Lexington Insurance Company v. Schrader-Bridgeport International, Inc.

Filing 48

STIPULATION AND ORDER Enlargement of time for Plaintiff to file opposition to Defendant's Motion for Summary Judgment. Signed by Judge Samuel Conti on 6/3/10. (tdm, COURT STAFF) (Filed on 6/3/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Daniel Harshman, Esq. COZEN O'CONNOR 777 South Figueroa Street Suite 2850 Los Angeles, California 90017 Telephone: [phone] Facsimile: 213.892.7999 S. Ellyn Farley COZEN O'CONNOR 222 S. Riverside Plaza Suite 1500 Chicago, Illinois 60606 Telephone: [phone] Facsimile: 312.382.8910 Admitted Pro Hac Vice Attorneys for Plaintiff, Lexington Insurance Company

Bryan A. McBurney CLAUSEN MILLER P.C. 2040 Main Street Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Paul Bozych (Admitted PHV) Todd M. Murphy (Admitted PHV) CLAUSEN MILLER P.C. 10 South LaSalle Street Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 Attorneys for Defendant SchraderBridgeport International, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Lexington Insurance Company, as Subrogee ) ) of B-G Western, Inc., ) ) Plaintiff, ) vs. ) ) Schrader-Bridgeport International, Inc., ) ) Defendant. ) ) ) ) Case No.: 3:09-cv-01509 Judge: Samuel Conti AMENDED JOINT STIPULATION FOR ENLARGEMENT OF TIME FOR PLAINTIFF TO FILE OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PLAINTIFF LEXINGTON INSURANCE COMPANY, AS SUBROGEE OF B-G WESTERN, INC. AND DEFENDANT SCHRADER-BRIDGEPORT INTERNATIONAL, INC. HEREBY STIPULATE AS FOLLOWS: 1. This is a contribution action, arising out of a previous action filed in the

United States District, Northern District of California styled as Feliciano Reyes v. The Home Dept and Erwin Industrial Tool Company (erroneously sued as "BenzOmatic"), Case No. C-06-04863 SC (hereinafter "the underlying litigation"). 2. In the underlying action, the Plaintiff, Feliciano Reyes, alleged that a

BernzOmatic T-4000 torch, which is hand-held torch attached to a MAPP gas canister,
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ignited, causing him to sustain burn injuries. The underlying litigation was settled following a mediation and pursuant to a Settlement Agreement and General Release entered into between Mr. Reyes and the defendants in the underlying litigation. 3. Plaintiff in this action, Lexington Insurance Company, has alleged that

the cause of the ignition of the fire that caused Mr. Reyes' burn injuries was a leak with the valve on the canister, provided by Defendant, Schrader-Bridgeport International, Inc., when the torch was removed from the canister. 4. At approximately 4:14 p.m. CDT on Friday, April 30, 2010, Defendant,

Schrader-Bridgeport International, Inc., filed its Motion for Summary Judgment (See, ECF No. 42). 5. Pursuant to Local Rule 7-3(a), entitled Opposition, "[a]ny opposition to a

motion must be served and filed not less than 21 days before the hearing date." In addition, Local Rule 7-3(a) provides that, "[t]he opposition may include a proposed order, affidavits or declarations, as well as a brief or memorandum under Civil L.R. 74" 6. At the time Defendant's Motion for Summary Judgment was

electronically filed, a hearing date on the motion was set for May 28, 2010 (See, ECF No. 42). As such, pursuant to Local Rule 7-3(a), Plaintiff's opposition and accompanying or supporting affidavits were to be served and filed on May 7, 2010.1 7. Due to the hearing date that was set for the motion and in light of the

requirements of Local Rule 7-3, Plaintiff was provided a period of only seven (7) days to submit its opposition to Defendant's dispositive motion. 8. Pursuant to Local Rule 6-1, Plaintiff is seeking an extension of time, by

stipulation, of seven (7) days, up to and including May 14, 2010, to file its memorandum in opposition to Defendant's Motion for Summary Judgment. Defense counsel has agreed to this request for an enlargement of time of seven (7) days in
1

The parties previously filed a joint stipulation for an enlargement of time for Plaintiff to file its opposition to Defendant's Motion for Summary Judgment on May 7, 2010. This amended stipulation provides further clarification and detail per the request of the Court.

