Jackalone et al v. City of Fremont et al

Filing 24

STIPULATION AND ORDER extending completion date of ENE to 30 days after resolution of Summary Judgment motion OR 10/30/2010; Motion Hearing to be notice for 9/13/2010 02:00 PM in Courtroom 15, 18th Floor, San Francisco; Signed by Judge Marilyn Hall Patel on 6/4/2010. (awb, COURT STAFF) (Filed on 6/4/2010)

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Gregory M. Fox, State Bar No. 070876 BERTRAND, FOX & ELLIOT The Waterfront Building 2749 Hyde Street San Francisco, California 94109 Telephone: [phone] Facsimile: [phone] Harvey E. Levine, Esq., State Bar No. 61880 City Attorney City of Fremont 3300 Capitol Avenue PO Box 5006 Fremont, CA 94537-5006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants CITY OF FREMONT and CRAIG STECKLER

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NICHOLAS JACKALONE and LUCIA JACKALONE, vs. Plaintiffs, Case No.: C09-02956 MHP STIPULATION AND [PROPOSED] ORDER TO EXTEND DEADLINE FOR COMPLETION OF EARLY NEUTRAL EVALUATION AND TO SET DISPOSTIVE MOTION HEARING DATE

CITY OF FREMONT, a municipal corporation; CRAIG STECKLER in his official capacity as Chief of Police for the City of Fremont; NICK MAURER, individually and in his official capacity as a Police Officer for the City of Fremont; DOES 1-25, inclusive, Defendants.

The Parties, by and through their respective counsel, hereby stipulate and respectfully request the Court extend the deadline by which the parties must participate in and complete Early Neutral Evaluation and complete briefing and a hearing on a motion for summary judgment. Good cause for this extension is based on the following. Both plaintiffs and a BART station agent have been deposed about the incident involving off duty defendant former police officer MAURER. Based on that testimony the defendant CITY and Chief of Police believe that there is no
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STIPULATION AND [PROPOSED] ORDER TO EXTEND ENE DEADLINE

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liability under federal law for these defendants and the plaintiffs respectfully disagree. Because the witnesses testimony is undisputed both parties now believe the City and Chief of Police should proceed to file and serve a Motion for Summary Judgment based on the undisputed witness testimony and applicable law on municipal liability. The Court's decision on the MSJ may resolve the liability

of the City and Chief. If the motion is denied for some reason it may frame the issue(s) that would result in an Early Neutral Evaluation session that will be more beneficial to the parties. To that end, the parties respectively request that the Court set a dispositive motion hearing date wherein this issue may be resolved, with the City and Chief's motion for summary judgment to be filed Monday, July 19, 2010, plaintiffs' opposition brief to be filed Monday, August 16, 2010. The City and Chief's reply brief to be filed Monday August 30, 2010. The hearing on the MSJ to be heard Monday September 13, 2010 and the time for completion of the ENE to be 30 days after the Court issues its ruling on the MSJ. The parties intend, with the court's continued permission, to conduct limited discovery focused upon the municipal defendant's degree of liability, if any. The parties anticipate engaging in some written discovery and plaintiffs intend to depose no more than two of the BART Police Officers that responded to the scene of the incident. Of course, plaintiff would preferably like to depose defendant Maurer, however, defendant Maurer has not appeared in the case, despite being personally served with the summons and complaint on March 19, 2010. Plaintiffs intend to petition the court for entry of a default judgment against defendant Maurer. In light of the foregoing, the parties respectfully request that the Court continue the deadline by which the parties must complete ENE to October 30, 2010, or 30 days after the filing of the Court's ruling on the MSJ, and set a dispositive motion hearing date for Monday September 13, 2010.

Respectfully submitted,

Dated: June 2, 2010

/s/ Adante D. Pointer Attorney for Plaintiffs

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Dated: June 2, 2010

BERTRAND, FOX & ELLIOT

By:

/s/ Gregory M. Fox Attorney for Defendants CITY OF FREMONT and CHIEF STECKLER

ORDER GOOD CAUSE APPEARING, the Court hereby orders that the deadline by which the parties must complete Early Neutral Evaluation be continued to October 30, 2010, or 30 days after the Court rules on the City's Motion for Summary Judgment, whichever date occurs later. The Court further orders that a dispositive motion hearing date be set for Monday, September 13, 2010, with any and all briefing to comply with the applicable Federal Rules of Civil Procedure and the Local Rules and as set forth above by stipulation of the parties with regard to the filing of the motion, opposition and reply briefing. Dated: June 4, 2010

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Honorable Marilyn Hall DERED Patel OR I District United States S SO Judge IT

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