Sanchez et al v. H&R Plumbing and Drain Cleaning, Inc. et al

Filing 8

Order by Magistrate Judge Donna M. Ryu granting 7 Motion to Continue Case Management Conference.(dmrlc1, COURT STAFF) (Filed on 11/20/2012)

1
2
3

TOMAS E. MARGAIN, Bar No. 193555
DAL BON & MARGAIN, APC
28 NORTH 1ST SUITE 700
SAN JOSE, CA 95113
TEL [phone]
FAX [phone]

4

[e-mail]
5
6
7

Attorneys for Plaintiffs
FRANCIS SANCHEZ, JOSE L. SANCHEZ,
ROBERTO A. CALLES, and ERIC ORTIZ CRUZ

8

UNITED STATES DISTRICT COURT

9

FOR THE

10

NORTHERN DISTRICT OF CALIFORNIA

11
12
13
14

Case No.: CV 12-04588 DMR

FRANCIS SANCHEZ, JOSE L. SANCHEZ,
ROBERTO A. CALLES, and ERIC ORTIZ
CRUZ,

PLAINTIFFS’ MOTION TO CONTINUE
CASE MANAGEMENT CONFERENCE
PURSUANT TO LOCAL RULE 16-2(d);
DECLARATION OF TOMAS E.
MARGAIN IN SUPPORT THEREOF; and
PROPOSED ORDER

Plaintiff,
v.

15
16
17
18

H&R PLUMBING AND DRAIN
CLEANING, INC.; CITY OF
BRENTWOOD, MOUNTAIN VIEW
SANITARY DISTRICT; WESTERN
SURETY COMPANY; and AMERICAN
CONTRACTORS INDEMNITY COMPANY

19
20
21

TO THE COURT AND ALL PARTIES WHO HAVE MADE AN APPEARANCE IN
22

THIS ACTION
23

Pursuant to Local Rule 16-2(d), as well as the Federal Rules of Civil Procedure, Plaintiffs
24

hereby requests that the initial Case Management Conference set for December 5, 2012 be
25

continued to January 9, 2013 or the next available Wednesday on the Court’s calendar. As
1

MOTION TO CONTINUE INITIAL CMC

1

described in the below Declaration of Tomas E. Margain, good cause exists. Counsel for

2

Defendant H&R PLUMBING AND DRAIN CLEANING, INC. (“H&R Plumbing”) needs time

3

to pick up the defense of the surety Defendants WESTERN SURETY COMPANY and

4

AMERICAN CONTRACTORS INDEMNITY COMPANY and get their consent to have a

5

Magistrate hear this matter. Moreover, counsel need to put in place a mechanism by which funds

6

held by public agency Defendants, CITY OF BRENTWOOD can MOUNTAIN VIEW
SANITARY DISTRICT, can be deposited in an escrow account so that those Defendants can be

7

dismissed. As such, a continuance will allow both of these events to occur with the goal of
8

having the pleadings settled by the Case management conference. Plaintiffs and Defendant H&R
9

Plumbing have also been engaged in information exchanges as part of settlement
10

communications and the continuance will also allow the parties to continue to focus on this.
11
12

Dated:

November 16, 2012
By: //s// TOMAS E. MARGAIN
TOMAS E. MARGAIN

13
14

DECLARATION OF TOMAS E. MARGAIN
15

I, TOMAS E. MARGAIN, declare as follows:
16
17
18
19

1.

I am an attorney duly authorized to practice before this Court and Plaintiffs’

attorney of record in this action. I base this declaration on my personal knowledge unless
otherwise indicated.
2.

Defendant H&R PLUMBING AND DRAIN CLEANING, INC. is being

20

represented by Jeff McClure of Davenport Gerstner & McClure with whom I have litigated

21

employment wage and hour cases in the past and who I know to be experienced in public works

22

litigation cases such as the matter at hand.

23
24

3.

I have spoken with Mr. McClure about the litigation in a substantive manner and

we have exchanged numerous e-mails. We have agreed to both try to investigate the claims to

25

2

MOTION TO CONTINUE INITIAL CMC

1

aid our clients in settlement and to simplify the procedural posture of the case at this point due to

2

the number of Defendants.

3

4.

I have spoken to and e-mailed counsel for the two public entity defendants which

4

are holding construction funds based on about $36,000.00 in Stop Notices filed by the four

5

Plaintiffs. The only role they have in the litigation is to be told by the Plaintiffs, based on a

6

release, or the Court, based on a judgment, how to transmit these funds. As such, I

7

communicated to both of these counsel and to Mr. McClure that we are going to draft a

8

stipulation and order allowing the entities to transmit the funds to Mr. McClure’s trust account

9

and dismiss the entities. We are going to work on drafting this document by the end of the

10

month to have a mechanism in place such that the funds can only be disbursed by Court order.

