BCP Mechanical, LLC v. Anderson Burton Construction, Inc. et al

Filing 28

STIPULATION and ORDER signed by District Judge Troy L. Nunley on 3/2/2022 AMENDING scheduling order as follows: Close of Non-Expert Discovery: the later of 6/16/2022, and 90 days after order on the Motion; Designation of Expert Witnesses: the later of 8/22/2022, and 90 days after order on the Motion; Dispositive Motion Filing Date: the later of 12/22/2022 and 90 days after order on the Motion. (Zignago, K.)

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STEVEN C. CLARK #181050
[e-mail]
SHERRIE M. FLYNN #240215
[e-mail]
COLEMAN & HOROWITT, LLP
Attorneys at Law
499 W. Shaw Ave., Ste. 116
Fresno, CA 93704
Telephone: [phone]
Facsimile: [phone]
Attorneys for Cross-Defendant
BCP MECHANICAL, LLC

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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v.
ANDERSON BURTON
CONSTRUCTION, INC., a California
corporation; WESTERN SURETY
COMPANY, a South Dakota
corporation,

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STIPULATION TO AMEND
SCHEDULING ORDER AND
ORDER THEREON

Use-Plaintiff,

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CASE NO. 2:20-cv-01401-TLN-KJN

UNITED STATES OF AMERICA, for
the use and benefit of BCP
MECHANICAL, LLC, a California
limited liability company

Complaint Filed: July 10, 2020
Cross-Claim Filed: September 22, 2020
Judge: Hon. Troy L. Nunley
Trial Date: None

Defendants.
AND RELATED CROSS-ACTION.

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Pursuant to Federal Rules of Civil Procedure, Rule 16(b)(4), Plaintiff and

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Cross-Defendant BCP MECHANICAL, LLC (“BCP”), Defendant and Cross-

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Complainant ANDERSON BURTON CONSTRUCTION, INC., (“ABCI”) and

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Defendant WESTERN SURETY COMPANY (“Western Surety”; collectively the

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“Parties”), by and through their respective counsel of record, hereby stipulate as

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follows:
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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON

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WHEREAS on July 10, 2020, BCP filed the instant action for Recovery on

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Miller Act Payment Bond, Breach of Contract, Quantum Meruit and Open Book

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Account related to a federal construction project for the U.S. Army Corps of

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Engineers (the “Action”);

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WHEREAS on September 22, 2020, ABCI filed a Cross-Claim against BCP
for Breach of Written Contract (the “Cross-Claim”);

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WHEREAS on August 28, 2020, BCP filed a separate action against ABCI

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and Western Surety in the Superior Court for the County of San Luis Obispo, Case

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No. 20CV-0388, for Recovery on Payment Bond, Breach of Written Contract,

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Quantum Meruit, and Open Book Account on five (5) separate construction projects

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(the “State Court Action”);

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WHEREAS on July 13, 2020, the Court issued an Initial Pretrial Scheduling

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Order (“Scheduling Order”) in the instant Action, setting forth dates for close of

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discovery, expert designation, supplemental expert designations, etc.;

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WHEREAS on August 10, 2021, the Parties filed a Stipulation to Amend the

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Scheduling Order to allow the Parties additional time to mediate the claims in the

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instant Action, the Cross-Claim and the State Court Action;

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WHEREAS on August 11, 2021, the Court issued an order continuing dates in
the Scheduling Order pursuant to the Parties’ Stipulation;

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WHEREAS on September 22, 2021, the Parties attempted to reach a global

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settlement of the instant Action, the Cross-Claim and the State Court action through

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mediation before retired Federal District Court Judge Oliver Wanger. The Parties,

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however, did not settle at mediation, and now believe that additional discovery is

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necessary before settlement is possible;

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WHEREAS on December 10, 2021, Plaintiff BCP filed a Motion to Amend

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the Scheduling Order and for Leave to File Amended Complaint (“Motion”; Doc.

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23). On December 30, 2021, Defendant ABCI filed its Opposition to the Motion

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(Doc. 24). On January 3, 2022, the Court issued a Minute Order, vacating the hearing
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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON

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on the Motion, and took the Motion under submission without oral argument. The

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Court has not issued an order on the Motion and non-expert discovery is currently

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set to close on March 18, 2022.

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WHEREAS the Parties agree it would be inefficient to engage in further

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discovery until after the Court issues its order on the Motion, and thus, seek to amend

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the Scheduling Order to allow for additional time to engage in discovery.

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WHEREAS the Parties have agreed to a continuance of the Scheduling Order

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dates to allow the Parties adequate time to engage in discovery after the Court issues

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its order.
STIPULATION

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The Parties herby stipulate to amend the Scheduling Order as follows:
Description
Close of Non-Expert
Discovery

Current Date
March 18, 2022

Expert Witness
Designation

May 23, 2022

Supplemental Expert
Designation

June 22, 2022

Supplemental
August 22, 2022
Disclosures & Responses

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Dispositive Motion
Filing Date

September 23, 2022

Notice of Trial Readiness 30 days after ruling on
last filed dispositive
motion or 120 days from
close of discovery

Proposed Dates
The later of June 16,
2022, and 90 days after
order on the Motion
The later of August 22,
2022, and 90 days after
order on the Motion
The later of September
20, 2022, and 90 days
after order on the Motion
The later of November
21, 2022 and 90 days after
order on the Motion
The later of December 22,
2022 and 90 days after
order on the Motion
Same

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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON

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Dated: March 1, 2022

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COLEMAN & HOROWITT, LLP
By:

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Dated: March 1, 2022

/s/
STEVEN C. CLARK
SHERRIE M. FLYNN
Attorneys for Plaintiff & CrossDefendant, BCP MECHANICAL, LLC

ATKINSON, ANDELSON, LOYA, RUUD
& ROMO
By:

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___/s/_________________________
ANTHONY P. NICCOLI
Attorneys for ANDERSON BURTON
CONSTRUCTION, INC. and
WESTERN SURETY COMPANY

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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON

ORDER

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The Parties having stipulated and good cause appearing therefor,

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IT IS SO ORDERED that the Scheduling Order dates are amended as

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follows:
Description
Close of Non-Expert
Discovery

Current Date
March 18, 2022

Expert Witness
Designation

May 23, 2022

Supplemental Expert
Designation

June 22, 2022

Supplemental
August 22, 2022
Disclosures & Responses
Dispositive Motion
Filing Date

September 23, 2022

Notice of Trial Readiness 30 days after ruling on
last filed dispositive
motion or 120 days from
close of discovery

New Dates
The later of June 16,
2022, and 90 days after
order on the Motion
The later of August 22,
2022, and 90 days after
order on the Motion
The later of September
20, 2022, and 90 days
after order on the Motion
The later of November
21, 2022 and 90 days after
order on the Motion
The later of December 22,
2022 and 90 days after
order on the Motion
Same

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Dated: March 2, 2022

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Troy L. Nunley
United States District Judge

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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON