Duarte Nursery Inc. et al v. United States Army Corps of Engineers et al

Filing 188

STIPULATION AND ORDER signed by District Judge Kimberly J. Mueller on 5/3/2016 ORDERING the parties to file their Joint Pretrial Conference Statement by 6/10/2016; CONTINUING the Final Pretrial Conference to 6/30/2016 at 02:30 PM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller; CONFIRMING the Bench Trial set for 7/25/2016. (Michel, G.)

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JOHN C. CRUDEN
Assistant Attorney General
ANDREW J. DOYLE (FL Bar No. 84948)
JOHN THOMAS H. DO (CA Bar No. 285075)
SAMARA M. SPENCE (TN Bar No. 031484)
United States Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, DC 20044 / [phone] or 514-2593
Attorneys for Defendants and Counterclaim-Plaintiff
M. REED HOPPER (CA Bar No. 131291)
ANTHONY L. FRANÇOIS (CA Bar No. 184100)
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814 / [phone]
Attorneys for Plaintiffs and Counterclaim-Defendants

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(See infra for additional counsel of record.)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
No. 2:13−cv−02095−KJM−AC
DUARTE NURSERY, INC., a California
Corporation; et al.,
Plaintiffs,

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v.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,

STIPULATION AND ORDER
TO RESCHEDULE THE FINAL PRETRIAL
CONFERENCE AND DUE DATE FOR THE
JOINT PRETRIAL CONFERENCE
STATEMENT

Defendants.
__________________________________
UNITED STATES OF AMERICA,
Counterclaim- Plaintiff,

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v.

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DUARTE NURSERY, INC., a California
Corporation; et al.,

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Counterclaim- Defendants.

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Stipulated and Order to Reschedule Pretrial Conference
and Statement

No. 2:13-CV-02095-KJM-AC

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The parties to this action -- i.e., Plaintiffs and Counterclaim-Defendants Duarte Nursery,

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Inc. and John Duarte (collectively, “Duarte”) and Defendants United States Army Corps of

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Engineers, United States of America, and Counterclaim-Plaintiff United States of America

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(collectively, “United States”) -- hereby stipulate and jointly move to reschedule the final pretrial

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conference from May 18, 2016, as set forth in the Court’s Minute Order of April 5, 2016 (ECF

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No. 184), to June 30, 2016, at 2:30 p.m., and the due date for the joint pretrial statement from

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May 11, 2016, as set forth in the Court’s Order of April 15, 2016 (ECF No. 186), to June 10,

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2016. In support of this stipulation and proposed Order the parties state as follows:

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1.

On November 20, 2015, the Court heard oral argument on six dispositive or

partially dispositive motions that the parties had filed on October 23, 2015 (“pending motions”).
2.

At that time, the Court’s original scheduling Orders had required the parties to file

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their joint pretrial statement by January 28, 2016; scheduled the final pretrial conference for

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February 18, 2016; and scheduled a bench trial to commence on March 28, 2016.

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3.

On January 26, 2016 (ECF No. 177), the Court resolved the parties’ disagreement

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about maintaining the foregoing events as originally scheduled, concluding that in light of the

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pending motions, “for which orders will issue in the reasonably foreseeable future,” the events

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should be rescheduled.

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4.

Under the Court’s existing scheduling Orders, the joint pretrial statement is due

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by May 11, 2016; the final pretrial conference is scheduled for May 18, 2016; and a bench trial is

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scheduled to commence on July 25, 2016.

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5.

Given that the motions remain pending, the parties stipulate and move the Court

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to change the deadline for the joint pretrial statement to June 10, 2016, and to reschedule the

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final pretrial conference to June 30, 2016.

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6.

The parties acknowledge the Court’s general practice of conducting the final

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pretrial conference at least a month before trial. However, at this time the only other available

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date on the Court’s calendar appear to be May 26, June 3, June 9, and June 17. The parties are

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unavailable on June 17 due to conflicts on the part of (at least) lead counsel for each side. The

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earlier dates, the parties believe, may not allow sufficient time for rulings on the pending

Stipulated and Order to Reschedule Pretrial Conference
and Statement

No. 2:13-CV-02095-KJM-AC
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motions and for the parties to draft their joint pretrial statement in light of those rulings.

