Maximus, Inc. v. Nimbus Data Systems, Inc.

Filing 11

STIPULATION and ORDER signed by Judge John A. Mendez on 5/20/15. IT IS HEREBY ORDERED that the 8 Status (Pretrial Scheduling) Order is AMENDED as follows: Designation of Expert Witnesses due by 8/7/2015; Supplemental/Rebuttal Expert Disclosures d ue 8/14/15, Discovery due by 10/13/2015, Dispositive Motions filed by 11/18/2015; Disposition Motion Hearing set for 12/16/2015 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez; Joint pretrial statement due 1/8/16; Final Pretrial Conference set for 1/15/2016 at 10:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez, Trial set for 2/29/2016 at 09:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Meuleman, A)

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Jeremy Meier – SBN 139849
Anthony J. Cortez – SBN 251743
GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100
Sacramento, CA 95814-3938
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff
And Counter Defendant
MAXIMUS, Inc.

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MAXIMUS, INC., a Virginia corporation,
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) CASE NO. 2:14-cv-00841-JAM-KJN
)
Plaintiff,
) STIPULATION AND ORDER TO AMEND THE
) STATUS (PRE-TRIAL SCHEDULING) ORDER
v.
)
)
NIMBUS DATA SYSTEMS, INC., a Delaware )
corporation, and DOES 1 - 50,
)
)
Defendant.
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AND RELATED COUNTERCLAIM.
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)

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Case No. 2:14-cv-00841-JAM-KJN
STIPULATION AND [PROPOSED] ORDER TO AMEND THE PRETRIAL SCHEDULING ORDER

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IT IS HEREBY STIPULATED by and between Plaintiff and Counter Defendant, MAXIMUS,

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INC. (“MAXIMUS”) and Defendant and Counter Claimant NIMBUS DATA SYSTEMS, INC.

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(“Nimbus”) (collectively the “Parties”), through their respective counsel, that the August 6, 2014 Status

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(Pre-trial Scheduling) Order be amended to change the current trial date and related deadlines.

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I.

On August 6, 2014, the Court entered a Status (Pre-trial Scheduling) Order setting the following

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PROCEDURAL HISTORY

deadlines:

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Expert Witness Disclosures: April 10, 2015

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Supplemental/Rebuttal Expert Disclosures: April 17, 2015

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Discovery Cutoff: June 15, 2015

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Dispositive Motion Deadline: July 22, 2015

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Final Pre-Trial Conference: September 25, 2015 at 10:00 a.m.

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Trial: November 2, 2015 at 9:00 a.m.

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ECF No. 8.

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On or about September 19, 2014, MAXIMUS propounded a first set of discovery requests on

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Nimbus and served key deposition notices. On or about October 30, 2014, Nimbus served its responses

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and objections to MAXIMUS’s discovery requests. Over approximately the next six months the Parties

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engaged in extensive meet and confer efforts regarding Nimbus’s discovery responses. The Parties have

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also been meeting and conferring in an attempt to schedule Nimbus’s Person Most Knowledgeable

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deposition as well as the deposition of a key Nimbus employee. The discussions are still ongoing.

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II.

LEGAL STANDARD

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Following the Court entering a Status (Pre-trial Scheduling) Order, Federal Rule of Civil

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Procedure 16 provides that a pretrial schedule “may be modified only for good cause and with the judge’s

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consent.” Fed. R. Civ. P. 16(b)(4). The Parties must demonstrate that they acted with diligence in

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complying with the scheduling order’s deadlines and in seeking leave to amend. Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). “Good cause” exists when a deadline “cannot

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reasonably be met despite the diligence of the party seeking the extension.” Johnson, 975 F.2d at 609

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(citation omitted). Thus, “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the
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Case No. Case No. 2:14-cv-00841-JAM-KJN
STIPULATION AND [PROPOSED] ORDER TO AMEND THE PRETRIAL SCHEDULING ORDER

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party seeking the amendment.” Id.; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.

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2000).

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III.

DISCUSSION

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The Parties stipulate that good cause exists to amend the scheduling order because, despite due

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diligence and good faith efforts, certain key witnesses have been unavailable for depositions and there

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has been extensive meet and confer needed before the parties could complete written and oral discovery

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(past the June 15, 2015 cutoff).

