Enns et al v. Flores et al

Filing 400

STIPULATION AND ORDER regarding continuance of Scheduling Order Deadlines in Order to Attend further mediation: Pretrial Conference set for 10/25/2013 at 08:30 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill. Jury Trial set for 1/20/2014 at 08:30 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill. signed by District Judge Lawrence J. O'Neill on 10/1/2012. (Kusamura, W)

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1 Jeffery L. Caufield, Esq. (SBN 166524) jeff@caufieldjames.com 2 Kenneth E. James, Esq. (SBN 173775) ken@caufieldjames.com 3 CAUFIELD & JAMES, LLP 2851 Camino Del Rio South, Suite 410 4 San Diego, California 92108 (619) 325-0441 Telephone 5 (619) 325-0231 Facsimile 6 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 9 10 11 12 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 13 ENNS PONTIAC, BUICK, & GMC TRUCK, et al.; 14 Plaintiffs, 15 v. 16 ORELIA FLORES, et al.; 17 Defendants, 18 NO: 1:07-CV-01043-LJO-BAM STIPULATION AND ORDER REGARDING CONTINUANCE OF SCHEDULING ORDER DEADLINES IN ORDER TO ATTEND FURTHER MEDIATION Date: TBD Time: TBD Courtroom: 3 Judge: Honorable Lawrence J. O'Neill 19 20 21 22 23 24 25 AND RELATED ACTIONS. 26 27 28 STIPULATION TO EXTEND CASE DEADLINES 1 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 one hundred eighty (180) days as set forth in the 4 proposed schedule below. 5 6 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. 1 STIPULATION TO EXTEND CASE DEADLINES 1 2 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). On or about September 22, 2011, the Lees and 4 Sachiko Yamaguchi, as administrator to the Estate of Sieto Yamaguchi, each filed 5 counterclaims and cross-claims against the parties in this case following the Court’s 6 August 30, 2011, Memorandum Decision and Order Re Defendants’ Motions to 7 Dismiss Second Amended Complaint. (See Docket Nos. 250, 259, 260, 263). In 8 addition, on or about October 13, 2011, John Pearce filed counterclaims and cross9 claims against the parties in this case. (See Docket Nos. 286, 287). The responses to 10 all newly-asserted claims have been filed. 11 Under the current Scheduling Order, expert witness disclosures pursuant to 12 Rule 26 of the Federal Rules of Civil Procedure (“FRCP”) are due on October 30, 13 2012. (See Docket No. 397). Parties participated in a mediation on September 19, 14 2012. As a result of the mediation it was agreed that further site characterization and 15 testing would take place. After additional characterization is completed all parties 16 have agreed to conduct an additional day of mediation in January 2013. As a result, 17 parties are requesting to extend all deadlines as detailed below. 18 19 III. SITE INVESTIGATION AND SETTLEMENT STATUS Ongoing testing and characterization work is being conducted beneath the G 20 Street Properties and surrounding areas to determine the nature and extent of alleged 21 contamination, and to identify the appropriate remedial approach. Enns has 22 conducted multiple rounds of testing and installed additional monitoring wells in an 23 attempt to understand and evaluate the full extent of the contamination in and around 24 the G Street Properties. Multiple rounds of soil vapor testing have been conducted 25 by defendant John Pearce. The parties participated in mediation on September 19, 26 2012. During the mediation it was agreed that additional site characterization would 27 go forward to help substantiate information that will help to facilitate further 28 2 STIPULATION TO EXTEND CASE DEADLINES 1 settlement discussions. As discussed further below, the parties’ intention to pursue 2 further settlement negotiations is the basis for the request for a continuance. 3 4 IV. DISCOVERY STATUS Expert disclosures pursuant to FRCP 26(a)(2), (A) and (B) are scheduled to 5 occur on October 30, 2012. (See Docket No. 397). This stipulation proposes to 6 extend that (and other) deadline(s), as explained below. 