Jemery James Ehart, et al v. Ghillie Suits.Com, Inc. et al

Filing 106

STIPULATION AND ORDER AS FURTHER AMENDED BY THE COURT re 105 Stipulation filed by Gary B. Crossland. Close of ALL Discovery due by 6/15/2009. Last Date to Hear Dispositive Motions due by 8/17/2009. Preliminary Pretrial Conference set for 5/11/2009 11:00 AM in Courtroom 8, 4th Floor, San Jose. In light of the age of the case, this is the parties' final continuance of the case schedule. Signed by Judge James Ware on 9/24/2008. (ecg, COURT STAFF) (Filed on 9/24/2008)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNIT ED

LORI B. FELDMAN (SBN 99655) LAW OFFICES OF LORI B. FELDMAN 165 North Redwood Drive, Suite 110 San Rafael, CA 94903 Telephone: [phone] Fax: [phone] Attorney for Defendant and Cross-Complainant GARY CROSSLAND

S

S DISTRICT TE C TA

SHIREEN B. ROGERS (SBN 163507) MUSICK, PEELER & GARRETT LLP 650 Town Center Drive, Suite 1200 Costa Mesa, CA 92626 Telephone: [phone] Fax: [phone] Attorney for Defendant and Cross-Complainant THE GARLAND COMPANY

ER

N

F D IS T IC T O R

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION JEREMY JAMES EHART, KRISTY EHART, ) Case No. 5:06 CV-6507-JW and STEVEN RYAN McCLANAHAN, ) ) STIPULATION AND [PROPOSED] Plaintiffs, ) ORDER AMENDING SCHEDULING ) ORDER vs. ) ) The Honorable James Ware GHILLIE SUITS.COM INC.; TODD ) MUIRHEAD; NEW YORK FIRE-SHIELD ) INCORPORATED; WACKENHUT ) SERVICES, INCORPORATED; THE ) WACKENHUT CORPORATION; and DOES ) 1 through 50, inclusive, ) ) Defendants. ) ________________________________________________ ) ) AND RELATED CROSS-CLAIMS ) _____________________________________ ) Come now, (1) Plaintiffs Jeremy James Ehart, Kristy Ehart, and Steven Ryan
Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 1

A

C

LI

FO

mes Wa Judge Ja

re

R NIA

O OR IT IS S

DERED

RT U O

NO

RT

H

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

McClanahan; (2) Defendant Ghillie Suits.Com, Inc.; (3) Defendant Todd Muirhead; (4) Defendant New York Fire-Shield Incorporated; (5) Defendant Wackenhut Services, Incorporated; (6) Defendant The Garland Company; and, (7) Defendant Gary Crossland; and file this Stipulation requesting the Court to enter an Amended Scheduling Order in this case and as grounds therefor, would show the Court as follows: 1. On March 4, 2008, an Order to Amend the Scheduling was entered in this case,

which included the following: Deadline to Disclose Expert Witnesses and serve resumes and reports (63 days before the close of discovery) Last Date for Hearing Dispositive Motions (60 days before Preliminary Pretrial Conference) Close of All Discovery Preliminary Pretrial Conference at 11 a.m. Preliminary Pretrial Conference Statements (Due 10 days before conference) October 13, 2008

February 16, 2009 at 9 a.m.

December 15, 2008 November 10, 2008 October 31, 2008

IT IS SO ORDERED This is the final Amendment of the Court's Scheduling Order. No further extension will be permitted. 2. Subsequent to the date of the prior Scheduling Order dated March 4, 2008,

