Carlin et al v. DairyAmerica, Inc. et al

Filing 402

ORDER ON PLAINTIFFS' EX PARTE APPLICATION TO SHORTEN TIME FOR MOTION TO STRIKE (Motion Hearings currently set for 4/24/2017 are moved to 5/8/2017 at 01:30 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii), signed by District Judge Anthony W. Ishii on 4/18/2017. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD CARLIN, JOHN RAHM, PAUL
ROZWADOWSKI and DIANA WOLFE,
individually and on behalf of themselves and
all others similarly situated,

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Plaintiffs,

CASE NO. 1:09-CV-00430 AWI EPG
ORDER ON PLAINTIFFS’ EX PARTE
APPLICATION TO SHORTEN TIME
FOR MOTION TO STRIKE
(Doc. No. 398)

v.
DAIRYAMERICA, INC., and
CALIFORNIA DAIRIES, INC.,
Defendants.

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Plaintiffs filed an ex parte application to shorten time (“Ex Parte Application”) for their
motion to strike, and for the reasons that follow, the Court will grant the Ex Parte Application.

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On April 14, 2017, Plaintiffs filed their reply to Defendants’ opposition to Plaintiffs’

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motion for leave to file a fourth amended complaint (“Motion to Amend”). The Motion to Amend

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is currently set for hearing on April 24, 2017. Along with their reply, Plaintiffs filed a three page

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motion to strike an expert report (“Motion to Strike”) that Defendant DairyAmerica, Inc.

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(“DairyAmerica”) submitted with its opposition to the Motion to Amend. Plaintiffs set the date

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for the hearing on their Motion to Strike as April 24, 2017.

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Plaintiffs filed an Ex Parte Application seeking to shorten time for their Motion to Strike

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since they wish the Court to decide the Motion to Strike before deciding the Motion to Amend. In

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their Motion to Strike, Plaintiffs argue, inter alia, that they have been sandbagged by

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DairyAmerica’s reliance on an undisclosed expert report, in violation of Fed. R. Civ. P. 26(a)(2).

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Plaintiffs met and conferred with DairyAmerica, and attempted to meet and confer with Defendant

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California Dairies, Inc. (“CDI”) before filing their Ex Parte Application. While Plaintiffs ask the

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Court to shorten time, they do not propose any particular briefing schedule to the Court. Plaintiffs

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originally asked DairyAmerica to stipulate to seven days to file an opposition to Plaintiffs’ Motion

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to Strike, and Plaintiffs would have three days to file a reply.

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Plaintiffs’ reply due on April 24, 2017, the same day as the hearing.

This schedule would make

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On April 17, 2017, DairyAmerica filed an opposition to Plaintiffs’ Ex Parte Application,

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requesting that if the Court grants the Ex Parte Application, that DairyAmerica be allowed the

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opportunity to submit its opposition to the motion to strike by April 28, 2017.

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DairyAmerica opposes Plaintiffs’ Ex Parte Application, notably DairyAmerica does not dispute

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that the first time it provided Plaintiffs with the expert report at issue was the date DairyAmerica

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filed its opposition to the Motion to Amend: March 17, 2017.

While

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The Court will move the hearing on the Motion to Amend, which is currently scheduled

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for April 24, 2017, by two weeks, to May 8, 2017. The Court will set the briefing schedule to

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allow Defendants1 two weeks to file an opposition or statement of non-opposition and Plaintiffs

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will have five days to file a reply.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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Defendants’ opposition or statement of non-opposition to Plaintiffs’ Motion to
Strike is due April 28, 2017;

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2.

Plaintiffs’ reply to Defendants’ opposition is due May 3, 2017; and

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3.

The hearing on Plaintiffs’ Motion to Amend and Motion to Strike is set for May 8,

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2017.

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IT IS SO ORDERED.
Dated: April 18, 2017
SENIOR DISTRICT JUDGE

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Based on the information before the Court, Defendant CDI also retained the expert who prepared the report at issue.

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