United States of America v. Sierra Pacific Industries et al

Filing 52

STIPULATION and ORDER signed by Judge John A. Mendez on 5/21/10 ORDERING that the United States is granted leave to file the attached Second Amended Complaint and Defendants may file any appropriate responsive pleadings. The United States's motion to dismiss 47 is withdrawn and the hearing set for 5/19/10 is vacated; and all remaining dates and deadlines as set by the Court's 2/11/10 Scheduling Order remain as set and are otherwise unaffected by this Order. (Becknal, R)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BENJAMIN B. WAGNER United States Attorney KELLI L. TAYLOR TODD A. PICKLES Assistant United States Attorneys United States Courthouse 501 "I" Street, Suite 10-100 Sacramento, California 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 Of Counsel: JEFF MOULTON Regional Attorney RACHEL A. BIRKEY Attorney Office of the General Counsel United States Department of Agriculture 33 New Montgomery Street, 17th Floor San Francisco, California 94105 Telephone: (415) 744-3011 Facsimile: (415) 744-3170 Attorneys for the United States of America DOWNEY BRAND LLP WILLIAM R. WARNE (Bar No. 141280) ANNIE S. AMARAL (Bar No. 238189) MICHAEL SCHAPS (Bar No. 247423) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 bwarne@downeybrand.com aamaral@downeybrand.com mschaps@downeybrand.com Attorneys for Defendant SIERRA PACIFIC INDUSTRIES IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA THE UNITED STATES OF AMERICA, Plaintiff, v. SIERRA PACIFIC INDUSTRIES, et al., Defendants. Case No. 2:09-cv-02445-JAM-EFB STIPULATION AND ORDER PERMITTING THE UNITED STATES OF AMERICA TO FILE SECOND AMENDED COMPLAINT AND TO WITHDRAW ITS MOTION TO DISMISS SPI'S COUNTERCLAIMS AND TO STRIKE CERTAIN OF ITS AFFIRMATIVE DEFENSES [Fed.R.Civ.P. 16] AND RELATED CROSS-ACTIONS. Stipulation and [Proposed] Order Granting USA Leave 1 PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Rule 16 of the Federal Rules of Civil Procedure, Plaintiff the United States of America, Defendants Sierra Pacific Industries, et al. (collectively "Defendants") and Third PartyDefendant Caterpillar, Inc., through their respective counsel, hereby submit the following stipulation and proposed order to grant the United States leave to file a second amended complaint. RECITALS 1. On August 31, 2009, the United States filed its complaint in this action. On October 22, 2009, the United States filed a First Amended Complaint, which is the operative complaint in this action. Service has been completed on all named Defendants. 2. Defendants have filed answers to the First Amended Complaint and asserted various cross- claims and third-party claims. Sierra Pacific Industries ("SPI") has also asserted counterclaims against the United States. 3. On February 11, 2010, this Court entered its status (pretrial scheduling) order that, among other things, provided that amendment would only be allowed by leave of Court with good cause shown. 4. On March 15, 2010, the United States filed a motion to dismiss SPI's counterclaims and to strike certain of its affirmative defenses [Docket No. 47]. The motion is noticed to be heard by the Court on May 19, 2010. 5. Subsequent to the Court's February 22, 2010 scheduling order, discovery has occurred in consolidated actions pending in California superior court that arise from the same Moonlight Fire that is at issue in this action. The parties have also begun written discovery in this matter. 6. Based on the discovery that has occurred to date, the United States seeks leave of Court to file a Second Amended Complaint to assert additional claims against some or all of the Defendants. 7. Additionally, absent the filing of an amended pleading by the United States, SPI might seek leave to make various amendments to its answer and counterclaims against the United States, including amendments based on information obtained on or around May 3, 2010, concerning the Herger Feinstein Quincy Library Group Forest Recovery Act. 8. The parties agree that it is in the interest of judicial efficiency to permit the United States to file the Second Amended Complaint attached hereto as Exhibit A and to allow Defendants, including SPI, to file any appropriate responsive pleadings. Stipulation and [Proposed] Order Granting USA Leave 2 PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. By reaching such agreement, the parties in no way concede, explicitly or implicitly, the truth or legal sufficiency of any allegations in the Second Amended Complaint or in any pleadings by Defendants in response to the Second Amended Complaint. Nor do any of the parties waive any defenses, claims, or arguments they have to Second Amended Complaint or to any pleadings by Defendants in response to the Second Amended Complaint. 