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

order for Plaintiff to file and serve its opposition to the Motion for Summary Judgment. Defendant's Reply in Support of its Motion for Summary Judgment will then be due seven (7) days thereafter, on or by May 21, 2010. 9. Pursuant to Local Rule 6-2(a)(2), no previous time modifications have

been granted by Court order. 10. Pursuant to Local Rule 6-2(a)(3), there are no known effects that the

requested time modification would have on the schedule for the case. Specifically, the entry of an order enlarging the time for the filing of Plaintiff's opposition to Defendant's Motion for Summary Judgment will not impact any further or future dates in this action, including the pre-trial conference, the trial, or any deadlines for the submission of pre-trial materials. 11. Moreover, Plaintiff would incur substantial harm and prejudice if not

allowed to file an opposition to the pending motion for summary judgment pursuant to Local and Federal Rules, insofar as Plaintiff would not be permitted to provide pertinent information for the Court's consideration prior to disposition of this action. In addition, while Plaintiff would incur severe prejudice absent a nominal enlargement of time to file its opposition and accompanying affidavit to the pending motion, no such harm or prejudice would result from the entry of the Order sought. 12. This stipulation is not filed to unnecessarily delay the progress and

resolution of this litigation. 13. Defendant's Motion for Summary Judgment is being submitted on the

papers only, and no oral argument is requested. As such, the hearing previously set on the Motion for Summary Judgment on May 28, 2010 (See, ECF No. 42) can be stricken from the Court's calendar. WHEREFORE Plaintiff, Lexington Insurance Company, as Subrogee of B-G Western, Inc., and Defendant, Schrader-Bridgeport International, Inc., respectfully request that this Court enter an Order, extending the date for the filing and service of Plaintiff's Opposition to Defendant's Motion for Summary Judgment by a period of
3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

seven (7) days, up to and including May 14, 2010, and extending the date for the filing and service of Defendant's Reply in Support of its Motion for Summary Judgment up to and including May 21, 2010, and striking the hearing on Defendant's Motion for Summary Judgment set for May 28, 2010, and for any other relief this Court deems just and appropriate. DATE: 5/12/2010 COZEN O'CONNOR By:s/S. Ellyn Farley S. Ellyn Farley (Admitted PHV) 222 S. Riverside Plaza Suite 1500 Chicago, Illinois 60606 Telephone: [phone] Facsimile: 312.382.8910 and Daniel Harshman 777 South Figueroa Street Suite 2850 Los Angeles, California 90017 Telephone: [phone] Facsimile: 213.892.7999 Attorneys for Plaintiff, Lexington Insurance Company DATE: 05/12/2010 CLAUSEN MILLER P.C. By: s/Todd M. Murphy (with consent) Todd M. Murphy (Admitted PHV) Paul Bozych (Admitted PHV) 10 South LaSalle Street Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 Bryan A. McBurney 2040 Main Street, Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Attorneys for Defendant SchraderBridgeport International, Inc.

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following attorneys and I hereby certify that the above and foregoing was delivered, via email on this 12th day of May, 2010, to: Todd M. Murphy (Admitted PHV) Paul Bozych (Admitted PHV)\ CLAUSEN MILLER P.C. 10 South LaSalle Street, Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 and Bryan A. McBurney 2040 Main Street Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Attorneys for Defendant Schrader-Bridgeport International, Inc. __________________

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Daniel Harshman, Esq. COZEN O'CONNOR 777 South Figueroa Street Suite 2850 Los Angeles, California 90017 Telephone: [phone] Facsimile: 213.892.7999 S. Ellyn Farley COZEN O'CONNOR 222 S. Riverside Plaza Suite 1500 Chicago, Illinois 60606 Telephone: [phone] Facsimile: 312.382.8910 Admitted Pro Hac Vice Attorneys for Plaintiff, Lexington Insurance Company

