Kozacenko v. State of California

Filing 84

STIPULATION AND ORDER signed by Chief Judge Morrison C. England, Jr. on 3/25/2015 MODIFYING the 62 Amended Pretrial Scheduling Order; STAYING this action pending mediation; ORDERING that a Status Conference be set for approximately two weeks after the mediation date of 7/13/2015; STAYING all formal discovery, except for the previously ordered physical and mental examinations of the plaintiff by Dr. McNiel, Dr. Keram, and Dr. Atkin; VACATING the relevant cut-off, to be reset at the post-mediati on Status Conference; ORDERING that any requests for reconsideration and/or objections to the 81 Order on Motions to Compel be filed by 7/31/2015; VACATING the cut-off dates for non-expert discovery and expert witness disclosure, to be reset at the post-mediation Status Conference, if necessary; CONFIRMING that the Jury Trial remain set for 2/8/2016 at 09:00 AM in Courtroom 7 (MCE before Chief Judge Morrison C. England, Jr. (Michel, G.)

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KAMALA D. HARRIS, State Bar No. 146672
Attorney General of California
ALBERTO L. GONZÁLEZ, State Bar No. 117605
Supervising Deputy Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants California Highway Patrol Officer Andrew Murrill and California
Highway Patrol Officer J. Sherman California Highway Patrol Sergeant Kevin Pierce;
California Highway Patrol Lieutenant John Arrabit; California Patrol Assistant Chief
Kenneth Hill; and California Highway Patrol Commander Chief Stephen Lerwill
GALLO LLP
RAY E. GALLO, State Bar #158903
[e-mail]
DOMINIC R. VALERIAN, State Bar #240001
[e-mail]
1299 Fourth Street
Suite 505
San Rafael, CA 94901
Telephone: [phone]
Fax: [phone]
Attorney for Plaintiffs

LAW OFFICE OF DAVID W.
WIECHERT
DAVID W. WIECHERT, State Bar #94607
[e-mail]
JESSICA C. MUNK, State Bar #238832
[e-mail]
115 Avenida Miramar
San Clemente, CA 92672
Telephone: [phone]
Fax: [phone]
Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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OLEGS KOZACENKO,

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v.

2:12-CV-2196 MCE DAD
Plaintiff, STIPULATION AND ORDER
MODIFYING PRETRIAL SCHEDULING
ORDER AND REQUEST FOR STAY
PENDING MEDIATION

California Highway Patrol Officer
ANDREW P. MURRILL (Badge #19671);
California Highway Patrol Officer J.
SHERMAN (Badge #11614); California
Highway Patrol Sergeant KEVIN PIERCE;
California Highway Patrol Lieutenant
JOHN ARRABIT; California Patrol
Assistant Chief KENNETH HILL; and
California Highway Patrol Commander
Chief STEPHEN LERWILL,

Hon. Morrison C. England, Jr.

Defendants.

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Stipulation and Order Modifying Pretrial Scheduling Order
(2:12-CV-2196 MCE DAD)

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THE PARTIES, by and through their respective attorneys of record, and having agreed to

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and scheduled a mediation in this matter, hereby stipulate to and respectfully ask that the Court

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modify its Amended Pretrial Scheduling Order of November 18, 2014, and stay the case pending

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mediation, as follows:

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•

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That the Court set a status conference for approximately two weeks after the mediation,
set for July 13, 2015, as suits the Court’s calendar.

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•

That formal discovery, except for the previously ordered physical and mental

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examinations of plaintiff by Drs. McNiel, Keram, and Atkin, be stayed and the relevant

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cut-off vacated, to be reset at the post-mediation status conference, if necessary, but

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without prohibiting to such voluntary discovery as the parties may wish to conduct and

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provide.

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•

That pursuant to Local Rule 303(b), the parties respectfully request that any requests for

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reconsideration and/or objections to the rulings on the motions to compel issued by the

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Hon. Drozd on March 16, 2015 (Doc. No. 81) be extended for filing to July 31, 2015.

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•

That the non-expert discovery cut-off currently set for May 8, 2015, be vacated pending

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the post-mediation status conference, to be reset at the post-mediation status conference, if

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necessary.

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•

That the expert witness disclosure cutoff currently set for June 8, 2015, be vacated

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pending the post-mediation status conference, to be reset at the post-mediation status

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conference, if necessary.

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The remainder of the current schedule is consistent with the requested amendments. Trial
is set for February 8, 2016.

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ARGUMENT
A.

LEGAL STANDARD.
“A schedule may be modified only for good cause and with the judge's consent.” Fed. R.

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Civ. P. 16(b). A formal motion is not necessary. Adv. Comm. Notes to 1983 Amendment to Fed.

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R. Civ. P. 16(b). Good cause requires a showing of due diligence. Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). A lesser showing of good cause is sufficient
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Stipulation and Order Modifying Pretrial Scheduling Order
(2:12-CV-2196 MCE DAD)

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to modify the initial scheduling order entered early in the action than the showing required for a

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final pretrial conference order. Notes of Advisory Committee on Rule 16, 97 F.R.D. 165, 208.

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B.

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GOOD CAUSE EXISTS TO MODIFY THE SCHEDULING ORDER TO ALLOW FOR
MEDIATION AND POTENTIAL RESOLUTION

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The parties seek these modifications because, with the participation of plaintiff’s new

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counsel, they have determined that there is an opportunity to settle the case. There have been no

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meaningful settlement discussions to date. Significant discovery has been conducted, including

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the depositions of the officers directly involved in the incident, of the plaintiff, and of the

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supervising officers at CHP. Absent resolution additional discovery will be necessary, including

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requesting leave to lift the ten deposition cap so that plaintiff can depose the numerous additional

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percipient witnesses to the incident and its aftermath. The parties have agreed to mediate, upon a

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mediator, and upon a mediation date. The mediation is set for July 13, 2015, because the parties

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and mediator are available and because a date after July 1, 2015, begins the California Highway

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Patrol’s fiscal year and provides the best opportunity for a settlement of this case.

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Moreover, the parties are about to incur substantial additional costs of concluding discovery

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in this case, and of engaging and preparing experts for deposition and trial. The parties believe

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that avoiding those costs until after mediation increases the chances of a settlement.

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Notably, the proposed changes to the schedule leave the trial date and non-discovery pre-

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trial dates intact.

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Stipulation and Order Modifying Pretrial Scheduling Order
(2:12-CV-2196 MCE DAD)

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IT IS SO STIPULATED.

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Dated: March 24, 2015

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/s/ Alberto L. González
ALBERTO L. GONZÁLEZ
Supervising Deputy Attorney General
Attorneys for Defendants California Highway Patrol
Officer Andrew Murrill; California Highway Patrol
Officer J. Sherman; California Highway Patrol
Sergeant Kevin Pierce; California Highway Patrol
Lieutenant John Arrabit; California Patrol Assistant
Chief Kenneth Hill; and California Highway Patrol
Commander Chief Stephen Lerwill

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KAMALA D. HARRIS
Attorney General of California

Dated: March 24, 2015

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GALLO LLP
By:

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/s/ Ray E. Gallo
RAY E. GALLO
Attorney for Plaintiffs

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Dated: March 24, 2015

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LAW OFFICES OF DAVID W. WIECHERT
By:

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/s/ David W. Wiechert
DAVID W. WIECHERT
Attorney for Plaintiffs

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ORDER
IT IS SO ORDERED.
Dated: March 25, 2015

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Stipulation and Order Modifying Pretrial Scheduling Order
(2:12-CV-2196 MCE DAD)