West Pacific Electric Company Corporation v. Dragados/Flatiron, et al.

Filing 77

STIPULATION and ORDER to Amend the Scheduling Order signed by Magistrate Judge Barbara A. McAuliffe on 08/16/2019. (Flores, E)

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MURPHY AUSTIN ADAMS SCHOENFELD LLP

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D. MICHAEL SCHOENFELD, SBN 102332
LISA D. NICOLLS, SBN 234376
MURPHY AUSTIN ADAMS SCHOENFELD LLP
555 Capitol Mall, Suite 850
Sacramento, CA 95814
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
Email:
[e-mail]
Attorneys for Plaintiff
WEST PACIFIC ELECTRIC COMPANY
CORPORATION
P. RANDOLPH FINCH, JR., SBN 185004
DAVID W. SMILEY, SBN 226616
FINCH, THORNTON & BAIRD, LLP
4747 Executive Drive, Suite 700
San Diego, California 92121-3107
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
Email:
[e-mail]
Attorneys for Defendants
DRAGADOS/FLATIRON JOINT VENTURE, et al.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WEST PACIFIC ELECTRIC COMPANY
CORPORATION,

Case No. 1:18-cv-00166-LJO-BAM
STIPULATION TO AMEND
SCHEDULING ORDER; AND ORDER

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Plaintiff,
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v.

Trial Date:
March 17, 2020
Complaint Filed: January 30, 2018

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DRAGADOS/FLATIRON, a joint venture;
LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts corporation;
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, a Maryland corporation;
ZURICH AMERICAN INSURANCE
COMPANY, a New York corporation; THE
CONTINENTAL INSURANCE COMPANY,
a Pennsylvania corporation; XL SPECIALTY
INSURANCE COMPANY, a Delaware
corporation; THE INSURANCE COMPANY
OF THE STATE OF PENNSYLVANIA, a
Pennsylvania corporation; AMERICAN
HOME ASSURANCE COMPANY, a New
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York corporation; NATIONAL INDEMNITY
COMPANY, a Nebraska corporation;
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a Connecticut
corporation; FEDERAL INSURANCE
COMPANY, an Indiana corporation,

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Defendants.
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The parties to this Stipulation are Plaintiff West Pacific Electric Company Corporation

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(“WPEC”), Defendant Dragados/Flatiron (“DFJV”), and Defendants Liberty Mutual Insurance

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Company, Fidelity and Deposit Company of Maryland, Zurich American Insurance Company,

MURPHY AUSTIN ADAMS SCHOENFELD LLP

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The Continental Insurance Company, XL Specialty Insurance Company, The Insurance Company

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of the State of Pennsylvania, American Home Assurance Company, National Indemnity

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Company, Travelers Casualty and Surety Company of America, and Federal Insurance Company

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(collectively referred to as “Surety Defendants”). Collectively, WPEC, DFJV and the Surety

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Defendants are hereinafter referred to as the “Parties.”

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The Parties, through their respective counsel, jointly stipulate and respectfully request that

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the Court enter an Order allowing for the continuance of the discovery and expert disclosure

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deadlines; and pre-trial motion deadlines; and scheduling the sequence of the 15 day trial of the

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case in its entirety.

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Good cause exists to continue non-expert and expert discovery; expert disclosure

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deadlines; and pre-trial motion deadlines as the parties will require additional time to complete

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discovery on the licensure issues raised in the Counterclaim.

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Good cause exists to schedule a two day court trial on WPEC’s “substantial compliance”

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defense with the remaining 13 days allocated to a jury trial on all remaining claims and defenses

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in the case since California substantive law (which governs in this matter) holds that such a

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defense must be decided by the trial judge. See Business and Professions Code section 7031(e)

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and Judicial Council of California v. Jacobs Facilities, Inc., 239 Cal. App. 4th 882, 913-914, 191

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Cal. Rptr. 3d 714, 740 (2015), as modified on denial of reh'g (Sept. 15, 2015).

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Based upon the above, the Parties stipulate and request that the Court issue an order as
-2STIPULATION; ORDER

5618.001-2878915.1

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follows:

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1. The non-expert and expert discovery; and pre-trial motion deadlines are continued

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to the following dates:

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i. Initial Disclosures on Counterclaim: August 25, 2019

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ii. Expert Disclosure: October 4, 2019

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iii. Supplement Expert Disclosure: October 16, 2019

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iv. Non-Expert Discovery Cutoff: September 27, 2019

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v. Expert Discovery Cut-Off: October 25, 2019

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vi. Pretrial Motion Filing Deadline: October 25, 2019
2. The Parties stipulate to a two day court trial on WPEC’s “substantial compliance”

MURPHY AUSTIN ADAMS SCHOENFELD LLP

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defense with the remaining 13 days allocated to a jury trial on all remaining claims

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and defenses in the case.
3. The Court’s previous Scheduling Order, including all discovery deadlines, is

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vacated and the new Scheduling Order is as follows:

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i.

