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Cayla R. v. Morgan Hill Unified Sch. Dist.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION
Nov 7, 2011
Case No. CV 5:10-CV-04312-EJD (N.D. Cal. Nov. 7, 2011)

Opinion

Case No. CV 5:10-CV-04312-EJD

11-07-2011

CAYLA R., by and through her Conservator, CATHLEEN R. Plaintiffs, v. MORGAN HILL UNIFIED SCHOOL DISTRICT; THOMAS FRIED; CHRISTOPHER RIZZUTO; Defendants.

GIBEAUT, MAHAN & BRISCOE GARY ROBERT GIBEAUT, ESQ. (State Bar No. 70951) NANCY MAHAN-LAMB, ESQ. [State Bar No. 117997) HANS ALBERT GILLINGER, ESQ. (State Bar No. 243973) KAREN LMANABO, ESQ. (State Bar No. 274527) Attorneys for Defendants, MORGAN HILL UNIFIED SCHOOL DISTRICT, DR. THOMAS FRIED, and CHRISTOPHER RIZZUTO RUDERMAN AND KNOX CHRISTIAN KNOX, ESQ. Attorneys for Plaintiff, CAYLA R., by and through her Conservator, CATHLEEN R.


GIBEAUT, MAHAN & BRISCOE

GARY ROBERT GIBEAUT, ESQ. (State Bar No. 70951)

NANCY MAHAN-LAMB, ESQ. [State Bar No. 117997)

HANS ALBERT GILLINGER, ESQ. (State Bar No. 243973)

KAREN LMANABO, ESQ. (State Bar No. 274527)

Attorneys for Defendants, MORGAN HILL UNIFIED SCHOOL DISTRICT,

DR. THOMAS FRIED, and CHRISTOPHER RIZZUTO

RUDERMAN AND KNOX

CHRISTIAN KNOX, ESQ.

Attorneys for Plaintiff, CAYLA R., by and through her Conservator,

CATHLEEN R.

Honorable Edward J. Davila

STIPULATION TO EXTEND DEADLINE TO COMPLETE MEDIATION AND [PROPOSED] ORDER

[Filed Concurrently with Declaration of Hans Gillinger]

WHEREAS on September 23, 2010, this Court issued a Case Management Order Setting Initial Case Management Conference and ADR Deadlines, Re ADR (document 2), which required plaintiff CAYLA R. (hereinafter "Plaintiff) and defendants MORGAN HILL UNIFIED SCHOOL DISTRICT, THOMAS FRIED, and CHRISTOPHER RIZZUTO (collectively hereinafter "Defendants") to meet and confer regarding ADR selection;

WHEREAS Plaintiff and Defendants (collectively hereinafter "Parties") met and conferred to discuss ADR options (document 4, 5), and agreed to participate in and select the ADR process of Mediation pursuant to ADR Local Rule 6 (Declaration of Hans Gillinger in support of the Parties Stipulation to Extend Deadline to Extend Mediation Completion Date (See concurrently filed Declaration of Hans Gillinger, Exhibit "A," at ¶ 3);

WHEREAS on November 8, 2010, the Parties filed a stipulation and [Proposed] Order (document 3) selecting Mediation, and agreeing to hold Mediation by the presumptive deadline fixed by ADR Local Rule 6-4(b) (Id. at ¶ 3);

WHEREAS on January 26, 2011, Defendants filed a stipulation to extend the deadline to complete mediation (Document 27) to allow the Parties to mediate this matter on the agreed-upon date of May 13, 2011 (Id. at ¶ 8);

WHEREAS on January 28, 2011, this Court issued its order (Document 30) granting the Parties' request to amend the deadline to complete mediation to May 20, 2011 to allow the Parties to mediate this matter on May 13, 2011, the date mutually selected by the Parties (Id. at ¶9);

WHEREAS on March 10, 2011, this Court issued its order (Document 38) ("Order") ruling on Defendants' motion to dismiss the Complaint, which dismissed all claims in the Complaint. The Order granted Plaintiff leave to amend the Complaint as to all three claims to perfect its deficiencies (Order at Page 7 at ¶¶ 3, C) (Id. at ¶ 10);

WHEREAS on March 31, 2011, Plaintiff timely filed a First Amended Complaint ("FAC") pursuant to Section 504 (document 39) (Id. at ¶ 11);

WHEREAS on April 14, 2011, Defendants timely moved for dismissal of the claims in the FAC, and noticed the hearing on said motion for May 23, 2011, at 9:00 a.m. in the Honorable James Ware's courtroom located at 280 South 1st Street, San Jose, California (Document 40-2). Subsequently said motion was re-set to September 26, 2011 by the Notice of the Clerk of the Honorable James Ware (Document 41) (Id. at ¶ 12);

WHEREAS on April 25, 2011, this Court issued a Reassignment Order (Document 42) vacating all pending and then-presently pending matters, and ordering the Parties to re-file and re-notice any then-pending motions, (Defendants' Rule 12 Motion (Documents 40, 40-1, 40-2) was the only pending motion at the time), following reassignment of this case to the Honorable Edward J. Davila (Document 42) (Id. at ¶ 14);

