deputy Attorney General GERALD L. TAN (Bar No. 13596) Deputy Attorney General Office of the Attorney General E. Washington Ave., Ste. 3900 Las Vegas, NV 89101 Telephone: (702) 486-3268 Facsimile: (702) 486-3773 E-Mail: [email protected] 7 [email protected] Attorneys for Defendant, Attorney General’s Office UNITED STATES DISTRICT COURT DISTRICT OF NEVADA BYFORD “PETER” WHITTINGHAM, an CASE NO. 2:20-cv-00811-GMN-EFY individual, 13 Plaintiff, STIPULATION AND PROPOSED ORDER vs. EXTENDING TIME TO RESPOND TO THE PLAINTIFF’S REVISED FIRST AMENDED THE STATE OF NEVADA, ex. rel. NEVADA COMPLAINT (ECF 49) ATTORNEY GENERAL’S OFFICE, a Subdivision of the State of Nevada, (SECOND REQUEST) 17 Defendant.

20 Defendant, NEVADA ATTORNEY GENERAL’S OFFICE by and through their attorneys, AARON D. FORD, Attorney General for the State of Nevada, MICHELLE DI SILVESTRO ALANIS, Supervising Senior Deputy Attorney General, and GERALD L. TAN, Deputy Attorney General, and Plaintiff, BYFORD “PETER” WHITTINGHAM, by and through his attorneys, JENNY L. FOLEY, ESQ. and DANA SNIEGOCKI, ESQ. of HKM Employment Attorneys LLP. hereby stipulate pursuant to LR IA 6-1, LR IA 6-2 to an extension of time for Defendant to respond to the Revised First Amended Complaint. This is the second request to extend the time to respond to the Revised First Amended Complaint.

28 On May 18, 2021, Plaintiff filed his Revised First Amended Complaint against Defendants 2 On May 26, 2021, Defendants’ counsel notified Plaintiff they would accept service for Defendant O’Hara. On June 2, 2021, Defendants’ counsel accepted service of the Revised First Amended Complaint for David O’Hara1 (ECF No. 51).

5 On June 11, 2021, this Court granted the parties stipulation and order extending time to Answer or Otherwise Respond to the RFAC. (ECF No. 53).

7 On June 25, 2021, Defendants filed their Motion to Dismiss Revised First Amended Complaint.

8 (ECF No. 54). On July 9, 2021, Plaintiff filed his Opposition. (ECF No. 55). On July 20, 2021, Defendants filed their Reply in Support of the Motion to Dismiss (ECF No. 56).

10 On July 28, 2021, this Court granted the parties stipulation to stay discovery until a ruling on Defendants’ Motion to Dismiss. (ECF No. 60). This Court further ordered the parties to file within 10 days of the Order a revised proposed discovery plan and scheduling order. Id. 13 On January 27, 2023, this Court issued its Order granting in part and denying in part Defendant’s Motion to Dismiss. (ECF No. 64). Specifically, the Court denied the Motion to Dismiss with respect to the First Cause of Action for Retaliation under Title VII against the AGO. Id. The Court granted the Motion to Dismiss on the Second and Third Causes of Action against Defendants O’Hara and Jane Doe and denied leave to further amend. Id. 18 On February 2, 2023, the parties conducted a meet and confer on the revised proposed discovery plan and scheduling order.

20 On February 6, 2023, the parties filed their stipulated revised discovery plan and scheduling order.

21 (ECF No. 65). This Court granted the discovery plan and scheduling order. (ECF No. 66).

22 Pursuant to FRCP 12(a)(4), a responsive pleading would have been due February 9, 2023. As a result of excusable neglect, this deadline was missed.

24 On February 16, 2023, immediately upon realizing this error, counsel for Defendant contacted opposing counsel to discuss a stipulation for extension of time. Opposing counsel graciously agreed to this stipulated extension.

27 As this request comes after the deadline, Defendant is including the analysis of the four factors in The Causes of Action against Defendant O’Hara have since been dismissed. (ECF No. 64) 2 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

3 First, the stipulated extension does not prejudice the Plaintiff. The parties have already conducted a meet and confer on discovery and are both working in good faith on discovery and have had ongoing discussion regarding resolution. Second, the length of the delay was one week and does not impact the judicial proceedings as the parties have only just begun discovery. Third, unfortunately, after the Court’s order on the Motion to Dismiss, Defendant ensured the parties conferred and worked on the outstanding discovery and related orders; however, the deadline for the responsive pleading was not discussed. As noted in the revised discovery plan and scheduling order, Defendant currently has several vacancies which increases the professional commitments. Fourth, Defendant has acted in good faith and immediately contacted Plaintiff upon this discovery. Based on the foregoing factors, Defendant’s counsel submits that this request for an extension of time after the deadline is the result of excusable neglect.

13 Further, in addition to the professional commitments noted above, Defendant’s counsel requires a longer extension of time because the Attorney General’s Office has a new First Assistant Attorney General, who in his role, would likely need to review the present litigation and pleadings, including Defendant’s Response to the RFAC. As the court is aware the RFAC includes approximately 22 pages of factual allegations against the Defendant that require counsel significant time to review and to properly gather information to respond to the RFAC adequately and accurately.

19 Therefore, based on the foregoing the parties stipulate and agree through their respective counsel, that this Court grant Defendant an extension of time, up to and including March 17, 2023, to file an answer or otherwise respond to Plaintiff’s Revised First Amended Complaint.

25 / / / / / / / / / / / / 1 This request is made in good faith and not for purposes of delay.

2 || DATED: February 16, 2023. DATED: February 16, 2023.

3 AARON D. FORD HKM Employment Attorneys. LLP Attorney General By: __ /s/ Michelle Di Silvestro Alanis By: /s/Jenny L. Foley || Michelle Di Silvestro Alanis (Bar. No. 10024) Jenny L. Foley, Esq. (Bar No. 9017) Supervising Senior Deputy Attorney General Dana Sniegocki, Esq. (Bar No. 11715) || Gerald L. Tan (Bar No. 13596) 101 Convention Center Drive, Suite 600 Deputy Attorney General Las Vegas, NV 89109 || Attorneys for Defendant, Attorney General’s (702)-805-8340 Office Attorneys for Plaintiff 9 [Permission to sign electronically received in writing] 1] ORDER 13 — 14 IT IS SO ORDERED.

15 DATED this 16th day of February, 2023.

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