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When the Joint Status Report, ECF No. 7, was developed the Parties were unaware of the

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significant amount of time that would be spent in meeting and conferring in the initial stages of the

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discovery process and scheduling key depositions. This initial meet and confer process extended over a

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period of approximately six months. As a result of the time expended on meeting and conferring, the

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usual and customary pace of litigation was suspended and critical discovery has not been undertaken by

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either Party. Despite their diligence, the Parties have not been able to complete meaningful discovery

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efforts and will be prejudiced if they are not afforded adequate time to propound all the necessary

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discovery, take depositions of relevant witnesses and consult with the expert witnesses that will be

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required to properly litigate this case. The Parties were also unaware of scheduling conflicts that would

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arise.

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As soon as it became apparent that the time remaining for conducting discovery was not going to

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be adequate because of the time expended on initial discovery and deposition scheduling, the Parties met

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and conferred and agreed that a continuance of the trial date would be necessary to accommodate further

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discovery. The Parties are making this request in a reasonable amount of time in advance of the current

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trial date so as to give the Court adequate notice with regard to the management of its docket. Also, this

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is the first such continuance that the Parties have requested or received, and neither Party will be

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prejudiced by a continuance.

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Case No. Case No. 2:14-cv-00841-JAM-KJN
STIPULATION AND [PROPOSED] ORDER TO AMEND THE PRETRIAL SCHEDULING ORDER

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Accordingly, the Parties hereby stipulate to continue the trial date from November 2, 2015 to

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February 29, 2016, or to such a date thereafter that is convenient for the Court, and that would not

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include a trial date or any day of trial occurring between March 28–April 8, 2016. The Parties propose

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the following amended schedule:

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Expert Witness Disclosures: August 7, 2015

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Supplemental/Rebuttal Expert Disclosures: August 14, 2015

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Discovery Cutoff: October 13, 2015

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Dispositive Motion Deadline: November 18, 2015

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Final Pre-Trial Conference: January 15, 2016 at 10:00 a.m.
Trial: February 29, 2016 at 9:00 a.m.

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IV.

CONCLUSION
Based on the foregoing, the Parties respectfully request that the Court issue an Order amending

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the Status (Pre-trial Scheduling) Order.

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IT IS SO STIPULATED.
Respectfully submitted,

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DATED: May 20, 2015

GREENBERG TRAURIG, LLP

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By /s/ Anthony J. Cortez
Jeremy A. Meier
Anthony J. Cortez
Attorneys for Plaintiff and Counter Defendant
MAXIMUS, Inc.

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DATED: May 20, 2015

SEUBERT FRENCH FRIMEL & WARNER LLP

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Case No. Case No. 2:14-cv-00841-JAM-KJN
STIPULATION AND [PROPOSED] ORDER TO AMEND THE PRETRIAL SCHEDULING ORDER

By /s/ William J. Frimel (as authorized on May 20, 2015)
William J. Frimel
Attorneys for Defendant and Counter Claimant
Nimbus Data Systems, Inc.

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ORDER (AS MODIFIED BY THE COURT)*
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Pursuant to the stipulation of the Parties herein and for good cause shown, it is hereby ordered
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that the Status (Pre-trial Scheduling) Order is amended as follows:
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Expert Witness Disclosures: August 7, 2015
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Supplemental/Rebuttal Expert Disclosures: August 14, 2015
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Discovery Cutoff: October 13, 2015
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Dispositive Motion: November 18, 2015
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Dispositive motion hearing: December 16, 2015 at 9:30 a.m.*
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Joint pretrial statement due: January 8, 2016*
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Final Pre-Trial Conference: January 15, 2016 at 10:00 a.m.
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Trial: February 29, 2016 at 9:00 a.m.
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IT IS SO ORDERED.
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Dated: 5/20/2015
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/s/ John A. Mendez____________
Hon. Judge John A. Mendez
United States District Court Judge

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Case No. Case No. 2:14-cv-00841-JAM-KJN
STIPULATION AND [PROPOSED] ORDER TO AMEND THE PRETRIAL SCHEDULING ORDER