Nada Pacific Corporation v. Power Engineering and Manufacturing, Ltd., et al

Filing 98

ORDER Re: #97 Stipulation filed by Besser Company. Parties to submit a chart with the revised deadlines by October 28, 2014. Signed by Magistrate Judge Laurel Beeler on 10/22/2014. (ls, COURT STAFF) (Filed on 10/22/2014)

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Michael R. Matthias (Bar. No. 57728)
BAKER & HOSTETLER LLP
12100 Wilshire Boulevard, 15th Floor
Los Angeles, CA 90025-7120
Telephone:
310.820.8800
Facsimile:
310.820.8859
Email: [e-mail]
Cory M. Curtis (pro hac vice)
Justin T. Winquist (pro hac vice)
BAKER & HOSTETLER LLP
303 E. 17th Avenue, Suite 1100
Denver, CO 80203
Telephone:
303.861.0600
Facsimile:
303.861.7805
Email: [e-mail]
Email: [e-mail]
Attorneys for BESSER COMPANY

B AKER & H OSTE TLER LLP
A TTORNEYS AT L AW
L OS A NGELE S

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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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NADA PACIFIC CORPORATION, a
California corporation,

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Plaintiff,
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v.

Case No.: 3:13-CV-04325-LB
STIPULATED MOTION TO
CONTINUE TRIAL AND MODIFY
CASE MANAGEMENT ORDER
ORDER

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POWER ENGINEERING AND
MANUFACTURING, LTD., an Iowa
corporation; and BESSER COMPANY, a
Michigan corporation,

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Defendants,

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v.
AKKERMAN, INC.,
Counterclaimant,
and
NADA PACIFIC CORPORATION, A
CALIFORNIA CORPORATION and BESSER
COMPANY, and Michigan Corporation,
Defendants.
AND RELATED CROSS-ACTION

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STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB

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Plaintiff Nada Pacific Corporation (“Nada”), Defendant, Cross-Claimant, and

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Cross-Claim Defendant Power Engineering and Manufacturing, Ltd. (“PEM”), Cross-

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Claim Defendant Akkerman, Inc. (“Akkerman”), and Defendant, Cross-Claimant, and

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Cross-Claim Defendant Besser Company (“Besser”) (collectively, the “Parties”) hereby

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stipulate and jointly move the Court pursuant to Fed. R. Civ. P. 16(b)(4), Civil L.R. 40-1,

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Civil L.R. 7-12, and Civil L.R. 6-2 to continue the trial date presently set for February 23,

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2015 for 60 days (or as soon thereafter as the Court’s calendar permits) and to extend all

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remaining pretrial deadlines 60 days. In support, the Parties state:

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B AKER & H OSTE TLER LLP
A TTORNEYS AT L AW
L OS A NGELE S

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LEGAL STANDARD FOR REQUEST
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Fed. R. Civ. P. 16(b)(4) provides that the “schedule set forth in the Court’s

Scheduling Order may be modified only for good cause and with the judge’s consent.”
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Civil L.R. 40-1 provides that “No continuance of a scheduled trial date will

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be granted except by order of the Court issued in response to a motion made in accordance

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with the provisions of Civil L.R. 7.”

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3.

Civil L.R. 7-1(a)(5) provides that a request to the Court for an order may

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be presented by stipulation of the affected parties pursuant to Civil L.R. 7-12. In turn,

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Civil L.R. 7-12 provides that “Every stipulation requesting judicial action must be in

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writing signed by all affected parties or their counsel. A proposed form of order may be

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submitted with the stipulation and may consist of an endorsement on the stipulation of the

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words, ‘PURSUANT TO STIPULATION, IT IS SO ORDERED,’ with spaces designated

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for the date and the signature of the Judge.”

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4.

Civil L.R. 6-2 (a) provides that parties may stipulate under Civil L.R. 7-12

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“requesting an order changing time that would affect the date of an event or deadline

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already fixed by Court order . . .” Civil L.R. 6-2(a)(1)-(3) requires that such stipulations

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be accompanied by a declaration that “(1) Sets forth with particularity, the reasons for the

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requested enlargement or shortening of time; (2) Discloses all previous time modifications

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in the case, whether by stipulation or Court order; and (3) Describes the effect the

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requested time modification would have on the schedule for the case.”
-2STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB

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GROUNDS FOR REQUEST

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5.