7 V. GOOD CAUSE EXISTS FOR THE CONTINUANCE OF THE 8 SCHEDULING ORDER DEADLINES 9 Scheduling orders entered before the final pretrial conference may be 10 modified upon a showing of “good cause.” Hannon v. Chater, 887 F.Supp. 1303 11 (N.D.Cal. 1995); FRCP 16(b)(4). The reason for the “good cause” requirement for 12 modification of a court’s scheduling order is that such orders and their enforcement 13 are regarded as an essential mechanism for cases becoming trial-ready in an 14 efficient, just, and certain manner. Rouse v. Farmers State Bank of Jewell, Iowa, 15 866 F.Supp. 1191 (N.D.Iowa 1994). With this understanding in mind, the parties 16 believe “good cause” is present to support the need for an extension of the case 17 deadlines. 18 On July 24, 2012 the Honorable District Court Judge Lawrence J. O’Neill 19 issued an Order granting the Stipulation And Order Regarding Continuance Of 20 Scheduling Order Deadlines In Order to Attend Scheduled Mediation which 21 provided amended case deadlines. (See Docket No. 397). The dates the Court set 22 were as follows: 23 Deadline/Event Old Date 24 Non-Expert Discovery Cut-off Expert Witness Disclosures pursuant to FRCP 26(a)(2), (A) and (B) June 3, 2011 October 30, 2012 Expert Rebuttal Disclosure and Expert Supplement Deadline pursuant to FRCP 26 (a)(2)(E) and (C), and FRCP 26(e)(2) November 29, 2012 25 26 27 28 3 STIPULATION TO EXTEND CASE DEADLINES 1 Deadline/Event Old Date 2 Discovery Cut-Off (including experts) January 2, 2013 3 Non-Dispositive Pre-Trial Motions (including discovery motions) Dispositive Pre-Trial Motions 4 5 6 7 8 Settlement Conference Pre-Trial Conference Date Trial Date January 16, 2013 (filed) February 25, 2013 (heard) February 4, 2013 (filed) March 11, 2013 (heard) Parties to contact U.S. Magistrate Judge McAuliffe for date April 29, 2013 July 23, 2013 9 10 The parties agree that all remaining unexpired deadlines need to be revised in 11 order to allow the parties to conduct additional characterization, to attempt and 12 complete good faith settlement negotiations which have been tentatively scheduled, 13 and, if necessary, engage in expert discovery and fully prepare for trial if settlement 14 negotiations fail. These bases provide good cause to extend the scheduling deadlines 15 by approximately one hundred eighty (180) days. 16 A. Additional Time Is Necessary To Attend Settlement Negotiations 17 Good cause exists to continue the deadlines so that all parties can attend 18 additional mediation which has been tentatively scheduled for January 2013. During 19 the parties’ first day of mediation it was agreed that additional site characterization 20 and testing should go forward to aid the settlement process. During the mediation the 21 parties agreed to the following dates and events: 22 September 28 – Parties will prepare a Stipulation to continue all litigation 23 dates, including a declaration for Mr. Levy to sign recommending the 24 extension. 25 October 3 – Conference call with relevant parties about insurance issues 26 including potential retention of insurance archeologists. 27 October 10 – Plaintiff will provide a draft work plan to defendants for 28 comment. 4 STIPULATION TO EXTEND CASE DEADLINES 1 October 15 – Defendants will provide their comments, if any. 2 October 19 – Plaintiff will submit its work plan to the Water Board. 3 December 1 – Parties will use their best efforts to complete mediation-related 4 testing. 5 December or week of January 7th – Parties to return to mediation. 6 (Declaration of Lester J. Levy at ¶ 3) 7 As detailed, it was agreed that once additional site characterization and testing 8 were completed, parties would return for an additional day of mediation. As during 9 the September 19, 2012 mediation, all parties with full settlement authority including 10 but not limited to insurance carriers will be present and/or available by telephone at 11 the additional day of mediation. 