City of Lincoln v. County of Placer

Filing 64

STIPULATION and ORDER signed by Chief District Judge Kimberly J. Mueller on 09/28/2022 MODIFYING the SIXTH Amended Pretrial Scheduling Order as follows: All Expert Discovery to be completed by 10/28/2022; Dispositive Motions to be heard by 02/17/2023. (Rodriguez, E)

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OFFICE OF THE PLACER COUNTY COUNSEL
GREGORY S. WARNER (SBN 282490)
ERIC C. BRUMFIELD (SBN 306642)
175 Fulweiler Avenue
Auburn, California 95603
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
JENNIFER HARTMAN KING (SBN 211313)
ALANNA LUNGREN (SBN 269668)
J. R. PARKER (SBN 320526)
ANDREYA WOO NAZAL (SBN 327651)
HARTMAN KING PC
520 Capitol Mall, Suite 750
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant and Counterclaimant
COUNTY OF PLACER

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CITY OF LINCOLN,

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Plaintiff,

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v.
COUNTY OF PLACER; and DOES 1
through 100, inclusive,

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Defendants.
_______________________________________

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AND RELATED COUNTER CLAIMS.

Case No.: 2:18-CV-00087-KJM-AC
JOINT STIPULATION AND
ORDER REGARDING
MODIFICATION OF THE SIXTH
AMENDED PRETRIAL SCHEDULING
ORDER

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00055367.1

JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

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The parties to this action, Plaintiff/Counter-Defendant City of Lincoln (“City”) and

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Defendant/Counterclaimant County of Placer (“County”) (hereinafter collectively, “Parties”), have met

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and conferred and hereby jointly and respectfully request that the Court modify the Sixth Amended

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Pretrial Scheduling Order (Dkt. 45) to allow an extension of the expert witness discovery deadline of

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October 14, 2022, by fourteen (14) days to October 28, 2022. The parties also jointly request an

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extension of the December 9, 2022 dispositive motion hearing deadline, by seventy (70) days to

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February 17, 2023. The parties also agree to a stay on filing any dispositive motions until after January

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1, 2023.

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The Parties jointly submit the following summary of previous modifications to the deadlines in
the scheduling orders and a statement of good cause in support of their instant request.

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PREVIOUS MODIFICATIONS TO THE PRETRIAL SCHEDULING ORDER
A.

First Amended Pretrial Scheduling Order

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In November 2019, the Parties requested and received an Order (Dkt. 17, 18) extending the

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deadline for fact discovery in this matter from December 16, 2019, to March 9, 2020. The Parties

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provided the following reasons for that initial 12-week extension of the fact discovery deadline:

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1.

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To allow the City to complete its review and voluntary production to the County of select
documents from the voluminous County Archive documents;

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2.

To allow the City to complete its sixth voluntary production (consisting of approximately

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1,600 pages that the City copied from County archives, and approximately 3,500 pages

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of additional supplemental information that City’s counsel obtained from publicly

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available locations);

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3.

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To allow the Parties to determine whether there are additional percipient witnesses, locate
those witnesses and interview them, with the goal of taking depositions;

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4.

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To allow the Parties to conduct any further written discovery arising from their review of
the County Archive documents;

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STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL SCHEDULING
ORDER

5.

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To allow the Parties to have a full opportunity to meet and confer, narrow the scope of

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their Rule 30(b)(6) deposition notices, and hopefully ease the burden on their respective

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public entity employees/representatives; and
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To possibly aid in the mediation and settlement process, by further eliminating factual

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disputes related to the Parties’ alleged contribution to conditions at the Landfill and their

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respective liability, if any, therefore.

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B.

Second Amended Pretrial Scheduling Order

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In February 2020, the Parties requested and received an Order (Dkt. 20, 21) continuing the

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deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions

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in this matter by six (6) months. The Parties provided the following reasons for a six-month continuance

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of deadlines:
1.

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discovery in a timely manner;

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2.

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To allow the Parties to continue their search for potential witnesses with relevant
knowledge of events that took place over 60 years ago;

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3.

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To allow the County’s recently retained outside environmental counsel adequate time to
review the voluminous production of documents;

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4.

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To allow the Parties adequate time to prepare their Federal Rule of Civil Procedure
30(b)(6) witnesses for their respective depositions; and

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5.

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To allow the Parties to explore settlement discussions after completing the discovery
process.

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To allow the Parties to continue their meet and confer efforts and complete fact and expert

C.

Third Amended Pretrial Scheduling Order

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In August 2020, the Parties requested and received an Order (Dkt. 22, 23) continuing the

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deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions

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in this matter by eight (8) months. The Parties provided the following reasons for an eight-month

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continuance of deadlines:

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1.

Challenges that were unforeseen in February 2020, resulting from the COVID-19
pandemic that impacted this country beginning in March, including difficulties in

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00055367.1

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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

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scheduling and preparing government employees for deposition, as they were required

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to work remotely, and difficulties in taking such depositions remotely, in light of the

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document-intensive nature of said depositions;
2.

