Opinion
2:21-cv-02167-RFB-DJA 2:22-cv-00085-JCM-EJY
04-07-2023
HOMESITE INSURANCE COMPANY as subrogee of Traci Marx and Raymond Marx, Plaintiff, v. NORCOLD, INC., NORCOLD, LLC, THETFORD CORPORATION, THETFORD, LLC, CAMPING WORLD OF HENDERSON, CAMPING WORLD, INC., CWI, Inc. and DOES 1 through 50, Inclusive, Defendants. TRACI MARX, RAY MARX, ALYSSA DILLARD and SETH DILLARD, v. NORCOLD, INC., NORCOLD, LLC, THETFORD CORPORATION, THETFORD LLC, THE DYSON-KISSNER-MORAN CORPORATION, CAMPING WORLD HOLDINGS, INC., CAMPING WORLD, INC., CWI, INC., CAMPING WORLD OF HENDERSON, and DOES 1 to 50, inclusive, and ROE ENTITIES 1 to 50, inclusive
GROTEFELD HOFFMANN LLP LILLA SHKOLNIKOV LAW OFFICES OF TERRENCE A. BEARD TERRENCE A. BEARD, ESQ. DONALD H. WILLIAMS, Esq. HINSHAW & CULBERTSON LLP Russell S. Ponessa KRAVITZ, SCHNITZER, JOHNSON, & WATSON, CHTD. MARTIN J. KRAVITZ, ESQ. MICHAEL ESPOSITO, ESQ. J. PARKER FAUNTLEROY, JR. STEFANY TEWELL TODD M. FOSS MITCHELL R. POWELL LEWIS BRISBOIS BISGAARD SMITH LLP DARRELL D. DENNIS, ESQ. STEVEN B. ABBOTT, ESQ. MICHAEL R. SMITH, ESQ.
GROTEFELD HOFFMANN LLP
LILLA SHKOLNIKOV
LAW OFFICES OF TERRENCE A. BEARD
TERRENCE A. BEARD, ESQ.
DONALD H. WILLIAMS, Esq.
HINSHAW & CULBERTSON LLP
Russell S. Ponessa
KRAVITZ, SCHNITZER, JOHNSON, & WATSON, CHTD.
MARTIN J. KRAVITZ, ESQ.
MICHAEL ESPOSITO, ESQ.
J. PARKER FAUNTLEROY, JR.
STEFANY TEWELL
TODD M. FOSS
MITCHELL R. POWELL
LEWIS BRISBOIS BISGAARD SMITH LLP
DARRELL D. DENNIS, ESQ.
STEVEN B. ABBOTT, ESQ.
MICHAEL R. SMITH, ESQ.
STIPULATION AND ORDER TO EXTEND DISCOVERY DEADLINES (Amended Second Request)
DANIEL J. ALBREGTS, UNITED STATES MAGISTRATE JUDGE
Pursuant to LR 6-1 and LR 26-3, the undersigned parties in the consolidated cases, by and through their respective counsel of record, hereby stipulate and respectfully request that this Court further extend discovery, in the above-captioned cases as outlined below. The parties request that all other future deadlines contemplated by the Discovery Plan and Scheduling Order be extended pursuant to Local Rules. In support of this Stipulation and Request, the parties state as follows:
Procedural History of the Cases
1. On November 5, 2021, Plaintiff Homesite Insurance Company filed its Complaint against Norcold, Inc., Thetford Corp., Camping World, Inc. and Camping World of Henderson in the Clark County District Court of the State of Nevada (hereinafter “the Homesite Action”).
2. On December 8, 2021, the Court granted Camping World of Henderson's and Camping World, Inc.'s Petition for Removal of the Homesite Action to the United States District Court for the District of Nevada. On December 15, 2021, the named defendants in the Homesite Action filed their Answers to the Complaint under Case No. 2:21-cv-02167-RFB-DJA.
