Opinion
CASE NO.: 1:11-CV-01632-LJO-SKO
01-02-2013
MARTHA ARMSTRONG, KERED ARMSTRONG, a Minor, by and through his Guardian ad Litem, MARTHA ARMSTRONG, Plaintiffs, v. MERCED COUNTY, et al., Defendants.
ROBERT D. PONCE (State Bar No.: 108069) LAW OFFICES OF ROBERT D. PONCE Attorney for Plaintiffs, MARTHA ARMSTRONG and KERED ARMSTRONG, a Minor, by and through his Guardian ad Litem, MARTHA ARMSTRONG
ROBERT D. PONCE (State Bar No.: 108069)
LAW OFFICES OF ROBERT D. PONCE
Attorney for Plaintiffs,
MARTHA ARMSTRONG and KERED ARMSTRONG,
a Minor, by and through his Guardian ad Litem,
MARTHA ARMSTRONG
STIPULATION AND ORDER
FOR CONTINUANCE OF DATES SET
FORTH IN THE SCHEDULING
ORDER
The parties to this action, plaintiff MARTHA ARMSTRONG and KERED ARMSTRONG, a Minor, by and through his Guardian ad Litem, Martha Armstrong, and defendants CALIFORNIA FORENSIC MEDICAL GROUP, INC., MERCED COUNTY, SHERIFF MARK PAZIN, COMMANDER JAMES BUTTREY, CORRECTIONAL OFFICER J. COLLINS, CORRECTIONAL OFFICER B. SHAMBAUGH, CORRECTIONAL OFFICER RIOS, CORRECTIONAL OFFICER ABRAMS, CORRECTIONAL OFFICER SARGENSON, CORRECTIONAL SERGEANT RISTINE (incorrectly named herein as Correctional Sergeant "Resini"), and defendant ROXANNE LONCTOT, R.N., hereby agree and stipulate to the following:
1. That the pre-trial and trial dates set forth in the Scheduling Order of April 9, 2012 be continued for a period of six months. Said dates consist of non-expert and expert discovery deadlines, non-dispositive motion filing deadline, dispositive motion filing deadline, settlement conference, pre-trial conference and trial.
The basis for the Stipulation and Joint Request are as follows:
1. The two heirs of decedent Derek Armstrong, Sr., who are Derek Armstrong, Jr. and Roshawanda Collins, (named herein as nominal defendants) remain unserved. Defendants in this action wish to avoid the potential of having to be deposed twice. This potential exists should these defendants appear in this action after being deposed and be represented by different plaintiff's counsel, who may wish to re-depose said defendants.
Currently, the widow of Derek Armstrong, Sr., Martha Armstrong and Kered Armstrong, son of Derek Armstrong, Sr. are plaintiffs in this action. Under Probate Code §377.60, Derek Armstrong, Jr. and Roshawanda Collins (son and daughter) are entitled to participate in this litigation. Both have not appeared in this lawsuit and, as noted, have been named as "nominal defendants."
2. This request for the continuance of said dates is to allow for additional time to serve Roshawanda Collins, who has still not been located, although a tentative, but unconfirmed address corresponding to a Roshawanda Collins has been found. Derek Armstrong, Jr. has been located and is currently being served with the Summons and Complaint pursuant to CCP §415.40.
The parties have otherwise proceeded, diligently, with case preparation.
1. The parties to this action have been diligent in conducting discovery in the absence of the depositions of defendants. Said discovery has included the exchange of initial disclosures. Plaintiffs have produced extensive medical records, personal records, photographs and other documentation. Defendants Merced County, et al., have produced incident reports and policies.
2. Plaintiff has responded to written discovery requests consisting of interrogatories and further requests for production of documents. The depositions of plaintiffs Martha Armstrong and Kered Armstrong have been taken. The parties have obtained and consulted with experts. Plaintiffs noticed the depositions of three defendants and intend to take the depositions of an additional four to six others.
3. Defendants have requested plaintiff not proceed with the depositions so as to allow further attempts to locate and serve the remaining heirs.
