Carlin et al v. DairyAmerica, Inc. et al

Filing 430

STIPULATION and ORDER as follows: For the reasons provided in the parties' stipulation, the June 30, 2017 deadline to take the depositions of Ms. Ellingsworth, Ms. Bimemiller, and three depositions of current or former California Dairies employe es is vacated. Within fourteen days of either an answer to the Fourth Amended Complaint or an order denying leave to file a Fourth Amended Complaint, the parties shall submit a proposed schedule for taking the depositions with a status report. The remainder of the December 5, 2016 order (ECF No. 371 ) remains in effect. Order signed by Magistrate Judge Erica P. Grosjean on 5/17/2017. (Rooney, M)

1
2
3
4

BENJAMIN D. BROWN (SBN 202545)
[e-mail]
COHEN MILSTEIN SELLERS & TOLL, PLLC
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, D.C. 20005
Telephone: [phone]
Facsimile: [phone]

5
Counsel for Plaintiffs and the Proposed Class
6
[Additional counsel listed on signature page]
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11

FRESNO DIVISION

12
13
14

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

15
16

v.

17

DAIRYAMERICA, INC., and
CALIFORNIA DAIRIES, INC.,

18
Defendants.
19
20
21
22
23
24
25
26
27
28

Case No. 1:09 CV 00430-AWI (EPG)
CLASS ACTION
STIPULATION AND ORDER
REGARDING DEPOSITIONS OF
CALIFORNIA DAIRIES’ FORMER
EMPLOYEES AND OF NON-PARTIES
BIMEMILLER AND ELLINGSWORTH

1

WHEREAS, on May 12, 2017, this Court permitted the parties to file a stipulation and

2

proposed order modifying the current schedule to take the depositions of non-parties

3

Lani Ellingsworth and Candice Bimemiller and three current or former employees of Defendant

4

California Dairies until such time as Plaintiffs’ motion to amend the complaint is resolved (Doc.

5

428).

6

WHEREAS, on November 14, 2016, the parties submitted a Stipulation Governing

7

Discovery Issues (Doc. 368). Per that stipulation, the parties agreed to, among other things, stay

8

all deposition discovery pending either Judge Ishii's denial of Plaintiffs’ anticipated motion to

9

amend the complaint or the filing of Defendants’ answer to that amended complaint, except for

10

the depositions of Ellingsworth, Bimemiller, and three current or former California Dairies

11

employees. The stipulation expressly states that those depositions would be permitted to proceed

12

“to help facilitate settlement.” Id.

13

WHEREAS, on December 5, 2016, the Court issued an order on that stipulation, the

14

Order Granting in Part and Denying in Part Proposed Order Governing Discovery Issues (Doc.

15

371) (“Discovery Order”), permitting those five depositions to proceed per the parties’

16

agreement and, further, requiring them to be taken by June 30, 2017. Additionally, the Court

17

limited document and written discovery to the claims and parties upheld in the Third Amended

18

Complaint, thereby staying document and written discovery regarding the additional allegations

19

in Plaintiffs’ proposed Fourth Amended Complaint until resolution of the motion to amend.

20

WHEREAS, after the Court’s Discovery Order was issued, and pursuant to settlement

21

discussions, Plaintiffs shared with Defendants their draft proposed Fourth Amended Complaint.

22

The parties proceeded with a private mediation on December 20, 2016, after which settlement

23

discussions continued through the mediator for many weeks. No settlement was reached. On

24

February 9, 2017, Plaintiffs filed their motion to amend the complaint. Through the proposed

25

Fourth Amended Complaint, Plaintiffs seek to add a California class of dairy farmers, add two

26

new defendants (Dairy Farmers of America and Land O’Lakes), and add allegations and claims

27

based in part on information contained in the declarations of Ellingsworth and Bimemiller. The

28

1

motion to amend has now been fully briefed and was taken under submission by Judge Ishii on

2

May 8, 2017.
WHEREAS, in accordance with the Court’s Discovery Order, DairyAmerica issued

3
4

subpoenas for the depositions of non-parties Ellingsworth and Bimemiller, and Plaintiffs issued

5

notices for the depositions of three former California Dairies employees. Further, the parties

6

appeared for an informal telephonic conference before the Court on Wednesday, May 3, 2017, to

7

discuss the Ellingsworth and Bimemiller depositions, which were subject to motions to quash

8

filed by their respective attorneys.

9

WHEREAS, since that informal telephonic conference, the parties have met and

10

conferred further and have agreed that the interests of efficiency, economy, and expediency

11

would be best served by postponing all five depositions until such time as Judge Ishii denies

12

Plaintiffs’ motion to amend or Defendants file their answers to the Fourth Amended Complaint.1

13

There is good cause for this postponement that applies equally to all five depositions. In their

14

proposed Fourth Amended Complaint, Plaintiffs seek to add a class of California dairy farmers,

15

add two new defendants, and add allegations and claims against Defendants based in part on

16

information contained in the declarations of Ellingsworth and Bimemiller. Accordingly, since

17

the scope of Plaintiffs’ claims is subject to change, and additional parties may be added to the

18

case, the parties wish to postpone all depositions until such time as the scope of claims and

19

parties is resolved. Furthermore, in accordance with and since the Court’s December 5, 2016

20

order, the parties were not required to respond to written discovery relating to the potential

21

additional allegations in the proposed Fourth Amended Complaint, which would likely be

22

addressed in each of the five depositions at issue.

