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Buckley v. Pinnacle Community Services Ltd. Partnership

United States District Court, D. Nevada

June 6, 2018

LAURA BUCKLEY, Plaintiff,
v.
PINNACLE COMMUNITY SERVICES LIMITED PARTNERSHIP, et al., Defendants.

          REPORT OF FINDINGS AND RECOMMENDATION

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on Defendants' Response (ECF No. 17) to the court's Order to Show Cause (ECF No. 16) (“OSC”) and Plaintiff Laura Buckley's Joinder (ECF No. 18) in the Response. The Response is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules of Practice.

         BACKGROUND

         I. Procedural History

         Ms. Buckley filed her complaint in Nevada state court on August 28, 2016. See Pet. for Removal (ECF No. 1) at 3-17, Compl. The complaint alleged claims for: (1) violation of the Family and Medical Leave Act (“FMLA”); (2) violation of the Fair Labor Standards Act (“FLSA”) regarding overtime wages; (3) violation of Nevada overtime wage law, (4) wages due and owing under NRS 608.040 and/or 608.050, and (5) retaliatory discharge in violation of public policy under Nevada law. In addition, the complaint stated a “reservation of rights” under the Americans with Disabilities Act (“ADA”) as Buckley anticipated filing a charge of discrimination with the United States Equal Opportunity Commission (“EEOC”). Id. at 15.

         Defendants removed the case to this court on October 5, 2016. The next day the parties filed a Stipulation to Stay (ECF No. 5) pending the outcome of a private mediation before the Honorable Lawrence R. Leavitt (Ret.), and if necessary a subsequent arbitration. The court entered an Order (ECF No. 6) on October 12, 2016, granting the stipulation to stay and requiring the parties to file joint status reports every 60 days advising the court of the status of mediation and/or arbitration proceedings. The order expressly warned counsel that a failure to “timely commence and conclude mediation and arbitration proceedings will result in an order to show cause why the stay should not be lifted.” Id.

         The parties' December 8, 2016 Joint Status Report (ECF No. 7) advised that the mediation did not result in a resolution, but that the parties were continuing to discuss settlement and would proceed with arbitration if necessary.

         The parties' February 6, 2017 Joint Status Report (ECF No. 8) advised that they had been discussing using either the Hon. Phillip M. Pro (Ret.) or the Hon. David Wall (Ret.) as an arbitrator. The court entered an Order (ECF No. 9) on February 10, 2017, directing the parties to exercise their “best good-faith efforts to select an arbitrator and schedule arbitration before the next status report.” Id. at 2 (emphasis added). The court pointed out that it had been four months since the parties' stipulation was granted and an arbitrator had not yet been selected. Id. “Alternate Dispute Resolution is intended to proceed more expeditiously and inexpensively than litigation.” Id. The parties were again warned that a failure to timely comply would result in an order to show cause why the stay should not be lifted.

         The parties' April 6, 2017 Joint Status Report (ECF No. 10) advised that they were commencing arbitration with the Hon. David Wall (Ret.) and were awaiting a conference with Judge Wall to set the arbitration date and scheduling deadlines.

         The parties' June 1, 2017 Joint Status Report (ECF No. 11) informed the court that arbitration before Judge Wall was set for December 14-15, 2017. The parties requested that the next joint status report be due on or before January 19, 2018, “after the arbitration hearing has concluded.” Id. at 1-2 (emphasis added). The court reluctantly granted the parties' request for a January 19, 2018 joint status report deadline in an Order (ECF No. 12) entered June 2, 2017.

         The parties' January 17, 2018 Joint Status Report (ECF No. 13) advised that the parties were continuing arbitration to a date likely to be heard in June 2018, unless the case resolved earlier. The parties requested that the next status report be due one or before July 27, 2018, “after the arbitration hearing has presumably concluded.” Id. at 2 (emphasis added). The court denied the parties' request to delay the next status report until July and ordered the parties to file their next status report on or before March 19, 2018. Jan. 22, 2018 Order (ECF No. 14).

         The parties' March 15, 2018 Joint Status Report (ECF No. 15) advised that counsel have taken further depositions in the arbitration, and that further arbitration proceedings had been rescheduled for August 14 and 15, 2018. The parties requested a September 28, 2018 joint status report deadline to allow time for an arbitration decision to be reached. On March 23, 2018, the court denied the parties' request and issued the OSC.

         II. The OSC and the Parties' Responses

         The OSC (ECF No. 16) ordered counsel to show cause, in writing, why the stay should not be lifted and this case should not be dismissed for the parties' failure to comply with the court's orders and failure to timely arbitrate this matter. The OSC noted that this case has been on the court's docket since October 2016. At the time the OSC was issued more than 17 months had passed since the court granted the stipulation to stay and more than 13 months had elapsed since the court ordered the parties to exercise their best good faith efforts to select an arbitrator and schedule arbitration by the status report due date of April 6, 2017. ...


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