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)

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 IN ORDER TO
ATTEND FURTHER
MEDIATION
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 one hundred eighty (180) days as set forth in the
4 proposed schedule 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). 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.
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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.
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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
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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.
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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.
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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

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.
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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:
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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
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

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STIPULATION TO EXTEND CASE DEADLINES

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Deadline/Event

Old Date

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Discovery Cut-Off (including experts)

January 2, 2013

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

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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

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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.
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A. Additional Time Is Necessary To Attend Settlement Negotiations
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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:
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September 28 – Parties will prepare a Stipulation to continue all litigation

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dates, including a declaration for Mr. Levy to sign recommending the

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extension.

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October 3 – Conference call with relevant parties about insurance issues

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including potential retention of insurance archeologists.

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October 10 – Plaintiff will provide a draft work plan to defendants for

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comment.
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STIPULATION TO EXTEND CASE DEADLINES

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October 15 – Defendants will provide their comments, if any.

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October 19 – Plaintiff will submit its work plan to the Water Board.

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December 1 – Parties will use their best efforts to complete mediation-related

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testing.

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December or week of January 7th – Parties to return to mediation.

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(Declaration of Lester J. Levy at ¶ 3)

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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.
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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.
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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:
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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

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STIPULATION TO EXTEND CASE DEADLINES

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Deadline/Event

Old Date

New Date

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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

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Dispositive Pre-Trial
Motions

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Settlement Conference

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Pre-Trial Conference Date

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Trial Date

August 26, 2013(heard)
August 5, 2013(filed)
September 6, 2013(heard)

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

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the parties to conduct further site characterization which will help with additional mediation

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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.
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23 DATED: September 28, 2012

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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STIPULATION TO EXTEND CASE DEADLINES

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2 DATED: September 28, 2012

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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DOWNEY BRAND LLP

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___/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

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DATED: September 28, 2012

LAW OFFICES OF KATHLEEN CLACK

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

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DATED: September 28, 2012

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/s/ Louis Martinez______________
LOUIS MARTINEZ
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STIPULATION TO EXTEND CASE DEADLINES

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DATED: September 28, 2012

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___/s/ Patsy Martinez_____________
PATSY MARTINEZ

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

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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
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16 of absolute good cause to do so.
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IT IS SO ORDERED.

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Dated:

October 1, 2012

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

DEAC_Signature-END:

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66h44d

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STIPULATION TO EXTEND CASE DEADLINES