3. On December 14, 2021, Plaintiffs Traci Marx, Raymond Marx, Alyssa Dillard and Seth Dillard (“Marx/Dillard Plaintiffs”) filed their Complaint against Norcold, Inc., Thetford Corp., The Dyson-Kissner-Moran Corporation (“DKM”), Camping World Holdings, Inc., Camping World, Inc., CWI, Inc., and Camping World of Henderson (collectively “Camping World Defendants”), in the Clark County District Court of the State of Nevada (hereinafter the “Marx Action”).
4. On January 18, 2022, in the Marx Action, the Court granted Norcold, Thetford, and DKM's Petition for Removal to the United States District Court for the District of Nevada. Norcold, Thetford, DKM, and the Camping World Defendants filed their Answers to the Complaint in the Marx Action on January 25, 2022 and January 28, 2022 respectively under Case No. 2:22-cv-00085-JCM-EJY.
5. On February 2, 2022, Plaintiffs in the Marx Action filed a Motion to Remand which is currently pending.
6. On February 10, 2022, Plaintiff in the Homesite Action filed a Notice of Related Case regarding the Marx Action.
7. On February 16, 2022, the parties filed their Amended Joint Rule 26(f) Status Report and Discovery Plan in the Homesite Action. Plaintiff and Defendants served their Initial Document and Witness Disclosures.
8. On February 24, 2022, Norcold, Thetford, and DKM filed an Amended Proposed Discovery Plan on behalf of the parties in the Marx Action.
9. On May 18, 2022, the Court ordered that the Marx Action, Case No. 2:22-cv-00085-JCM-EJY, be consolidated under the Homesite Action, Case No. 2:21-cv-02167-RFB-DJA.
10. On July 26, 2022, Norcold filed a Motion to Compel Discovery Responses from the Marx/Dillard Plaintiffs in the consolidated action. On July 26, 2022, Norcold also filed a Motion to Deem Requests for Admission Admitted in the Marx Action.
11. All parties are engaged in written discovery. The parties have met and conferred on the terms of the protective order requested by Defendants; however, despite their best efforts, they have been unable to agree on the terms of the protective order. Plaintiffs have filed a Joint Motion for Protective Order, to which Norcold, Thetford and DKM have filed their Response with alternative proposed protective order (such Response being joined by the Camping World Defendants).
12. On October 13, 2022, the Court granted Plaintiff Homesite's motion to amend its Complaint to name CWI, Inc. as a defendant in the Homesite Action.
13. On October 20, 2022, the parties in the consolidated actions submitted a letter requesting a status conference pursuant to Local Rule 16-2.
14. On October 28, 2022, Plaintiff Homesite Insurance Company filed its First Amended Complaint, adding CWI, Inc. as a party.
15. On October 28, 2022, all Defendants filed their answers to Plaintiff's First Amended Complaint.
16. On November 8, 2022, the parties filed a Joint Stipulation for Extension of Time, which was granted by the Court on November 9, 2022.
17. On December 19, 2022, the Court held a hearing on Norcold's Motion to Compel Discovery Responses from Plaintiffs and Motion to Deem Requests for Admission Admitted in the Marx Action. The Court ordered that the plaintiffs file an amended complaint naming Norcold LLC and Thetford LLC as defendants in the action and that plaintiffs file responses to Norcold LLC's discovery requests. The Court denied Norcold's motion to deem requests for admission admitted.
18. On January 17, 2023, Marx/Dillard Plaintiffs filed their First Amended Complaint naming additional Camping World Defendants and Norcold LLC and Thetford LLC as defendants. On January 31, 2023, all Defendants filed their answers to Marx/Dillard Plaintiffs' First Amended Complaint.
19. On February 8, 2023 and thereafter, Marx/Dillard Plaintiffs filed their responses to Norcold LLC's discovery requests.
20. On February 28, 2023, Plaintiff Homesite Insurance Company filed its Unopposed Stipulation to File Second Amended Complaint to add Norcold LLC and Thetford LLC as defendants to its action. On March 2, 2023, Plaintiff Homesite Insurance Company's Second Amended Complaint was deemed filed by the Court.