Bryan A. McBurney CLAUSEN MILLER P.C. 2040 Main Street Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Paul Bozych (Admitted PHV) Todd M. Murphy (Admitted PHV) CLAUSEN MILLER P.C. 10 South LaSalle Street Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 Attorneys for Defendant SchraderBridgeport International, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Lexington Insurance Company, as Subrogee ) ) of B-G Western, Inc., ) ) Plaintiff, ) vs. ) ) Schrader-Bridgeport International, Inc., ) ) Defendant. ) ) ) ) Case No.: 3:09-cv-01509 Judge: Samuel Conti AMENDED JOINT STIPULATION FOR ENLARGEMENT OF TIME FOR PLAINTIFF TO FILE OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PLAINTIFF LEXINGTON INSURANCE COMPANY, AS SUBROGEE OF B-G WESTERN, INC. AND DEFENDANT SCHRADER-BRIDGEPORT INTERNATIONAL, INC. HEREBY STIPULATE AS FOLLOWS: 1. This is a contribution action, arising out of a previous action filed in the

United States District, Northern District of California styled as Feliciano Reyes v. The Home Dept and Erwin Industrial Tool Company (erroneously sued as "BenzOmatic"), Case No. C-06-04863 SC (hereinafter "the underlying litigation"). 2. In the underlying action, the Plaintiff, Feliciano Reyes, alleged that a

BernzOmatic T-4000 torch, which is hand-held torch attached to a MAPP gas canister,
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ignited, causing him to sustain burn injuries. The underlying litigation was settled following a mediation and pursuant to a Settlement Agreement and General Release entered into between Mr. Reyes and the defendants in the underlying litigation. 3. Plaintiff in this action, Lexington Insurance Company, has alleged that

the cause of the ignition of the fire that caused Mr. Reyes' burn injuries was a leak with the valve on the canister, provided by Defendant, Schrader-Bridgeport International, Inc., when the torch was removed from the canister. 4. At approximately 4:14 p.m. CDT on Friday, April 30, 2010, Defendant,

Schrader-Bridgeport International, Inc., filed its Motion for Summary Judgment (See, ECF No. 42). 5. Pursuant to Local Rule 7-3(a), entitled Opposition, "[a]ny opposition to a

motion must be served and filed not less than 21 days before the hearing date." In addition, Local Rule 7-3(a) provides that, "[t]he opposition may include a proposed order, affidavits or declarations, as well as a brief or memorandum under Civil L.R. 74" 6. At the time Defendant's Motion for Summary Judgment was

electronically filed, a hearing date on the motion was set for May 28, 2010 (See, ECF No. 42). As such, pursuant to Local Rule 7-3(a), Plaintiff's opposition and accompanying or supporting affidavits were to be served and filed on May 7, 2010.1 7. Due to the hearing date that was set for the motion and in light of the

requirements of Local Rule 7-3, Plaintiff was provided a period of only seven (7) days to submit its opposition to Defendant's dispositive motion. 8. Pursuant to Local Rule 6-1, Plaintiff is seeking an extension of time, by

stipulation, of seven (7) days, up to and including May 14, 2010, to file its memorandum in opposition to Defendant's Motion for Summary Judgment. Defense counsel has agreed to this request for an enlargement of time of seven (7) days in
1

The parties previously filed a joint stipulation for an enlargement of time for Plaintiff to file its opposition to Defendant's Motion for Summary Judgment on May 7, 2010. This amended stipulation provides further clarification and detail per the request of the Court.

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

order for Plaintiff to file and serve its opposition to the Motion for Summary Judgment. Defendant's Reply in Support of its Motion for Summary Judgment will then be due seven (7) days thereafter, on or by May 21, 2010. 9. Pursuant to Local Rule 6-2(a)(2), no previous time modifications have

been granted by Court order. 10. Pursuant to Local Rule 6-2(a)(3), there are no known effects that the

requested time modification would have on the schedule for the case. Specifically, the entry of an order enlarging the time for the filing of Plaintiff's opposition to Defendant's Motion for Summary Judgment will not impact any further or future dates in this action, including the pre-trial conference, the trial, or any deadlines for the submission of pre-trial materials. 11. Moreover, Plaintiff would incur substantial harm and prejudice if not

allowed to file an opposition to the pending motion for summary judgment pursuant to Local and Federal Rules, insofar as Plaintiff would not be permitted to provide pertinent information for the Court's consideration prior to disposition of this action. In addition, while Plaintiff would incur severe prejudice absent a nominal enlargement of time to file its opposition and accompanying affidavit to the pending motion, no such harm or prejudice would result from the entry of the Order sought. 12. This stipulation is not filed to unnecessarily delay the progress and

resolution of this litigation. 13. Defendant's Motion for Summary Judgment is being submitted on the

