Hawker et al v. BancInsurance, Inc. et al

Filing 72

STIPULATION AND THIRD AMENDED SCHEDULING ORDER - Phase I Discovery Completion due by 1/24/2014; Phase I Motion Filing Deadline 1/31/2014; Phase I Opposition Filing Deadline 2/21/2014; Phase I Reply Filing Deadline 3/5/2014; Phase I Motion Hearing 3/12/2014. Further Case Management Conference March 28, 2014 at 10:00 a.m. before Magistrate Judge Stanley A. Boone. Signed by Magistrate Judge Stanley A. Boone on 12/19/2013. (Hernandez, M)

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EDWARD F. DONOHUE (SBN 112730)
[e-mail]
CHRISTOPHER J. BORDERS (SBN 135901)
[e-mail]
JOHN T. MENO (SBN 231238)
[e-mail]
HINSHAW & CULBERTSON LLP
One California Street, 18th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415.834.9070

Patrick J. Richard (SBN 131046)
[e-mail]
James H. Vorhis (SBN 245034)
[e-mail]
NOSSAMAN LLP
50 California Street, 34th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415.398.2439
- and –
Joan M. Cotkin (SBN 70665)
[e-mail]
Attorneys for Defendant BANCINSURE, INC. NOSSAMAN LLP
777 S. Figueroa Street, 34th Floor
Jonathan D. Joseph (SBN 90564)
Los Angeles, CA 90017
Jonathan M. Cohen (SBN 168207)
Telephone: [phone]
[e-mail]
Facsimile: 213.612.7801
JOSEPH AND COHEN, A P.C.
1855 Market Street
Attorneys for FEDERAL DEPOSIT
San Francisco, CA 94103
INSURANCE CORPORATION, Plaintiffs as
Telephone: [phone]
assignee of certain claims
Facsimile: 415.874.1997

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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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FRESNO DIVISION

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THOMAS T. HAWKER; JOHN J.
Case No.: 1:12-cv-01261-SAB
INCANDELA; DAVE KRAECHAN;
EDWIN JAY LEE; EDWARD J. ROCHA; STIPULATION AND THIRD
19 and FEDERAL DEPOSIT INSURANCE
AMENDED SCHEDULING ORDER
CORPORATION, as Receiver,
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Hon. Stanley A. Boone
Plaintiffs,
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Complaint Filed: August 1, 2012
vs.
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Trial Date: October 6, 2014
BANCINSURE, INC.; and DOES 1 through
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Defendants.

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IT IS HEREBY STIPULATED, by and between Plaintiffs Thomas T. Hawker,
John J. Incandela, Dave Kraechan, Edwin Jay Lee and Edward J. Rocha (collectively
“Insureds”), plaintiff by assignment the Federal Deposit Insurance Corporation as
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Receiver for County Bank (the “FDIC-R”), and Defendant BancInsure, Inc.

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(“BancInsure”), through their respective counsel 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

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economic ways to manage this litigation, they submitted a stipulation to the Court

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

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Amended Scheduling Order (Docket No. 50) setting new dates and deadlines.

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3.

In an effort to build additional time into the schedule to resolve discovery

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disputes, the parties submitted a stipulation to the Court requesting a Second Amended

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Scheduling Order. On November 14, 2013, this Court issued an Amended Scheduling

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Order (Docket No. 59) setting the current summary judgment dates and deadlines.

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4.

The parties have continued to diligently pursue discovery related to the

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coverage issues since the issuance of the Second Amended Scheduling Order. However,

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the parties need additional time to take at least three depositions of witnesses that, based

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on scheduling conflicts, could not be completed by the due date of the opening summary

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judgment brief. In addition, the parties need additional time to exchange records and

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information regarding the completeness of the records produced or made available to date

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by each party.

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5.

Accordingly, the parties agree that good cause exists to adopt a Third

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Amended Scheduling Order such that 1) certain contract interpretation issues may still be

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addressed early in the litigation and prior to the resolution of other issues that could either

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be rendered moot or otherwise impacted by the early resolution of coverage issues, and

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so that 2) that all discovery related to the contract interpretation issue may be completed

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

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6.

The parties reiterate that an early resolution of the contract interpretation

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

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the litigation irrespective of which party prevails on cross-summary-judgment motions
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planned at the completion of “Phase I” as described below. Thus, if the Insureds and the

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FDIC-R prevail against coverage defenses raised in response to the Second Count for

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Breach of Contract, Count IV for Reformation would potentially become moot as would

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defenses raised by BancInsure to such claims such as estoppel and statute of limitations.

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If BancInsure prevails as to coverage defenses raised in Response to Count II, Count III

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for Breach of the Covenant of Good Faith and Fair Dealing would potentially become

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moot.

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7.

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

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

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a.

Phase I Discovery Completion: January 24, 2014

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b.

Phase I Motion Filing Deadline: January 31, 2014

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c.

Phase I Opposition Filing Deadline: February 21, 2014

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d.

Phase I Reply Filing Deadline: March 5, 2014

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c.

Phase I Motion Hearing: March 12, 2014

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d.

Further Case Management Conference: March 28, 2014

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8.

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

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parties further stipulate that neither will contest the other's request for a continuance of

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the current trial date of up to 60 days.

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9.

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

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dispute resolution process, to be completed within 90 days of the Court’s ruling on the

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Phase I motions.

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SO STIPULATED:

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DATED: December 18, 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: December 18, 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: December 18, 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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ORDER

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IT IS SO ORDERED.
Dated:

December 19, 2013
UNITED STATES MAGISTRATE JUDGE

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