Kopitar v. Nationwide Mutual Insurance Company

Filing 35

STIPULATION and ORDER Amending Case Schedule signed by Judge Oliver W. Wanger on 1/7/2010. Designation of Expert Witnesses due by 3/25/2010, Supplemental Expert Disclosure and Reports Deadline: 3/18/2010, Expert Discovery Cut Off: 5/3/2010, Non-E xpert Discovery Cut Off: 5/17/2010, Non-Dispositive Motion Hearing Deadline 4/19/2010, Dispositive Motion Hearing Deadline 7/26/2010, Settlement Conference set for 5/24/2010 at 10:30 AM in Courtroom 10 (GSA) before Judge Gary S. Austin, Pretrial Conference set for 8/30/2010 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Jury Trial set for 10/5/2010 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.(Bradley, A)

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JAMES H. WILKINS (SBN 116364) [e-mail] WILKINS, DROLSHAGEN & CZESHINSKI LLP 6785 N. Willow Avenue Fresno, California 93710 Tel: [phone] Fax: [phone] Attorneys for Plaintiff BRUCE KOPITAR MARC S. HINES (SBN 140065) [e-mail] CHRISTINE M. EMANUELSON (SBN 221269) [e-mail] HINES SMITH CARDER LEASURE DINCEL LLP 3080 Bristol Street, Suite 540 Costa Mesa, California 92626 Tel.: [phone] Fax: [phone] Attorneys for Defendant NATIONWIDE MUTUAL FIRE INSURANCE COMPANY THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA BRUCE KOPITAR, an individual Plaintiff vs. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY Defendant. CASE NO. 1:07-CV-00891-OWW-GSA STIPULATION AND ORDER AMENDING CASE SCHEDULE

Defendant, Nationwide Mutual Insurance Company ("Nationwide") and Plaintiff

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Bruce Kopitar ("Plaintiff"), through their respective counsel of record, jointly submit the following Stipulation to continue the trial and pre-trial dates and deadlines set by the Court sixty (60) days. The Stipulation is made pursuant to Federal Rules of Civil Procedure 6(b) and 16(b)(4) and Eastern District Civil Local Rule 144. I. SYNOPSIS OF CASE Plaintiff, Bruce Kopitar ("Plaintiff") alleges that he incurred a loss when a malfunction in a steam room at his home caused damage to his home; that the steam caused a large amount of moisture to permeate the house; and that there was a determination by a reclamation contractor that there was a substantial amount of mold in the residence. Plaintiff alleges that he had a policy of insurance with Allied Insurance, a member of Defendant Nationwide Mutual Insurance Company and that he was entitled to coverage under the policy for his loss. Defendant disputes whether the damage to the residence arose from a covered loss. Plaintiff also alleges that Defendant acted in bad faith. On June 21, 2007, this case was removed from Tulare Superior Court to this court pursuant to 28 U.S.C. 1441(a), (b) and (c). Defendant, through its prior counsel, filed an answer on June 26, 2007. Discovery Plaintiff has served his first set of request for production of documents, request for admissions and two sets of special interrogatories on Defendant, to which Defendant has served responses. Defendant has served its first set of request for production of documents to Plaintiff, to which Plaintiff has served responses. Defendant has taken a portion of Plaintiff's deposition but has not yet completed Plaintiff's deposition. Discovery is ongoing. Pending Motions Nationwide filed a Motion for Sanctions for Spoliation of Evidence on September 30, 2009. Plaintiff filed his opposition to this motion on November 20 2009 and Nationwide filed its reply brief on November 30, 2009. This motion was heard on December 7, 2009 and taken under submission. The outcome of this motion will

