Bienek v. Costco Wholesale Corp

1 | MICHAEL A. FEDERICO (SBN 005946) mfederico @ ocgas.com 2 || OLSON CANNON GORMLEY & STOBERSKI 9950 West Cheyenne Avenue 3 || Las Vegas, Nevada 89129 Telephone: (702) 384-4012 4 || Facsimile: (702) 383-0701 5 || KELLEY S. OLAH (Pro Hac Vice) KOlah@ btlaw.com 6 || NOUSHAN NOUREDDINI (Pro Hac Vice) NNoureddini@ btlaw.com 7 || BARNES & THORNBURG LLP 2029 Century Park East, Suite 300 8 || Los Angeles, California 90067 Telephone: (310) 284-3880 9 || Facsimile: (310) 284-3894 10 || Attorneys for Defendants COSTCO WHOLESALE CORPORATION; 11 || MAPLEBEAR INC. d/b/a INSTACART 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA [14] 15 | KRISTINA A. BIENEK, an individual, Case No. 2:21-cv-02005-APG-DJA 16 Plaintiff, FURTHER STIPULATION BETWEEN DEFENDANTS MAPLEBEAR INC. d/b/a 17 Vv. INSTACART, COSTCO WHOLESALE CORPORATION, 18 || AFFINITYLIFESTYLES.COM, INC. AFFINITYLIFESTYLES.COM, INC. d/b/a d/b/a REAL WATER, a Nevada REAL WATER, AND REAL WATER INC. 19 || corporation, REAL WATER INC., a AND PLAINTIFF KRISTINA A. BIENEK Delaware Corporation; COSTCO AND PPROPOSED] ORDER TO STAY 20 || WHOLESALE CORP., a Delaware DISCOVERY Corporation, MAPLEBEAR, INC. d/b/a 21 || INSTACART, a Delaware Corporation; Complaint Filed: July 30, 2021 DOES 2 through 10, inclusive; ROE Removal Date: | November 5, 2021 22 || CORPORATIONS 11 through 20, inclusive; and ABC LIMITED LIABILITY 23 || COMPANIES 21 through 30, inclusive, 24 Defendants. [25] 26 /// /// 98 /// FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO 1 RECITALS 2 Plaintiff Kristina A. Bienek (“Plaintiff”) and Defendants Maplebear Inc. d/b/a Instacart 3 || (‘Instacart’), Costco Wholesale Corporation (“Costco”), AffinityLifestyles.com, Inc. d/b/a Real 4 || Water (‘AffinityLifestyles.com, Inc.”), and Real Water Inc. (“Real Water’) (collectively the 5 || “Parties”), by and through their respective counsel of record, do hereby stipulate and respectfully 6 || request an order staying all discovery in this matter pending resolution of Instacart’s and Costco’s 7 || Motion to Compel Arbitration and Stay the Case, or, Alternatively, to Dismiss for Failure to State 8 || Claims for Relief Pursuant to Rule 12(b)(6) [ECF Dkt. No. 7]. 9 On July 30, 2021, Plaintiff filed this matter in Eighth Judicial District Court, Clark County, 10 |) Case No. A-21-838724-C. On November 5, 2021, Costco and Instacart removed this action to the 11 || United States District Court for the District of Nevada. See Petition for Removal [ECF Dkt. No. 12 || 1]. On November 26, 2021, Plaintiff filed a Motion to Remand to State Court □□□□□□□□□□□□ 13 || Motion’). See Plaintiff’s Motion [ECF Dkt. No. 18]. On December 10, 2021, Costco and Instacart 14 || filed a response to Plaintiff's Motion. See Costco’s and Instacart’s Response [ECF Dkt. No. 21]. 15 |} On December 17, 2021, Plaintiff filed her reply brief in support of her Motion. See Plaintiff’s 16 || Reply [ECF Dkt No. 25]. In light of Plaintiff’s pending Motion, on January 18, 2022, the Parties 17 || entered into a Stipulation and Proposed Order to Stay Discovery, which the Court granted on 18 || January 20, 2022 [ECF Dkt Nos. 30 and 31]. On February 23, 2022, the Court denied Plaintiff’ s 19 || Motion to Remand [ECF Dkt No. 34]. 20 On November 12, 2021, Instacart and Costco filed a Motion to Compel Arbitration and Stay 21 || the Case, or, Alternatively, to Dismiss for Failure to State Claims for Relief Pursuant to Rule 22 || 12(b)(6) (“Defendants’ Motion” or “Instacart’s and Costco’s Motion”). See Defendants’ Motion 23 || [ECF Dkt. No. 7]. On November 26, 2021, Plaintiff filed a response to Defendants’ Motion. See 24 || Plaintiff's Response [ECF Dkt. No. 17]. On December 3, 2021, Instacart and Costco filed their 25 || reply brief in support of Defendants’ Motion. See Defendants’ Reply [ECF Dkt. No. 20]. 26 || Instacart’s and Costco’s Motion is fully briefed and remains pending before this Court. 27 On October 8, 2021, the United States Bankruptcy Court for the District of Nevada entered 28 || an Order Approving Stipulation Allowing Claimants Relief From The Automatic Stay To Liquidate ~ FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER □□ 1 || Alleged Personal Injury Claims In State Court Litigation [ECF Dkt No. 16], which allowed 2 || AffinityLifestyles.com, Inc. and Real Water to proceed with discovery and evidence preservation. 3 || Costco, Instacart, and Plaintiff are likewise not precluded from preserving evidence. 