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Although the parties’ requested date for the final pretrial conference (June 30) is less than a full

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month from trial (July 25), the parties believe that a minimal departure from the Court’s general

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practice is warranted given that the Court, having considered the extensive record in conjunction

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with the pending motions, is very familiar with the issues in the case.

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7.

At this time and in light of the Court’s statements in its Order of January 26, 2016

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regarding rulings on the pending motions, the parties urge the Court not to alter the schedule

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associated with the bench trial; that is, the parties request that any bench trial commence on July

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25, 2016 -- as set forth in the Court’s March 25, 2016, Minute Order (ECF No. 183). The parties

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have each retained expert witnesses; their collective availability for trial is limited; and the

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parties previously and extensively conferred about the window of time for trial.

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8.

Wherefore, based on the above, and for good cause shown, the parties stipulate

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and request that the Court reschedule the final pretrial conference from May 18, 2016, to June

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30, 2016, at 2:30 p.m., and the due date for the joint pretrial statement from May 11, 2016, to

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June 10, 2016, and to so order.

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Respectfully submitted and stipulated:

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JOHN C. CRUDEN
Assistant Attorney General

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Dated: April 28, 2016

/s/ Andrew J. Doyle
ANDREW J. DOYLE (FL Bar No.84948)
JOHN THOMAS H. DO (CA Bar No. 285075)
SAMARA M. SPENCE (TN Bar No. 031484)
Trial Attorneys
United States Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
[phone] (p) (Doyle)
[phone] (p) (Do)
[phone] (p) (Spence)
[phone] (f)
[e-mail]
[e-mail]

Stipulated and Order to Reschedule Pretrial Conference
and Statement

No. 2:13-CV-02095-KJM-AC
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BENJAMIN B. WAGNER
United States Attorney
GREGORY T. BRODERICK (CA Bar No. 220871)
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
[phone] (p)
[phone] (f)
[e-mail]

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Attorneys for Defendants and CounterclaimPlaintiff

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Dated: April 28, 2016

_/s/ Anthony L. François___
M. REED HOPPER (CA Bar No. 131291)
ANTHONY L. FRANÇOIS (CA Bar No. 184100)
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
[phone] (p)
[phone] (f)
[e-mail]
[e-mail]
DAVID M. IVESTER (CA Bar No. 76863)
PETER PROWS (CA Bar No. 257819)
Briscoe Ivester & Bazel LLP
155 Sansome Street, Seventh Floor
San Francisco, CA 94104
[phone] (p)
[phone] (f)
[e-mail]
[e-mail]
GERALD E. BRUNN (CA Bar No. 107004)
Law Offices of Brunn & Flynn
928 12th Street, Suite 200
Modesto, CA 95354
[phone] (p)
[phone] (f)
[e-mail]
Attorneys for Plaintiffs and CounterclaimDefendants

Stipulated and Order to Reschedule Pretrial Conference
and Statement

No. 2:13-CV-02095-KJM-AC
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
No. 2:13−cv−02095−KJM−AC
DUARTE NURSERY, INC., a California
Corporation; and JOHN DUARTE, an
individual,

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Plaintiffs,

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v.

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ORDER

UNITED STATES ARMY CORPS OF
ENGINEERS and UNITED STATES OF
AMERICA

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Defendants.
__________________________________
UNITED STATES OF AMERICA,
Counterclaim- Plaintiff,

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v.

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DUARTE NURSERY, INC., a California
Corporation; and JOHN DUARTE, an
individual,

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Counterclaim- Defendants.

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Good cause appearing, and in light of the pending motions, IT IS HEREBY ORDERED:

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The Joint Pretrial Conference Statement is now due June 10, 2016.

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The Final Pretrial Conference is now set for June 30, 2016, at 2:30 p.m.
A bench trial, currently scheduled to commence on July 25, 2016, remains on calendar as
set forth in the Court’s Minute Order of March 25, 2016 (ECF No. 183).
DATED: May 3, 2016

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UNITED STATES DISTRICT JUDGE

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Stipulated and Order to Reschedule Pretrial Conference
and Statement

No. 2:13-CV-02095-KJM-AC
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