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significantly affect the scope of issues in this case, as the motion involves whether Plaintiff's claims for mold damage will be dismissed. II. STIPULATION OF PARTIES TO CONTINUE THE TRIAL AND CORRESPONDING PRE-TRIAL DATES BASED ON GOOD CAUSE The parties stipulate and agree to a short continuance of the pre-trial and trial dates sixty (60) days for the following reasons: (1) Defendant's counsel is very new to the case, having recently being substituted in as counsel on December 14, 2009, and the continuance will allow Defendant's counsel sufficient time to familiarize itself with the case; (2) the continuance will allow the parties time to adjust their respective strategies after the Court rules on the still-pending motion re: spoliation of evidence, which will have a significant impact on the scope of issues in the case; and (3) Defendant's counsel requires more time to designate expert witnesses and prepare expert witness reports. The January 25, 2010 deadline to disclose expert witnesses and exchange expert witness report as fast approaching, and Defendant's counsel has not had sufficient time to prepare expert witness disclosures in the short time that it has been on the case. The parties stipulate to a short continuance of the dates in order to allow for sufficient time for Defendant's new counsel to become familiar with the case and to prepare for all discovery. Without this short continuance of the dates, the parties will be prejudiced. The parties have been complying with the current dates and deadlines set forth the Court's case schedule. To date, none of the cut-off dates have passed. A short continuance of the dates and deadlines would serve to avoid any potential fees and costs, as well as waste of judicial resources and time, filing potential motions after the cut-off dates for leave to amend the scheduling order. To this end, the parties stipulate and propose a 60-day continuance of the dates as follows: // // EVENT CURRENT NEW DATE/TIME

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DATE/TIME Disclosure of Expert Witnesses including exchange of reports Supplemental Expert Disclosure and Reports Expert Discovery Cut Off Non-Expert Discovery Cut Off Non-Dispositive Motion Hearing Deadline Dispositive Motion Hearing Deadline Settlement Conference Pretrial Conference Trial January 25, 2010 February 18, 2010 March 2, 2010 March 17, 2010 February 19, 2010 May 24, 2010 March 22, 2010, 10:30 a.m. June 28, 2010, 11:00 a.m. Courtroom 3 August 3, 2010, 9:00 a.m. Courtroom 3 March 25, 2010 March 18, 2010 May 3, 2010 May 17, 2010 April 19, 2010 July 26, 2010 May 24, 2010, 10:30 a.m. August 30, 2010, 11:00 a.m., Courtroom 3 October 5, 2010, 9:00 a.m. Courtroom 3

The Court has previously granted two extensions in this case, both upon filings of stipulations between Plaintiff's counsel and Defendant's prior counsel. First, on May 19, 2008, the Court granted the parties' stipulation to continue the settlement conference and trial date, which necessitated rescheduling the deadlines in the Court's scheduling order, including discovery deadlines, the deadline to file dispositive motions, and the pretrial conference date. [Docket No. 15]. Second, on January 20, 2009, the Court issued an Order amending the case schedule by extending the dates listed above. [Docket No. 19]. Defendant's current counsel has not previously requested an extension of any dates. Federal Rules of Civil Procedure 6(b), 16(a) and 16(b)(4) give the Court broad discretion to regulate pre-trial matters, to manage its calendar, grant continuance of scheduling dates, and to direct the parties in a manner that expedites disposition of the action and facilitates settlement. // // As set forth herein, and in light of the fact that there is a pending motion that will

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significantly affect the issues in this case, good cause exists for the Court to grant the continuance under any of the Rules. IT IS SO STIPULATED. Dated: January 6, 2010 WILKINS, DROLSHAGEN & CZESHINSKI LLP

/s/ JAMES H. WILKINS James H. Wilkins Attorney for Plaintiff BRUCE KOPITAR Dated: January 6, 2010 HINES SMITH CARDER LEASURE DINCEL LLP

/s/ MARC S. HINES Marc S. Hines Christine M. Emanuelson Attorneys for Defendant NATIONWIDE MUTUAL FIRE INSURANCE COMPANY ORDER Based on the foregoing Stipulation and good cause appearing therefore, IT IS HEREBY ORDERED that the Case Schedule be, and the same hereby is, revised. IT IS SO ORDERED. Dated: January 7, 2010 /s/ OLIVER W. WANGER United States Senior District Judge

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