Kemper v. Bayside Boatworks, Inc.

Filing 12

ORDER SETTING RESPONSIVE PLEADING DEADLINE AND SCHEDULING CMC. Signed by Judge Maria-Elena James on 11/30/2010. (mejlc1, COURT STAFF) (Filed on 11/30/2010)

Kemper v. Bayside Boatworks, Inc.

Doc. 12

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COX, WOOTTON, GRIFFIN, HANSEN & POULOS, LLP
190 THE EMBARCADERO SAN FRANCISCO, CA 94105 TEL: [phone] FAX: [phone]

COX, WOOTTON, GRIFFIN, HANSEN & POULOS, LLP Marc T. Cefalu (SBN 203324) 190 The Embarcadero San Francisco, CA 94105 Telephone No.: 415-438-4600 Facsimile No.: 415-438-4601 Attorneys for Defendant BAYSIDE BOATWORKS, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA (E-Filing) ) Case No.: C 10-0242MEJ ROBERT C. KEMPER, ) ) JOINT STATUS REPORT; Plaintiff, ) [PROPOSED] ORDER ) v. ) ) BAYSIDE BOATWORKS, INC., ) ) Defendant. ) __________________________________ ) Plaintiff Robert Kemper ("Kemper") and defendant Bayside Boatworks, Inc., ("Bayside"), by and through their respective counsel, pursuant to the Court's order dated November 15, 2010, hereby submit this Joint Status Report. STATUS Summary of Factual and Procedural Background As the Court may recall based upon the parties prior submissions, this matter involves a claim being asserted by plaintiff Robert Kemper against his former employer Bayside Boatworks, Inc., for personal injuries he allegedly sustained during the course and scope of his employment. Plaintiff alleges that Bayside Boatworks, Inc., was required to maintain U.S. Longshore and Harborworkers' Compensation insurance coverage to provide insurance coverage for such claims but that defendant failed to do so. Plaintiff alleges that he is entitled to maintain this civil action as a result of the defendant's alleged failure to procure appropriate U.S. Longshore and Harborworkers' Compensation insurance. Defendant denies these allegations.

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BAY.Kemper/2733/

-1JOINT STATUS REPORT; [PROPOSED] ORDER

Case No.:C 10-0242 MEJ

Dockets.Justia.com

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COX, WOOTTON, GRIFFIN, HANSEN & POULOS, LLP
190 THE EMBARCADERO SAN FRANCISCO, CA 94105 TEL: [phone] FAX: [phone]

The plaintiff is also a claimant in a U.S. Longshore and Harborworkers' Compensation Act claim (the "Longshore Action") pending before the U.S. Department of Labor. The Longshore Action trial is currently scheduled to commence on December 16, 2010. 1 Defendant Bayside Boatworks, Inc., is the respondent employer in that action. The plaintiff is also the applicant in a currently pending California State Workers Compensation Act claim with Bayside Boatworks the respondent in that action. All three actions (this civil action and the two workers compensation actions) involve the same alleged injuries. The parties to this action, their counsel, counsel for Defendant in the related California State Workers' Compensation Action, counsel for Plaintiff in the related U.S. Longshore and Harborworkers' Compensation Action, and one additional party (the "additional party" is the E&O carrier for defendant Bayside Boatwork's Inc.'s insurance broker to whom the defendant has tendered its defense in this action and the Longshore action) had originally agreed to participate in a global mediation in an attempt to resolve the issues raised in this action as well as each of the companion workers compensation actions. The mediation had been scheduled to take place on November 20, 2010 before Michael Ornstil at JAMS. Ultimately, the mediation did not take place because defendant Bayside's insurance broker (and its E&O carrier) refused to provide Mr. Kemper's Longshore Action counsel with a settlement offer in advance of the mediation. Mr. Kemper's Longshore Action counsel was not convinced that a mediation would be worthwhile without such a preliminary offer and as a result the mediation was cancelled. The parties are, however, continuing to informally discuss potential settlement options. Status of the Pleadings Defendant Bayside has not yet submitted its responsive pleading to Mr. Kemper's complaint. The parties had agreed to an open extension of time to respond while attempting to schedule a global mediation. The parties' intent was to avoid the cost and expense

