Ringelberg v. Vanguard Integrity Professionals -Nevada, Inc. et al

RESPONSE to 103 Motion for Default Judgment

D. Nev.March 20, 2018

1 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 VINCENT J. AIELLO, ESQ. Nevada Bar No. 007970 GREENSPOON MARDER 3993 Howard Hughes Parkway Ste. 400 Las Vegas, Nevada 89169 Direct Dial (702) 978-4255 Direct Fax: (954) 333-4285 E-Mail: vincent.aiello@gmlaw.com Anthony L. Martin Nevada Bar No. 8177 anthony.martin@ogletreedeakins.com Tullio J. Marchionne Nevada Bar No. 4684 tullio.marchionne@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 3800 Howard Hughes Parkway Ste 1500 Las Vegas, NV 89169 Telephone: 702.369.6800 Fax: 702.369.6888 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA STEVEN RINGELBERG, Plaintiff, vs. VANGUARD INTEGRITY PROFESSIONALS-NEVADA, INC., a Nevada Corporation; VANGUARD INTETRITY PROFESSIONALS, INC., a Nevada Corporation; AND RONN H. BAILEY, Defendants. Case No.: 2:17-cv-01788-JAD-PAL DEFENDANTS VANGUARD INTEGRITY PROFESSIONALS - NEVADA, INC. AND VANGUARD INTEGRITY PROFESSIONALS, INC.’S OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT PENDING REVIEW OF DEFENDANTS’ MOTION FOR REVIEW AND APPEAL OF MAGISTRATE JUDGE’S ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT Defendants Vanguard Integrity Professionals - Nevada, Inc. (“VIP-N-INC”) and Vanguard Integrity Professionals, Inc. (“VIP-INC”) (“Defendants”), by and through their undersigned counsel of record, respectfully submit this Opposition to Plaintiff’s Motion for Default Pending Review of Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 1 of 9 2 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 Defendants’ Motion for Review and Appeal of Magistrate Judge’s Order Granting Plaintiff’s Motion For Leave To File An Amended Complaint. DATED this 20th day of March, 2018. GREENSPOON MARDER LLP /s/ Vincent J. Aiello Vincent J. Aiello Nevada Bar No. 7970 GREENSPOON MARDER, P.A. 3993 Howard Hughes Parkway Ste. 400 Las Vegas, NV 89169 Anthony L. Martin Nevada Bar No. 8177 Tullio J. Marchionne Nevada Bar No. 4684 Wells Fargo Tower Suite 1500 3800 Howard Hughes Parkway Las Vegas, NV 89169 Attorneys for Defendants Vanguard Integrity Professionals-Nevada, Inc. and Vanguard Integrity Professionals, Inc. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s Opposition to the Motion to Stay and Cross Motion for Default (“Opposition & Default”) (ECF No.102 &103) relies upon inaccurate references to inapplicable local rules as the basis for moving the court to enter a default or compel Defendants to respond and otherwise answer the Third Amended Complaint. Further, the Opposition and Motion for Default fails to identify any actual prejudice Plaintiff will suffer if Defendants’ responsive pleading to the Third Amended Complaint (“TAC”) is stayed pending resolution of Defendants’ Motion for Review and Appeal of Magistrate Judge’s Order Granting Plaintiff’s Motion and Memorandum in Support of Leave to File an Amended Complaint (“Motion for Review”). (ECF No. 92.). Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 2 of 9 3 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 Defendants, on the other hand, have shown they are entitled to review and reconsideration of the Court’s order granting leave to file the TAC in accordance with FRCP 72 and Local Rule IB 3- 1. If ordered to respond to the TAC, Defendants, as well as Plaintiff and this Court, will have to proceed with preparing and reviewing motion or pleadings which may be rendered moot and unnecessary should the Trial Court rule in Defendants’ favor concerning the Motion for Review1. Further, compelling the Defendants to filing a responsive pleading or motion to the TAC would render moot Defendants request for review and consideration of the Magistrate’s decision to grant leave to file the TAC. Accordingly, Defendants respectfully request that this Court deny Plaintiff’s Cross Motion for Default at ECF No. 102 & 103 pending the Trial Court’s review of the Magistrate Judge’s Order granting Plaintiff leave to file his TAC. (ECF No. 86.) II. ARGUMENT A. Defendants Are Entitled to Seek Review and Reconsideration of a Magistrate’s Order Defendants are entitled to seek review and reconsideration of the Magistrate Judge’s decision in