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

Filing 34

STIPULATION and ORDER signed by District Judge Troy L. Nunley on 08/12/22 AMENDING the Scheduling Order as follows: Close of Non-Expert Discovery: 11/22/22; Expert Witness Designation: 01/23/23 with any Supplemental Expert Designation: 02/22/23; Supplemental Disclosures & Responses: 04/20/23; Dispositive Motion Filing Date: 06/22/23 and Notice of Trial Readiness: the later of 07/24/23, or 30 days after ruling on last filed dispositive motion. (Benson, A.)

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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 Plaintiff & 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
First Amended Complaint Filed:
June 24, 2022
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;

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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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on the Motion, and took the Motion under submission without oral argument;
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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON

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WHEREAS on March 1, 2022, the Parties filed a Stipulation to Amend

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Scheduling Order, where the amended Scheduling Order dates would be based on

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the date on which the Court ruled on the Motion (Doc. 27);

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WHEREAS on March 2, 2022, the Court issued an Order amending the dates
in the Scheduling Order pursuant to the Parties’ Stipulation (Doc. 28).

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WHEREAS on June 22, 2022, the Court granted the Motion (Doc. 29);

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WHEREAS on June 24, 2022, Plaintiff BCP filed its First Amended

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Complaint (Doc. 30);
WHEREAS on July 18, 2022, Defendants ABCI and Western Surety filed
their answers to BCP’s First Amended Complaint (Docs. 31 and 32);

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WHEREAS the Parties now recognize that they erred, and the amended

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scheduling conference dates they requested are problematic. For example, the close

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of non-expert discovery, expert witness designation, and expert witness designation

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all fall on the same date, namely September 22, 2022 (i.e., 90 days after the order on

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the Motion); and

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WHEREAS the Parties have agreed to an amendment of the Scheduling Order

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dates to allow the action to proceed in an orderly and efficient manner, and to allow

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the Parties additional time for discovery related to the allegations in the First

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Amended Complaint.
STIPULATION

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

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Expert Witness
Designation

Current Date
September 22, 2022 (the
latter of June 16, 2022,
and 90 days after order
on Motion)
September 22, 2022 (the
later of August 22, 2022,
and 90 days after order
on the Motion)
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Proposed Dates
November 22, 2022

January 22, 2023

STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON

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Supplemental Expert
Designation

September 22, 2022 (the
later of September 20,
2022, and 90 days after
order on the Motion)
Supplemental
November 21, 2022 (the
Disclosures & Responses later of November 21,
2022, and 90 days after
order on the Motion)
Dispositive Motion
December 22, 2022 (The
Filing Date
later of December 22,
2022, and 90 days after
order on the Motion)
Notice of Trial Readiness 30 days after ruling on
last filed dispositive
motion or 120 days from
close of discovery
Dated: August 11 , 2022

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Dated: August 11 , 2022

April 20, 2023

June 22, 2023

The later of July 22,
2023, or 30 days after
ruling last filed
dispositive motion

COLEMAN & HOROWITT, LLP
By:

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February 22, 2023

/s/ Sherrie M. Flynn
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___ _______
ANTHONY P. NICCOLI
Attorneys for Defendants,
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
Expert Witness
Designation
Supplemental Expert
Designation
Supplemental
Disclosures & Responses
Dispositive Motion
Filing Date
Notice of Trial Readiness

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Current Date
September 22, 2022

New Dates
November 22, 2022

September 22, 2022

January 23, 2023

September 22, 2022

February 22, 2023

November 21, 2022

April 20, 2023

December 22, 2022

June 22, 2023

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

The later of July 24,
2023, or 30 days after
ruling on last filed
dispositive motion

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Dated: August 12, 2022

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Troy L. Nunley
United States District Judge

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STIPULATION TO AMEND SCHEDULING ORDER AND ORDER THEREON