Initial Disclosures on the Counterclaim:

August 25, 2019

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ii. Expert Disclosure:

October 4, 2019

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iii. Supplement Expert Disclosure:

October 16, 2019

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iv. Non-Expert Discovery Cutoff:

September 27, 2019

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v. Expert Discovery Cut-Off:

October 25, 2019

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vi. Pretrial Motion Filing Deadline:

October 25, 2019

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vii. Settlement Conference:

Not set

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viii. Pretrial Conference:

Date: January 21, 2020

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Time: 9:00 a.m.

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Dept: 4 (LJO)
ix. Court Trial (two (2) day est.)1 Date: March 17, 2020

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Time: 8:30 a.m.

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The court trial will be limited to the hearing and determination of WPEC’s “substantial
compliance” defense.
5618.001-2878915.1
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STIPULATION; ORDER

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Dept: 4 (LJO)

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xii. Jury Trial (13 day est.):

Date: March 19, 2020

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Time: 8:30 a.m.

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Dept: 4 (LJO)

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4. A further scheduling conference is scheduled for August 27, 2019 at 9:00 a.m.

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The Court will inform the parties if such conference will be necessary following its

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review of the Parties’ Stipulation.

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Dated: August 7, 2019

MURPHY AUSTIN ADAMS SCHOENFELD LLP

MURPHY AUSTIN ADAMS SCHOENFELD LLP

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By:/s/ Lisa D. Nicolls
D. MICHAEL SCHOENFELD
LISA D. NICOLLS
Attorneys for Plaintiff
WEST PACIFIC ELECTRIC COMPANY
CORPORATION

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Dated: August 7, 2019

FINCH, THORNTON & BAIRD, LLP

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By:/s/ David W. Smiley
P. RANDOLPH FINCH, JR.
DAVID W. SMILEY
Attorneys for Defendants
DRAGADOS/FLATIRON JOINT VENTURE,
et al.

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-4STIPULATION; ORDER

5618.001-2878915.1

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ORDER

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Having reviewed the stipulation of the parties, the Court finds good cause to partially grant

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and partially deny the parties’ request to modify the Scheduling Order in this action. Accordingly,

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IT IS HEREBY ORDERED that the Scheduling Order in this action is modified as follows:

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a. Supplemental Disclosures regarding Dragados/Flatiron’s Counterclaim shall be
exchanged by August 25, 2019;

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b. Non-expert discovery shall be completed by September 27, 2019;

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c. Initial expert disclosures shall be completed by October 4, 2019;

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d. Supplemental expert disclosures shall be completed by October 16, 2019; and

MURPHY AUSTIN ADAMS SCHOENFELD LLP

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e. Expert discovery shall be completed by October 25, 2019.

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The deadline for filing dispositive motions remains set for October 25, 2019, the pretrial

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conference remains set for January 21, 2020 at 9:00 AM in Courtroom 4 before Chief Judge

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Lawrence J. O’Neill, and the trial date remains set for March 17, 2020, at 8:30 a.m. in Courtroom

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4 before Chief Judge O’Neill.

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The Court notes that the authority cited by the parties in support of their contention that

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they are entitled to a two-day court trial on the “substantial compliance” defense followed by a

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thirteen-day jury trial on the remaining issues is not controlling and does not address the issue of

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whether the procedure proposed by the parties is considered state substantive law within the

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meaning of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). As California Business and Professions

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Code § 7031 does not require a court trial in order to decide the “substantial compliance” defense

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and this proposed procedure further does not appear to be outcome determinative as that term is

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understood under the Erie doctrine, and to accommodate the Court’s calendar as well as the

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availability of judges to decide this case, the parties’ request for a two-day court trial beginning on

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March 17, 2020 followed by a thirteen-day jury trial beginning on March 19, 2020 is DENIED

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without prejudice. See id.; Guaranty Trust Co. v. York, 326 U.S. 99 (1945). However, this order

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is not intended to preclude the parties from submitting a request for an evidentiary hearing to Chief

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Judge O’Neill, moving for summary judgment or partial summary judgment, or pursuing alternative

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procedures as necessary and appropriate in order to resolve the “substantial compliance” defense.
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The Court further notes that this is the parties’ third stipulation to modify the Scheduling

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Order with respect to the deadline for completion of non-expert discovery and second stipulation

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to modify the Scheduling Order with respect to expert discovery deadlines. The parties are

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cautioned that further modifications of the Scheduling Order will not be granted absent a showing

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of good cause, and such cause will be narrowly construed. Fed. R. Civ. P. 16(b).

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In light of the foregoing, the Status Conference currently set for August 27, 2019 is
VACATED.

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MURPHY AUSTIN ADAMS SCHOENFELD LLP

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 16, 2019

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

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-6STIPULATION; ORDER

5618.001-2878915.1