Plaintiffs filed their First Amended Complaint (on or about March 5, 2008). Moreover, various Defendants filed Answers and Cross-Claims. Defendant and Cross-Complainant Gary Crossland ("Crossland") and Defendant and Cross-Complainant The Garland Company were thereafter served as DOE Defendants on or about March 12, 2008. Crossland is the President of the corporation known as The Garland Company. Crossland filed an Answer and Cross-Claim on or
Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

about May 5, 2008, by and through his counsel, Lori B. Feldman. The Garland Company filed an Answer and Cross-Claim on or about May 5, 2008, through its counsel, Shireen B. Rogers. 3. Crossland's counsel and The Garland Company's counsel have only been in this

case since May 2008, a period of some three (3) months. However, this action has been in progress for almost two (2) years ­ since on or about October 18, 2006. The issues of this case are complicated and are made more so by the production of thousands of pages of documents relating to the operation taking place at the time of the accident. Because the case involves two Marines who were engaged in a military exercise equipped with machine guns and wearing ghillie suits which had been treated with a fire retardant product, Plaintiffs' counsel has not only sued those allegedly involved in the manufacture, distribution, re-packaging, and application of the fire retardant product, but he has sued the supplier of the weapons used during the military operation and has stated causes of action against all Defendants for strict liability, failure to warn, and negligence relating both to the fire retardant product, and to the M-60 machine guns used during the military exercise, as well as the appropriateness of using the ghillie suits in conjunction with the M-60s. 4. Discovery has been in process during the pendency of this action and prior to

Crossland's and The Garland Company's involvement in this action. Numerous depositions were taken in 2007, before Defendants Crossland and The Garland Company were served, including the principal of New York Fire-Shield, Inc., the principal of Ghillie Suits.com, the principal of Complete Seal, Kathleen Verdi, and Joe Anderson. 5. Moreover, there is substantial further discovery being conducted presently and

that remains to be completed. Two depositions in Albuquerque, New Mexico, took place on September 2 and 3, 2008, a deposition is set in Virginia on September 11, 2008, four depositions

Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in Albuquerque are set from September 22-25, 2008, two depositions are set in Albuquerque on October 15 and 16, 2008, and three more depositions are set in Albuquerque on October 27, 28 and 29, 2008. The deposition of Robert Little in Charlotte, NC, has been set, but was continued. The deposition of Captain Thomas Seiverts was taken in July 2008. Counsel for Crossland and counsel for The Garland Company have recently started appearing telephonically for some of these depositions, and transcripts will be ordered and have to be reviewed in those where they have been unable to appear, or which were conducted prior to counsels' involvement in this case. 6. In addition, thousands of pages of documents have been produced by the parties

in this case, including, but not limited to, documents from the Department of Energy, numerous DVDs re M-60 Investigation, Joint Testing Exercise--Pacific Patriot Accident, Firearm Tests, SWRI Department of Fire Technology, documents from New York Fire-Shield, Inc., and documents from Wackenhut Services, Inc. Additional documents have probably been produced, of which counsel for Crossland and The Garland Company must still gather and review. 7. Crossland's counsel and The Garland's counsel have spent the last several weeks

gathering documents and consulting with their client in Texas in order to respond to 41 special interrogatories and 58 document requests. Moreover, because of the extensive discovery that has been propounded to Crossland and The Garland Company, and the numerous depositions that have been scheduled in this case, Crossland and The Garland Company have yet been unable to propound discovery to the other parties in this litigation. Furthermore, counsel for Crossland and The Garland Company are still investigating the chain of distribution of the product at issue. Counsel anticipate filing a motion for summary judgment in this action, but have not had sufficient time to gather the necessary evidence in support of such a motion. 8. The new parties to this case, specifically Gary Crossland and The Garland

Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Company, are seeking the extensions, and Plaintiffs are not opposed to the request. In addition, Defendant Wackenhut Services, Incorporated recently identified the remaining ghillie suits and fire retardant spray, which were ordered for the Joint Testing Exercise (JTX). Plaintiffs have sent a Touhy request to the Department of Energy in order to obtain the physical evidence, and are awaiting its response. Additional time is required for the evidence to be received, examined and analyzed by the parties and their experts. 9. In addition, some of the defendants are engaged in insurance coverage disputes

relevant to this action. For example, New York Fire Shield, Inc. has a declaratory relief action pending in New York State regarding coverage for the defense and indemnity of this lawsuit, which has not yet resolved. A delay in the deadlines will allow more time for the insurance coverage disputes to resolve, which is in all parties' interests. 10. This Stipulation is entered into pursuant to FRCP, Rule 16, which provides that a

