Hawker et al v. BancInsurance, Inc. et al

Filing 59

STIPULATION and SECOND Amended Scheduling Order: The parties stipulate to and respectfully request that the Court issue a Second Amended Scheduling Order that amends the following dates and deadlines in this matter: Phase I Discovery Completion 12/ 13/2013; Phase I Motion Filing Deadline 12/20/2013; Phase I Opposition Filing Deadline 1/17/2014; Phase I Reply Filing Deadline 1/29/2014; Phase I Motion Hearing set for 2/19/2014 at 09:30 AM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Bo one; Further Case Management Conference continued to 3/14/2014 at 10:30 AM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone. The parties further stipulate that the trial date shall remain the same. Signed by Magistrate Judge Stanley A. Boone on 11/13/2013. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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THOMAS T. HAWKER; JOHN J.
Case No.: CV F 12-1261-SAB
INCANDELA; DAVE KRAECHAN; EDWIN
JAY LEE; EDWARD J. ROCHA; and
STIPULATION AND SECOND AMENDED
FEDERAL DEPOSIT INSURANCE
SCHEDULING ORDER
CORPORATION, as Receiver,

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Plaintiffs,
vs.
BANCINSURE, INC.; FEDERAL DEPOSIT
INSURANCE CORPORATION; and DOES 1
through 10, inclusive

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Defendants.

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IT IS HEREBY STIPULATED, by and between Plaintiffs Thomas T. Hawker, John J.

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Incandela, Dave Kraechan, Edwin Jay Lee and Edward J. Rocha (collectively “Insureds”),

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plaintiff by assignment the Federal Deposit Insurance Corporation as Receiver for County Bank

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(the “FDIC”), and Defendant BancInsure, Inc. (“BancInsure”), through their respective counsel

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of record, as follows:

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1.

This Court initially issued an Amended Scheduling Order (Docket no. 37)

following a May 28, 2013 Scheduling Conference.
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After the parties met-and-conferred regarding the most efficient and economic

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ways to manage this litigation, they submitted a stipulation to the Court requesting an Amended

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Scheduling Order. On August 29, 2013, this Court issued an Amended Scheduling Order

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(Docket No. 50) setting new dates and deadlines.

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3.

The parties have diligently pursued discovery related to the coverage issues since

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the issuance of the Amended Scheduling Order. The parties will have taken nine (9) depositions

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in this case by November 19, 2013, will have served and responded to over a half-dozen sets of

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written discovery, and served approximately ten subpoenas.

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4.

Despite these diligent efforts, the parties believe that additional time is needed to

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resolve discovery disputes between the parties and permit additional discovery before the

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deadline for filing cross-motions for summary judgment. Accordingly, the parties agree that

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good cause exists to adopt a Second Amended Scheduling Order such that 1) certain contract

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interpretation issues may still be addressed early in the litigation and prior to the resolution of

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other issues that could either be rendered moot or otherwise impacted by the early resolution of

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coverage issues, and so that 2) that all discovery related to the contract interpretation issue may

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be completed before cross summary-judgment motions are completely briefed before this Court.

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5.

The parties reiterate that an early resolution of the contract interpretation issues

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could substantially reduce costs and simplify the remaining issues to be resolved in the litigation

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irrespective of which party prevails on cross-summary-judgment motions planned at the

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completion of “Phase I” as described below. Thus, if the Insureds and the FDIC prevail against

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coverage defenses raised in response to the Second Count for Breach of Contract, Count IV for

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Reformation would potentially become moot as would defenses raised by BancInsure to such

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claims such as estoppel and statute of limitations. If BancInsure prevails as to coverage defenses

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raised in Response to Count II, Count III for Breach of the Covenant of Good Faith and Fair

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Dealing would potentially become moot.

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6.

The parties stipulate to and respectfully request that the Court issue a Second

Amended Scheduling Order that amends the following dates and deadlines in this matter:

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a.

Phase I Discovery Completion: December 13, 2013

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b.

Phase I Motion Filing Deadline: December 20, 2013

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c.

Phase I Opposition Filing Deadline: January 17, 2014

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d.

Phase I Reply Filing Deadline: January 29, 2014

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c.

Phase I Motion Hearing: February 19, 2014
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d.

Further Case Management Conference: March 14, 2014

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7.

The parties stipulate that the trial date will remain October 6, 2014.

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8.

The parties further stipulate and agree to engage in a formal alternative dispute

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resolution process, to be completed within 90 days of the Court’s ruling on the Phase I motions.

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SO STIPULATED:
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DATED: November 13, 2013

HINSHAW & CULBERTSON LLP

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: By:___/s/ Edward F. Donahue
Edward F. Donohue
Christopher J. Borders
John T. Meno
Attorneys for Defendant BANCINSURE, INC.

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DATED: November 13, 2013

JOSEPH AND COHEN, A P.C.

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: By: /s/ Jonathan M. Cohen
Jonathon D. Joseph
Jonathan M. Cohen
Attorneys for the Insureds

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DATED: November 13, 2013

NOSSAMAN LLP

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: By:___/s/ James H. Vorhis
Patrick J. Richard
James H. Vorhis
Joan M. Cotkin
Attorneys for FEDERAL DEPOSIT
INSURANCE COMPANY, Plaintiffs as assignee
of certain claims

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IT IS SO ORDERED.
Dated:

November 13, 2013
UNITED STATES MAGISTRATE JUDGE

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