Carrethers v. Bay Area Rapid Transit et al

Filing 120

STIPULATION AND ORDER ENLARGING TIME FOR HEARING AND BRIEFING SCHEDULE OF MOTIONS re 117 MOTION for New Trial PLAINTIFFS NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR A NEW TRIAL; DECLARATION OF CHRISTOPHE R DOLAN IN SUPPORT; PROPOSED ORDER filed by Kenneth Carrethers, 118 MOTION for Taxation of Costs PLAINTIFFS NOTICE OF MOTION, OBJECTION, AND MEMORANDUM OF POINTS AND AUTHORITIES TO TAX COSTS; DECLARATION OF CHRISTOPHER DOLAN IN SUPPORT; DECLARATION OF KENNETH CARRETHERS IN SUPPORT; PROPOSED ORDER filed by Kenneth Carrethers. Signed by Judge Edward M. Chen on 1/20/12. (bpfS, COURT STAFF) (Filed on 1/20/2012)

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DALE L. ALLEN, # 145279,
[e-mail]
DIRK D. LARSEN, # 246028,
[e-mail]
KEVIN P. ALLEN, # 252290,
[e-mail]
LOW, BALL & LYNCH
505 Montgomery Street, 7th Floor
San Francisco, California 94111-2584
Telephone [phone]
Facsimile [phone]

JOHN HOUSTON SCOTT, # 72578
LIZABETH N. DE VRIES, # 227215
SCOTT LAW FIRM
1388 Sutter Street, Suite 715
San Francisco, CA 94109
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
CHRIS B. DOLAN, # 165358
ANNE CASEY COSTIN, # 260126
DOLAN LAW FIRM
1438 Market Street
San Francisco, CA 94102
Tel.: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Attorneys for Defendants
BAY AREA RAPID TRANSIT DISTRICT,
J. MEHSERLE, F. GUANZON, K. SMITH,
D. HORNER and R. HANEY

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Attorneys for Plaintiff
KENNETH CARRETHERS

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KENNETH CARRETHERS,

)
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Plaintiff,
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vs.
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BAY AREA RAPID TRANSIT DISTRICT, J.
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MEHSERLE, F. GUANZON, K. SMITH, D.
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HORNER, R. HANEY and DOES 1-25, inclusive, )
)
Defendants.
)
)

Case No. CV 09 1101 EMC
STIPULATION TO ENLARGE TIME FOR
THE HEARING, OPPOSITION AND REPLY
RE: PLAINTIFF’S MOTION FOR NEW TRIAL
AND MOTION FOR TAXATION OF COSTS
ORDER

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Pursuant to Civil L.R. 6-2, defendants BAY AREA RAPID TRANSIT DISTRICT, J.

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MEHSERLE, F. GUANZON, K. SMITH, D. HORNER and R. HANEY (collectively “Defendants”),

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and plaintiff KENNETH CARRETHERS (“Plaintiff”), by and through their respective counsel, hereby

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stipulate as follows and respectfully request that the Court enter an order pursuant to their stipulation:

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1.

That the hearing of Plaintiff’s Motion for New Trial (Doc. No. 117) and of Plaintiff’s

Motion for Taxation of Costs (Doc. No. 118), currently scheduled for February 17, 2012, at 1:30 p.m.,
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Case No. 3:09-cv-01101 EMC

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be continued to March 16, 2012, at 1:30 p.m., or as soon thereafter as may be heard by the Court, in

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Courtroom 5 of the above-entitled Court;

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2.

That the deadline for Defendants’ oppositions to Plaintiff’s Motion for New Trial and

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Motion for Taxation of Costs, currently scheduled as January 23, 2012, be continued to February 24,

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2012;

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as January 30, 2012, be continued to March 2, 2012.

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That the deadline for Plaintiff’s replies to Defendants’ oppositions, currently scheduled

The reasons for the requested enlargement of time are set forth in the Declaration of Dirk D.
Larsen below.
IT IS SO STIPULATED.

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Dated: January 18, 2012.

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LOW, BALL & LYNCH

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By s/ Dirk D. Larsen
DALE L. ALLEN, JR.
DIRK D. LARSEN
KEVIN P. ALLEN
Attorneys for Defendants
BAY AREA RAPID TRANSIT DISTRICT,
J. MEHSERLE, F. GUANZON, K. SMITH,
D. HORNER and R. HANEY

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Dated: January 18, 2012.

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DOLAN LAW FIRM

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By s/ Anne Casey Costin
CHRIS B. DOLAN
ANNE CASEY COSTIN
Attorneys for Plaintiff
KENNETH CARRETHERS

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Case No. 3:09-cv-01101 EMC

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DECLARATION OF DIRK D. LARSEN IN SUPPORT OF STIPULATION

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I, DIRK D. LARSEN, declare as follows:

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1.

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I have personal knowledge of the following facts, and could and would testify

competently thereto.
2.

I am an attorney at law duly licensed to practice before all courts of the State of

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California and the U.S. District Court for the Northern District of California, and am employed as an

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associate with the law firm of Low, Ball & Lynch, attorneys of record herein for defendants BAY

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AREA RAPID TRANSIT DISTRICT, J. MEHSERLE, F. GUANZON, K. SMITH, D. HORNER and

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R. HANEY.

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3.

I have reviewed Plaintiff’s Motion for New Trial (Doc. 117), filed in this matter on

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January 9, 2012. According to my review, Plaintiff seeks a new trial of his claim for excessive force in

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violation of the Fourth Amendment, brought pursuant to 42 U.S.C. § 1983, based on the theory that the

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clear weight of the evidence at trial showed that the defendant officers “hog-tied” Plaintiff and that a

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“hog-tie” constitutes excessive force.

