Opinion
4:20-cv-07036-DMR
02-24-2023
BOARD OF TRUSTEES OF THE LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; BOARD OF TRUSTEES OF THE LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; BOARD OF TRUSTEES OF THE LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; and BOARD OF TRUSTEES OF THE LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA, Plaintiffs, v. SMP CONSTRUCTION AND MAINTENANCE INC., dba FOUNDATION SUPPORT OF CA Defendant.
RONALD L. RICHMAN (SBN 139189) ADAM THOMAS (SBN 297249) BULLIVANT HOUSER BAILEY PC Attorneys for Plaintiffs SWEENEY MASON LLP Roger M. Mason Attorneys for Defendant
RONALD L. RICHMAN (SBN 139189) ADAM THOMAS (SBN 297249) BULLIVANT HOUSER BAILEY PC Attorneys for Plaintiffs
SWEENEY MASON LLP Roger M. Mason Attorneys for Defendant
JOINT REQUEST FOR AN EXTENSION OF AMENDED CASE MANAGEMENT AND PRETRIAL ORDER FOR COURT TRIAL; ORDER THEREON
HON. DONNA M. RYU UNITED STATES MAGISTRATE JUDGE
TRIAL: July 17, 2023
TIME: 9:00 a.m.
CTRM: 4, 3rd Floor Ronald Dellums Federal Bldg. 1301 Clay Street Oakland, CA 94612
Via Zoom Videoconference
Plaintiffs and defendant, through their respective counsel, respectfully request that the Court extend the Amended Case Management and Pretrial Order for Court Trial on the following grounds.
This case has turned out to be particularly complex. Initially, the parties believed that the audit could be reduced significantly by separating the work of the dba Foundation Support (defendant) from the work of the dba Foundation Repair of CA. As explanation, defendant SMP Construction and Maintenance Inc. operates two dbas: Foundation Support of CA; and Foundation Repair of CA. This proved impossible since the two dbas had not maintained, inter alia, separate payroll and time records. The parties continue to work together and have been slowly, but surely, narrowing the issues in an effort to reduce the issues for trial or, more importantly, to try to settle the case. Currently, there are approximately 5,190 projects at issue, subject to the audit. Plaintiffs and defendant have agreed, in principle, to reduce the scope of the audit to a sample of 214 projects. Defendant is working with plaintiffs to provide the required information and documentation regarding these 214 select projects. Even further, defendant is working with plaintiffs to prepare information and documentation on ten (10) select projects, agreeing to provide plaintiffs with what defendant believes is the appropriate information and documentation to complete the audit on these ten select projects. Once plaintiffs and defendant are able to agree to the specific information and documentation requited, using this select ten project sample, then the parties will have a protocol for the information and documentation required to complete a full audit analysis of the agreed-upon 214 projects. Once the audit is completed on the 214 projects, the audit results will be shared with defendant and the parties will attempt to settle the case.
The parties have had several productive sessions with Howard A. Herman, who was assigned as the ENE Evaluator. [Dkt. 38]. The parties desire to continue to work with Mr. Herman in his capacity as the ENE evaluator and eventually, a mediator. The most recent ENE session with Mr. Herman was on January 30, 2023. At this session, not only did counsel have a chance to meet and confer, their respective clients engaged in further meaningful discussions. As a result of the January 30, 2023, ENE, the parties agreed to a reduced, narrowed scope of the audit at issue, with defendant agreeing to produce additional documents and records for this agreed-upon narrowed scope of the audit. The parties believe that it will take another 60 (sixty) days for the additional audit documents to be produced, and then reviewed by plaintiffs, and then discussed between the parties. The parties then intend to proceed with a further ENE in mid-March with Mr. Herman and if both parties believe they are in the best position to do so, to proceed further with Mr. Herman as a mediator.
Based on the above, the parties respectfully request that this Court issue an order to extend the deadlines in the Amended Case Management and Pretrial Order for Court Trial for ninety (90) days.
DATED: February 21, 2023
ORDER
Based on the parties' request to extend the deadlines in the Amended Case Management and Pretrial Order for Court Trial, and good cause appearing, IT IS HEREBY ORDERED that:
1. TRIAL Dated:
a. Court trial shall begin on November 27, 2023 at 9:00 a.m. at the U.S. District Court, 1301 Clay Street, Oakland, California.
b. The length of trial will be not more than 4 days. The Court may shorten the allotted time as it deems appropriate, and may also allocate a fixed number of hours for each side. Court hours for trial normally are 9:00 a.m. to 3:00 p.m., subject to the Court's availability.
2. DISCOVERY AND EXPERT DISCLOSURES
a. All non-expert discovery shall be completed by June 27, 2023.
b. Experts shall be disclosed and reports provided by June 27, 2023.
c. Rebuttal experts shall be disclosed and reports provided by July 11, 2023.
d. All discovery from experts shall be completed by July 25, 2023.
The parties shall file an updated case management conference statement no later than seven (7) days prior to the continued case management conference.
3. MOTIONS
The last day for hearing dispositive motions shall be August 24, 2023 at 1:00 p.m.