4 Courts have broad discretionary power to control discovery including the decision to allow 5 || or deny discovery. See, e.g., Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). In cases 6 || like this, a temporary stay of discovery will promote the goals of Rule | of the Federal Rules of 7 || Civil Procedure, “to secure the just, speedy, and inexpensive determination” of this action — 8 || conserving judicial resources and promoting a more efficient disposition of the threshold 9 || jurisdictional and venue issues, which should be made at the earliest stage of litigation. Moreover, 10 || under Rule 26(c)(1), a court may issue an order to protect a party or person from annoyance, 11 || embarrassment, oppression, or undue burden or expense, including forbidding discovery. Fed. R. 12 || Civ. P. 26(c)(1). 13 Although a pending motion to dismiss is “not ordinarily a situation that in and of itself 14 || would warrant a stay of discovery,” when the motion challenges jurisdiction or venue, or immunity, 15 || astay is proper. See Twin City Fire Ins. Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. 16 || Nev. 1989); Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 556 (D. Nev. 17 || 1997); see also Tradebay, LLC v. eBay, Inc., 278 F.R.D. 597, 602 (D. Nev. 2011) (matters dealing 18 || with “preliminary issues of jurisdiction, venue, or immunity” typically warrant a stay of discovery). 19 Courts in this district have stayed discovery where, as here, a “preliminary □□□□□ at the 20 || merits of the pending motion demonstrated: “[f]irst, the pending motion must be potentially 21 || dispositive of the entire case or at least dispositive on the issue on which discovery is sought. 22 || Second, the court must determine whether the pending potentially dispositive motion can be 23 || decided without additional discovery.” Tradebay, LLC, 278 F.R.D. at 602 . Further, this district 24 || has held that matters dealing with “preliminary issues of jurisdiction, venue, or immunity” typically 25 || warrant a stay of discovery. /d. at 603. Instacart’s and Costco’s Motion raises threshold issues of 26 || whether or not this matter may even be heard in this forum and it will dictate the extent of any 27 || discovery necessary, if any. Accordingly, Instacart’s and Costco’s Motion is dispositive. Further 28 || discovery is not needed to resolve Instacart’s and Costco’s Motion. ~ FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER □□ 1 Furthermore, this Court has wide discretion to control the conduct of pretrial discovery by 2 || any party to the action, and courts have routinely stayed pre-trial obligations, including merits 3 || discovery, when a motion to compel arbitration was pending before the court. See Kidneigh v. 4 || Tournament One Corp., 2013 WL 1855764 , at *2 (D. Nev. May 1, 2013) (staying discovery 5 || pending decision on motion to compel arbitration and dismiss, reasoning that “[t]he issues before 6 || the Court in the pending dispositive motion do not require further discovery and are potentially 7 || dispositive of the entire case[.]’’); see also Andrus v. D.R. Horton, Inc., 2012 WL 1971326 (D. Nev. 8 || June 1, 2012) (granting defendant’s motion to stay discovery pending ruling on defendant’s motion 9 || to compel arbitration); Steiner v. Apple Computer, Inc., No. C 07-4486 SBA, 2007 WL 4219388 , 10 || at *1 (N.D. Cal. Nov. 29, 2007) (Indeed, [stay in discovery] is a common practice while motions 11 || to compel are pending.”); Cunningham v. Van Ru Credit Corp., 2006 WL 2056576 , at *2 (E.D. 12 || Mich. July 21, 2006) (staying merits discovery pending resolution of motion to compel arbitration); 13 || Merrill Lynch, Pierce, Fenner & Smith Inc. v. Coors, 357 F.Supp.2d 1277, 1281 (D. Colo. 2004) 14 || (court issued a stay of “all discovery and pretrial scheduling” pending resolution of motion to 15 || compel arbitration). 16 The Parties agree that no prejudice will result by granting the stipulation to stay discovery 17 || at this juncture. The Parties agree that given that at this early stage in the litigation there is no 18 || scheduling order in place, a case management conference with the Court has not yet been scheduled, 19 || deadlines for fact and expert discovery have not yet been established, and Instacart’s and Costco’s 20 || Motion is fully briefed, a stay is appropriate and would not result in prejudice to the Parties or limit 21 || their ability to conduct discovery in the event that the Court denies Defendants’ Motion. Therefore, 22 || in order to avoid the hardship or inequity the Parties would suffer should the case immediately 23 || proceed despite Instacart’s and Costco’s Motion, the Parties stipulate to a limited stay of discovery 24 || in this action until the Court issues decisions on Defendants’ Motion, such that discovery will be 25 || stayed with the exception that the Parties shall be permitted to continue their evidence preservation 26 || efforts, including, but not limited to, attending inspections relating to facilities previously operated 27 || by Defendants AffinityLifestyles.com, Inc. and Real Water Inc. or similar evidentiary preservation 28 || events that are noticed by the Parties in the companion Real Water cases in state court, as long as ~ FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER □□ 1 || notice is given to the Parties in this matter as to such events. Proceeding in this manner would 2 || preserve both judicial and party resources and promote efficiency. 