NFL's Proposed Case Management Plan Filing in Brian Flores Lawsuit

Case 1:22-cv-00871-VEC Document 35-1 Filed 04/21/22 Page 1 of 6
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
BRIAN FLORES, STEVE WILKS and RAY HORTON,

as Class Representatives, on behalf of themselves and all
others similarly situated,
Plaintiffs,
-v-
1:22-cv-00871 (VEC)
THE NATIONAL FOOTBALL LEAGUE; NEW YORK
FOOTBALL GIANTS, INC. d/b/a NEW YORK GIANTS; [PROPOSED] CIVIL CASE
MIAMI DOLPHINS, LTD. d/b/a MIAMI DOLPHINS; MANAGEMENT PLAN AND
DENVER BRONCOS FOOTBALL CLUB d/b/a SCHEDULING ORDER
DENVER BRONCOS; HOUSTON NFL HOLDINGS,
L.P. d/b/a HOUSTON TEXANS; ARIZONA
CARDINALS FOOTBALL CLUB LLC d/b/a ARIZONA
CARDINALS; TENNESSEE TITANS
ENTERTAINMENT, INC. d/b/a TENNESSEE TITANS
and JOHN DOE TEAMS 1 through 26,
Defendants.
This Civil Case Management Plan is submitted by the parties in accordance with Fed. R.
Civ. P. 26(f)(3).
1. All parties [consent_______ / do not consent __X__] to conducting all further

proceedings before a United States Magistrate Judge, including motions and trial.
28 U.S.C. § 636(c). The parties are free to withhold consent without adverse substantive
consequences. [If all parties consent, the remaining paragraphs need not be completed.
In addition, they shall submit to the Court a fully executed Notice, Consent, and
Reference of a Civil Action to a Magistrate Judge, available at
https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf, within three days of
submitting this Proposed Case Management Plan and Scheduling Order.]
2. Except for amendments permitted by Fed. R. Civ. P. 15(a)(1) and this Court’s Individual
Practices in Civil Cases (“Individual Practices”), additional amended pleadings may not
be filed and additional parties may not be joined except with leave of the Court.
Plaintiffs’ Position: Plaintiffs respectfully submit that they are entitled to file a Second
Amended Complaint, if necessary, following receipt of any motion to dismiss and/or to
compel arbitration. Two of the three Plaintiffs have not yet amended their claims and
claims against new Defendants also have not been amended.
Defendants’ Position: Pursuant to the Court’s March 4, 2022 Order, Plaintiffs filed their
Amended Complaint on April 7, 2022. Under Fed. R. Civ. P. 15(a)(1), Plaintiffs are
entitled to amend their complaint only once as of right, regardless of whether new parties
or claims have been added to the case. Accordingly, it is Defendants’ position that
Plaintiffs may further amend their complaint only with Defendants’ consent or with leave
of Court. Defendants would oppose any request by Plaintiffs for leave to file a second
amended complaint.
3. Initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1) shall be completed no later than
_____ days from the date of this Order. [Absent exceptional circumstances, a date not
more than 14 days following the initial pretrial conference.]
Plaintiffs’ Position: Plaintiffs believe that Initial Disclosures should be completed no

later than May 13, 2022. Plaintiffs also believe that in addition to the information
required by Fed. R. Civ. P. 26(a)(1), Initial Disclosures should include disclosure by each
party (i) custodians likely to have discoverable information on electronic platforms, (ii)
the electronic platforms (i.e. email systems, electronic storage systems, content
management systems, social media platforms, hard drives, share drives, devices) likely to
contain discoverable information, and (iii) confirmation that document preservation and
litigation holds have been put in place with respect to each such custodian and electronic
platform.
Defendants’ Position: As noted in the parties’ joint letter, Defendants intend to file a
motion to compel arbitration of Plaintiffs’ claims or, in the alternative, dismiss the
Amended Complaint for failure to state a claim upon which relief can be granted. Given
that the Court’s rulings on these motions will address whether this case remains in federal
court and, if it does, the scope of relevant discovery, Defendants believe that the
deadlines to serve initial disclosures should be 21 days after the Court rules on those
motions. If the Court is inclined to set a deadline for the exchange of initial disclosures
in advance of ruling on those motions, Defendants believe that the scope of those
disclosures should not exceed what is expressly contemplated under Fed. R. Civ. P.
26(a)(1).
4. [If applicable] The plaintiff(s) shall provide HIPAA-compliant medical records release
authorizations to the defendant(s) no later than ___________.
Plaintiffs’ Position: To the extent records protected by HIPAA are requested by

