Lemire et al v. State of California et al

Filing 217

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 3/20/15: Trial continued to 8/4/2015 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. The parties have leave to seek to schedule a further settlement conference with a Magistrate Judge. (Kaminski, H)

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KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California
CHRISTOPHER J. BECKER, State Bar No. 230529
Supervising Deputy Attorney General
DIANA ESQUIVEL, State Bar No. 202954
Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Attorneys for Defendants Cahoon, Holliday,
Nuehring, and Sisto

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GERI LYNN GREEN (SBN 127709)
LAW OFFICES OF GREEN & GREEN, LLP
4 Embarcadero Center, 14th Floor
San Francisco, California 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiffs Sherie Lemire, Gerard St.
Jovite, Nicole St. Jovite, and Estate of Robert St.
Jovite

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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SHERIE LEMIRE,

No. 2:08-cv-00455 GEB-EFB

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Plaintiff, AMENDED STIPULATION AND
PROPOSED ORDER FOR
CONTINUANCE OF TRIAL AND FOR
FURTHER SETTLEMENT
CONFERENCE

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v.
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CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Defendants.

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Amended Stipulation for Continuance of Trial and Further Settlement Conference (2:08-cv-00455 GEB-EFB)

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Under Federal Rule of Civil Procedure 16(b)(4) and Local Rule 143, the parties, through

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their counsel of record, agree to and request a continuance of the trial, currently set for March 31,

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2015, to August 4, 2015, and an order referring the parties to a settlement conference with

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Magistrate Judge Kendall J. Newman on May 4, 2015 at 9:00 a.m. (See ECF No. 154, 7:12-9:2.)

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Good cause exists to grant this stipulation because the parties believe that this case may settle if

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they have additional time to attend a settlement conference. The law has changed since the last

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settlement conference which significantly affects the position of the parties. Since the law

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changed, the parties have informally engaged in settlement discussions, however it is believed by

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all parties at this time that the discussions will likely be enhanced with the assistance of a neutral

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mediator who may help the parties come to an agreement.
The court may modify a final pretrial order to prevent manifest injustice. Fed. R. Civ. P.

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16(e). A scheduling order may be modified only upon a showing of good cause and by leave of

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Court. Fed. R. Civ. P. 6(b)(1)(A), 16(b)(4); see, e.g., Johnson v. Mammoth Recreations, Inc., 975

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F.2d 604, 609 (describing the factors a court should consider in ruling on such a motion). In

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considering whether a party moving for a schedule modification has good cause, the Court

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primarily focuses on the diligence of the party seeking the modification. Johnson, 975 F.2d at

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609 (citing Fed. R. Civ. P. 16 advisory committee‟s notes of 1983 amendment). “The district

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court may modify the pretrial schedule „if it cannot reasonably be met despite the diligence of the

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party seeking the amendment.‟” Id. (quoting Fed. R. Civ. P. 16 advisory committee notes of 1983

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amendment).

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The parties have been diligently preparing for trial, which is currently scheduled to start on

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March 31, 2015. All, but a few of the filings, have been submitted. The only deadline that

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remains is the one for filing objections to trial exhibits, transcript designations and objections, and

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an agreed upon statement of undisputed facts. (See ECF No. 214.) It is requested at this time,

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that this date be extended as well to 14 days before the new trial date of August 4, 2015.

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The parties attended a settlement conference with Magistrate Judge Newman on May 13,

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2014, but the case did not settle. (ECF No. 142.) Since then, the parties have been working to

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prepare this case for trial—designating experts, stipulating to facts concerning the applicability of
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Amended Stipulation for Continuance of Trial and Further Settlement Conference (2:08-cv-00455 GEB-EFB)

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recent law that have affected the damages claims, and filing the necessary trial-related documents.

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(See ECF Nos. 157-165, 170-177, 180-199, 202-204, 206-213.)

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In late February, the parties resumed informal settlement discussions while continuing their

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trial preparations. The parties have reached a point where they believe that the assistance of a

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Magistrate Judge can help the parties reach an agreement and avoid the time and expense of a

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trial. The parties have contacted Magistrate Judge Newman‟s Courtroom Deputy, and are

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informed that the earliest date the magistrate is available for a settlement conference in this case

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is May 4, 2015. The parties have reserved the date if this stipulation is granted.

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For these reasons, the parties request that the Court continue the trial to August 4, 2015, to

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give the parties more time to continue their settlement discussions and participate in a further

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settlement conference with a magistrate judge. The requested extension may result in the

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resolution of the case without the burden and cost of a trial.

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Dated: March 20, 2015

Respectfully submitted,

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KAMALA D. HARRIS
Attorney General of California
CHRISTOPHER J. BECKER
Supervising Deputy Attorney General

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/s/ Diana Esquivel

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DIANA ESQUIVEL
Deputy Attorney General
Attorneys for Defendants

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Dated: March 20, 2015

LAW OFFICES OF GREEN & GREEN, LLP

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/s/ Geri Lynn Green

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GERI LYNN GREEN
Attorneys for Plaintiffs

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SA2008302509
11805362_2.doc

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Amended Stipulation for Continuance of Trial and Further Settlement Conference (2:08-cv-00455 GEB-EFB)

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ORDER

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The parties‟ stipulated request to continue the trial is GRANTED.

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The March 31, 2015 trial is VACATED.

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Trial is continued to and will commence at 9:00 a.m. on August 4, 2015.

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No later than fourteen days before trial, the parties shall file objections to trial exhibits and

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an agreed upon statement of undisputed facts and submit transcript designations and objections.
The parties have leave to seek to schedule a further settlement conference with a Magistrate

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Judge at a mutually convenient time by contacting the deputy clerk for that Magistrate Judge.

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In all other respects, the Pretrial Order, dated December 10, 2014 (ECF No. 154), shall

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remain in full force and effect.

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IT IS SO ORDERED.

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Dated: March 20, 2015

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Amended Stipulation for Continuance of Trial and Further Settlement Conference (2:08-cv-00455 GEB-EFB)