12 The parties believe that the new information obtained from additional testing 13 will improve the parties’ understanding of their liability, thereby increasing the 14 likelihood of successful mediation and settlement. Thus, the parties seek a six 15 month continuance of all dates in order to avoid significant litigation costs, including 16 additional expert report preparation, discovery, and pre-trial preparation costs, while 17 they conduct additional testing and actively engage in productive mediation. 18 19 VI. NEW PROPOSED DATES As shown in the previous section, the current schedule of deadlines needs to 20 be revised such that the parties can attend additional mediation prior to expert 21 witness disclosures due in October. Accordingly, the parties agree that the deadlines 22 in this case should be revised to reflect the dates shown in the chart below: 23 24 25 26 27 28 Deadline/Event Old Date New Date Non-Expert Discovery Cutoff June 3, 2011 June 3, 2011 Expert Witness Disclosures pursuant to FRCP 26(a)(2), (A) and (B) October 30, 2012 April 29, 2013 5 STIPULATION TO EXTEND CASE DEADLINES 1 Deadline/Event Old Date New Date 2 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 29, 2012 May 28, 2013 January 2, 2013 July 1, 2013 January 16, 2013 (filed) February 25, 2013 (heard) February 4, 2013 (filed) March 11, 2013 (heard) Parties to contact U.S. Magistrate Judge McAuliffe for date April 29, 2013 July 15, 2013 (filed) Parties to contact U.S. Magistrate Judge McAuliffe for date October 25, 2013 July 23, 2013 January 20, 2014 3 4 5 6 7 8 9 Dispositive Pre-Trial Motions 10 11 Settlement Conference 12 13 Pre-Trial Conference Date 14 Trial Date August 26, 2013(heard) August 5, 2013(filed) September 6, 2013(heard) 15 16 17 VII. CONCLUSION The parties agree that the remaining unexpired deadlines need to be revised in order to allow 18 the parties to conduct further site characterization which will help with additional mediation 19 tentatively scheduled for January 2013, before having to prepare for expert witness disclosures. 20 Accordingly, good cause exists to continue the Scheduling Order Deadlines as set forth above. 21 The parties respectfully request that the Court approve the parties’ proposed schedule. 22 23 DATED: September 28, 2012 CAUFIELD & JAMES LLP 24 25 26 27 28 ___/s/ Jeffery Caufield___________ Jeffery L. Caufield, Esq. Matthew Friedrichs, Esq. Attorney for Plaintiffs/CounterDefendants 6 STIPULATION TO EXTEND CASE DEADLINES 1 2 DATED: September 28, 2012 THE CRONIN LAW GROUP 3 4 ___/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 5 6 7 8 9 10 11 12 13 DATED: September 28, 2012 DOWNEY BRAND LLP 14 ___/s/ Andrew Skanchy______ Andrew Skanchy, Esq. Attorneys for Defendants, SACHIKO YAMAGUCHI, as administrator to THE ESTATE OF SIETO YAMAGUCHI and THE ESTATE OF SIETO YAMAGUCHI, deceased 15 16 17 18 19 20 21 DATED: September 28, 2012 LAW OFFICES OF KATHLEEN CLACK 22 /s/ Kathleen Clack____________ Kathleen Clack, Esq. Attorneys for Defendant, JOHN PEARCE 23 24 25 26 DATED: September 28, 2012 27 28 /s/ Louis Martinez______________ LOUIS MARTINEZ 7 STIPULATION TO EXTEND CASE DEADLINES 1 2 DATED: September 28, 2012 3 4 ___/s/ Patsy Martinez_____________ PATSY MARTINEZ 5 6 Good cause appearing therefore, IT IS SO ORDERED that the Scheduling 7 8 Order Deadlines be continued as set forth above, so parties can attend additional 9 mediation in January 2013. All parties, adjusters/carriers for insured parties, and 10 other representatives of a party having full and complete authority to enter into 11 binding settlement, and the principal attorneys responsible for the litigation, must be 12 present at the mediation. Full authority to settle means that the individuals at the 13 mediation be authorized to fully explore settlement options and to agree at that time 14 to any settlement terms acceptable to the parties. This Court will grant no further extensions of dates in the absence 15 16 of absolute good cause to do so. 17 18 IT IS SO ORDERED. 19 20 Dated: October 1, 2012 /s/ Lawrence J. O’Neill UNITED STATES DISTRICT JUDGE DEAC_Signature-END: 21 22 66h44d 23 24 25 26 27 28 8 STIPULATION TO EXTEND CASE DEADLINES

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