Wells v. County of Stanislaus, et al.

Filing 45

STIPULATION of the Parties to a Contiuance of the Trial Date and Related Modification of the Court's Scheduling Order; ORDER signed by Judge Oliver W. Wanger on 9/14/09. Discovery Cut-Off: 3/31/2010; Expert Discovery Cut-Off: 4/30/2010; Non- Dispositive Motion Filing Cut-Off: 4/15/2010; Dispositive Motion Cut-Off: 5/31/2010; Settlement Conference set for 7/29/2010 at 10:00 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin; Pretrial Conference set for 8/16/2010 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger; Jury Trial set for 9/14/2010 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger. (Verduzco, M)

1 John Burton, State Bar No. 86029 THE LAW OFFICES OF JOHN BURTON 2 414 South Marengo Avenue Pasadena, California 91101 3 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 5 Peter M. Williamson, State Bar No. 97309 6 21800 Oxnard Street, Suite 305 Woodland Hills, CA 91367 7 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 9 Attorneys for Plaintiffs James Albert Wells and 10 Judy Wells, and as the personal representatives of James Wells, deceased 11 12 13 14 15 16 17 18 19 20 21 22 23 TO THE HONORABLE COURT: 24 IT IS HEREBY STIPULATED by and between the parties to the above entitled 25 action, by and through their respective attorneys of record, and pursuant to United States 26 District Court, Eastern District of California Local Rules 83-143 and 6-144(d), as follows: 27 1. The Court, in its scheduling order of November 20, 2008 set the following 28 dates and deadlines that are relevant to this Stipulation:
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

JAMES ALBERT WELLS AND JUDY WELLS, Plaintiffs, vs. COUNTY OF STANISLAUS, et al., Defendants.

Case No. 1:08-cv-1146 OWW GSA STIPULATION OF THE PARTIES TO A CONTINUANCE OF THE TRIAL DATE AND RELATED MODIFICATION OF THE COURT'S SCHEDULING ORDER; ORDER

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Non-Expert Discovery Cut-Off date: September 1, 2009; Expert Designation and Reports due: September 4, 2009; Expert Counter-Designations due: October 5, 2009; Expert Discovery Cut-Off date: November 5, 2009; Non-dispositive Motion Filing Cut-Off date: November 20, 2009; Dispositive Motion Filing Cut-Off date: January 5, 2010; Pre-Trial Conference Date: March 15, 2010; and Trial Date: April 27, 2010. GOOD CAUSE STATEMENT 2. As the Court is aware, plaintiffs assert numerous civil rights claims against

11 defendant County of Stanislaus ("COUNTY") and various other individual deputy sheriffs 12 and public works employees, as a result of an incident that resulted in the death of their 13 son, the decedent, James Wells. 14 3. Prior to the filing of the instant lawsuit, plaintiffs retained the professional 15 services of attorneys Michael F. Babitzke and Jeffrey A. Silvia to represent them. After 16 filing the instant action, Mr. Babitzke and Mr. Silvia took little or no action to advance this 17 litigation. For example, although numerous witnesses were present during the incident 18 that led to the death of the decedent, plaintiff's counsel took no depositions of any of 19 these witnesses. Similarly, the two principal deputy sheriffs who were involved in this 20 incident refused to give statements to their departments concerning the circumstances that 21 led to the death of the decedent. Instead, they choose to invoke their Fifth Amendment 22 right to remain silent and avoid possible self-incrimination. 24 4. Plaintiffs' counsel never 23 noticed the depositions of these deputies in an attempt to learn their version of the events. Thereafter, plaintiffs became dissatisfied with the progress of the litigation 25 and, on or about June 29, 2009, formally substituted the Law Offices of John Burton as 26 their counsel in place and instead of Messrs. Babitzke and Silva. Mr. Burton subseqently 27 requested that attorney Peter M. Williamson of the Law Firm of Williamson & Krauss 28 serve as his co-counsel. New counsel immediately sought to obtain the contents of the
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