papers only, and no oral argument is requested. As such, the hearing previously set on the Motion for Summary Judgment on May 28, 2010 (See, ECF No. 42) can be stricken from the Court's calendar. WHEREFORE Plaintiff, Lexington Insurance Company, as Subrogee of B-G Western, Inc., and Defendant, Schrader-Bridgeport International, Inc., respectfully request that this Court enter an Order, extending the date for the filing and service of Plaintiff's Opposition to Defendant's Motion for Summary Judgment by a period of
3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

seven (7) days, up to and including May 14, 2010, and extending the date for the filing and service of Defendant's Reply in Support of its Motion for Summary Judgment up to and including May 21, 2010, and striking the hearing on Defendant's Motion for Summary Judgment set for May 28, 2010, and for any other relief this Court deems just and appropriate. DATE: 5/12/2010 COZEN O'CONNOR By:s/S. Ellyn Farley S. Ellyn Farley (Admitted PHV) 222 S. Riverside Plaza Suite 1500 Chicago, Illinois 60606 Telephone: [phone] Facsimile: 312.382.8910 and Daniel Harshman 777 South Figueroa Street Suite 2850 Los Angeles, California 90017 Telephone: [phone] Facsimile: 213.892.7999 Attorneys for Plaintiff, Lexington Insurance Company DATE: 05/12/2010 CLAUSEN MILLER P.C. By: s/Todd M. Murphy (with consent) Todd M. Murphy (Admitted PHV) Paul Bozych (Admitted PHV) 10 South LaSalle Street Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 Bryan A. McBurney 2040 Main Street, Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Attorneys for Defendant SchraderBridgeport International, Inc.

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following attorneys and I hereby certify that the above and foregoing was delivered, via email on this 12th day of May, 2010, to: Todd M. Murphy (Admitted PHV) Paul Bozych (Admitted PHV)\ CLAUSEN MILLER P.C. 10 South LaSalle Street, Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 and Bryan A. McBurney 2040 Main Street Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Attorneys for Defendant Schrader-Bridgeport International, Inc. __________________

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Daniel Harshman, Esq. COZEN O'CONNOR 777 South Figueroa Street Suite 2850 Los Angeles, California 90017 Telephone: [phone] Facsimile: 213.892.7999 S. Ellyn Farley COZEN O'CONNOR 222 S. Riverside Plaza Suite 1500 Chicago, Illinois 60606 Telephone: [phone] Facsimile: 312.382.8910 Admitted Pro Hac Vice Attorneys for Plaintiff, Lexington Insurance Company

Bryan A. McBurney CLAUSEN MILLER P.C. 2040 Main Street Suite 500 Irvine, California 92614 Telephone: [phone] Facsimile: 949.260.3190 Paul Bozych (Admitted PHV) Todd M. Murphy (Admitted PHV) CLAUSEN MILLER P.C. 10 South LaSalle Street Suite 1600 Chicago, Illinois 60603 Telephone: [phone] Facsimile: 312.606.7777 Attorneys for Defendant Schrader-Bridgeport International, Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Lexington Insurance Company, as Subrogee ) Case No.: 3:09-cv-01509 of B-G Western, Inc., ) ) Judge: Samuel Conti ) Plaintiff, ) ) vs. ) ) Schrader-Bridgeport International, Inc., ) ) ) Defendant. ) ) ) ORDER THIS CAUSE coming to be heard on the Parties' Joint Stipulation for Enlargement of Time for Plaintiff to File its Opposition to Defendant's Motion for Summary Judgment, due notice having been given and the Court being fully advised: IT IS HEREBY ORDERED that: 1) said Joint Stipulation is approved and the date for the filing and service of Plaintiff's Opposition to Defendant's Motion for Summary Judgment shall be extended by a period of seven (7) days, up to and including May 14, 2010; 2) the date for the filing and service of Defendant's Reply in Support of its Motion for Summary Judgment up to and including May 21, 2010; and
1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3) the hearing on Defendant's Motion for Summary Judgment set for May 28, 2010 shall be stricken.
UNIT ED

S

S DISTRICT TE C TA

ER

N

F D IS T IC T O R

2

A

C

LI

FO

Judge S

R NIA

6/3 DATED:________, 2010

ENTERED: _________________________ Senior Judgeamuel Conti Conti Samuel
NO

IT IS S

O ORD

ERED

RT U O

RT
H