Reasonable, diligent efforts have been performed by plaintiffs' counsel to locate and serve the remaining non-appearing defendants.
1. Accompanying this Stipulation is a declaration of plaintiffs' counsel, detailing the efforts plaintiffs' counsel has undertaken to locate and serve Derek Armstrong, Jr. and Roshawanda Collins. Plaintiffs' counsel submits that these efforts have been diligent and reasonable. One nominal defendant, as noted, has been located and is being served under CCP §415.40. Said heir resides in the State of Washington. The remaining heir is believed to be residing in Springfield, Missouri. An effort is underway to contact this individual to determine whether or not she is the surviving daughter of decedent Derek Armstrong, Sr.
2. A continuance of six months would allow for service by publication to be completed (provided the court grants the order allowing service by publication) and for discovery to be conducted with the additional heirs participating. Should Derek Armstrong, Jr. Decline participation or default on the complaint, a request for entry of default will be filed. Likewise, should Ms. Collins be served and fail to appear, a request for entry of default will be filed.
The parties hereby propose the continued dates as follows:
+---------------------------------------------------------+ ¦Non-Expert Discovery Cutoff ¦June 14, 2013 ¦ +--------------------------------------+------------------¦ ¦Expert Discovery Cutoff ¦September 23, 2013¦ +--------------------------------------+------------------¦ ¦Plaintiffs' Expert Witness Reports Due¦July 15, 2013 ¦ +--------------------------------------+------------------¦ ¦Defendants' Expert Witness Reports Due¦July 31, 2013 ¦ +--------------------------------------+------------------¦ ¦Non-Dispositive Motion Filing Deadline¦October 3. 2013 ¦ +--------------------------------------+------------------¦ ¦Dispositive Motion Filing Deadline ¦November 8, 2013 ¦ +--------------------------------------+------------------¦ ¦Settlement Conference ¦January 9, 2014 ¦ +--------------------------------------+------------------¦ ¦Pre-Trial Conference ¦January 30, 2014 ¦ +--------------------------------------+------------------¦ ¦Jury Trial ¦March 10, 2014 ¦ +---------------------------------------------------------+
LAW OFFICES OF ROBERT D. PONCE
By: _____________
ROBERT D. PONCE
Attorney for Plaintiffs
TRIMBLE, SHERINIAN & VARANINI
By: _____________
JEROME M. VARANINI
Attorney for Defendants Merced County, et al.
BERTLING AND CLAUSEN
By: _____________
STEVE SHLENS
Attorney for Defendant Roxanne Lonctot, R.N.
ORDER
Pursuant to the stipulation entered into by and between counsel and for good cause shown, IT IS HEREBY ORDERED that the dates set forth in the Scheduling Order of April 9, 2012, be continued for a period of six (6) months as follows:
+----------------------------------------------------------+ ¦Non-Expert Discovery Cutoff ¦June 14, 2013 ¦ +---------------------------------------+------------------¦ ¦Expert Discovery Cutoff ¦September 23, 2013¦ +---------------------------------------+------------------¦ ¦Plaintiffs' Expert Witness Reports Due ¦July 15, 2013 ¦ +---------------------------------------+------------------¦ ¦Defendants' Expert Witness Reports Due ¦July 31, 2013 ¦ +---------------------------------------+------------------¦ ¦Non-Dispositive Motion Filing Deadline ¦October 3, 2013 ¦ +---------------------------------------+------------------¦ ¦Non-Dispositive Motion Hearing Deadline¦November 6, 2013 ¦ +---------------------------------------+------------------¦ ¦Dispositive Motion Filing Deadline ¦November 8, 2013 ¦ +---------------------------------------+------------------¦ ¦Dispositive Motion Hearing Deadline ¦December 19, 2013 ¦ +---------------------------------------+------------------¦ ¦Settlement Conference ¦January 9, 2014 ¦ +---------------------------------------+------------------¦ ¦Pre-Trial Conference ¦January 30, 2014 ¦ +---------------------------------------+------------------¦ ¦Jury Trial ¦March 11, 2014 ¦ +----------------------------------------------------------+ IT IS SO ORDERED.
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE