Nationwide Agribusiness Insurance et al v. George Perry & Sons, Inc. et al

Filing 50

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 11/14/18 ORDERING that the stay currently in effect for this matter be lifted for the limited purpose of taking discovery from Gary Mattes in a manner consistent with the limits and guidelines set forth by the parties in the STIPULATION. (Mena-Sanchez, L)

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Fulton M. Smith III (SBN 121071)
Teri Mae Rutledge (SBN 261229)
COZEN O'CONNOR
101 Montgomery Street, Suite 1400
San Francisco, CA 94104
Tel: [phone]
Fax: [phone]
Email:
[e-mail]
[e-mail]
Attorneys for Plaintiffs
NATIONWIDE AGRIBUSINESS INSURANCE, and NATIONWIDE MUTUAL
INSURANCE COMPANY

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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12 NATIONWIDE AGRIBUSINESS
INSURANCE; and NATIONWIDE
13 MUTUAL INSURANCE COMPANY,
Plaintiffs,

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v.

16 GEORGE PERRY AND SONS, INC.;
and PAUL GOMES,
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Defendants.
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UNIGARD INSURANCE COMPANY
19 and ONEBEACON INSURANCE
COMPANY,
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Plaintiffs,
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v.
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GEORGE PERRY AND SONS, INC., a
23 California Corporation, GARY
MATTES, individually and dba GARY'S
24 APIARIES and DOES 1 through 20,
inclusive,
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Defendants.
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CASE NO.: 2:17-cv-01910-KJM-CKD
Assigned to: Honorable Kimberly J.
Mueller
STIPULATION AND ORDER TO
LIFT STAY TO TAKE LIMITED
DISCOVERY FROM GARY MATTES

CASE NO.: 2:18-cv-00188-KJM-CKD
Assigned to: Honorable Kimberly J.
Mueller

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LEGAL\39040524\2

STIPULATION AND ORDER TO LIFT STAY TO TAKE LIMITED DISCOVERY FROM GARY MATTES

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THE PARTIES

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Plaintiffs in the related, captioned insurance coverage actions are

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NATIONWIDE AGRIBUSINESS INSURANCE, and NATIONWIDE MUTUAL

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INSURANCE COMPANY (“Nationwide”) in Case No. 2:17-cv-01910-KJM-CKD

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and UNIGARD INSURANCE COMPANY and ONEBEACON INSURANCE

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COMPANY (collectively, “Unigard), in Case No. 2:18-cv-00188-KJM-CKD.

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GEORGE PERRY & SONS, INC. (“Perry”) is a Defendant in both cases, but

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GARY MATTES, individually, and doing business as GARY’S APIARIES, is a

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Defendant in only the Unigard action (Case No. 2:18-cv-00188-KJM-CKD).

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Nevertheless, these parties collectively enter into the following stipulation.

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PURPOSE OF STIPULATION

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Plaintiffs moved for summary judgment in their respective insurance coverage

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cases for a finding of no coverage for Perry arising from an underlying liability action:

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Gary Mattes, et al v. George Perry and Sons, Inc., San Joaquin County Superior Court

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case number STK-CV-UPI-2013-0012146 (“Mattes v. Perry”). Defendants opposed

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the motions. The Court presided over hearings on both motions, as well as over a

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hearing on Defendant Perry’s motions to stay each respective coverage action until

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resolution of the underlying Mattes v. Perry liability action.

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During hearings on the motions for summary judgment, the Court reached an

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agreement with the Plaintiffs that both coverage actions would be stayed pending

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rulings on the motions for summary judgment. The Court eventually denied Plaintiffs’

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motions for summary judgment, and asked all the parties to consider and respond with

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their respective positions on whether the stays as to each coverage action should

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continue. In response, the parties prepared a Joint Status Report, with the Plaintiffs

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setting forth their respective positions on why the stay should be lifted entirely, or, in

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the alternative, that the stay be modified so as to permit limited discovery from

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Defendants Perry and Mattes. Defendant Perry’s position opposed any lifting or

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modification of the stay. Mattes affirmatively took no position.
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STIPULATION AND ORDER TO LIFT STAY TO TAKE LIMITED DISCOVERY FROM GARY MATTES

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During the November 1, 2018 Status Conference, Plaintiffs and Defendant Perry

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responded to the Court’s preliminary findings and argued their respective positions.

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Defendant Mattes took no position. The Court indicated that there were bases to grant

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some, limited relief from the stay—primarily discovery that might be taken from

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Defendant Mattes due to concerns regarding his health. The Court asked the parties to

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attempt to reach agreement through stipulation that would permit the deposition of

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Gary Mattes on the limited grounds consistent with Plaintiffs’ requests in regard to

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facts surrounding Mattes’ activities evidencing any control he may have exercised over

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his bees and hives. That same day, the Court issued two, almost identical, Minute

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Orders directing that “within seven (7) days the parties shall file a stipulation and

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proposed order that provides for the taking of Mr. Mattes’ deposition, or if the parties

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are unable to reach an agreement, a motion to compel noticed before the Magistrate

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Judge.”

