McIntire v. Sunrise Specialty Company

Filing 49

ORDER signed by Judge Lawrence K. Karlton on 11/9/12 ORDERING that the parties shall file Motions for Summary Judgment by 11/16/2012, and the Final Pretrial Conference and the Trial are VACATED pending resolution of the law and motion(s). (Kastilahn, A)

1
2
3

Ronnie Fischer, Esq. #35620
FISCHER LAW FIRM, P.C.
1777 S. Harrison Street, Suite 1500
Denver, Colorado 80210
Tel: [phone] / Fax: [phone]
[e-mail]

4
5
6
7

Kenton J. Klassen, Esq. #124118
DOWLING AARON INCORPORATED
8080 North Palm Avenue, Third Floor
P.O. Box 28902
Fresno, California 93729-8902
Tel: [phone] / Fax: [phone]
[e-mail]

8
Attorneys for Defendant/Counterclaimant
9
10
11
12

EDWARD J. WRIGHT, ESQ. #109469
LOREN L. LUNSFORD, ESQ. #213966
MARTENSEN  WRIGHT PC
112 J Street, Second Floor
Sacramento, California 95814
Telephone: [phone]
Facsimile: [phone]

13
Attorneys for Plaintiff BRYAN C. McINTIRE
14
15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA

17
18

BRYAN C. MCINTIRE, an Individual,
Plaintiff,

19
20

vs.

21

Case No. 2:11-CV-02495-LKK-CKD
PARTIES’ STIPULATED MOTION TO
MODIFY PRETRIAL SCHEDULING
ORDER AND EXTEND LAW AND
MOTION AND ORDER

SUNRISE SPECIALTY COMPANY, a
California Corporation,

22
Defendant.
23
24

SUNRISE SPECIALTY COMPANY, a
California Corporation,

25
Counterclaimant,
26
vs.
27
BRYAN C. MCINTIRE, an Individual,
28
Counterdefendant.
PARTIES’ STIPULATED MOTION TO MODIFY PRETRIAL SCHEDULING ORDER AND EXTEND LAW AND MOTION

1

STIPULATED MOTION TO EXTEND THE DEADLINE
FOR LAW AND MOTION

2
3

COME NOW Defendant Sunrise Specialty Company (hereinafter “Defendant

4

Sunrise”), by and through its attorney, Ronnie Fischer of the Fischer Law Firm, P.C., and the

5

Plaintiff Bryan C. McIntire, by and through his attorney, Loren Lunsford of Martensen 

6

Wright PC, and hereby jointly move the Court to modify the Scheduling Order in this matter, as

7

follows:

8
9
10
11

1.

This Motion seeks to modify the law and motions dates and all other

related dates in this matter, thus to modify the schedule of this case. The trial of this matter is set
for May 14, 2013. A Final Pretrial Conference is set for February 4, 2013.
2.

The applicable Status (Pretrial Scheduling) Conference Order in this

12

matter [Doc #13] provides at page 10 (Miscellaneous Provisions) that modifications of the

13

Pretrial Scheduling Order may only be obtained by leave of Court upon a showing of good

14

cause. Further, the Court cautioned that changes to any of the scheduled dates would necessarily

15

result in changes to all other dates.

16

3.

At the last hearing of this matter related to whether a construction hearing

17

would be held, the parties discussed with the Court the filing of Motions for Summary Judgment

18

to resolve material issues in this case.

19

4.

20

Plaintiff’s expert.

21

5.

22
23

The Defendant also anticipates filing a Daubert motion to strike the

All law and motion proceedings are to be conducted so as to be completed

by November 1, 2012. (Pretrial Scheduling Order, p. 2).
6.

However, the parties had anticipated resolution of claims construction

24

sooner in this case. The hearing was originally set for September 28, 2012, and it was moved

25

twice, eventually taking place on October 12, 2012.

26

7.

It would not be prudent to file a motion for summary judgment and argue

27

one or the other party’s interpretation of claim terms or design principles because until the

28

Markman hearing took place, the argument would be mere speculation. Only after the Markman
2
PARTIES’ STIPULATED MOTION TO MODIFY PRETRIAL SCHEDULING ORDER AND EXTEND LAW AND MOTION

1

hearing took place could the parties file a meaningful and fully informed motion for summary

2

judgment.

3
4

8.

The parties could not “complete” the summary judgment process between

October 12, 2012, and November 1, 2012.

5

9.

The parties have conferred, and believe it would be beneficial to the case

6

to conduct cross motions for summary judgment. Resolution of key issues of law to which the

7

parties cannot agree would be beneficial. Even if the case would not be resolved outright with

8

resolution of the summary judgment motions, it is likely that the Court’s rulings on the motions

9

would facilitate settlement of the case.

10

10.

Additionally, the process would inform the parties of each other’s

11

positions in more concrete terms, likely contributing to movement toward compromise and

12

settlement.

13
14

11.

case, and dispose of those issues that are susceptible to resolution without trial.

15
16

The law and motion would narrow and refine the legal issues raised by the

12.

Therefore, there is good cause for extending the Motion Hearings

Schedule to accommodate the requested motion process.

17

13.

The parties request that they be permitted to: 1) file Motions for Summary

18

Judgment by November 9, 2012; 2) file responses to the other party’s Motion by December 7,

19

2012 (to account for the Thanksgiving Holidays in the interim); and, 3) to file Replies by

20

December 17, 2012. The hearing on the motions will be set for 10:00 a.m. on January 28, 2013,

21

in Courtroom 4, which is available on the Court’s calendar.

22

14.

The Notice of Hearing will be served according to Local Rule 230.

23

15.

The Final Pretrial Conference is set for February 4, 2013. The ruling on

24

summary judgment might affect pretrial preparations and jury instructions, so it would be

25

prudent to postpone and reset the Final Pretrial Conference to a later date.

26

16.

27

Pretrial Conference.

28

Similarly, the trial date should be postponed to a date after the Final

///
3
PARTIES’ STIPULATED MOTION TO MODIFY PRETRIAL SCHEDULING ORDER AND EXTEND LAW AND MOTION

1

WHEREFORE, the parties shall file Motions for Summary Judgment by

2

November 16, 2012, and the Final Pretrial Conference and the Trial are vacated pending

3

resolution of the law and motion(s).
Respectfully submitted,

4
5

Dated:

November 9, 2012

FISCHER LAW FIRM, P.C.

6
7

By: /s/ Ronnie Fischer
RONNIE FISCHER
Attorneys for Defendant/Counterclaimant

8
9

Dated:

November 9, 2012

DOWLING AARON INCORPORATED

10
11

By: /s/ Kenton J. Klassen
KENTON J. KLASSEN
Attorneys for Defendant/Counterclaimant

12
13

Dated:

November 9, 2012

MARTENSEN  WRIGHT, P.C.

14
15

By: /s/ Loren L. Lunsford
LOREN L. LUNSFORD
Attorneys for Plaintiff

16
17
18
19

IT IS SO ORDERED.
Dated: November 9, 2012

20
21
22
23
24
25
26
15602-001\01093184.DOC.

27
28
4
PARTIES’ STIPULATED MOTION TO MODIFY PRETRIAL SCHEDULING ORDER AND EXTEND LAW AND MOTION