4. ALTERNATIVE DISPUTE RESOLUTION
This case has already been referred to Early Neutral Evaluation (ENE).
5. PRETRIAL CONFERENCE
a. A pretrial conference shall be held on November 15, 2023 at 3:00 p.m. Lead counsel who will try the case (or the party if pro se) must attend.
b. By October 17, 2023, lead counsel shall meet and confer regarding: (1) Preparation and content of the joint pretrial conference statement;
(2) Preparation and exchange of pretrial materials to be served and lodged pursuant to paragraph 5(c) below; and
(3) Settlement of the action.
c. By October 27, 2023, counsel and/or parties shall:
(1) Serve and file a joint pretrial statement that includes the pretrial disclosure required by Federal Rule of Civil Procedure 26(a)(3) as well as the following supplemental information:
(a) The Action.
(i) Substance of the Action. A brief description of the substance of claims and defenses which remain to be decided.
(ii) Relief Prayed. A detailed statement of all the relief claimed, particularly itemizing all elements of damages claimed as well as witnesses, documents or other evidentiary material to be presented concerning the amount of those damages.
(b) The Factual Basis of the Action.
(i) Undisputed Facts. A plain and concise statement of all relevant facts not reasonably disputable, as well as which facts parties will stipulate for incorporation into the trial record without the necessity of supporting testimony or exhibits.
(ii) Disputed Factual Issues. A plain and concise statement of all disputed factual issues which remain to be decided.
(iii) Agreed Statement. A statement assessing whether all or part of the action may be presented upon an agreed statement of facts.
(iv) Stipulation. A statement of stipulations requested or proposed for pretrial or trial purposes.
(c) Disputed Legal Issues.
Without extended legal argument, a concise statement of each disputed point of law concerning liability or relief, citing supporting statutes and decisions, and any procedural or evidentiary issues.
(d) Trial Preparation.
(i) Witnesses to Be Called. With regard to witnesses disclosed pursuant to Federal Civil Rule of Civil Procedure 26(a)(3)(A), a brief statement describing the substance of the testimony to be given.
(ii) Estimate of Trial Time. An estimate of the number of hours needed for the presentation of each party's case, indicating possible reductions in time through proposed stipulations, agreed statements of facts, or expedited means of presenting testimony and exhibits.
(iii) Use of Discovery Responses. Designate excerpts from discovery that the parties intend to present at trial, other than solely for impeachment or rebuttal, from depositions specifying the witness page and line references, from interrogatory answers, or from response to requests for admission.
(e) Trial Alternatives and Options.
(i) Settlement Discussions. A statement summarizing the status of settlement negotiations and indicating whether further negotiations are likely to be productive.
(ii) Amendments, Dismissals. A statement of requested or proposed amendments to pleadings or dismissal of parties, claims, or defenses.
(iii) Bifurcation, Separate Trial of Issues. A statement of whether bifurcation or a separate trial of specific issues is feasible and desired.
(f) Miscellaneous
Any other subjects relevant to the trial of the action or material to its just, speedy and inexpensive determination.
(2) Serve and file trial briefs, motions in limine (including any motion regarding the qualifications or testimony of any expert witness) and joint proposed findings of fact and conclusion so flaw. The findings of fact shall set forth in simple, declarative sentences, separately numbered, all factual contentions relied upon by the party in support of its claim for relief and shall be free of pejorative language and argument. Counsel shall submit separately their disputed findings of fact and conclusions of law. Counsel shall email a copy of their proposed findings of fact and conclusions of law in a standard word processing format (and not .pdf format) to dmrpo@cand.uscourts.gov;
(3) Serve and file an exhibit setting forth the qualifications and experience for each expert witness;
(4) Serve and file a list of each party's exhibits by number (plaintiff) or letter (defendant), including a brief statement describing the substance and purpose of each exhibit and the name of the sponsoring witness;
(5) Exchange exhibits which shall be premarked (plaintiff shall use numbers; defendant shall use letters) and tabbed; and
(6) Deliver two sets of al prepared exhibits to chambers (exhibits are not to be filed).
No party shall be permitted to call any witness or offer any exhibit in its case in chief that is not disclosed in its pretrial statement without leave of the Court and for good cause.
(d) By November 6, 2023, after meeting and conferring in a good faith attempt to resolve and objections, counsel and/or parties shall serve and filed: (1) any objections to exhibits or to use of deposition excerpts or other discovery; (2) any objections to witnesses, including the qualifications of an expert; (3) any opposition to a motion in limine.
(e) All motions in limine and objections shall be heard at the pretrial conference.
6. All documents filed with the Clerk of the Court shall list the civil case number followed only by the initials “DMR.” One copy must be clearly marked as a chambers copy. Chambers' copies shall be three-hole punched at the left side, suitable for insertion into standard binders.
IT IS FURTHER ORDERED that the further Case Management Conference shall be continued to June 21, 2023, at 1:30 p.m. by Zoom Conference. An Updated Joint Case Management Conference Statement shall be filed no later than seven (7) days prior to the scheduled Case Management Conference.