accordance with Fed. R. Civ. Proc. 72 and Local Rule IB 3-1. Where matters are granted in summary fashion by minute order of the Court, then the parties and the Trial Court “[are] left without the benefit of the Magistrate Judge's analysis and reasoning. This will require a closer look at the [order] and more thorough consideration of the record.” See Holland v. Island Creek Corp., 885 F. Supp. 4, 6 (D.D.C. 1995) (citations omitted). “[W]here, as here, the decision under review does not offer a reasoned explanation for its decision, and merely adopts one party's arguments in their entirety, it is incumbent on the [Trial] Court to check the adopted findings against the record with particular, even painstaking, care.”. Deeds v. Aranas, No. 315CV00547RJCVPC, 2017 WL 2259984, at *2 (D. Nev. May 23, 2017). In this instance Defendants timely moved for reconsideration and review of the Court’s order at ECF No. 86 under 1 Defendants most likely response to the TAC will be in the form of FRCP 12(b)(6) motion to dismiss which would require Plaintiff to file an Opposition and Defendants to follow up with a Reply. Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 3 of 9 4 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 the Federal and local rules. Defendants are afforded this right of review in accordance with the established rules. To then subsequently order Defendants to file a responsive motion or pleading in response to their election to file a request for review circumvents the purpose of Rule 72 and Local Rule IB 3-1. Further, Plaintiff offers no legal precedent or guidance to compel Defendants’ to file a responsive motion or pleading in response to the TAC while simultaneously seeking review and reconsideration of the challenged Order. Moreover, Plaintiff is not entitled to seek default under Fed. R. Civ. P. 55(a) because Defendants have clearly appeared and have “otherwise defend[ed]” this action. Likewise analogous arguments have been raised in other forms of appellate practice where “a motion to reconsider a judgment or order, other than a denial of a post-judgment motion, filed within 10 days of the judgment or order sought to be reconsidered, the courts held that, under the circumstances, the motion tolled or suspended the time for filing a notice of appeal from the judgment or order, under Rule 4(a)(4).” 74 A.L.R. Fed. 516 (Originally published in 1985). This is so because the Court had an obligation to reconsider the judgment or order at issue. Similarly Defendants argue any obligation to file a responsive motion or pleading should be stayed or tolled pending the outcome of the Court’s review and reconsideration of the Order granting leave to file the TAC. B. A Stay in Lieu of Default or Compelling Defendants Response is proper in this instance. Courts enjoy broad discretion to issue an order to promote the interests of efficiency for the court and fairness in particular circumstances. To that end staying Defendants’ obligation to respond is within the discretion of the Court. “ ‘A district court has the discretionary power to stay proceedings in its own court.’ Lockyer v. Mirant Corp. 398 F.3d 1038, 1109 (9th Cir. 2005) (citing Landis v. North Am. Co., 299 U.S. 248, 254 (1936)). In deciding whether to stay proceedings, the Court must weigh the possible damage a stay may cause, the hardship a party may suffer by being required to go forward, fairness and judicial economy. See Lockyer 398 F.3d at 1110. ‘A stay should not be granted unless it appears likely the other Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 4 of 9 5 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 proceedings will be concluded within a reasonable time.’ Levya v. Certified Grocers of California, Ltd., 593 F.2d 857, 864 (9th Cir. 1979).” McDaniels v. Belinda Stewart, et al., 3:15-CV-05943-BHS-DWC, 2017 WL 132454 at *1 (W.D. Washington, January 13, 2017). It is clear that under the circumstances in this case, issuing a stay will not unnecessarily extend the litigation, will preserve judicial resources and allow the parties (both Plaintiff and Defendants) to avoid incurring substantial and needless costs preparing and responding to motions that may be avoided. A stay likely to be limited in duration should be granted. Stephens v. Comenity, LLC, 2:17-cv-00670-MMD-NJK, 2017 WL 6316630 at *5 (D. Nev, December 8, 2017). Here, Defendants’ request for stay is limited in duration until the Court resolves the Motion for Review. Even though the court in Comenity granted defendant’s motion for stay of discovery, Id., the present Defendants’ are not seeking a stay of discovery. Defendants’ request is limited in scope to apply only to their responsive pleadings or motion concerning the TAC. All other aspects of this case can proceed pursuant to the operative scheduling order. C. Standard Of Review When considering a stay, courts weigh the following factors: (1) the possible damage to the plaintiff from granting a brief stay; (2) the hardship or inequity to the defendant for being required to go forward; and (3) the orderly course of justice, measured in terms of simplifying issues. Id.; Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th Cir. 1972). 1. Plaintiff Will Not Be Prejudiced By A Stay As noted in the Motion to Stay, the original discovery deadlines were extended 120 days (ECF No. 89) and the parties are actively engaged in discovery. Defendants are not seeking a stay or any other delay of discovery. Discovery can proceed as scheduled in the operative scheduling order. Plaintiff, with Defendants’ assistance, is in the process of scheduling the depositions of multiple witnesses. A trial date has not yet been set in this matter. Without the completion of discovery or a set trial date, a motion to stay is favored. Unwired Planet, LLC, v. Square, Inc., No. 3:13-cv-00579-RCJ-WGC, 2014 WL 4966033 at *3 (D. Nev. October 3, 2014). Under the present circumstances, in light of the limited duration and scope of the stay, no prejudice will be caused to Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 5 of 9 6 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 Plaintiff from a stay pending resolution of the Motion for Review. Accordingly, a stay, especially one limited in duration and scope as requested by Defendants, is warranted and should be granted. 2. Defendants Will Suffer Hardship If A Stay Is Denied Absent the limited stay requested by Defendants, both parties will incur unnecessary expenses associated with Defendants’ response to the TAC which will be avoided should Defendants prevail with their Motion for Review. Therefore, a stay of Defendants’ response to the TAC pending the resolution of the Motion for Review would eliminate the potential hardship and expense to Defendants and additionally eliminate the unnecessary waste of resources to both parties and the Court. Once decided Defendants will timely reply to the TAC and in the meantime, all other aspects of the case will proceed unimpeded and on schedule. D. Judicial Economy Will Be Served by the Stay As noted FRCP 1 states, in relevant part, that the rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” (Emphasis added.) In lieu of the parties engaging in further motion practice related to responsive pleadings to the TAC and burdening the Court with multiple documents that could, with exhibits, amount to hundreds of pages, granting a stay in filing a responsive pleading would best serve judicial economy and prevent undue burden to each party. E. Local Rules Do Not Preclude A Stay or Require Defendants to file a Responsive Document Pending Review of the Court’s Order Plaintiff does not challenge Defendants’ requested stay due to prohibition by the Nevada District Court Local Rules in his Opposition and Motion for Default. Rather, Plaintiff admits that “[t]here is no local rule in the District of Nevada covering motions for the stay of deadlines with the exception of a specific rule in the Local Rules concerning Patent Cases, LRP 1-20” (ECF No. 102, p.2, lines 21-22.) Plaintiff then infers that LRP 1-20, which specifically applies to Patent cases, should somehow dictate the stay request in the current case. However, because the current case is not Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 6 of 9 7 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 a Patent case, LRP 1-20 cannot apply. Further, because there is a Local Rule concerning Patent cases, but not non-Patent cases, it is clear that a stay, such as the stay requested here, is permitted under the Local