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Consistent with the Court’s respective minute orders, the Parties stipulate as
follows:

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STIPULATION
1.

Pursuant to FRCP Rule 30 Plaintiff Unigard shall serve a notice of the

deposition of Gary Mattes by November 13, 2018.
2.

The location of the deposition shall be at SHER EDLING LLP, 100

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Montgomery Street, Suite 1410, San Francisco, California [phone]; and will

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commence on December 13, 2018, but only after the parties in the underlying Mattes v.

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Perry matter complete their own deposition of Mr. Mattes. Upon that completion, the

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Plaintiffs in the instant, related coverage actions shall commence their deposition of Mr.

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Mattes, and are permitted to depose Mr. Mattes for 2.5 hours, excluding any redirect

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that Defendants in the instant, related coverage actions may offer. In order to preserve

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enough time, Plaintiffs in the instant, related coverage actions shall notice Mr. Mattes’

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deposition to continue or commence on December 14, and shall commence and continue

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at SHER EDLING LLP’s offices. This deposition of Mr. Mattes shall be before a
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STIPULATION AND ORDER TO LIFT STAY TO TAKE LIMITED DISCOVERY FROM GARY MATTES

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certified court reporter, and shall be taken by stenographic and audiovisual means.

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3.

All parties to this Stipulation shall be permitted to question Mr. Mattes

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pursuant to the above time limitations; but all parties’ questions shall be limited in

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scope. All questions must relate to Mr. Mattes’ exercise of possession, custody, and or

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control over his bees and their hives while Mattes’ bees pollinated Perry’s crops/fields

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from approximately 2009 through 2012.

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4.

At least ten calendar days prior to Mr. Mattes’ deposition, any party to this

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stipulation may serve a written request for production of documents relating to Mr.

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Mattes’ exercise of possession, custody, and or control over his bees and their hives

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while Mattes’ bees pollinated Perry’s crops/fields from approximately 2009 through

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2012.

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5.

Any document produced prior to and at the Mattes deposition pursuant to

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this stipulation shall be deemed inadmissible in the underlying Mattes liability action,

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unless said document is obtained by parties in the underlying Mattes liability action

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through valid procedural and discovery means in that underlying Mattes liability action.

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6.

Absent a court order from a court with competent jurisdiction to the

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contrary, Mr. Mattes’ deposition testimony and deposition transcript taken pursuant to

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this stipulation shall be inadmissible in the underlying Mattes liability case—including,

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but not limited to, trial of the underlying Mattes liability case, appeal and remand for

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further issues and or new trial.

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7.

Within fifteen (15) days after service of the deposition transcript (or notice

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thereto) to Mr. Mattes’ counsel, Mr. Mattes shall make all corrections thereto and sign

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the deposition. If, after said fifteen (15) days, Mr. Mattes has not made corrections and

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signed the deposition, the transcript shall be deemed final and correct pursuant to FRCP

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Rule 30(e).

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8.

Except for the limited discovery permitted in paragraphs 3 and 4 above, or

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to the extent any party obtains further relief from the stay, the Court’s stay shall remain

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in full force and effect pending full and final resolution of the underlying Mattes liability
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STIPULATION AND ORDER TO LIFT STAY TO TAKE LIMITED DISCOVERY FROM GARY MATTES

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actions against Perry.
IT IS SO STIPULATED.
Dated: November 9, 2018

COZEN O’CONNOR

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By: /s/ Fulton M. Smith III
Fulton M. Smith III
Attorneys for
NATIONWIDE AGRIBUSINESS
INSURANCE and NATIONWIDE
MUTUAL INSURANCE COMPANY

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Dated: November 9, 2018

SELVIN WRAITH HALMAN LLP

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By: /s/ Gary L. Selvin
Gary R. Selvin
Robin D. Korte
Attorneys for Plaintiffs
UNIGARD INSURANCE COMPANY and
ONEBEACON INSURANCE COMPANY

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Dated: November 9, 2018

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By: /s/ John C. McCarron
John C. McCarron
Attorneys for
GEORGE PERRY AND SONS, INC.

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DOWNEY BRAND LLP

Dated: November 9, 2018

SHER EDLING LLP

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By: /s/ Katie H. Jones
Katie H. Jones
Attorneys for
GARY MATTES dba GARY’S APIARIES

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STIPULATION AND ORDER TO LIFT STAY TO TAKE LIMITED DISCOVERY FROM GARY MATTES

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ORDER

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The parties having stipulated pursuant to the options set forth in the Court’s

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November 1, 2018 Minute Oder (EFC 48), and GOOD CAUSE being demonstrated,

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the Court hereby orders that the stay currently in effect for this matter be lifted for the

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limited purpose of taking discovery from Gary Mattes in a manner consistent with the

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limits and guidelines set forth by the parties in the STIPULATION.

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IT IS SO ORDERED
DATE: November 14, 2018.

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UNITED STATES DISTRICT JUDGE

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LEGAL\39040524\2

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STIPULATION AND ORDER TO LIFT STAY TO TAKE LIMITED DISCOVERY FROM GARY MATTES