Enns et al v. Flores et al

Filing 310

Stipulation and ORDER Regarding Continuance of Scheduling Order Deadlines Due to Addition of New Parties, New Counter-Claims, New Cross-Claims, and Need For Settlement Discussion, signed by District Judge Lawrence J. O'Neill on 10/21/2011. (D iscovery due by 8/1/2012; Case Management Deadline: 8/31/2012; Non-Dispositive Motions filed by 10/18/2012; Designation of Expert Witnesses due by 10/3/2012; Dispositive Motions filed by 11/5/2012; Pretrial Conference set for 1/29/2013 at 08:30 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill; Jury Trial set for 3/12/2013 at 08:30 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill.) (Marrujo, C)

1 Jeffery L. Caufield, Esq. (SBN 166524)
[e-mail]
2 Kenneth E. James, Esq. (SBN 173775)
[e-mail]
3 CAUFIELD & JAMES, LLP
2851 Camino Del Rio South, Suite 410
4 San Diego, California 92108
[phone] Telephone
5 [phone] Facsimile
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Attorneys for Plaintiffs Enns Pontiac, Buick,
7 & GMC Truck, Earl L. Enns & Esther Enns
as Trustees of the 2004 Enns Family Trust,
8 Harold J. Enns & Patricia L. Enns as Trustees
for the Family Trust
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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

13 ENNS PONTIAC, BUICK, & GMC
TRUCK, et al.;
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Plaintiffs,
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v.
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ORELIA FLORES, et al.;
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Defendants,
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NO: 1:07-CV-01043-LJO-BAM
STIPULATION AND ORDER
REGARDING CONTINUANCE
OF SCHEDULING ORDER
DEADLINES DUE TO
ADDITION OF NEW PARTIES,
NEW COUNTER-CLAIMS, NEW
CROSS-CLAIMS, AND NEED
FOR SETTLEMENT
DISCUSSIONS
Date: TBD
Time: TBD
Courtroom: 3
Judge: Honorable Lawrence J. O'Neill

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AND RELATED ACTIONS.

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STIPULATION TO EXTEND CASE DEADLINES

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The parties to this matter, by and through their undersigned counsel, stipulate to

2 the following joint request to the Court that it continue the Scheduling Order
3 deadlines for approximately nine (9) months as set forth in the proposed schedule
4 below.
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I.

UNDERLYING ACTION
The present action is a complex case arising under, inter alia, the

7 Comprehensive Environmental Response, Compensation and Liability Act of 1980,
8 as amended by the Superfund Amendments & Reauthorization Act of 1986, 42
9 United States Code Sections 9601 et seq. (“CERCLA”). The underlying dispute
10 between Plaintiffs/Counter-Defendants Enns Pontiac, Buick, & GMC Truck, Earl L.
11 Enns and Esther J. Enns; and Harold J. Enns and Patricia L. Enns (“Enns”), and
12 Defendants, John Pearce (“Pearce”), Louis and Patsy Martinez (“Martinezes”),
13 Patricia Clothier and Carolyn Whitesides, as Administrators to the Estate of Mabel
14 Lee, the Estate of Mabel Lee, Deceased, Reedley Steam Laundry, and Reedley Dry
15 Cleaning Works (collectively, the “Lees”), and Sachiko Yamaguchi, as administrator
16 to the Estate of Sieto Yamaguchi, and the Estate of Sieto Yamaguchi, deceased
17 (collectively, the “Yamaguchis”), involves claims related to the source, nature and
18 extent of alleged contamination underlying and/or surrounding three or more
19 properties located on G Street in Reedley, California, including 1307, 1319, and
20 1340 G Street, Reedley, California (“G Street Properties”). The case involves
21 private parties, many of whom are elderly and without significant resources, and a
22 relevant time period that spans multiple decades dating back to the 1960s. Prior
23 businesses at 1319 and 1340 G Street in Reedley, California include dry cleaning
24 operations. A prior business at 1307 G Street, Reedley, CA 93654 included an
25 automobile dealership with an automotive repair shop. Contamination allegedly
26 existed and/or exists beneath the G Street Properties and surrounding areas. Other
27 dry cleaning, automotive, and/or industrial businesses in the area may also be
28 contributing to contamination in and around the G Street Properties.
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STIPULATION TO EXTEND CASE DEADLINES