11

The goal is to dismiss the public entitles so that they will not incur any litigation costs.

12

5.

Plaintiffs have also sued two sureties who issued Payment Bonds to which claims

13

attach. It is anticipated that both of the sureties will tender the claim for a defense to H&R

14

Plumbing. In speaking with Mr. McClure on November 14, 2012 during our Rule 26

15

conference, one surety has already tendered the claim and he is working to have the second

16

surety tender the claim. Mr. McClure needs a continuance for this to occur and also to have the

17

Defendants make a decision on consenting to a Magistrate. The goal is to have Mr. McClure

18

respond to the Complaint as to these two Defendants and H&R Plumbing.

19
20
21
22

6.

Counsel have also been able to have two preliminary discussions and are working

on a document exchange to determine the value of the case from each side’s perspective. A
continuance will allow the parties to continue to do this with the aim to settlement the case or to
recommend mediation at an early stage. By making this statement, I am not implying that
Defendants are conceding any liability but I have found the conversations productive to allow

23

counsel to assess the strengths and weaknesses of each side’s case.
24
25

3

MOTION TO CONTINUE INITIAL CMC

7.

1

Mr. McClure and I spoke about my intent to seek a continuance and we both

2

looked at our calendars and decided that a continuance to a CMC date from January 7 to 14 fit

3

our calendars and I chose the 9th based on the Court’s calendar.
I declare under penalties of perjury under the laws of the United States that the foregoing

4
5

is true and accurate. Executed on November 16, 2012 in San Jose, Santa Clara California.
By: ____//s// Tomas Margain__________
Tomas E. Margain

6
7
8

ARGUMENT

9
10

The Court has the authority to continue hearings and a party may seek a continuance
under Local Rule 16. Here, counsel have meet and conferred on the continued date. Counsel

11

have also agreed that there is good cause as the continuance will allow parties to be dismissed
12

and the three remaining defendants represented by one counsel.
13
14

Dated:

November 16, 2012

15
16

By: //s// TOMAS E. MARGAIN
TOMAS E. MARGAIN

17
18
19
20
21
22
23
24
25

4

MOTION TO CONTINUE INITIAL CMC

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

FOR THE

11

NORTHERN DISTRICT OF CALIFORNIA

12
13

Case No.: CV 12-04588 DMR

FRANCIS SANCHEZ, JOSE L. SANCHEZ,
ROBERTO A. CALLES, and ERIC ORTIZ
CRUZ,

ORDER GRANTING PLAINTIFFS’
MOTION TO CONTINUE CASE
MANAGEMENT CONFERENCE
PURSUANT TO LOCAL RULE 16-2(d)

14

Plaintiff,

15
16

v.

17
18
19
20

H&R PLUMBING AND DRAIN
CLEANING, INC.; CITY OF
BRENTWOOD, MOUNTAIN VIEW
SANITARY DISTRICT; WESTERN
SURETY COMPANY; and AMERICAN
CONTRACTORS INDEMNITY COMPANY

21
22
23
24

BASED ON PLAINTIFF’S MOTION TO CONTINUE, THE COURT’S FILE AND
GOOD CAUSE SHOWN, THE COURT ORDERS AS FOLLOWS:

25

5

MOTION TO CONTINUE INITIAL CMC

The initial Case Management Conference and Rule 26 Deadlines are continued as follows:
1

December 20, 2012

2
3

•

Last Day to Meet and Confer Regarding Initial Discloses, ADR process election and
discovery plan.

4
5

•

Last Day to file ADR Certificate signed by Parties and Counsel.

6

•

Last Day to either file a stipulation to ARD Process or Notice of Need for ADR Phone

7

Conference.

8
9

January 2, 2013
10

•

Last Day to File Rule 26(f) Report, complete initial disclosures and file Joint Case

11

Management Statement
12

Last Day to File Magistrate Consent Form

13

•

14

January 9, 2012

15

•

Initial Case Management Conference in Courtroom 4,3rd Floor, Oakland Courthouse at

Nov. 20, 2012

By:

O OR
IT IS S

on
Judge D

DERED

Hon. Donna M. Ryu
Magistrate Judge of the United States
District Court
Ryu

20

RT

21

na M.

ER

23
24
25

6

MOTION TO CONTINUE INITIAL CMC

A

H

22

FO

19

N

D IS T IC T
R

R NIA

DATED:

LI

18

S

IT IS SO ORDERED

UNIT
ED

17

S DISTRICT
TE
C
TA

RT
U
O

1:30 p.m.

NO

16

OF

C