Defendants and are discoverable, Plaintiffs will meet and confer with Defendants
regarding the form and manner of such production within 30 days of the commencement
of full discovery. Plaintiffs reserve rights to obtain such records and produce such
records in a form and manner which appropriately protects the confidentiality and/or
potential privileges of such material.
Defendants’ Position: As described in paragraph 8 below, Defendants believe that

discovery should be stayed until after their forthcoming motions to compel arbitration
and to dismiss are resolved. Defendants do not otherwise object to Plaintiffs’ proposed
schedule described above, but reserve the right to seek any discoverable medical records
2
directly from Plaintiffs’ providers upon receipt of HIPAA-compliant medical records

release authorizations.
5. Discovery
a. All fact discovery shall be completed no later than ___________. [A date not more
than 90 days following the initial pretrial conference, unless the Court finds that the
case presents unique complexities or other exceptional circumstances.]
Plaintiffs’ Position: As described in paragraph 8 below, Plaintiffs believe that certain

discovery is necessary prior to the disposition of Defendants’ proposed motion to dismiss
and/or compel arbitration. Plaintiffs propose a period of 60 days to complete any
discovery related to Defendants’ anticipated motions. Plaintiffs further propose a nine-
month discovery schedule after the Court rules on any motions.
Defendants’ Position: As described in paragraph 8 below, Defendants believe that all

discovery should be stayed until after their forthcoming motions to compel arbitration
and to dismiss are resolved. Defendants dispute that any discovery is necessary for
Plaintiffs to oppose, or for the Court to rule on, those motions. Defendants otherwise
agree with Plaintiffs’ proposal that fact discovery be completed within nine months after
the Court’s rulings on those motions.
b. All expert discovery, including reports, production of underlying documents, and

depositions, shall be completed no later than 90 days after the deadline to complete
fact discovery in Paragraph 5(a). [Absent exceptional circumstances, a date not more
than 45 days from the date in paragraph 5(a) (i.e., the completion of all fact
discovery).]
c. Within two weeks of the date of entry of this Scheduling Order, the parties shall meet
and confer in person to agree upon a joint plan for meeting the discovery deadlines.
d. In the case of discovery disputes, the parties should follow Local Civil Rule 37.2 with
the following modifications: Any party wishing to raise a discovery dispute with the
Court must first meet and confer in good faith with the opposing party, in person,
or by telephone, in an effort to resolve the dispute. If this process fails and the
Court’s intervention is required, the parties must jointly call Chambers to schedule a
joint teleconference with the Court for prompt resolution of the dispute. The Court
will determine during the teleconference whether additional submissions will be
required.
6. Counsel for the parties believe the following alternative dispute resolution mechanisms
may be helpful in resolving this case (check all that apply):
Immediate referral to the District’s Mediation Program
Immediate referral to a Magistrate Judge
3
Referral to the District’s Mediation Program after the close of fact

discovery
Referral to a Magistrate Judge after the close of fact discovery
Other
X The parties do not believe the listed mechanisms would be productive at

this time.
7. This case [is___ __ / is not_____] to be tried to a jury.
Plaintiffs’ Position: This case is to be tried by a jury.
Defendants’ Position: As Defendants explain in the parties’ joint letter, this case should
be in arbitration.
8. Other issues to be addressed at the Initial Pretrial Conference, including those set forth in
Fed. R. Civ. P. 26(f)(3), are set forth below.
Plaintiffs’ Position: As noted above, Plaintiffs believe that certain discovery is

necessary prior to the disposition of any motion to dismiss and/or compel arbitration. In
particular, Plaintiffs seek discovery related to, inter alia: (i) arbitrator bias; (ii) the
arbitration process, e.g., will Plaintiffs have a process similar to those they would have in
Court to ensure that they are able to effectively vindicate their statutory rights; (iii)
jurisdiction and/or venue issues in connection with any claim that any Defendant or claim
is not properly brought in this Court; and (iv) issues related to equitable tolling in
connection with the claims brought by Plaintiff Ray Horton.
Plaintiffs’ response to Defendants’ proposed motions is contained in paragraph __ of the

joint letter submitted by the parties along with this proposed case management plan.
Defendants’ Position: As noted in the parties’ joint letter, Defendants intend to file a
motion to compel arbitration of Plaintiffs’ claims or, in the alternative, dismiss the
Amended Complaint for failure to state a claim upon which relief can be granted. Given
that the Court’s rulings on these motions will address whether this case remains in federal
court and, if it does, the scope of relevant discovery, Defendants believe—in the interest
of judicial economy, and to conserve the parties’ resources—that discovery should be
stayed until after these motions are resolved.
Defendants further believe that the discovery Plaintiffs seek is not appropriate at this
juncture, or necessary in order for Plaintiffs to oppose—or for the Court to resolve—
Defendants’ motions. Plaintiffs’ proposed discovery into arbitration-related issues is
unwarranted here, where the arbitrability of the dispute can be decided based solely on
Plaintiffs’ allegations and the documents expressly incorporated into the Amended
Complaint, including Plaintiffs’ employment agreements and the NFL Constitution and
Bylaws. Plaintiffs’ proposed discovery into the bases for the jurisdictional, venue, and
statutes-of-limitations defenses anticipated by Plaintiffs is also unnecessary, where all of
4
those issues can likewise be fully resolved based on Plaintiffs’ pleadings and
incorporated documents. In all events, Plaintiffs’ discovery requests are also premature,
given that Defendants have yet to file their motions; Plaintiffs’ claimed need for such
discovery is thus wholly speculative.
9. This Order may not be modified or the dates herein extended except by further Order of
the Court for good cause shown. Unless the Court orders otherwise, parties engaged in
settlement negotiations must pursue settlement and conduct discovery simultaneously.
Parties should not assume that they will receive an extension of an existing deadline if
settlement negotiations fail. Any application to modify or extend the dates herein shall
be made by written application no later than two business days before the date sought to
be extended in accordance with the Court’s Individual Practices.
10. The next pretrial conference is scheduled for ___________ at ____________ in