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II. STATUS OF THE PLEADINGS AND UPCOMING DEADLINES
New parties were added to this litigation pursuant to the Court’s May 2, 2011

3 Order. (See Docket No. 161). Some of these new parties still need to make FRCP
4 Rule 26 initial disclosures. On or about September 22, 2011, the Lees and Sachiko
5 Yamaguchi, as administrator to the Estate of Sieto Yamaguchi each filed
6 counterclaims and cross-claims against the parties in this case, as required by the
7 Court’s August 30, 2011, Memorandum Decision and Order Re Defendants’
8 Motions to Dismiss Second Amended Complaint. (See Docket Nos. 250, 259, 260,
9 263). In addition, on or about October 13, 2011, John Pearce filed counterclaims
10 and cross-claims against the parties in this case. (See Docket Nos. 286, 287). The
11 responses to these newly-asserted claims have not yet been filed. However, under
12 the current Scheduling Order (discussed in more detail, below), expert witness
13 disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure (“FRCP”)
14 are due on November 1, 2011. (See Docket No. 207). This leaves the parties
15 insufficient time to answer and evaluate the new claims, retain additional experts (if
16 necessary), and have expert reports prepared in time to meet the disclosure deadline.
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III. SITE INVESTIGATION AND SETTLEMENT STATUS
Ongoing testing and characterization work is being conducted beneath the G

19 Street Properties and surrounding areas to determine the nature and extent of alleged
20 contamination, and to identify the appropriate remedial approach. Enns has
21 conducted multiple rounds of testing and installed additional monitoring wells in an
22 attempt to understand and evaluate the full extent of the contamination in and around
23 the G Street Properties. Multiple rounds of soil vapor testing have been conducted
24 by defendant John Pearce. Additional sampling and analysis must be completed
25 before the alleged contamination can be fully characterized and before an
26 appropriate remedy may be proposed to the Central Valley Regional Water Quality
27 Control Board, which has oversight and approval authority over the investigation
28 and remedy selection. However, with the completion of the most recent
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STIPULATION TO EXTEND CASE DEADLINES

1 characterization efforts in August 2011, the parties believe they will have sufficient
2 information to pursue productive settlement negotiations soon after the pleadings are
3 closed. Doing so before significant additional expenditures are incurred on further
4 site investigation work and expert discovery will preserve resources for settlement,
5 and increase the likely success of the parties’ settlement negotiations. As discussed
6 further below, the parties’ intention to pursue settlement negotiations is one of the
7 bases for the request for a continuance.
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IV. DISCOVERY STATUS
The non-expert discovery deadline passed on June 3, 2011. Expert disclosures

10 pursuant to FRCP 26(a)(2), (A) and (B) are scheduled to occur on November 1,
11 2011. (See Docket No. 207). This stipulation proposes to extend that (and other)
12 deadline(s), as explained below.
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V. GOOD CAUSE EXISTS FOR THE CONTINUANCE OF THE

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SCHEDULING ORDER DEADLINES

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Scheduling orders entered before the final pretrial conference may be

16 modified upon a showing of “good cause.” Hannon v. Chater, 887 F.Supp. 1303
17 (N.D.Cal. 1995); FRCP 16(b)(4). The reason for the “good cause” requirement for
18 modification of a court’s scheduling order is that such orders and their enforcement
19 are regarded as an essential mechanism for cases becoming trial-ready in an
20 efficient, just, and certain manner. Rouse v. Farmers State Bank of Jewell, Iowa,
21 866 F.Supp. 1191 (N.D.Iowa 1994). With this understanding in mind, the parties
22 believe “good cause” is present to support the need for an extension of the case
23 deadlines.
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On June 16, 2011 the Honorable Judge Oliver W. Wanger issued an Order