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To allow the Parties to continue their meet and confer efforts to finalize various discovery

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and evidentiary authentication agreements, with the goal of streamlining evidentiary

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presentations at trial;
3.

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D.

To allow the Parties to explore settlement discussions after completing discovery.

Fourth Amended Pretrial Scheduling Order

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In March 2021, the Parties requested and received an Order (Dkt. 27, 28) continuing the

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deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions

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in this matter by six (6) months. The Parties provided the following reasons for a six-month continuance

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of deadlines:
1.

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To allow the Parties to continue their meet and confer efforts to finalize various

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discovery and evidentiary authentication agreements, with the goal of streamlining

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evidentiary presentations at trial;
2.

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Challenges resulting from the continued COVID-19 pandemic that impacted this

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country beginning in March 2020, including difficulties in scheduling and preparing

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government employees for deposition, as they were required to work remotely, and

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difficulties in taking such depositions remotely, in light of the document-intensive nature

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of said depositions;
3.

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E.

To allow the Parties to explore settlement discussions after completing discovery.

Fifth Amended Pretrial Scheduling Order

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In August 2021, the Parties requested and received an Order (Dkt. 31, 32) continuing the

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deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions

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in this matter by ninety (90) days. The Parties provided the following reasons for a ninety-day

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continuance of deadlines:

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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

1.

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To allow the Parties to diligently identify and review the voluminous supplemental

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production of relevant documents; identify and prepare fact witnesses for deposition; and

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finalize discovery and evidentiary agreements.
2.

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Fed. R. Civ. Proc. Rule 30(b)(6) depositions.

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3.

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To allow the Parties to meet and confer regarding the scope and timing of their respective

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To allow the Parties to explore settlement discussions after completing discovery.

Sixth Amended Pretrial Scheduling Order

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In March 2022, the Parties requested and received an Order (Dkt. 45) continuing the deadlines

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for designation of expert witnesses by ninety (90) days to June 7, 2022, and an extension of the deadline

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to exchange rebuttal lists of expert witnesses was extended by seventy-seven (77) days to August 22,

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2022. The deadline to conclude expert discovery was extended by thirty-eight (38) days to October 14,

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2022. Our dispositive motion deadline remained December 9, 2022. The Parties provided the following

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reasons for the requested continuance:

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1.

The County’s lead expert was at the hospital with his immediate family member, who

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had been involved in a serious accident. The County was informed that this situation

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would impact his availability for all of the expert’s matters for an indeterminate amount

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of time.

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Now, the Parties seek the Court’s approval to extend the completion of expert discovery and

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dispositive motion hearing deadlines, based upon the unavailability of the County’s lead expert and one

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of the City’s experts for deposition before the current expert discovery deadline expires. An extension

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of the deadlines for expert discovery and dispositive motion related deadlines is required and

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respectfully requested, for the reasons set forth below.

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STATEMENT OF GOOD CAUSE FOR MODIFYING THE EXISTING EXPERT
DISCOVERY AND DISPOSITIVE MOTION DEADLINES

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The Parties jointly submit the following statement of good cause in support of their stipulation

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and request a fourteen (14) day extension for completion of expert discovery; a seventy (70) day

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extension for the dispositive motion hearing deadline; and a stay until after January 1, 2023, for the

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parties to file any dispositive motions.
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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

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A district court has “broad discretion in supervising the pretrial phase of litigation.” C.F. v.

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Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). A scheduling order may be modified

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“for good cause and with the judge’s consent.” Fed. R. Civ. Proc. 16(b)(4); Johnson v. Mammoth

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Recreations, 975 F.2d 604, 608 (9th Cir. 1992); see also, Dkt. 16, 6:22-26. The key factors considered

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in determining good cause are whether the party moving for modification was diligent in trying to

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complete discovery in a timely manner, and the party’s reasons for seeking modification. Johnson,

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supra, 975 F.2d at 609; C.F., supra, 654 F.3d at 984; Tapias v. Mallet & Co., 2017 U.S. Dist. LEXIS

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144406, at *1-2 (N.D. Cal. Sep. 6, 2017). The district court may modify the pretrial schedule “if it

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cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, supra, 975

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F.2d at 609; Tapia, supra, 2017 U.S. Dist. LEXIS 144406, at *1.
Generally, courts use a three-step inquiry in assessing diligence for determining good cause

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under Rule 16:

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[T]o demonstrate diligence under Rule 16’s “good cause” standard, the movant may be
required to show the following: (1) that she was diligent in assisting the Court in creating
a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred
or will occur, notwithstanding her diligent efforts to comply, because of the development
of matters which could not have been reasonably foreseen or anticipated at the time of
the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment
of the Rule 16 order, once it became apparent that she could not comply with the order.

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Grant v. United States, 2011 U.S. Dist. LEXIS 131662, at *14 (E.D. Cal. Nov. 14, 2011) (citing Jackson

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v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)).

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A.