Courtroom 443 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New
York 10007. [Unless otherwise ordered, 10:00 a.m. on the first Friday after the deadline
for completion of all fact discovery as set forth in paragraph 5(a).]
By Thursday of the week prior to that conference, the parties shall submit a joint letter
regarding the status of the case. The letter should include the following information in
separate paragraphs:
a. a statement of all existing deadlines, due dates, and/or cut-off dates;
b. a brief description of any outstanding motions;
c. a brief description of the status of discovery and of any additional discovery that
needs to be completed;
d. a statement describing the status of any settlement discussions and whether the parties
would like a settlement conference;
e. a statement of the anticipated length of trial and whether the case is to be tried to a
jury;
f. a statement of whether any party anticipates filing a motion for summary judgment or
a motion to exclude expert testimony;
g. any other issue that the parties would like to address at the pretrial conference; and
h. any other information that the parties believe may assist the Court in advancing the
case to settlement or trial.
5
WIGDOR LLP PAUL, WEISS, RIFKIND, WHARTON

& GARRISON LLP
By: By: /s/ Loretta E. Lynch

Douglas H. Wigdor Loretta E. Lynch
Michael J. Willemin Brad S. Karp
David E. Gottlieb Lynn B. Bayard
85 Fifth Avenue Brette Tannenbaum
New York, NY 10003 1285 Avenue of the Americas
(212) 257-6800 New York, NY 10019
(212) 373-3000
Attorneys for Plaintiffs
Attorneys for Defendants
ELEFTERAKIS, ELEFTERAKIS &

PANEK
By:_____/s/ John Elefterakis_______

John Elefterakis
Nicholas Elefterakis
Raymond Panek
Johnson Atkinson
80 Pine Street
New York, NY 10005
(212) 532-1116
Attorneys for Plaintiffs
SO ORDERED.
Date:
New York, New York VALERIE CAPRONI
United States District Judge

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Case 1:22-cv-00871-VEC Document 35-1 Filed 04/21/22 Page 1 of 6

UNITED STATES DISTRICT COURT

BRIAN FLORES, STEVE WILKS and RAY HORTON,

1. All parties [consent_______ / do not consent __X__] to conducting all further

Plaintiffs’ Position: Plaintiffs believe that Initial Disclosures should be completed no

Plaintiffs’ Position: To the extent records protected by HIPAA are requested by

Defendants’ Position: As described in paragraph 8 below, Defendants believe that

directly from Plaintiffs’ providers upon receipt of HIPAA-compliant medical records

Plaintiffs’ Position: As described in paragraph 8 below, Plaintiffs believe that certain

Defendants’ Position: As described in paragraph 8 below, Defendants believe that all

b. All expert discovery, including reports, production of underlying documents, and

Immediate referral to the District’s Mediation Program

Immediate referral to a Magistrate Judge

Referral to the District’s Mediation Program after the close of fact

Referral to a Magistrate Judge after the close of fact discovery

X The parties do not believe the listed mechanisms would be productive at

7. This case [is___ __ / is not_____] to be tried to a jury.

Plaintiffs’ Position: This case is to be tried by a jury.

Plaintiffs’ Position: As noted above, Plaintiffs believe that certain discovery is

Plaintiffs’ response to Defendants’ proposed motions is contained in paragraph __ of the

10. The next pretrial conference is scheduled for ___________ at ____________ in

a. a statement of all existing deadlines, due dates, and/or cut-off dates;

b. a brief description of any outstanding motions;

WIGDOR LLP PAUL, WEISS, RIFKIND, WHARTON

By: By: /s/ Loretta E. Lynch

ELEFTERAKIS, ELEFTERAKIS &

By:_____/s/ John Elefterakis_______

Attorneys for Plaintiffs

You might also like

1. All parties [consent___ / do not consent X] to conducting all further

7. This case [is_ / is not_____] to be tried to a jury.

10. The next pretrial conference is scheduled for _ at __ in

By:_/s/ John Elefterakis___