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1 file from prior counsel. On or about July 6, 2009, counsel received a box containing at 2 least 1,000 pages of loose documents which constituted the entire file of prior counsel. 3 5. At or around the time the case file was received, Mr. Burton and Mr. 4 Williamson were actively engaged and, for the most part consumed, by expert discovery 5 in the case of Rosa vs. TASER, International, Case No. C 05-03577 JF/HRL (United States 6 District Court, Northern District of California (San Jose), a complex products liability case 7 involving 20 designated experts. In both July and August, Mr. Burton and I spent 8 considerable time traveling to numerous places outside California to take the depositions 9 of the defense experts as well as attend the depositions of our own experts. Our travel 10 schedule required us to be out of the office on a regular basis. Mr. Burton is a sole 11 practitioner and Mr. Williamson has a single partner with limited support staff. 12 1 4 file. 15 7. In addition, on or about August 14, 2009, Mr. Burton suffered significant, 16 debilitating injuries when he was thrown from a horse. He suffered four rib fractures and 17 a comminuted fracture of his clavicle. He was hospitalized at Verdugo Hills Hospital in 18 Glendale, California for one week. Because of the painful nature of his injuries, Mr. 19 Burton has been forced to limit his working hours to only brief periods of time when he 20 can actively work on his cases. 22 8. He has been advised by his doctors that it will take 21 between 3-4 months to fully recover from his injuries. Mr. Williamson completed his own independent review of the Wells' case file 23 in mid-August, 2009. With Mr. Burton's consent, Mr. Williamson began his own 24 independent investigation of the case. Mr. Williamson personally traveled from Los 25 Angeles to Waterford, California (the location of the subject incident) and met with the 26 Wells family to review the facts and circumstances which led to the death of their son and 27 to obtain background information on the decedent. At that time, Mr. Williamson also 28 conducted a site inspection of the scene of this incident.
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

6.

Because the expert deposition schedule in the Rosa case was so demanding,

13 it limited the time Messrs. Burton and Williamson had available to review the instant case

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9.

Shortly after meeting with the Wells family, Mr. Williamson and Mr. Burton

2 retained the services of a private investigator to conduct a more through investigation of 3 this incident. From July 31, 2009 to August 2, 2009, our investigator visited Waterford 4 and interviewed various eyewitnesses to the incident. However, as yet, we have not 5 obtained a report of these interviews from our investigator. 6 10. That as part of our assessment of the case file presented to us by prior 7 counsel, we conducted a cursory review of the Court's Scheduling Conference Order dated 8 November 20, 2008. On the first page of that Order, the discovery cut-off date is noted 9 to be November 5, 2009. That date was placed in our case calendars. Relying on that 10 date, we failed to note that the non-expert discovery cut-off was September 1, 2009 and 11 the cut-off date to disclose expert witnesses was September 4, 2009. However, even if 12 we had known about those dates, we would not have been prepared to comply with them 13 given our recent retention in the case. 14 11. That we were not even aware of our misreading of the Court's Scheduling 15 Conference Order until September 4, 2009 when Mr. Williamson placed a telephone call 16 to Dan Farrar, attorney for the defendants. Mr. Williamson placed that call in an effort 17 to obtain Mr. Farrar's agreement to extend the discovery cut-off date which we believed 18 was still two months away. During Mr. Williamson's call, Mr. Farrar advised him of the 19 September 1st and 4th cut-off dates. 20 22 12. 13. That Mr. Williamson explained the reasons why we felt we had good cause Although no witness depositions have been scheduled at this time, it is 21 to request an extension of the discovery cut-offs and a continuance of the trial date. 23 anticipated that within days we will be noticing the depositions of at least 20 witnesses. 24 These include eyewitnesses to the incident, the defendant deputy sheriffs, the defendant 25 public works employees, emergency medical technicians and various other health-care 26 providers who rendered medical assistance to the decedent at the time of this incident and 27 the Medical Examiner who performed the autopsy on the decedent's body. 28
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

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14.