On March 27, 2014, the Court held a Fed. R. Civ. P. 16 Case Management

Conference. At that conference, the Parties discussed with the Court their belief that the

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issues in this case could be substantially narrowed, if not resolved entirely, by defendants’

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filing of motions for summary judgment addressing application of certain key issues,

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namely the economic loss rule and collateral source rule. Declaration of Justin T.

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Winquist filed herewith (“Winquist Dec.”) ¶ 4. The Parties also discussed with the Court

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their desire to avoid costly and time consuming discovery beyond those key issues to the

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extent possible prior to the Court’s ruling on the anticipated motions for summary

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judgment. Winquist Dec. ¶ 4. Following the March 27, 2014 Case Management

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B AKER & H OSTE TLER LLP
A TTORNEYS AT L AW
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Conference, the Court issued its April 1, 2014 Case Management and Pretrial Order [ECF

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No. 55] setting forth the case schedule. The schedule set pursuant to that Order is set forth

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below:

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6.

On July 10, 2014, the Parties filed a Stipulation Modifying Discovery

Deadlines [ECF No. 64], which the Court granted on July 11, 2014 [ECF No. 65]. That
stipulation modified the case deadlines as follows:

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-3STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB

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On August 8, 2014, the Parties filed an updated Joint Case Management

statement [ECF No. 69] explaining that the Parties were still in agreement on resolving

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certain key issues by motion for summary judgment prior to continuing discovery on other

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factual issues. See ECF No. 69 ¶ 15. The Parties also stated that Besser anticipated filing

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its Motion for Summary Judgment on September 11, 2014 for hearing on October 16,

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2014. See id. The Court then vacated the Further Case Management Conference on

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August 28, 2014 and set a Further Case Management Conference for October 16, 2014.

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[ECF. No. 70].

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8.

On September 11, 2014, Besser filed its Motion for Summary Judgment

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with respect to Nada’s claims against Besser [ECF No. 71], which noticed a hearing on

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that Motion for October 16, 2014. Nada filed its Opposition to Besser’s Motion for

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Summary Judgment on September 25, 2014 [ECF No. 84] and briefing closed on that

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Motion with Besser’s Reply filed on October 2, 2010 [ECF No. 89].

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9.

On September 11, 2014 PEM filed a Motion for Determination of Good

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Faith Settlement [ECF. No. 73]. Besser filed its Opposition to that Motion on September

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25, 2014 [ECF. No. 87]. PEM then withdrew its Motion on October 3, 2010. [ECF No.

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90].

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10.

On October 6, 2014, the Court ordered the Parties to file an Updated Joint

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Case Management Statement by October 8, 2014 and the Court reset the October 16, 2014

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Case Management Conference to October 9, 2014 [ECF No. 91; 92].

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-4STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB

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The Parties filed their Updated Joint Case Management Statement on

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October 8, 2014 [ECF No. 94], which set forth the following stipulated modifications to

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the pretrial schedule: 1

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B AKER & H OSTE TLER LLP
A TTORNEYS AT L AW
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12.

The Court held a Case Management Conference on October 9, 2014.

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During that conference, the Court continued the hearing previously set on Besser’s Motion

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for Summary Judgment until November 6, 2014, which the Court confirmed by Minute

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Order on October 10, 2014 [ECF No. 96]. At the October 9, 2014 conference, the Court

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did not expressly rule on the Parties’ stipulated pretrial deadlines as set forth in their

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October 8, 2014 Updated Joint Case Management Statement. Winquist Dec. ¶ 7.

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However, based on the Parties’ understanding of the Court’s statements during the March

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27, 2014 Case Management Conference, the Parties understand and have agreed that those

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deadlines are effective without further order of the Court because they did not modify the

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February 5, 2015 Final Pretrial Conference or February 23, 2015 Trial dates. Winquist

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Dec. ¶ 7. It is therefore the Parties’ understanding that the schedule set forth in their

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The last two entries of the Parties’ stipulated schedule erroneously referred to a February 1, 2014 Case Management
and Pretrial Order, which does not exist. Each should read “no change from April 1, 2014 Case Management and
Pretrial Order.”

-5STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB

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October 8, 2014 Updated Joint Case Management Statement is presently in effect.

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Winquist Dec. ¶ 7.