Rules. Plaintiff next attempts to transform Defendants’ Motion for Stay into a motion for extension of time to file a responsive pleading to the TAC and seeks to apply LR IA 6-1. (ECF No. 102, p. 3 lines 1-16.) While imaginative, this is simply not the case. Defendants’ Motion for Stay is not a motion for extension of time to file a responsive pleading in disguise. Period. The Motion for Stay clearly meets the criteria set forth in Filtrol Corp. for granting a stay ((1) the possible damage to the plaintiff from granting a brief stay; (2) the hardship or inequity to the defendant for being required to go forward; and (3) the orderly course of justice, measured in terms of simplifying issues.) Filtrol Corp. at 244. Thus, the Motion for Stay is exactly that, a motion for stay and nothing else. Finally, Plaintiff’s last attempt to conjure up authority to preclude Defendants’ Motion for Stay references LR 7-3(c) which applies to page limits of motions. (ECF No. 102, p. 3 lines 17-26.) While LR 7-3(c) does not automatically stay a pleading deadline while a motion to extend the motion page limit is pending, LR 7-3(c) is simply not applicable here. LR 7-3(c) does not apply to motions for stay but merely states that the deadline to file a pleading is not stayed pending a motion for extension of page limits. Thus, LR 7-3(c) is not applicable to a motion for stay. Plaintiff has offered this Court no reason, let alone authority, why Defendants’ should be compelled to respond pending resolution of the Motion for Reconsideration. Plaintiff admits there is no prohibition for Defendants’ Motion for Stay under the Local Rules yet seeks to compel a competing pleading or response in the face of Defendants right to seek review and reconsideration of the Court’s Order granting leave to file the TAC. III. CONCLUSION For the reasons set forth above, Defendants respectfully request the Court to stay any deadline Defendants may have to respond to the TAC and deny any request to compel a response until such time as the Court rules on Defendants’ Motion for Review and Reconsideration. Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 7 of 9 8 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 DATED this 20th day of March, 2018. GREENSPOON MARDER LLP /s/ Vincent J. Aiello Vincent J. Aiello Nevada Bar No. 7970 3993 Howard Hughes Parkway Ste. 400 Las Vegas, NV 89169 Anthony L. Martin Nevada Bar No. 8177 Tullio J. Marchionne Nevada Bar No. 4684 Wells Fargo Tower Suite 1500 3800 Howard Hughes Parkway Las Vegas, NV 89169 Attorneys for Defendants Vanguard Integrity Professionals-Nevada, Inc. and Vanguard Integrity Professionals, Inc. Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 8 of 9 9 34201043v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G R EE N SP O O N M A R D ER 39 93 H ow ar d H ug he s P ar kw ay S ui te 4 00 L as V eg as , N ev ad a 89 16 9 T el : (7 02 ) 9 78 -4 25 5 F ax : ( 95 4) 3 33 -4 28 5 CERTIFICATE OF SERVICE I hereby certify that on March 20, 2018, I electronically transmitted the attached DEFENDANTS VANGUARD INTEGRITY PROFESSIONALS - NEVADA, INC. AND VANGUARD INTEGRITY PROFESSIONALS, INC.’S OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT PENDING REVIEW OF DEFENDANTS’ MOTION FOR REVIEW AND APPEAL OF MAGISTRATE JUDGE’S ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant: Anthony L. Martin Richard A. Mescon Tullio J. Marchionne Daniel Norr Pursuant to FRCP 5(b), I hereby further certify that service of the foregoing document was also made by depositing a true and correct copy of the same for mailing, first class mail, postage prepaid thereon, at Las Vegas, Nevada, to the following: Daniel Norr Law Office of Daniel Norr, LLC 170 S. Green Valley Parkway, Ste. 300 Henderson, NV 89012 Richard A. Mescon Leichtman Law PLLC 315 Madison Avenue, Ste. 3011 New York, NY 10017 Attorneys for Plaintiff Anthony Martin, Esq. Tullio J. Marchionne, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 3800 Howard Hughes Parkway, Suite 1500 Las Vegas, NV 89117 Attorneys for Defendants Jason Wiley, Esq. Wiley Peterson 1050 Indigo Drive, Suite 130 Las Vegas, NV 89145 Attorneys for Ronn Bailey By: /s/Jacquelin Ierien An Employee of Greenspoon Marder Case 2:17-cv-01788-JAD-PAL Document 119 Filed 03/20/18 Page 9 of 9