That Mr. Farrar has advised us that he has at least two trials scheduled in

2 October and November which will cause him to be unavailable for most of those months. 3 We further understand that Mr. Farrar is a sole practitioner who has no one else available 4 to attend depositions in the instant case. 5 15. In light of these circumstances, the parties agree that more time is needed to 6 adequately prepare this case for trial. Therefore, the parties believe that good cause exists 7 for the Court's current scheduling order to be modified. 8 9 12. STIPULATION RE SCHEDULING ORDER Accordingly, the parties, by and through their respective attorneys of record,

10 hereby stipulate, and respectfully request that this Court modify its scheduling order of 11 November 20, 2008, to set the following dates and deadlines: 12 14 15 17 19 21 23 24 26 27 13. It is further agreed that this Stipulation may be signed in counterpart and that 28 a facsimile or electronic signature will be as valid as an original signature.
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

Discovery Cut-off date: March 31, 2010, or a date thereafter as the Court Expert Designations per FRCivP 26(a) February 28, 2010. Expert Discovery Cut-Off date: April 30, 2010, or a date thereafter as the Non-Dispositive Motion Filing Cut-Off date: April 15, 2010, Dispositive Motion Hearing Cut-Off date: May 31, 2010, Settlement Conference date: July 29, 2010, in Courtroom 10, in accordance Pre-Trial Conference date: August 16, 2010 at 11:00AM in Courtroom 3. Trial date: September 14, 2010.

13 shall deem appropriate (discovery must be completed, not merely noticed or served, by this date);

16 Court shall deem appropriate (discovery must be completed, not merely noticed or served, by this date); 18 Hearing Date May 14, 2010 in Courtroom 10, in accordance with the Local Rules; 20 Hearing Date July 12, 2010 in Courtroom 3 in accordance with the Local Rules; 22 with the Local Rules;

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IT IS SO STIPULATED. LAW OFFICES OF DAN FARRAR

2 DATED: September 10, 2009

By:

/s/ DAN FARRAR DAN FARRAR Attorney for Defendants

8 DATED: September 10, 2009 9 10 11 12 13 14 15 DATED: September 7, 2009 16 17 18 19 20 21 22 23 24 25 26 27

LAW OFFICES OF JOHN BURTON

By:

/s/ JOHN BURTON JOHN BURTON Attorney for Plaintiffs James & Judy Wells

WILLIAMSON & KRAUSS

By: /s/ PETER M. WILLIAMSON PETER M. WILLIAMSON Attorney for Plaintiffs James & Judy Wells

ORDER

28 PURSUANT TO STIPULATION, IT IS SO ORDERED AS FOLLOWS:
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

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Discovery Cut-off date is reset to March 31, 2010 (discovery must be completed, not merely Expert Discovery Cut-Off date is reset to April 30, 2010 (discovery must be completed, Non-Dispositive Motion Filing Cut-Off date is reset to April 15, 2010; Non-Dispositive Motion Hearing Date is reset May 14, 2010; Dispositive Motion Hearing Cut-Off date is reset to May 31, 2010; Dispositive Motion Hearing Date is reset July 12, 2010; Settlement Conference date is reset to July 29, 2010; Pre-Trial Conference date is reset to August 16, 2010; and Trial date is reset to September 14, 2010. NO FURTHER CONTINUANCES.

2 noticed or served, by this date); 4 not merely noticed or served, by this date);

14 IT IS SO ORDERED. 15 DATED: September 14, 2009 16 17 18 19 20 21 22 23 24 25 26 27 28
S t ip u la t io n re: Trial Continuance and Related Motion of Court's Scheduling Order E .D . Cal. Case No. 1:08-CV-O1 l46-OWW-GSA

/s/ OLIVER W. WANGER HONORABLE OLIVER W. WANGER

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