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1 Employer Bayside Boatworks, Inc., has requested that the U.S. Longshore and Harborworkers' Compensation Act trial be continued as a result of claimant Robert Kemper's recent physical incapacity which resulted in his being unable to attend a defense medical examination as well as precluding his appearance at deposition in the Longshore Action. Mr. Kemper's Longshore counsel is not opposing the continuance.

BAY.Kemper/2733/

-2JOINT STATUS REPORT; [PROPOSED] ORDER

Case No.:C 10-0242 MEJ

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COX, WOOTTON, GRIFFIN, HANSEN & POULOS, LLP
190 THE EMBARCADERO SAN FRANCISCO, CA 94105 TEL: [phone] FAX: [phone]

associated with preparing and filing those pleadings while they actively pursued settlement negotiations through a formal mediation. Those negotiations continue on an informal basis. However, as a result of the mediation recently being cancelled, counsel for the parties have met and conferred and request that the deadline for Bayside's responsive pleading to be filed and served be extended to January 7, 2011. This further extension will allow the parties to determine whether there is a possibility to resolve all matters informally or whether litigation in this action, concurrently with the U.S. Longshore Action, will be necessary. If a settlement cannot be reached, then the defendant will file and serve its responsive pleading by the above requested deadline. The undersigned counsel for Bayside further submits that the agreed-upon extension of time to respond is reasonable due to personal family obligations which cannot be avoided. The undersigned will soon become unavailable and will be out of the office for approximately two weeks or more. That unavailability may arise at any moment as Bayside's undersigned counsel's wife is currently 40 weeks pregnant. Bayside's counsel's wife's due date was November 28, 2010, and the birth is now imminent. Following the birth, Bayside's counsel will be taking a short "paternity leave" to attend to family obligations. In light of Bayside's counsel's impending unavailability due to personal matters, it is submitted that the extension of time to respond requested above is reasonable. /// /// /// /// /// /// /// /// /// ///
-3JOINT STATUS REPORT; [PROPOSED] ORDER Case No.:C 10-0242 MEJ

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BAY.Kemper/2733/

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COX, WOOTTON, GRIFFIN, HANSEN & POULOS, LLP
190 THE EMBARCADERO SAN FRANCISCO, CA 94105 TEL: [phone] FAX: [phone]

CONCLUSION Based upon the above, counsel for the parties request that the defendant's deadline to file and serve its responsive pleading in this case be continued to January 7, 2011, and that a Case Management Conference then be scheduled at the Court's convenience.

Respectfully submitted,

Dated: November 29, 2010

BRODSKY MICKLOW BULL & WEISS LLP Attorneys for Plaintiff ROBERT KEMPER By: ___/S/ Edward M. Bull III____________ Edward M. Bull III

Dated: November 29, 2010

COX, WOOTTON, GRIFFIN, HANSEN & POULOS, LLP Attorneys for Defendant BAYSIDE BOATWORKS, INC. By: ___/S/ Marc T. Cefalu______________ Marc T. Cefalu

[PROPOSED] ORDER BASED UPON THE FOREGOING, AND GOOD CAUSE APPEARING, IT IS ORDERED THAT defendant Bayside Boatworks, Inc., shall file and serve its responsive pleading in this matter no later than January 7, 2011. The Court further orders that a Case Management Conference take place on February 17, 2011 at 10:00 a.m. in Courtroom B. All case management deadlines shall be adjusted accordingly.

Dated: November 30, 2010

By: __________________________________ Magistrate Maria-Elena James

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-4JOINT STATUS REPORT; [PROPOSED] ORDER

Case No.:C 10-0242 MEJ