23

WHEREAS, the parties believe and agree that postponing all five depositions is the most

24

efficient and expedient way to proceed under the circumstances, and the least burdensome to the

25
26
27
28

1

Plaintiffs have also met and conferred with counsel for non-parties Ellingsworth and
Bimemiller, and in the interests of efficiency and to avoid undue burden including potential
multiple depositions, they support this agreement to postpone the depositions of their clients.

1

deponents, all of whom are former employees of Defendants and therefore subject to subpoena.

2

If the depositions take place prior to the decision on the motion to amend the complaint, the

3

deponents may be subject to multiple depositions due to the unresolved nature of the pleadings

4

and parties, and the parties may not have the benefit of certain written discovery relevant to an

5

amended complaint in conducting such depositions.

6
7
8

WHEREAS, this modification of the scheduling order is sought only for purposes of
efficiency and not for purposes of delay.
IT IS STIPULATED, subject to court approval, that the June 30, 2017 deadline to take

9

the depositions of Ms. Ellingsworth, Ms. Bimemiller, and three depositions of current or former

10

California Dairies employees be vacated. Within fourteen days of either an answer to the Fourth

11

Amended Complaint or an order denying leave to file a Fourth Amended Complaint, the parties

12

shall submit a proposed schedule for taking these depositions with the status report and proposed

13

amended scheduling order.

14
15
16

DATED: May 17, 2017

Respectfully submitted,
BERMAN DeVALERIO

17
18

By:

/s/ A. Chowning Poppler
A. Chowning Poppler (SBN 272870)

19
20
21
22
23
24
25
26
27
28

Joseph J. Tabacco, Jr. (SBN 75484)
Christopher T. Heffelfinger (SBN 118058)
44 Montgomery Street, Suite 650
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

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

Benjamin D. Brown (SBN 202545)
COHEN MILSTEIN SELLERS
& TOLL, PLLC
1100 New York Avenue, N.W.
Suite 500, West Tower
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
George F. Farah
COHEN MILSTEIN SELLERS
& TOLL, PLLC
88 Pine Street
14th Floor
New York, NY 10005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Lynn L. Sarko
Mark A. Griffin
Cari Campen Laufenberg
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: [phone]
Facsimile: (206)-623-3384
Email: [e-mail]
[e-mail]
[e-mail]
Ron Kilgard
KELLER ROHRBACK L.L.P.
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012
Telephone: [phone]
Facsimile: (602)-248-2822
Email: [e-mail]
Counsel for Plaintiffs and the Proposed Class

1

Dated: May 17, 2017

DAVIS WRIGHT TREMAINE LLP

2
By:

3
4

/s/ Allison A. Davis
Allison A. Davis (SBN 139203)

Sanjay M. Nangia (# 264986)
505 Montgomery Street, Suite 800
San Francisco, CA 94111-6533
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

5
6
7
8

Charles M. English, Jr.
DAVIS WRIGHT TREMAINE LLP
1919 Pennsylvania Avenue, N.S., Suite 800
Washington, D.C. 20006-3401
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

9
10
11
12

16

Joseph M. Marchini
BAKER MANOCK & JENSEN, PC
5260 North Palm Avenue,
Fourth Floor
Fresno, CA 93704
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

17

Counsel for Defendant DairyAmerica, Inc.

13
14
15

18
19
20

Dated: May 17, 2017

HANSON BRIDGETT LLP
By:

/s/ Megan Oliver Thompson
Megan Oliver Thompson (SBN 256654)

25

Lawrence M. Cirelli (SBN 114710)
Shannon M. Nessier (SBN 267644)
425 Market Street, Suite 2600
San Francisco, CA 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

26

Counsel for Defendant California Dairies, Inc.

21
22
23
24

27
28

1
ORDER

2
3
4
5
6
7
8
9

For the reasons provided in the parties’ stipulation, the June 30, 2017 deadline to take
the depositions of Ms. Ellingsworth, Ms. Bimemiller, and three depositions of current or former
California Dairies employees is vacated. Within fourteen days of either an answer to the Fourth
Amended Complaint or an order denying leave to file a Fourth Amended Complaint, the parties
shall submit a proposed schedule for taking the depositions with a status report.
The remainder of the December 5, 2016 order (ECF No. 371) remains in effect.
IT IS SO ORDERED.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Dated:

May 17, 2017

/s/
UNITED STATES MAGISTRATE JUDGE