10. Permitting the United States to file the attached Second Amended Complaint, which will entitle Defendants, including SPI, to file new responsive pleadings, will also render moot the United States's motion to dismiss and motion to strike, set for hearing on May 19, 2010. STIPULATION Based on the foregoing recitals, the parties hereby STIPULATE that: 1. The United States shall file the attached Second Amended Complaint no later than twenty (20) days from the date of an order of the Court granting the United States leave to file a Second Amended Complaint; 2. Defendants shall file their responsive pleadings to the Second Amended Complaint no later than twenty (20) days after the United States files its Second Amended Complaint; 3. The United States shall have twenty (20) days to file a responsive pleading to any counterclaims asserted by Defendants against the United States; 4. The parties expressly reserve the right to file any appropriate responsive pleading permitted under Federal Rule of Civil Procedure 12, or otherwise, to the Second Amended Complaint and to any counterclaims asserted by Defendants, and in no way waive any defense, claims, or argument to the allegations stated in the Second Amended Complaint or to any pleadings filed in response thereto; 5. The United States shall withdraw its motion to dismiss and to strike [Docket No. 47] upon an order of the Court granting the United States leave to file a Second Amended Complaint; and 6. All remaining dates and deadlines as set by the Court in its February 11, 2010 Scheduling Order remain and are otherwise unaffected by this Stipulation and Proposed Order. Stipulation and [Proposed] Order Granting USA Leave 3 PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 DATED: May 13, 2010 By: BENJAMIN B. WAGNER UNITED STATES ATTORNEY /s/ Kelli L. Taylor KELLI L. TAYLOR TODD A. PICKLES Assistant U.S. Attorneys Attorney for Plaintiff, UNITED STATES OF AMERICA DATED: May 13, 2010 By: DOWNEY BRAND LLP /s/ William R. Warne WILLIAM R. WARNE Attorney for Defendant, SIERRA PACIFIC INDUSTRIES DATED: May 13, 2010 By: RUSHFORD & BONOTTO, LLP /s/ Phillip R. Bonotto PHILLIP R. BONOTTO, Esq. Attorney for Defendant, EUNICE E. HOWELL, individually and d/b/a HOWELL'S FOREST HARVESTING COMPANY DATED: May 13,2010 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 14, 2010 By: By: MATHENY, SEARS, LINKERT & JAIME LLP /s/ Richard S. Linkert RICHARD S. LINKERT, Esq. Attorney for Defendants, W.M. BEATY AND ASSOCIATES, INC. and LANDOWNER DEFENDANTS SEDGWICK, DETERT, MORAN & ARNOLD /s/ Frederic Grannis FREDERIC GRANNIS, Esq. Attorney for Third Party Defendant, CATERPILLAR INC. Stipulation and [Proposed] Order Granting USA Leave 4 PDF created with pdfFactory trial version www.pdffactory.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 21, 2010 ORDER This matter came before the Court on the parties' Stipulation to Permit the United States of America to File a Second Amended Complaint and to Withdraw Its Motion to Dismiss SPI's Counterclaims and to Strike Certain of Its Affirmative Defenses. For the reasons stated in the Stipulation and for good cause showing under Rule 16 of the Federal Rules of Civil Procedure, the Court ADOPTS the Stipulation and GRANTS the relief requested therein. Accordingly, IT IS HEREBY ORDERED THAT: 1. The United States is granted leave to file the attached Second Amended Complaint and the Defendants may file any appropriate responsive pleadings thereto, all in accordance with the times set forth in the Stipulation. The United States may also file a responsive pleading to any counterclaims asserted against it in accordance with the times set forth in the Stipulation. 2. The United States's motion to dismiss [Docket No. 47] is withdrawn and the hearing set for May 19, 2010 is vacated. 3. All remaining dates and deadlines as set by the Court's February 11, 2010 Scheduling Order remain as set and are otherwise unaffected by this Order. IT IS SO ORDERED. /s/ John A. Mendez_______ Honorable John A. Mendez United States District Judge Eastern District of California Stipulation and [Proposed] Order Granting USA Leave 5 PDF created with pdfFactory trial version www.pdffactory.com

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