Scheduling Order may be amended for good cause and with the Court's permission. See also, Victor Company of Japan, Ltd. v. Quanta Computer, Inc., Slip Copy, 2007 WL 806491 (N.D.Cal. 2007), at *1. Good cause has been shown. Further, the amendment of the Scheduling Order dated March 4, 2008, is not sought for the purpose of delay but so that justice may be served. All parties unanimously agree that a reasonable extension, at a minimum of six (6) months, is necessary for all parties to complete discovery, retain their experts, prepare their dispositive motions, and prepare for trial. 11. Based on the foregoing, all parties jointly move the Court to extend the current

deadlines set out in the Scheduling Order of March 4, 2008. Respectfully submitted, TINSMAN & SCIANO, INC.

Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 5

I
2
a

Respectfully submitted,

TINSMAN & SCIANO, INC.

J

4
5

Dated:

By:

Daniel J. T. Sciano And

6 7
8

NEEDHAM,

AVIS, KEPN

YOUNG, LLP

9

l0

"nlsūr-

By: Craig Needham Attorneys for Plaintiffs JEREMY JAMES EHART, KRISTY EHART And STEVEN RYAN

ll
l2
l3
t4

McCLANAHAN
MANNING & MARDER, KASS, ELLROD, RAMIREZ LLP

l5

Dated:

By:

l6
t7
18

Mike Smith Attorneys for Defendants WACKENHUT SERVICES, INCORPORATED SELMAN.BREITMAN LLP

l9
20

Dated:

By: Paul Stephan Danielle K. Lewis Attorneys for Defendants GHILLIE SUITS.COM, INC. and TODD MUIRHEAD

2t
22
23

24
25

Dated:

MUSICK. PEELER & GARRETT LLP

26

By:
Shireen B. Rogers Attorneys for Defendant THE GARLAND

27
28

COMPANY

Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008

i
2
3

Respectfu lly submitted,

TINSMAN & SCIANO, INC.

4
5

Dated:

By:

Daniel J. T. Sciano
6 7
8

And NEEDHAM, DAVIS, KEPNER &YOTING, LLP

9 10
11

Dated

By: Craig Needham Attomeys for Plaintiffs JEREMY JAMES EHART, KRISTY EHART ANd STEVENRYAN

McCLANAHAN MANNING & MARDER, KASS, ELLROD, RAMIREZLLP

12
13

14
15

By:

t6
17
18
1.9

Mike Smith
Attomeys for Defendants WACKENHUT SERVICES, INCORPORATED

SELMAN-BREITMAN LLP

20
21

By:
Paul Stephan Danielle K. Lewis Attomeys for Defendants GHILLIE SUITS.COM, INC. andTODDMUIRHEAD

22 23

24
25

ARCHERNORRIS

26
27 28

o""a,

?/f/o8

By:
Sharon C. CollieĄ Attomeys for Defendant NEW YORK FIRESHIELD, INC.

Order Dated March 4, 2008

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: ___________

Attorneys for Defendant THE GARLAND COMPANY LAW OFFICES OF LORI B. FELDMAN /s/ By:

Lori B. Feldman

____________________________ Lori B. Feldman Attorneys for Defendant GARY CROSSLAND

Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Stipulation and [Proposed] Order to Amend Scheduling Order Dated March 4, 2008 8

PROPOSED ORDER For good cause shown,Stipulation GRANTS the parties' request datedmodification to is amended4, Pursuant to the the Court above, the Scheduling Order for a March 4, 2008 the March 2008 Scheduling Order as follows: as follows: Deadline to Disclose Expert Witnesses and serve resumes and reports (63 days before the close of discovery) Last Date for Hearing Dispositive Motions (60 days before Preliminary Pretrial Conference) Close of All Discovery Preliminary Pretrial Conference at 11 a.m. Preliminary Pretrial Conference Statements (Due 10 days before conference) April 13, 2009

August 17, 2009

June 15, 2009 May 11, 2009 May 1, 2009

IT IS SO ORDERED. In light of the age of the case, this is the parties' final continuance of the case schedule. Dated: September 24, 2008 ______________________________ THE HONORABLE JAMES WARE