25 Granting Plaintiffs’ Motion for Continuance of Scheduling Order Deadlines which
26 provided amended case deadlines. (See Docket No. 207). The dates the Court set
27 were as follows:
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STIPULATION TO EXTEND CASE DEADLINES

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Deadline/Event

Old Date

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Non-Expert Discovery Cut-off
Expert Witness Disclosures pursuant
to FRCP 26(a)(2), (A) and (B)

June 3, 2011
November 1, 2011

Expert Rebuttal Disclosure and Expert
Supplement Deadline pursuant to
FRCP 26 (a)(2)(E) and (C), and FRCP
26(e)(2)
Discovery Cut-Off (including experts)

December 1, 2011

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Non-Dispositive Pre-Trial Motions
(including discovery motions)
Dispositive Pre-Trial Motions

January 3, 2012
January 18, 2012 (filed)
February 24, 2012 (heard)
February 3, 2012 (filed)
March 5, 2012 (heard)

Settlement Conference

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Pre-Trial Conference Date

April 9, 2012

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The parties agree that all remaining unexpired deadlines need to be revised in
order to allow the parties to attempt and complete good faith settlement negotiations,
to evaluate and address new claims recently filed in this lawsuit, and, if necessary,
engage in expert discovery and fully prepare for trial if settlement negotiations fail.
These bases provide good cause to extend the scheduling deadlines by
approximately nine (9) months.
A. Additional Time Is Necessary To Complete The Parties’ Expert Reports
New parties were added to this litigation pursuant to the Court’s May 2, 2011
Order. (See Docket No. 161). Some of the new parties still need to make FRCP Rule
26 initial disclosures. On September 22, 2011, the Lees and Sachiko Yamaguchi, as
administrator to the Estate of Sieto Yamaguchi each filed counterclaims and cross
claims against the parties in this case, as required by the Court’s August 30, 2011,
Memorandum Decision and Order Re Defendants’ Motions to Dismiss Second
Amended Complaint. (See Docket Nos. 250, 259, 260, 263). These counterclaims
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STIPULATION TO EXTEND CASE DEADLINES

1 and cross claims were filed approximately forty (40) days prior to the expert witness
2 disclosures pursuant to FRCP 26(a)(2), (A) and (B). In addition, Pearce filed cross3 claims and counterclaims, against the Lees and Enns. (See Docket Nos. 286, 287).
4 Pearce’s counterclaims and cross-claims were filed on October 13, 2011,
5 approximately nineteen (19) days prior to the expert witness disclosures pursuant to
6 FRCP 26(a)(2), (A) and (B). As a result, all parties subject to the new claims require
7 time to answer, evaluate, and assess the new claims for preparation of the expert
8 reports due within a month. Some parties believe that additional experts may need to
9 be hired to address issues relating to the new claims.
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B. Additional Time Is Necessary To Attempt Settlement Negotiations
Good cause also exists to continue the deadlines so the parties can enter into

12 and complete settlement negotiations.
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Subsequent to the recent characterization efforts, testing results, and updated

14 remediation costs estimates all provided in August 2011, the parties have
15 preliminarily discussed entering into settlement negotiations after the next round of
16 pleadings are filed. The parties believe that a continuance may allow them to avoid
17 significant litigation costs, including additional expert report preparation and pre18 trial preparation costs, and increase the likely success of the parties’ settlement
19 negotiations.
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VI. NEW PROPOSED DATES
As shown in the previous section, the current schedule of deadlines needs to

22 be revised such that the parties can adequately prepare for expert witness disclosures
23 due within a month and to engage in settlement negotiations and ultimate case
24 resolution. Accordingly, the parties agree that the deadlines in this case should be
25 revised to reflect the dates shown in the chart below:
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STIPULATION TO EXTEND CASE DEADLINES