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4.

I attended the trial of this matter from November 21 through December 1, 2012, and

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took notes of the proceedings. According to my recollection and notes, the following witnesses gave

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testimony regarding (1) what constitutes a “hog-tie;” (2) permissible and impermissible forms of

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restraining suspects under various circumstances; and/or (3) the manner in which Plaintiff was

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restrained: Chief Gary Gee, Heath Cunningham, Lila Dinkins, Officer Frederick Guanzon, Officer

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Douglas Horner, Johannes Mehserle, Officer Robert Haney, Lt. Roger Clark, Plaintiff, Lt. Keith Smith

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and Sgt. Eugene Wong.

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5.

Defendants’ opposition to Plaintiff’s Motion for New Trial is currently due on January

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23, 2012, pursuant to the Court’s notice of January 11, 2012. On January 10, 2012, I contacted the

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court reporter for the trial proceedings, Belle Ball, to inquire about obtaining transcripts of the

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witnesses’ testimony. As of that time, my office had already obtained the transcript of Chief Gee’s

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testimony, and on January 10, Ms. Ball forwarded to my office the other transcripts that had already

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been prepared: those for the testimony of Mr. Cunningham and Ms. Dinkins. Ms. Ball informed me

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that she had just begun a four-month antitrust trial and thus estimated a 30-60-day turnaround for the
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remaining transcripts. On January 13, 2012, Ms. Ball informed me that she could provide the

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remaining transcripts within 14 days of receipt of payment for rush processing, and within 30 days for

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normal processing.

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6.

I have met and conferred with Anne Costin of the Dolan Law Firm, attorneys for

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Plaintiff, regarding stipulating to certain aspects of the defendant officers’ testimony for purposes of

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Plaintiff’s motion in order to minimize the number of trial transcripts necessary. However, beyond any

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such stipulation, Defendants still require the complete transcripts for Lt. Clark, Sgt. Wong and

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Plaintiff, as well as any defendant-officer transcripts that may be necessary, in order to adequately

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prepare an opposition to Plaintiff’s motion. Because that motion is based on assertions regarding the

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clear weight of the evidence, and because those witnesses provided evidence regarding appropriate

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forms of restraint and the manner of Plaintiff’s restraint, Defendants require the transcripts in order to

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submit to the Court the entirety of the relevant evidence in their opposition. Defendants would be

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severely prejudiced if the dates of the opposition and hearing were not continued, as they would be

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unable to present relevant evidence in opposition to Plaintiff’s motion so as to allow the Court to make

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an informed ruling.

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7.

On January 9, 2012, Plaintiff also filed a Motion for Taxation of Costs (Doc. No. 118),

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following Defendants’ Bill of Costs filed on December 28, 2011 (Doc. No. 116). The opposition, reply

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and hearing dates for the Motion for Taxation of Costs are the same as those for the Motion for New

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Trial. Continuing those dates in accordance with the requested continuance of the dates for the Motion

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for New Trial would promote the interests of efficiency and economy for the Court and the parties.

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8.

Pursuant to Civil L.R. 6-2(a)(2), the following time modifications have previously been

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made in this case: on October 8, 2009, a case management conference was continued from November

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16, 2009, to January 11, 2010, pursuant to the clerk’s notice (Doc. No. 19); on November 18, 2009, the

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Court entered a stipulated order amending pretrial deadlines (Doc. No. 23); on November 23, 2009, the

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previously set trial dates were vacated and a case management conference was set for March 22, 2010,

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pursuant to Court order (Doc. No. 24); on November 9, 2010, Defendants continued the hearing of

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their motion for partial summary judgment from December 13, 2010, to January 24, 2011, pursuant to

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instruction from the Court (Doc. No. 38); on July 1, 2011, the Court entered a Case Management
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Scheduling Order setting trial and pretrial dates.

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would be affected by the enlargement of time requested in the above stipulation.

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Pursuant to Civil L.R. 6-2(a)(3), I am unaware of any other hearings or proceedings that

I swear under penalty of perjury under the laws of the State of California that the foregoing is
true and correct to the best of my personal knowledge.

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Executed this 18th day of January, 2012, in San Francisco, California.

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s/ Dirk D. Larsen
DIRK D. LARSEN

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[PROPOSED] ORDER

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Pursuant to the stipulation of the parties herein, it is HEREBY ORDERED:

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1.

That the hearing of Plaintiff’s Motion for New Trial (Doc. No. 117) and of Plaintiff’s

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Motion for Taxation of Costs (Doc. No. 118), currently scheduled for February 17, 2012, at 1:30 p.m.,

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is continued to March 16, 2012, at 1:30 p.m., in Courtroom 5 of the above-entitled Court;
2.

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That the deadline for Defendants’ oppositions to Plaintiff’s Motion for New Trial and

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Motion for Taxation of Costs, currently scheduled as January 23, 2012, is continued to February 24,

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2012;

as January 30, 2012, is continued to March 2, 2012.
IT IS SO ORDERED.

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S

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DERED

O OR
IT IS S

R NIA

.

UNIT
ED

Dated:

S DISTRICT
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1/20/12

HON. EDWARD M. CHEN
U.S. DISTRICT JUDGE
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M. Che
Edward
Judge

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That the deadline for Plaintiff’s replies to Defendants’ oppositions, currently scheduled

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3.

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STIPULATION TO ENLARGE TIME RE: PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION FOR TAXATION OF COSTS
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Case No. 3:09-cv-01101 EMC