United States District Court, D. Nevada
REPORT OF FINDINGS AND RECOMMENDATION
A. LEEN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.”
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.
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.
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.
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.
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).
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.
The OSC and the Parties' Responses
(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.