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Deadline/Event

Old Date

New Date

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Non-Expert Discovery Cutoff

June 3, 2011

June 3, 20111

Expert Witness Disclosures
pursuant to FRCP 26(a)(2),
(A) and (B)
Expert Rebuttal Disclosure
and Expert Supplement
Deadline pursuant to FRCP
26 (a)(2)(E) and (C), and
FRCP 26(e)(2)
Discovery Cut-Off
(including experts)
Non-Dispositive Pre-Trial
Motions (including
discovery motions)

November 1, 2011

August 1, 2012

December 1, 2011

August 31, 2012

January 3, 2012

October 3, 2012

January 18, 2012
(filed)
February 24, 2012
(heard)
February 3, 2012
(filed)
March 5, 2012 (heard)

October 18, 2012
(filed)
November 26, 2012
(heard)
November 5, 2012
(filed)
December 10, 2012 (heard)
Parties to contact U.S.
Magistrate Judge
McAuliffe for date
January 29, 2013 at 8:30
a.m. in Dept. 4
March 12, 2013 at 8:30
a.m. in Dept. 4

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Dispositive Pre-Trial
Motions

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Settlement Conference

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Pre-Trial Conference Date

April 9, 2012

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Trial Date

May 22, 2012

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VII. CONCLUSION
The parties agree that the remaining unexpired deadlines need to be revised in

21 order to allow the parties time to file responsive pleadings, adequately prepare for
22 expert witness disclosures, due within a month, and to engage in settlement
23 negotiations. Accordingly, good cause exists to continue the Scheduling Order
24 Deadlines as set forth above. The parties respectfully request that the Court approve
25 the parties’ proposed schedule.
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1 Parties

reserve their right to seek leave from the court to conduct additional
28 discovery based on the newly filed claims. Some parties might oppose such a
request, if filed.
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STIPULATION TO EXTEND CASE DEADLINES

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2 DATED: October 17, 2011

CAUFIELD & JAMES LLP

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___/s/ Jeffery Caufield___________
Jeffery L. Caufield, Esq.
Matthew Friedrichs, Esq.
Attorney for Plaintiffs/CounterDefendants

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9 DATED: October 17, 2011

THE CRONIN LAW GROUP

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___/s/ Dennis Byrne______________
Timothy C. Cronin, Esq.
Dennis J. Byrne, Esq.
Attorneys for Defendants
PATRICIA CLOTHEIR AND
CAROLYN WHITESIDES, as
Administrators to the ESTATE OF
MABEL LEE, THE ESTATE OF
MABEL LEE, deceased, REEDLEY
STEAM LAUNDRY and REEDLEY
DRY CLEANING WORKS

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DATED: October 17, 2011

DOWNEY BRAND LLP

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___/s/ Jennifer Hartman King______
Jennifer Hartman King, Esq.
Attorneys for Defendants,
SACHIKO YAMAGUCHI, as
administrator to THE ESTATE OF
SIETO YAMAGUCHI and
THE ESTATE OF SIETO
YAMAGUCHI, deceased

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STIPULATION TO EXTEND CASE DEADLINES

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DATED: October 17, 2011

LAW OFFICES OF KATHLEEN CLACK

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/s/ Kathleen Clack____________
Kathleen Clack, Esq.
Attorneys for Defendant,
JOHN PEARCE

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10 DATED: October 17, 2011
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/s/ Louis Martinez______________
LOUIS MARTINEZ

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15 DATED: October 17, 2011
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___/s/ Patsy Martinez_____________
PATSY MARTINEZ

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Good cause appearing therefore, IT IS SO ORDERED that the Scheduling

20 Order Deadlines be continued as set forth above, including dates appearing in bold
21 which are different than those proposed by the parties.
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24 IT IS SO ORDERED.
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Dated:

October 21, 2011

/s/ Lawrence J. O’Neill
UNITED STATES DISTRICT JUDGE

DEAC_Signature-END:

66h44d

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STIPULATION TO EXTEND CASE DEADLINES