Abston et al v. City of Merced et al

Filing 34

STIPULATION and ORDER to continue the Jury Trial currently set for 4/22/2011 to 8/30/2011 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, signed by Judge Oliver W. Wanger on 6/21/2010. (Kusamura, W) Modified on 6/22/2010 (Kusamura, W).

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JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, California 94621 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs MAUREEN ABSTON, et al.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

MAUREEN ABSTON, individually, and as Case No. 1:09-CV-00511 OWW GSA Personal Representative of the Estate of RICHARD ABSTON; COREY ABSTON; JACY ABSTON; LINDA ABSTON STIPULATION AND ORDER TO CONTINUE TRIAL DATE Plaintiffs, vs. Pre-Trial Conference Date: 3/11/2011 Trial Date: 4/26/2011

CITY OF MERCED, a municipal corporation; RUSS THOMAS, in his capacity as Sheriff for the CITY OF MERCED; J. HART, individually and in his capacity as a police officer for CITY OF MERCED; B. DALIA, individually, and in his capacity as a police officer for the CITY OF MERCED; N. ARELLANO, individually and her capacity as a police officer for the CITY OF MERCED; S. KENSEY, individually; and DOES 1-25, inclusive,

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Defendants. / STIPULATION

WHEREAS, trial in this matter has been set to begin on April 26, 2011. WHEREAS, Plaintiffs' counsel has a newly-arised potential conflict with the April 26, 2011 case, described herein as follows and in the accompanying Declaration of Benjamin Nisenbaum. Plaintiffs' counsel represents Teresa Sheehan in a federal civil rights action currently pending in U.S. District Court for the Northern District of California, Teresa Sheehan v. City and County of San Francisco, et al, Case No. C 09 03889 CRB. Trial in the Sheehan matter is currently set for November 29, 2010, before Judge Charles R. Breyer. Sheehan involves a woman who was survived being shot several times by San Francisco Police Department officers, while in her residence, following a W&I section 5150 report of Ms. Sheehan threatening her social worker with a knife. The likelihood of settlement in Sheehan is very low if not non-existent. Judge Breyer set a short discovery calendar in that case (initial Case Management Conference was February 26, 2010), due to the fact that the Plaintiff had been through a criminal trial already. As discovery in Sheehan has progressed, two matters have arisen that necessitate the Sheehan trial date being moved. Both matters are set forth in Exhibit A to the accompanying Declaration of Benjamin Nisenbaum (the filed, but denied, Joint Administrative Motion to Continue Trial Date and Modify Pre-Trial Conference Order in Sheehan): One is that the period of discovery is simply too short. The other matter is that Defense counsel for all defendants in that action, San Francisco Deputy City Attorney Blake Loebs, will be out on paternity leave from October 11, 2010 to January 11, 2010. Counsel in Sheehan submitted a stipulation to modify the PreTrial Conference Order in Sheehan to accommodate both matters, requesting a trial
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date in June 2011 (for Plaintiffs' counsel, this would follow the trial of the instant action). However, Judge Breyer rejected the proposed modification. Judge Breyer indicated to Defendants' attorney, Mr. Loebs, that he would entertain a "more modest" continuance of the trial date, in light of Mr. Loebs' paternity leave. See Exhibit B to the accompanying Declaration of Benjamin Nisenbaum, the Declaration of Blake P. Loebs. Thus, counsel for the parties in Sheehan have sought another trial date in Sheehan less remote than June 2011. The only feasible time to try Sheehan is late April 2011. It appears likely to counsel in Sheehan that Judge Breyer would accommodate this more modest request. Moreover, Dale L. Allen, Jr., Esq., counsel for the City of Merced defendants, has a three-week trial in San Joaquin County starting on June 20, 2011, followed by a pre-planned vacation. Accordingly, the schedules of the parties' respective trial counsel necessitate moving the trial in this action to no sooner than August 22, 2011, dependant on this Court's calendar. Counsel for the parties in this action have conferred, and are available for trial of this action on or after August 22, 2011. No other dates previously set by the

Court should be affected by this requested continuance.

IT IS SO STIPULATED. Respectfully submitted, Dated: June 7, 2010 The Law Offices of John L. Burris _/s/ Benjamin Nisenbaum _________ Benjamin Nisenbaum Attorney for Plaintiffs

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Dated: June 7, 2010

Respectfully submitted, LOW BALL AND LYNCH /s/ DALE L. ALLEN, JR. Attorneys for Defendants City of Merced; Russ Thomas; J. Hart; B. Dalia and N. Arellano

ORDER PURSUANT TO THE PARTIES' STIPULATION, the Court finds good cause to continue the trial date in this action. The trial date of this action is hereby continued to August 30, 2011 at 9:00 a.m. No other dates shall be affected by this Order. NO FURTHER CONTINUANCES.

IT IS SO ORDERED. Dated:
DEAC _Sig n at ur e- END:

June 21, 2010

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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