21. On March 2, 2023, Plaintiff Homesite Insurance Company filed a Motion for Leave to File a Third Amended Complaint to add DKM after meet and confer with Defendants Norcold and Thetford where said defendants advised that they opposed Plaintiff's request to amend the complaint to add DKM as a defendant.
22. On March 10, 2023, Plaintiff Homesite served an Amended Rule 30(b)(6) Notice of Deposition of Norcold, Inc. (currently known as Norcold LLC.)
23. On March 13, 2023, Plaintiff Homesite Insurance Company and the Marx/Dillard Plaintiffs filed their Joint Motion for Protective Order. This motion is pending.
24. On March 16, 2023, Defendants Norcold LLC and Thetford LLC filed their answers to Plaintiff Homesite Insurance Company's Second Amended Complaint.
25. On March 16, 2023, Defendants Norcold LLC and Thetford LLC filed their response in opposition to Plaintiff Homesite Insurance Company's Motion for Leave to File its Third Amended Complaint to add DKM. This motion is pending.
26. On March 20, 2023, Plaintiffs Marx/Dillard and Homesite Insurance Company served joint notices of deposition on Norcold, Inc. and on CWI, Inc.
27. On March 21, 2023, named defendants Camping World of Henderson, Camping World, Inc. and CWI, Inc. filed their Joint and Separate Answer and Affirmative Defenses to Plaintiff's Second Amended Complaint.
28. On or around March 20, 2023, the Marx/Dillard Plaintiffs filed their Notice of Intent to Serve Subpoena on Non-Parties to Testify at Deposition of Christopher Justin Hillenbrand.
29. On March 21, 2023, Plaintiffs Marx/Dillard and Homesite served joint notices of deposition on Thetford LLC and DKM.
30. On March 22, 2023, Defendant Norcold served a notice of deposition of Plaintiffs Alyssa Dillard, Seth Dillard, Traci Marx, and Ray Marx.
31. On March 22, 2023, Marx/Dillard Plaintiffs served amended and/or supplemental responses to the Camping World entities' written discovery requests, including interrogatories, requests for admission and requests for production.
32. On March 23, 2023, Plaintiff Homesite Insurance Company filed its response in reply to Defendants' opposition to its Motion for Leave to File its Third Amended Complaint.
33. On March 27, 2023, Defendants Norcold LLC, Thetford LLC, and DKM filed their response in opposition to Plaintiffs' Joint Motion for Protective Order.
34. On March 28, 2023, Defendants Norcold LLC and Thetford LLC filed their Motion to Quash and for a Protective Order Preventing the Apex Deposition of Christopher Justin Hillenbrand.
35. On March 29, 2023, the Court issued a minute order that Defendants' Motion to Quash and for a Protective Order did not satisfy the meet and confer requirements of the Local Rules and ordered that the parties meet and confer pursuant to Local Rule IA 1-3(f).
36. On March 31, 2023, counsel for Plaintiffs Marx/Dillard and Defendants Norcold and Thetford held a telephonic meet and confer regarding the deposition subpoena of Christopher Justin Hillenbrand. The parties were not able to resolve their discovery dispute. Defendants filed a declaration in support of their Motion to Quash and for Protective Order on March 31, 2023 pursuant to the Court's minute order.
Discovery Remaining
1. The parties continue participating in written discovery.
2. The parties will take the following fact depositions:
• Ray Marx and Traci Marx;
• Alyssa Dillard and Seth Dillard;
• Deposition of Christopher Hillenbrand pursuant to subpoena, subject to the Court's rulings on Norcold and Thetford's Motion to Quash and Motion for Protective Order Preventing the Apex Deposition of Mr. Hillenbrand [ECF Nos. 80, 81];
• Rule 30(b)(6) depositions of Norcold Inc./Norcold LLC, Thetford Corp./Thetford LLC, and DKM;
• Rule 30(b)(6) deposition of CWI, Inc., Camping World of Henderson, Camping World, Inc.
