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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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 8 GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, 9 10 11 12 13 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. 14 15 16 17 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. 18 On April 14, 2017, Plaintiffs filed their reply to Defendants’ opposition to Plaintiffs’ 19 motion for leave to file a fourth amended complaint (“Motion to Amend”). The Motion to Amend 20 is currently set for hearing on April 24, 2017. Along with their reply, Plaintiffs filed a three page 21 motion to strike an expert report (“Motion to Strike”) that Defendant DairyAmerica, Inc. 22 (“DairyAmerica”) submitted with its opposition to the Motion to Amend. Plaintiffs set the date 23 for the hearing on their Motion to Strike as April 24, 2017. 24 Plaintiffs filed an Ex Parte Application seeking to shorten time for their Motion to Strike 25 since they wish the Court to decide the Motion to Strike before deciding the Motion to Amend. In 26 their Motion to Strike, Plaintiffs argue, inter alia, that they have been sandbagged by 27 DairyAmerica’s reliance on an undisclosed expert report, in violation of Fed. R. Civ. P. 26(a)(2). 28 Plaintiffs met and conferred with DairyAmerica, and attempted to meet and confer with Defendant 1 California Dairies, Inc. (“CDI”) before filing their Ex Parte Application. While Plaintiffs ask the 2 Court to shorten time, they do not propose any particular briefing schedule to the Court. Plaintiffs 3 originally asked DairyAmerica to stipulate to seven days to file an opposition to Plaintiffs’ Motion 4 to Strike, and Plaintiffs would have three days to file a reply. 5 Plaintiffs’ reply due on April 24, 2017, the same day as the hearing. This schedule would make 6 On April 17, 2017, DairyAmerica filed an opposition to Plaintiffs’ Ex Parte Application, 7 requesting that if the Court grants the Ex Parte Application, that DairyAmerica be allowed the 8 opportunity to submit its opposition to the motion to strike by April 28, 2017. 9 DairyAmerica opposes Plaintiffs’ Ex Parte Application, notably DairyAmerica does not dispute 10 that the first time it provided Plaintiffs with the expert report at issue was the date DairyAmerica 11 filed its opposition to the Motion to Amend: March 17, 2017. While 12 The Court will move the hearing on the Motion to Amend, which is currently scheduled 13 for April 24, 2017, by two weeks, to May 8, 2017. The Court will set the briefing schedule to 14 allow Defendants1 two weeks to file an opposition or statement of non-opposition and Plaintiffs 15 will have five days to file a reply. 16 17 ORDER 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. 20 Defendants’ opposition or statement of non-opposition to Plaintiffs’ Motion to Strike is due April 28, 2017; 21 2. Plaintiffs’ reply to Defendants’ opposition is due May 3, 2017; and 22 3. The hearing on Plaintiffs’ Motion to Amend and Motion to Strike is set for May 8, 23 2017. 24 25 26 IT IS SO ORDERED. Dated: April 18, 2017 SENIOR DISTRICT JUDGE 27 28 1 Based on the information before the Court, Defendant CDI also retained the expert who prepared the report at issue. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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