Bauer, et al. vs. Harris, et al.

Filing 32

Stipulation to Vacate Rule 16 Scheduling Order and Order Thereon. A Scheduling Conference is now set for August 8, 2013 at 10:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng, signed by Magistrate Judge Michael J. Seng on 05/28/2013. (Yu, L)

1 C. D. Michel - S.B.N. 144258
Sean A. Brady - S.B.N. 262007
2 MICHEL & ASSOCIATES, P.C.
180 E. Ocean Boulevard, Suite 200
3 Long Beach, CA 90802
Telephone: [phone]
4 Facsimile: 562-216-4445
Email: [e-mail]
5
Attorneys for Plaintiffs
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

FRESNO BRANCH COURTHOUSE

11

15

BARRY BAUER, STEPHEN
WARKENTIN, NICOLE FERRY,
LELAND ADLEY, JEFFREY
HACKER, NATIONAL RIFLE
ASSOCIATION OF AMERICA,
INC., CALIFORNIA RIFLE AND
PISTOL ASSOCIATION
FOUNDATION, HERB BAUER
SPORTING GOODS, INC.,

16

Plaintiffs

12
13
14

17

vs.

18

21

KAMALA HARRIS, in Her Official
Capacity as Attorney General For the
State of California; STEPHEN
LINDLEY, in His Official Capacity
as Acting Chief for the California
Department of Justice, and DOES 110,

22

Defendants.

19
20

23

) CASE NO. 1:11-cv-01440-LJO-MJS
)
) STIPULATION TO VACATE RULE 16
) SCHEDULING ORDER AND ORDER
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

24
25
26
27
28
1
STIPULATION AND ORDER

1

I.

2

INTRODUCTION

3

The parties, Plaintiffs Barry Bauer, Stephen Warkentin, Nicole Ferry, Leland

4

Adley, Jeffrey Hacker, National Rifle Association of America, Inc., California

5

Rifle and Pistol Association Foundation, Herb Bauer Sporting Goods, Inc.

6

(collectively “Plaintiffs”) and Defendants Attorney General Kamala D. Harris and

7

Chief of the Firearms Bureau Stephen Lindley (collectively “Defendants”), through

8

their respective attorneys of record, hereby jointly stipulate to vacate all deadlines

9

contained in the current scheduling order, in light of Senate Bill 140 becoming law,

10

which materially affected the nature of Plaintiffs’ case. The parties also jointly

11

request that this Court order a case management conference at such time as the

12

Court deems convenient in order to create a new scheduling order.

13

II.

14

RECITALS/GROUNDS FOR RELIEF

15

Pursuant to Rule 16, a party may seek modification of a scheduling order

16

“only for good cause and with a judge’s consent.” Fed. R. Civ. P. 16(b)(4). “Good

17

cause” exists when a scheduling deadline “cannot reasonably be met despite the

18

diligence of the party seeking the extension.” Schaffner v. Crown Equipment

19

Corporation, No. C 09-00284 SBA, 2011 WL 6303408, at *2 (N.D. Cal. Dec. 16,

20

2011) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.

21

1992). A party may establish good cause by showing:

22
23
24
25
26

(1) that [he or she] was diligent in assisting the court in creating
a workable Rule 16 order; (2) that [his or her] noncompliance with
a rule 16 deadline occurred or will occur, notwithstanding [his or
her] diligent efforts to comply, because of the development of
matters which could not have been reasonably foreseen or
anticipated at the time of the Rule 16 scheduling conference; and
(3) that [he or she] was diligent in seeking amendment of the Rule
16 order, once it became apparent that he or she could not comply
with the order.

27

Hood v. Hartford Life & Accident Ins. Co., 567 F.Supp.2d 1221, 1224 (E.D. Cal.

28

2008) (citation omitted).
2
STIPULATION AND ORDER

1

WHEREAS the parties have been and are currently and diligently acting in

2

good faith to reach a resolution on this case in a manner that most effectively

3

utilizes resources of both parties as well as the resources of the Court (See

4

Declaration of Sean A. Brady (hereinafter “Brady Decl.”) at ¶ ¶ 5-8);

5

WHEREAS Senate Bill 140 (SB 140), a bill appropriating monies collected

6

from one of the Challenged Fees in this action, was recently signed into law by

7

Governor Brown on May 1, 2013 (See Brady Decl. at ¶ 3);

8
9
10
11

WHEREAS SB 140 significantly alters the legal landscape with respect to
this lawsuit such that it affects the scope of the legal challenge, as well as the
discovery Plaintiffs will seek (See Brady Decl. at ¶ 4);
WHEREAS the parties worked together diligently to prepare a

12

comprehensive proposed scheduling report for the Court’s convenience at the

13

inception of this case, but at the time of the Rule 16 scheduling conference the

14

parties could not have known that SB 140 would be passed into law and affect this

15

lawsuit as it does (See Brady Decl. at ¶ 5) ;

16

WHEREAS both parties agreed that dedicating Court and party resources to

17

continue discovery and litigation while the fate of SB 140 was pending would

18

result in potential waste and they informally agreed to postpone Defendants’

19

responses to Plaintiffs’ written discovery requests and Defendant Chief Lindley’s

20

deposition until SB 140's fate was known so that both parties could evaluate SB

21

140's impact on their respective positions without the mounting cost and pressure

22

of litigation acting as a burden for both the Court and the parties (See Brady Decl.