3 STIPULATION 4 IT IS HEREBY STIPULATED by and between the Parties as follows: 5 1. WHEREAS, discovery is stayed pending a decision on Instacart’s and Costco’s 6 || Motion to Compel Arbitration and Stay the Case, or, Alternatively, to Dismiss for Failure to State 7 || Claims for Relief Pursuant to Rule 12(b)(6), with the exception that the Parties shall be permitted 8 || to continue their ongoing efforts to preserve evidence, including, but not limited to, attending 9 || inspections relating to facilities previously operated by Defendants AffinityLifestyles.com, Inc. and 10 || Real Water Inc. or similar evidentiary preservation events that are noticed by the Parties in the 11 || companion Real Water cases in state court, as long as notice is given to the Parties in this matter as 12 || to such events. 13 2. WHEREAS, alternatively, in the event that the Court denies Instacart’s and Costco’s 14 || Motion, the Parties shall conduct an Rule 26(f) Conference and then submit a proposed Joint 15 || Discovery Plan and Scheduling Order within forty-five (45) days of the Court’s decision on 16 || Defendants’ Motion. 17 3. WHEREAS, the Court shall set a status conference within six (6) months of this 18 || Order. In the event that the Court issues its decision on Instacart’s and Costco’s Motion prior to 19 || the status conference, the status conference shall be vacated. 20 4, WHEREAS, this Stipulation is made in good faith and to preserve the resources of 21 || the judicial system and the Parties, is not interposed for delay, and is not filed for an improper 22 || purpose. 23 /// 24 /// 25 /// 26 | /// 27 | /// 28 | /// FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO 1 IT IS SO STIPULATED. [2] 3 Dated: April 13, 2022 Dated: April 13, 2022 By: /s/ Alexandra B. McLeod By: /s/ Noushan Noureddini 5 Christian M. Morris (SBN 11218) Kelley S$. Olah (Pro Hac Vice) Alexandra B. McLeod (SBN 8185) Noushan Noureddini (Pro Hac Vice) 6 NETTLES | MORRIS BARNES & THORNBURG LLP 7 Attorneys for Plaintiff Michael A. Federico (SBN 005946) KRISTINA A. BIENEK OLSON CANNON GORMLEY & 8 STOBERSKI 9 Attorneys for Defendants COSTCO WHOLESALE 10 CORPORATION; MAPLEBEAR INC. i d/b/a INSTACART Dated: April 13, 2022 [13] By: /s/ Joel D, Odou 14 Joel D. Odou Jason W. Williams (SBN 8310) 15 Xheni Ristani L. Renee Green 16 WOOD, SMITH, HENNING & BERMAN LLP Attorneys for Defendants 18 AFFINITY LIFESTYLES.COM, INC. d/b/a REAL WATER; REAL WATER 19 INC. [20] 21 SIGNATURE ATTESTATION 22 I hereby attest that I have obtained the concurrence of Alexandra B. McLeod, counsel for 23 || Plaintiff Kristina A. Bienek, and Joel D. Odou, counsel for Defendants AffinityLifestyles.com, Inc. 24 || and Real Water Inc., for the filing of this stipulation. [25] 26 By: /s/ Noushan Noureddini Noushan Noureddini [28] FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO 1 ORDER 2 Pursuant to the Parties’ stipulated request, discovery is stayed pending a decision on 3 || Instacart’s and Costco’s Motion to Compel Arbitration and Stay the Case, or, Alternatively, to 4 || Dismiss for Failure to State Claims for Relief Pursuant to Rule 12(b)(6), with the exception that the 5 || Parties shall be allowed to continue their evidence preservation efforts, including, but not limited 6 || to, attending inspections relating to facilities previously operated by Defendants 7 || AffinityLifestyles.com, Inc. and Real Water Inc. or similar evidentiary preservation events that are 8 || noticed by the Parties in the companion Real Water cases in state court, as long as notice is given 9 || to the Parties in this matter as to such events. Alternatively, in the event that the Court denies 10 || Defendants’ Motion, the Parties shall conduct a Rule 26(f) Conference and then submit a proposed 11 || Joint Discovery Plan and Scheduling Order within forty-five (45) days of the Court’s decision on 12 || Defendants’ Motion. The Court declines to set a status conference. 13 Accordingly, IT IS ORDERED that the Stipulation is granted in part and denied in part. 14 DATED this 15th day of April, 2022. [15] 16 } 17 Oo O DANIEL J. ALBREGTS, 18 UNITED STATES MAGISTRATE JUDGE [28] FURTHER STIPULATION BETWEEN DEFENDANTS AND PLAINTIFF AND [PROPOSED] ORDER TO