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The Parties’ Efforts to Prepare a Workable Rule 16 Order

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The Parties were diligent in assisting the Court in creating a Rule 16 Order. As mentioned in the

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prior Stipulation and Orders, the Parties met and conferred, and filed their “Joint Report of Parties’

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Planning Meeting” on May 16, 2018 (Dkt. 12). From the outset, the Parties recognized that this action

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would be complex, both factually and legally. The City alleges that waste disposal activities occurred

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over sixty years ago, from the late 1940s to 1976. The City’s asserted contaminant response activities

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have spanned several decades since the closure of the Landfill, and the City alleges those are ongoing

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today.

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Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), legislation

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which has been aptly called an inherently “complex statute with a maze-like structure and baffling

The

00055367.1

Parties

brought

claims

against

one

another

under,

inter

alia,

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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

the

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language.” ASARCO, LLC v. Celanese Chemical Co., 792 F.3d 1203, 1208 (9th Cir. 2015) (citing

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California ex. rel. Cal. Dep’t. of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 663 (9th

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Cir. 2004)) (internal quotations omitted). Recognizing that this case involved a complex environmental

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statute, six decades of documentation and potentially numerous witnesses, the Parties requested

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approximately a year-and-a-half to complete fact discovery. See Dkt. 16, p. 14.

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The Pretrial Scheduling Order was reasonably calculated to address the complexities of this case,

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and it was created with the active participation of the Parties. However, as discussed below, the

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unavailability of the City and County’s expert witnesses is the reason for this request.

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B.

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Unavailability of City’s and County's Expert Witnesses for Depositions before Current
Expert Witness Discovery Deadline Expires

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The parties believe it is reasonable and necessary to extend the expert discovery deadline to

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accommodate their respective expert witnesses’ unavailability. The City’s expert is not available for

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deposition due to travel plans during the months of September and October and is not expected to be

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available for deposition until mid-October, after the current expert discovery cutoff. The County’s expert

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is unavailable for deposition prior to the current expert discovery deadline due to the scheduling of two

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trials. Both the City’s expert and the County’s expert referenced above, are available for deposition after

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the current expert discovery cutoff and the parties are conferring regarding mutually agreeable

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deposition dates for the respective experts’ depositions that will allow the parties to complete all expert

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depositions by October 28, 2022, should the Court grant the parties’ extension request.

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Based on the parties’ respective experts’ scheduling conflicts and the impact on the expert

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discovery and dispositive motion hearing deadlines, the parties have agreed to seek extensions of the

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expert discovery and dispositive motion deadlines. The parties have also agreed to a stay on filing any

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dispositive motions until after January 1, 2023.

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PROPOSED MODIFICATIONS TO THE SIXTH AMENDED PRETRIAL SCHEDULING
ORDER

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The Parties propose the following sections of the Amended Pretrial Scheduling Order (Dkt. 18)

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as amended by the Sixth Amended Pretrial Scheduling Order (Dkt. 45) be amended as follows:

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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

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Section V.

DISCLOSURE OF EXPERT WITNESSES

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All expert discovery shall be completed by October 28, 2022.

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Section VI.

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All dispositive motions, except motions for continuances, temporary restraining orders or other

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emergency applications, shall be heard no later than February 17, 2023, as ordered in the Sixth

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Amended Pretrial Scheduling Order (Dkt. 45). Dispositive motions shall not be filed by the parties until

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after January 1, 2023.

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Dated: September 15, 2022

MOTION HEARING SCHEDULE

HARTMAN KING PC

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By: /s/ Jennifer Hartman King
JENNIFER HARTMAN KING
ALANNA LUNGREN
J. R. PARKER
ANDREYA WOO NAZAL
Attorneys for Defendant and
Counterclaimant COUNTY OF PLACER

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Dated: September 15, 2022

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BROWN & WINTERS
By: /s/ Jeffrey T. Orrell (as authorized on 9/15/22)
WILLIAM D. BROWN
JEFFREY T. ORRELL
JANET MENACHER
Attorneys for Plaintiff and
Counter-Defendant CITY OF LINCOLN

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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CITY OF LINCOLN,

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Plaintiff,
v.

Case No.: 2:18-CV-00087-KJM-AC
SIXTH AMENDED PRETRIAL
SCHEDULING ORDER

COUNTY OF PLACER; and DOES 1
through 100, inclusive,
Defendants.

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Upon consideration of Plaintiff/Counter-Defendant City of Lincoln’s (“City”) and

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Defendant/Counterclaimant County of Placer’s (“County”) Joint Stipulation Regarding Modification of

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the Sixth Amended Pretrial Scheduling Order, and finding good cause therefor, the Court hereby amends

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the Sixth Amended Pretrial Scheduling Order (Dkt. 45) as follows:

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Section V.

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All expert discovery shall be completed by October 28, 2022.

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Section VI.

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All dispositive motions, except motions for continuances, temporary restraining orders or other

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emergency applications, shall be heard no later than February 17, 2023, as ordered in the Seventh

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Amended Pretrial Scheduling Order. Dispositive motions shall not be filed by the parties until after

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January 1, 2023.

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DISCLOSURE OF EXPERT WITNESSES

MOTION HEARING SCHEDULE

IT IS SO ORDERED.
DATED: September 28, 2022.

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JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL
SCHEDULING ORDER