Walnut Creek Manor, LLC v. Mayhew Center, LLC et al

Filing 192

ORDER re 191 granting STIPULATION on Filing Deadline for Walnut Creek Manor LLC's Affidavits and Opposition to MC's Motions for New Trial and/or to Alter or Amend Judgment. Signed by Judge Claudia Wilken on 10/28/09. (scc, COURT STAFF) (Filed on 10/28/2009)

1 Brian A. Kelly (SBN 124738) Christian P. Foote (SBN 240919) 2 DUANE MORRIS LLP One Market, Spear Tower, Suite 2000 3 San Francisco, CA 94105-1104 Telephone: [phone] Facsimile: 415.957.3001 E-Mail: [e-mail] [e-mail] 5 6 Attorneys for Plaintiff and Cross-Defendant WALNUT CREEK MANOR, LLC 7 8 Jeffrey M. Judd (SBN 136358) HOWREY LLP 9 525 Market Street, Suite 3600 San Francisco, CA 94105-2708 [phone] 10 Telephone: Facsimile: [phone] 11 [e-mail] Attorneys for Defendants and Cross-Claimants 12 MAYHEW CENTER, LLC AND DEAN DUNIVAN 13 14 15 16 17 18 19 20 21 v. WALNUT CREEK MANOR, LLC, Plaintiff, Case No.: C 07 5664 CW STIPULATION AND ORDER ON FILING DEADLINE FOR WALNUT CREEK MANOR LLC'S AFFIDAVITS AND OPPOSITION TO MC'S MOTIONS FOR NEW TRIAL AND/OR TO ALTER OR AMEND JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

MAYHEW CENTER, LLC, a California limited 22 liability company; Dean Dunivan, an individual; Etch-Tek, Inc., a former California corporation; and 23 DOES 1-50, inclusive, 24 25 26 27 28
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Defendants.

Case No.: C 07 5664 CW

OBJECTION TO EVIDENCE OF MC'S ALLEGED DIMINUTION OR STIGMA DAMAGES; RENEWED MOTION IN LIMINE TO EXCLUDE RICCI TESTIMONY

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MAYHEW CENTER, LLC, a California limited 2 liability company; and DEAN DUNIVAN, an individual, 3 Cross-Claimants, 4 v. 5 WALNUT CREEK MANOR, LLC, 6 Cross-Defendant. 7 8 9 10

Date: Time: Ctrm: Judge:

December 3, 2009 2pm 2, 4th Floor Hon. Claudia Wilken May 19, 2008

First Amended Complaint Filed:

STIPULATION WHEREAS, on October 19, 2009, Mayhew Center LLC and Dean Dunivan (collectively,

11 "MC") filed a Motion for New Trial under FRCP 59 (docket # 183), and a Motion to Alter or Amend 12 the CERCLA Judgment under FRCP 52 (docket # 185). 13 14 2009. 15 WHEREAS, Local Rule 7-3 provides that oppositions, including opposing affidavits, to WHEREAS, MC has calendared the above-referenced motions for hearing on December 3,

16 noticed motions must be filed no later than 21 days before the hearing, which based on the 17 December 3 hearing date, is November 12, 2009; 18 WHEREAS, Federal Rule of Civil Procedure, Rule 59, under which MC moves for new trial,

19 provides that "opposing affidavits" must be filed as follows: 20 21 22 23 24 When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 10 days after being served to file opposing affidavits; but that period may be extended for up to 20 days, either by the court for good cause or by the parties' stipulation. The court may permit reply affidavits. FRCP 59(c). WHEREAS, FRCP 52, under which MC moves for an order altering and/or amending the

25 judgment, does not specify a time limit for filing opposing papers and/or affidavits; 26 WHEREAS, a potential conflict exists between the Local Rule 7-3 and FRCP 59(c) as to the

27 due dates for opposing affidavits and other opposing papers; 28 WHEREAS, to address this potential conflict and to avoid potential piecemeal filing of
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Case No.: C 07 5664 CW

OBJECTION TO EVIDENCE OF MC'S ALLEGED DIMINUTION OR STIGMA DAMAGES; RENEWED MOTION IN LIMINE TO EXCLUDE RICCI TESTIMONY

1 affidavits and opposition briefs, the parties enter into the following stipulation and agreement. 2 NOW THEREFORE it is stipulated and agreed by and among Plaintiff and Defendants, by

3 and through their undersigned counsel, as follows: 4 1. The due date for WCM's memoranda in opposition to MC's Motion for New Trial

5 under FRCP 59 and Motion to Alter or Amend the CERCLA Judgment under FRCP 52, as well as 6 any opposing affidavits, are by agreement extended to November 12, 2009. 7 8 9 10 11 12 13 14 Dated: October 27, 2009 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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SO STIPULATED Dated: October 27, 2009 By: DUANE MORRIS LLP /s/ Brian A. Kelly Brian A. Kelly Christian P. Foote Attorneys for Plaintiff WALNUT CREEK MANOR LLC

HOWERY LLP /s/ Jeffrey M. Judd Jeffrey M. Judd Attorneys for Defendant and Cross-Complainant MAYHEW CENTER LLC and DEAN DUNIVAN

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Case No.: C 07 5664 CW

OBJECTION TO EVIDENCE OF MC'S ALLEGED DIMINUTION OR STIGMA DAMAGES; RENEWED MOTION IN LIMINE TO EXCLUDE RICCI TESTIMONY

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ORDER Pursuant to the above stipulation, and good cause appearing therefore, IT IS SO ORDERED

3 that WCM's opposition papers to MC's Motion for New Trial under FRCP 59 and Motion to Alter 4 or Amend the CERCLA Judgment under FRCP 52, as well as any opposing affidavits, are due on 5 November 12, 2009. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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10/28/09 Dated _______________

__ Hon. Claudia Wilken Judge of the United States District Court

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Case No.: C 07 5664 CW

OBJECTION TO EVIDENCE OF MC'S ALLEGED DIMINUTION OR STIGMA DAMAGES; RENEWED MOTION IN LIMINE TO EXCLUDE RICCI TESTIMONY