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Amador v. Bullys Sports Bar & Grill

United States District Court, D. Nevada

February 15, 2017

ERNESTO AMADOR, et al., Plaintiffs,
BULLY'S SPORTS BAR & GRILL, et al., Defendants.



         This discovery dispute concerns whether the defendants' eighteenth supplemental disclosure of witnesses should be stricken. The supplement identified nineteen new witnesses and was produced two days before the close of discovery. The procedural history of this case and the parties' discovery practices give context to the dispute.

         I. Procedural History

         On January 16, 2015 - over two years ago - Plaintiff Ernesto Amador (“plaintiffs”) filed a collective action on behalf of himself and all other similarly situated persons who are now and were employed by defendant Bully's Sports Bar & Grill, Inc. as salaried kitchen managers, salaried assistant kitchen managers, and salaried cooks (ECF No. 1). Over the course of litigation, plaintiffs filed three amended complaints (ECF Nos. 34, 72 & 98). The second amended complaint named Sharling “Jo” Sonner, the sole corporate owner of Bully's, as a defendant. Bully's and Ms. Sonner are collectively referred to as “defendants.” On April 29, 2015, the District Court conditionally certified the action as a collective action pursuant to 29 U.S.C. § 216(b) and ordered that notice and consent to join forms be sent to persons employed by Bully's in the above-referenced capacities since January 16, 2012 (ECF No. 50).

         At this court's first case management conference in this matter on May 1, 2015 (ECF No. 57), the court adopted the parties' proposed discovery plan and scheduling order (ECF No. 55), which set the deadline for completion of discovery for December 1, 2015 (Id.). The court vacated the August 14, 2015 case management conference at the request of the parties, since there were no discovery disputes (ECF Nos. 59 & 60). However, one week later the parties submitted a stipulation to extend the discovery plan and scheduling order because they were engaged in private mediation (ECF No. 61). The court granted the extension on August 24, 2015, which provided a discovery cutoff of January 15, 2016 (ECF No. 62). Thereafter, the parties extended the discovery deadline again in November 2015 to March 22, 2016, but the court stated there would be “absolutely no further extensions of discovery” (ECF No. 66).

         On January 13, 2016, five months later, the parties filed a joint request for confidential status conference with the District Court. (ECF No. 75). The District Court held a hearing on January 21, 2016, and stayed discovery and any additional pleadings until further order of the court (ECF No. 79). On May 2, 2016, the District Court lifted the stay (ECF No. 82), and this court set a case management conference for July 18, 2016 (ECF No. 83). Given the District Court's stay of discovery, this court approved an amended discovery plan and scheduling order, which set discovery to close on December 16, 2016 (ECF. No. 85).[1]

         During the fall of 2016, the District Court entered judgment as to the Salaried Cook Subclass and FSLA Collective Action Group 2 pursuant to a notice of acceptance of defendants' Rule 68 offer of judgment (ECF No. 101), and it also approved the parties' stipulation allowing plaintiffs to filed a third amended complaint (ECF No. 97).

         Apart from the period when the District Court stayed discovery, this court held regular case management conferences to oversee discovery to insure that the parties would complete discovery by the December 16, 2016 deadline. At the October 18, 2016 case management conference, the court approved the parties' request to extend initial and rebuttal expert witness reports to October 31, 2016 and November 30, 2016, respectively, but all other deadlines remained the same (ECF No. 105). The parties asked to move the November case management to early December, and the court agreed to do so (ECF No. 109).

         A. The Parties' Rule 26 Disclosures and Supplemental Disclosures

         The parties exchanged initial Rules 26 disclosures in March 2015. Plaintiffs served their initial disclosure of witnesses on March 26, 2015 and listed four general groups of witnesses that plaintiffs deemed were “likely to have discoverable information. . .that [plaintiffs] may use to support [their] claims or defenses. . . .” (ECF 117, Ex. A). Those categories are as follows:

1. Every person who at any time during the relevant class period (three years prior to the date the complaint was filed) worked for Defendants, whether as a salaried Kitchen Manager, Assistant Kitchen Manager, salaried Cook, salaried General Manager, salaried Assistant General Manager or hourly paid employee.
2. Every salaried Kitchen Manager, Assistant Kitchen Manager and salaried Cook who worked for Defendants during the relevant class period. These current and former employees are the most knowledgeable witnesses to testify about the tasks they performed, how much time they spent performing such tasks and the hours they worked.
3. Plaintiffs' supervisors as well as the supervisors of current and former salaried Kitchen Managers, Assistant Kitchen Managers and salaried Cooks, including district and/or regional managers. These witnesses will have knowledge about Defendants' policies and practices and expectations regarding Defendants' sports bar locations. The names and contact information of these witnesses are exclusively in the custody and control of Defendants.
4. All Witnesses identified by Defendants - Additional Witnesses with knowledge of Defendants' operating ...

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