United States District Court, D. Nevada
the court is the second motion of defendants, Metalast
International, Inc., Metalast, Inc., Sierra Dorado, David
Semas, Greg Semas, and Wendi Semas-Fauria
("Metalast") to exclude evidence of undisclosed
damages (ECF Nos. 216, 217, 218). Plaintiff Chemeon Surface
Technology, LLC ("Chemeon") opposed (ECF No. 220)
and Metalast replied (ECF No. 222).
October 6, 2016, Metalast filed a motion in limine
to exclude evidence of undisclosed damages (ECF No. 186), and
this court denied the motion on March 13, 2017 (ECF No. 229).
On February 6, 2017, after a stay of discovery and a
settlement conference, Metalast filed the exact same
motion, but failed to disclose this to the court or to
provide any explanation why Metalast would file a duplicate
motion. (See ECF No. 216.) It was not until Metalast
filed its reply on February 28, 2017, that it made following
explanation in a footnote:
This motion was originally filed October 6, 2016 as ECF No.
186. Because it was docketed as a motion in limine, the Court
"srtuck" the reply filed on January 26, 2017 as ECF
No. 210. The motion was re-filed, but not docketed as a
motion in limine because it seeks to exclude presentation of
damages based on non-disclosure, not based on evidentiary
No. 222 at 1.) Metalast did not withdraw its original motion
in limine. The result is that after the stay of
briefing on the two pending discovery motions (ECF No. 184
& 186) and the January 6, 2017 settlement conference, the
court issued orders concerning each of these motions
months passed between the time Metalast filed its original
motion and the present one, and it is an understatement to
say that the ensuing events in this case would surely have
caused Metalast to file its "new" motion with those
events it mind. Metalast did not, although it is certainly
true that Metalast attempted to reconstruct the scope of its
motion in its reply (ECF No. 222). The court reviews
Metalast's new motion on its face, and, therefore,
re-denies the motion to exclude evidence of damages (ECF No.
reviewing what it originally believed to be an actual
"new" motion in light of the developments in this
case over the past several months, the court spent
considerable time not only reviewing the parties'
memoranda, but also the minutes of case management hearings
and the recording of the January 6, 2017 hearing at the
conclusion of the settlement conference. The court now
recounts the chronology of events since October 2016, when
the parties requested a settlement conference, a stay of
discovery, and a stay of the briefing of pending motions.
relevant discovery deadlines were issued in July 2016: (1)
September 28, 2016 for the close of fact discovery; (2)
October 28, 2016 for initial expert disclosures; (3) November
16, 2016 for rebuttal expert disclosures; and (3) December
16, 2016 for the filing of dispositive motions (ECF No. 155).
However, in October 21, 2016, the parties submitted a request
for a settlement conference, which the District Court
approved (ECF No. 197).
light of the requested settlement conference, this court
stayed briefing on two outstanding discovery motions (ECF No.
201), and it also granted an extension of time to complete
outstanding discovery as follows: (1) expert witness
disclosures were due seven days following the settlement
conference; (2) rebuttal expert disclosures were due
twenty-one days after the settlement conference, and (3)
dispositive motions were due thirty days following rebuttal
expert witness disclosure (ECF No. 198). As for fact
discovery, the parties reported that only a few issues
remained, including the deposition of Ian Burns, a potential
further deposition of David Semas, and issues outlined in the
minutes of the October 17, 2016 case management conference.
(Id.) These matters were also stayed in light of the
settlement conference, which was then scheduled for January
6, 2017 (ECF No. 204).
parties did not settle the case on January 6, 2017, and the
court went on the record briefly to report the outcome of the
settlement and to address outstanding discovery and briefing
on pending motions. See transcript of settlement
conference (ECF No. 230.) The court has listened to the
recording of the conclusion of the settlement conference.
Although the transcript does not indicate the attorneys who
spoke during this brief hearing, the attorneys are Tim Lucas,
Esq. for Chemeon and Michael Hoy, Esq. for Metalast. As the
transcript indicates, the court and counsel discussed
completing the briefing of the pending discovery motions, but
also discussed outstanding expert discovery and the
modification of the current scheduling order. (Id.
at 4:3-11; 4:14-25.) The court directed the parties to meet
and confer and submit a stipulation concerning these issues.
(Id. at 5:2-6.)
parties did not submit the requested stipulation, so the
court issued a second order on January 25, 2017, and ordered
the parties to advise the court how they intended to proceed
by January 30, 2017 (ECF No. 206). In response, the parties
reported that they had agreed upon a briefing scheduling for
the pending discovery motions; however, they disagreed about
discovery deadlines and the dispositive motion deadline (ECF
No. 208). On February 6, 2017, Metalast filed the pending
motion to exclude evidence of undisclosed
March 7, 2017, Chemeon filed a case management report to
advise the court about the parties' efforts to meet and
confer after the unsuccessful settlement conference (ECF No.
224). Chemeon reports that on January 10, 2017, it circulated
a proposed stipulation to complete discovery and pending
motions. (Id.) Individual defendant Marc Harris,
responded with feedback on January 12, 2017, although he is
not part of this discovery dispute; however, Metalast's
counsel provided no response until January 25, 2017, when
this court issued its second order, and counsel had a
telephonic meeting that same day. (Id.) By this
time, at least one of the dates that Chemeon proposed had
already lapsed. (Id.) Chemeon also reported the
parties' positions with respect to pending fact discovery
and expert discovery.
the settlement conference, Chemeon proposed a deadline for
January 27, 2017 expert witness disclosures, and February 24,
2017 for expert rebuttal disclosures (ECF No. 224). Chemeon
also suggested a deadline of April 28, 2017 for the filing of
dispositive motions, as well as dates to complete outstanding
fact discovery that had been stayed. (Id.) Metalast
took the position that the court's October 31, 2016 order
setting deadlines for expert and rebuttal expert disclosures
and for filing dispositive motions still applied; therefore,
it would not agree to any additional extensions
(Id.) Metalast proposed February 27, 2017 as the
deadline to submit dispositive motions.
January 27, 2017, Chemeon disclosed its expert witness report
pursuant to its proposed expert disclosure deadline (ECF No.
220, Ex. 1). To date, Metalast has not disclosed an expert or
rebuttal expert report, nor has it sought any extensions of
time in which to do so. Therefore, the court considers expert
discovery now closed.
court also notes that Chemeon has filed a motion for summary
judgment regarding ...