• Rule 30(b)(6) deposition of Homesite
3. The parties may take the depositions of any and all other witnesses garnered through discovery.
4. The parties will disclose expert witnesses pursuant to Fed.R.Civ.P. 26.
5. The parties will take expert depositions.
Why Remaining Discovery Has Not Yet Been Completed
The parties aver, pursuant to Local Rule 26-3, that good cause exists for the following request for extension. This request for an extension of time is not sought for any improper purpose or for the purpose of delay. Rather, it is sought by the parties for the purpose of allowing the parties sufficient time to conduct discovery and adequately prepare for trial. The parties seek additional time because the litigation outlined above continues to give rise to complex issues and disputes that the parties are attempting to resolve. Despite meet and confer efforts, the parties have not been able to resolve these issues and have sought court intervention.
The motions pending in front of the court are as follows: Plaintiff Homesite Insurance Company filed a motion to amend its complaint to add DKM as a defendant to the Homesite action, which Norcold and Thetford oppose. Plaintiffs Homesite and Marx/Dillard have filed a joint motion for entry of protective order as the parties have been unable to agree on the terms of a protective order after months of meet and confer efforts. Norcold, Thetford, and DKM have filed a response to such joint motion and request the Court enter a protective order containing different terms. No protective order has been entered at this time. The Marx/Dillard Plaintiffs have filed a notice of intent to serve a subpoena on Christopher Justin Hillenbrand, of Monomoy Capital Management, the entity which purchased Norcold, Inc. and Thetford, Inc.; Norcold and Thetford have filed a motion to quash Plaintiffs' notice of intent to serve a subpoena on Christopher Justin Hillenbrand and a motion for protective order preventing the apex deposition of Mr. Hillenbrand, as he is Norcold's and Thetford's Chairman/President and corporate Director. Due to the pending issues and the areas of dispute set forth in the motions on file with the Court, the parties have not been able to proceed with pre-trial discovery and depositions at the rate they previously anticipated.
Accordingly, the parties request a further modification and extension of the current discovery deadlines to allow for the opportunity to resolve the above referenced disputes with the assistance of the Court so that discovery and trial preparation can proceed smoothly for the benefit of all parties.
Extension of Modification of the Discovery Plan and Scheduling Order
Local Rule 26-3 governs modifications or extension of the Discovery Plan and Scheduling Order. Any stipulation or motion to extend or modify that Discovery Plan and Scheduling Order must be made no later than twenty-one (21) days before the expiration of the subject deadline and must comply fully with LR 26-3.
This is the second request for extension of time in this matter. The parties respectfully submit that the reasons set forth above constitute compelling reasons for the extension. The following is a list of the current discovery deadlines and parties' proposed extended deadlines:
Scheduled Event
Current Deadline
New Deadline
Fact Discovery Cutoff
Friday, April 28, 2023
Monday, August 28, 2023
Expert Disclosure pursuant to FRCP 26(a)(2)
Plaintiffs: Wednesday, May 3, 2023 Defendants: Friday June 30, 2023
Plaintiffs: Thursday, August 31, 2023 Defendants: Monday, October 30, 2023
Simultaneous Rebuttal Expert Disclosure pursuant to FRCP 26(a)(2)
Monday, July 30, 2023
Monday, November 27, 2023
Expert Discovery Cut-off
Friday, September 8, 2023
Monday, January 8, 2024
Mediation Completion Date
Monday, October 16, 2023
Tuesday, February 13, 2024
Dispositive Motions
Monday, October 16, 2023
Tuesday, February 13, 2024
Joint Pretrial Order
To be set pursuant to LR 26-1 (both cases)
To be set pursuant to LR 26-1
WHEREFORE, the parties respectfully request that this Court extend the fact discovery deadline from the current deadline of April 28, 2023 up to and including August 28, 2023, and the other dates as outlined in accordance with the table above.
ORDER
IT IS SO ORDERED that the parties' stipulation to extend discovery deadlines [87] is GRANTED.