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After the Court continued the hearing on Besser’s Motion for Summary

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Judgment until November 6, 2014, the Parties conferred regarding the feasibility of

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continuing to delay proceeding with additional discovery on factual and expert issues

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beyond those presented in Besser’s Motion for Summary Judgment in light of the rapidly

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approaching trial date and pretrial deadlines. Winquist Dec. ¶ 10. The Parties agreed that

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the pretrial schedule could not be further compressed with the existing trial date and that it

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was in all Parties’ best interests to seek a continuance of the February 23, 2015 trial date
for 60 days. Winquist Dec. ¶ 10. The Parties reached this agreement in furtherance of

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B AKER & H OSTE TLER LLP
A TTORNEYS AT L AW
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their goal from the inception of this case to attempt to resolve or narrow certain key issues

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by summary judgment prior to incurring the expense of substantial factual and expert

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discovery on other issues. Winquist Dec. ¶ 10.

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The Parties believe that a 60-day continuance (or as soon thereafter as the

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Court’s calendar may allow) will permit them to obtain the Court’s ruling on Besser’s

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Motion for Summary Judgment prior to incurring the expense of additional discovery on

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issues that will be resolved or narrowed by the summary judgment ruling. Winquist Dec.

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¶ 11. This agreement is based on the Parties’ understanding that the Court presently

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anticipates ruling on Besser’s Motion for Summary Judgment in late November or early

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December, 2014. Winquist Dec. ¶ 11. Thus, the Parties have further agreed that in the

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event that the Court has not ruled on Besser’s Motion for Summary Judgment by

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December 7, 2014, they reserve their respective rights to move the Court for an additional

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continuance of the trial date or to oppose such a continuance as they each deem

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appropriate. Winquist Dec. ¶ 11.

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15.

In the event that the Court grants a continuance of the February 23, 2015

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trial date for 60 days (or as soon thereafter as the Court’s calendar may permit), the Parties

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further request that the Court enter a pretrial scheduling order extending each of the

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-6STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB

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deadlines set forth in the Parties October 8, 2014 Updated Joint Case Management

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Statement by 60 days. Winquist Dec. ¶ 12.

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The Parties agree that the 60-day trial continuance and extension of pretrial

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deadlines will not prejudice any Party and will be beneficial to all Parties in permitting

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them to avoid further discovery and pretrial costs pending the Court’s ruling on Besser’s

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Motion for Summary Judgment. Winquist Dec. ¶ 13. The Parties believe that a

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continuance will further promote judicial economy by permitting the issues in this case to

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be substantially narrowed or resolved prior to significant pretrial preparation, deadlines,

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and filings. Winquist Dec. ¶ 13. For these reasons, the parties submit that good cause

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WHEREFORE, the Parties stipulate and jointly request that the Court continue the

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February 23, 2015 trial 60 days or as soon thereafter as the Court’s calendar permits and

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enter a pretrial scheduling order extending the deadlines set forth in the Parties’ October 8,

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2014 Updated Joint Case Management Statement by 60 days.

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STIPULATED AND AGREED This 21st day of October, 2014 between:

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MURPHY AUSTIN ADAMS SCHOENFELD LLP
By:
/s/ D. Lisa D. Nicolls
LISA D. NICOLLS
Attorneys for NADA PACIFIC
CORPORATION and AKKERMAN, INC.

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Parties to submit a chart with the
deadlines by October 28, 2014.

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Dated: October 22, 2014

H

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LI

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-7-

FO

NO

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BAKER & HOSTETLER LLP
By:
/s/ Cory M. Curtis
l Beeler
CORY M. CURTIS
e Laure
Judg
Attorneys for BESSER COMPANY

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VED
APPRO

RT
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O

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R NIA

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GUICHARD TENG & PORTELLO, A.P.C.
By:
/s/ William L. Portello
MATTHEW P. GUICHARD
S DI
WILLIAM L. PORTELLOSTRICT
TE
C
CHRISTOPHERA TENG
T K.
revised
Attorneys for POWER ENGINEERING
AND MANUFACTURING, LTD.

S

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UNIT
ED

B AKER & H OSTE TLER LLP
A TTORNEYS AT L AW
L OS A NGELE S

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exists for the requested continuance and schedule modification.

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D IS T IC T O
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STIPULATED MOTION TO CONTINUE TRIAL AND MODIFY CASE MANAGEMENT ORDER. CASE NO.: 3:13-CV-04325-LB