23

at ¶ 6);

24

WHEREAS the parties previously agreed to file a stipulation to vacate the

25

scheduling order and stay the case pending resolution of SB 140, but were unable

26

to file such stipulation before SB 140 passed (See Brady Decl. at ¶ ¶ 7-8);

27

WHEREAS the April 29, 2013 deadline to complete all non-expert

28

discovery under the current scheduling order has passed, and there remain
3
STIPULATION AND ORDER

1

outstanding discovery responses from Defendants, which could, without relief from

2

the discovery cut-off, unnecessarily prompt discovery law and motion (See Brady

3

Decl. at ¶ 10);

4

WHEREAS, as of the date that SB 140 was signed, the parties were engaged

5

in meet-and-confer efforts regarding such written discovery responses, and, as a

6

result of the passage of SB 140, such outstanding discovery responses no longer

7

fully address the issues the parties seek to try in light of the passage of SB 140 (See

8

Brady Decl. at ¶ ¶ 11-12);

9

WHEREAS Plaintiffs believe this action cannot be properly adjudicated

10

without additional such discovery concerning the impact of SB 140 on the nature

11

of the Challenged Fee, and desire to conduct new discovery to address the primary

12

issues that will be relevant to the streamlined claims in the lawsuit, in lieu of

13

bringing law and motion on the existing outstanding discovery (See Brady Decl. at

14

¶ 12);

15

WHEREAS other deadlines are fast approaching that will be impossible or

16

unduly burdensome and prejudicial for Plaintiffs to meet (See Brady Decl. at ¶ 9);

17

WHEREAS the parties have been meeting and conferring since SB 140's

18

passage into law in order to address the most effective and economic route for

19

proceeding with this litigation (See Brady Decl. at ¶ 13);

20

WHEREAS the parties have agreed that the best course of action for the

21

parties and the Court is for Plaintiffs to amend their complaint in light of SB 140,

22

in order to reduce the issues to be tried and to streamline the lawsuit into a single

23

Second Amendment claim challenging only one of the fees currently at issue in this

24

litigation, and to set a new scheduling order accordingly (See Brady Decl. at ¶ 14);

25

WHEREAS the parties have been diligent and have acted in good faith in

26

working together to seek amendment of the scheduling order promptly after the

27

passage of SB 140 (See Brady Decl. at ¶ 16);

28

///
4
STIPULATION AND ORDER

1
2
3

THE PARTIES, THROUGH THEIR RESPECTIVE COUNSEL, HEREBY
STIPULATE AND AGREE TO THE FOLLOWING:
1.

To vacate all deadlines provided in the Court’s Rule 16 Scheduling

4

Order from August 10, 2012, including the extended deadline for discovery of non-

5

expert witnesses provided in the Court’s January 23, 2013 Order;

6
7
8

2.

To request that this Court order a case management conference at such

time or as the Court deems convenient.1
SO STIPULATED.

9
10

Dated: May 22, 2013

MICHEL & ASSOCIATES, P.C.

11
12
/s/ C. D. Michel
C. D. Michel
Attorney for Plaintiffs

13
14
15

Dated: May 22, 2013

Deputy Attorney General

16
17
18
19

/s/ Anthony R. Hakl
Anthony R. Hakl
(as authorized on May 22, 2013)
Attorney for Defendants

20
21
22
23
24
25
26
27
28
5
STIPULATION AND ORDER

1

ORDER

2
3

Good cause appearing, the above Stipulation in case number 1:11-cv-

4

01440-LJO-MJS is approved and all post-August 10, 2012, dates and deadlines

5

provided in the Court’s Rule 16 Scheduling Order, as amended to provide an

6

extended deadline for discovery of non-expert witnesses as per the Court’s

7

January 23, 2013 Order, are vacated. A further Scheduling Conference shall be

8

held August 8, 2013 at 10:30 a.m. in Courtroom 6 (MJS) before Magistrate

9

Judge Michael J. Seng.

10
11
12
13
14
15

IT IS SO ORDERED.

16

Dated:

17

ci4d6

May 28, 2013

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
6
STIPULATION AND ORDER