WHEREAS on April 25, 2011, Defendants withdrew its previous filed Rule 12 Motion pursuant to paragraph seven (7) of the April 25, 2011 Reassignment Order (Document 42), and in accordance with Local Rule 7-7 of the Northern District of California United States District Court (Id. at ¶ 15);

WHEREAS on April 27, 2011, Defendants timely and properly re-filed its prior motion to dismiss and re-noticed said motion for hearing on August 26, 2011 at 9:00 a.m. before this Court located in Courtroom 1 on the 5th Floor of the San Jose courthouse of the Northern District of California (Documents 44, 44-1, 44-2) (Id. at ¶ 15);

WHEREAS on May 2, 2011, the Parties met, conferred, and agreed that mediation must follow the Court's ruling on Defendants' pending Rule 12 Motion (Documents 44, 44-1, 44-2) in order to ascertain what, if anything, will be put in issue by the FAC of Plaintiff, and the Parties further agreed that settlement efforts are premature until after the Court rules on Defendants' pending Rule 12 Motion (Documents 44, 44-1, 44-2) (Id. at ¶ 16);

WHEREAS on May 2, 2011, the Parties agreed to stipulate to a request that this Court extend the deadline to complete mediation to a date no sooner than one (1) month after the re-noticed August 26, 2011 hearing on Defendants' dispositive Rule 12 motion (Documents 44, 44-1, 44-2) (Id. at ¶ 16);

WHEREAS the Court granted the stipulation and extended the mediation completion date for one (1) month after the September 30, 2011 hearing on Defendants' dispositive Rule 12 motion (Documents 44, 44-1, 44-2). (Document 49). (Id. at ¶ 15);

WHEREAS this Honorable Court entertained oral arguments at the at the reset hearing on Defendants' dispositive Rule 12 motion (Documents 44, 44-1, 44-2) on September 30, 2011, and issued an Amended Civil Minutes taking the matter under submission with further Orders to follow. (Document 55). (Id. at ¶ 17);

WHEREAS the date for the Court's ruling on Defendants' dispositive Rule 12 motion (Documents 44, 44-1, 44-2) is uncertain and may issue subsequent to October 30, 2011 - the current mediation cut-off date (Document 49) (Id. at ¶ 16);

WHEREAS the Parties require no less than forty-five (45) additional days, and jointly request the Court vacate the current mediation completion date and order the parties to complete mediation in this matter on or before December 15, 2011. (Id. at ¶¶ 16, 17);

WHEREAS the rescheduling of the mediation completion date shall in no way interfere with the progress of discovery or other aspects of the litigation and shall not impact any dates set by this Court apart from the mediation completion date (Id. at ¶ 17);

WHEREUPON pursuant to Federal Rule of Civil Procedure 16(d), ADR Local Rule 6-5(a), and Civil Local Rule 7, the Parties stipulate to a forty-five (45) day extension of the mediation deadline from the current date of October 30, 2011 to December 15, 2011 so that the Court may issue its ruling on Defendants' dispositive Rule 12 motion, which is submitted for decision. The Parties submit the following [proposed] Order to effect their stipulated agreement.

RUDERMAN AND KNOX

CHRISTIAN KNOX

Attorneys for Plaintiff, CAYLA R., by and

through her Conservator, CATHLEEN R.

GIBEAUT, MAHAN & BRISCOE

HANS ALBERT GILLINGER

Attorneys for Defendants, MORGAN

HILL UNIFIED SCHOOL DISTRICT;

THOMAS FRIED; and CHRISTOPHER RIZZUTO

[PROPOSED] ORDER

Pursuant to the stipulation of the Parties hereto, the Court GRANTS the Parties' request and AMENDS the deadline to complete mediation to December 15, 2011, an additional forty-five (45) days so that the Court may issue its ruling on Defendants' dispositive Rule 12 motion, which is submitted for decision

PURSUANT TO STIPULATION, IT IS SO ORDERED

Hon. Edward J. Davila,

District Judge of the United States District

Court for the Northern District of California

SIGNATURE ATTESTATION

Pursuant to General Order No. 45(x)(B), I hereby attest that I have obtained the concurrence in the filing of this document from all the signatories for whom a signature is indicated by a "conformed" signature (/S/) within this e-filed document, and I have on file records to support this concurrence for subsequent production for the Court if so ordered or for inspection upon request.

GIBEAUT, MAHAN & BRISCOE

HANS ALBERT GILLINGER

Attorneys for Defendants,

MORGAN HILL UNIFIED

SCHOOL DISTRICT;

THOMAS FRIED; and

CHRISTOPHER RIZZUTO;


Summaries of

Cayla R. v. Morgan Hill Unified Sch. Dist.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION
Nov 7, 2011
Case No. CV 5:10-CV-04312-EJD (N.D. Cal. Nov. 7, 2011)
Case details for

Cayla R. v. Morgan Hill Unified Sch. Dist.

Case Details

Full title:CAYLA R., by and through her Conservator, CATHLEEN R. Plaintiffs, v…

Court:UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE DIVISION

Date published: Nov 7, 2011

Citations

Case No. CV 5:10-CV-04312-EJD (N.D. Cal. Nov. 7, 2011)