Opinion
Case No. 2:06-CV-01565-JAM-KJM
10-20-2011
INTERNATIONAL FLAVORS & FRAGRANCES INC., Plaintiff, v. VAN EEGHEN INTERNATIONAL B.V. and DE FRANCESCO & SONS, INC., Defendants.
ROBERT W. NELMS Attorneys for Defendant DE FRANCESCO & SONS, INC. PAGLIERO & ASSOCIATES CANDACE M. PAGLIERO JAMES R. PAGLIERO Attorneys for Defendant VAN EEGHEN INTERNATIONAL BV FILICE BROWN EASSA & McLEOD LLP ROBERT D. EASSA DELIA A. ISVORANU Attorneys for Plaintiff INTERNATIONAL FLAVORS & FRAGRANCES INC.
ROBERT W. NELMS, SBN: 118695
CANNON & NELMS P.C. Attorneys at Law
Attorneys for Defendant
DE FRANCESCO & SONS, INC.
STIPULATION AND JOINT REQUEST
FOR ORDER AMENDING PRE-TRIAL SCHEDULING ORDER
Defendant DE FRANCESCO & SONS, INC. ("De Francesco"), by and through its counsel of record; Defendant VAN EEGHEN INTERNATIONAL B.V. ("Van Eeghen"), by and through its counsel of record; and Plaintiff INTERNATIONAL FLAVORS AND FRAGRANCES INC. ("IFF"), by and through its counsel of record, hereby stipulate and respectfully request the Court to enter a Stipulated Order Amending the Pre-Trial Scheduling Order.
The Court previously entered an order amending the pre-trial schedule in this case, on January 18, 2011. The parties request the Court to amend the pre-trial schedule again because good cause exists, as follows:
1. The parties traveled to The Netherlands in November 2010 and have taken the following depositions: Willem Van Eeghen, Henri Van Eeghen, Hans Fessl and Lisbeth Van Gorp in Amsterdam. However, the deposition of Lisbeth Van Gorp (produced, as was Mr. Fessl, as a person most qualified concerning communications between IFF and Van Eeghen) was not completed. The deposition of Robert Kiejzer was scheduled and confirmed to be taken during this visit however; Mr. Kiejzer reneged on his agreement to appear for deposition the night before it was to take place and will have to be deposed under the strictures of the rules and procedures enumerated under The Hague Convention, if he is to be deposed at all.
2. There were also several person most qualified type depositions noticed which were objected to by counsel for IFF which were not completed in November 2010 and have been the subject of ongoing discussions and an eventual motion that was heard on October 12, 2012. Magistrate Carolyn Delaney, in advance of the hearing on the motion, ordered all counsel to meet and confer by video-conference. A video-conference was conducted and IFF agreed to produce witnesses responsive to two of the three persons most qualified deposition notices indicating there was no such witnesses responsive to one category. On October 12, 2012 Van Eeghen's Motion for Sanctions was heard and denied by the Magistrate and she ordered the agreed upon two person most qualified depositions to go forward along with the completion of Lisbeth Van Gorp's initial deposition. During the telephonic hearing counsel met and conferred and agreed upon the dates of January 1 - 8, 2012 in Amsterdam, Netherlands to complete these depositions. These were the first mutually available dates for all counsel and the witnesses.
3. The current first expert disclosure date is January 13, 2012, just five (5) days after our return from the depositions ordered to go forward in The Netherlands. The completion of the depositions in Amsterdam comes so close on the heels of the designation of experts that it is unlikely that transcripts will even be available let alone sufficiently in advance for critical analysis by experts to meet the requirements of an expert report pursuant to F.R.C.P. Rule 26. This is especially so as one of the persons most qualified depositions involves testimony and documents concerning the nature and extent of the claimed damages paid by IFF as a result of the sale of irradiated onion powder. Magistrate Carolyn Delaney in her order of October 13, 2011 (Document 183) at page 2 footnote number 1 noted the close proximity of the depositions to the current expert disclosure date and recommended these dates be amended should the parties so stipulate.
4. The deposition of Mario DeFrancesco and DeFrancesco & Sons former employee, Quality Assurance Director Ben Duran have been completed.
5. A deposition of a person(s) most qualified at Proctor & Gamble regarding the terms and scope of the settlement of the underlying claims with IFF was to have been scheduled and taken. We were working with counsel at Dinsmore & Shohl, LLP, counsel for Proctor & Gamble to identify both documents and candidates for the this deposition but though diligent efforts have been made there no longer appears to be anyone at Proctor & Gamble who is knowledgeable regarding these transactions.
6. All counsels to this action have been involved in preparation for trial of one type or another since the last amendment to the CMO. Several counsels have filed notices of unavailability. The international nature of this action, including the foreign locations of percipient parties and witnesses, and the continued good faith cooperation of the parties, militates towards another revision of the Pre-Trial Scheduling Order deadlines.
7. The parties continue to agree that mediation of this matter is in the best interests of all parties and may facilitate settlement, thus obviating the need for trial, the associated costs to the parties, and unnecessary utilization of judicial resources. The parties have agreed to reschedule the mediation to take place on the first available mutually convenient date following the completion of the second round of depositions in The Netherlands. The parties have agreed upon a mediator: Ret. Judge Ronald M. Sabraw.
8. The parties jointly submit this Stipulation and Request to revise the existing Pre-Trial Scheduling Order for the purposes of allowing the parties time to complete key depositions and mediation. In the event the matter does not resolve at mediation, the parties will complete any existing depositions and expert discovery, and be prepared for trial by the proposed revised date.
8. Based on the foregoing, the parties respectfully move the Court to extend the current deadlines set out in the Pre-Trial Scheduling Order. The parties jointly and unanimously move that the attached Proposed Amended Pre-Trial Scheduling Order be entered by the Court.
9. This motion is not made for purposes of delay, but so that justice may be done. All parties unanimously agree that a reasonable extension is necessary based upon the foregoing and agree to the dates set forth infra:
+-----------------------------------------------------------------------------+ ¦ITEM ¦CURRENT DATE ¦REVISED DATE ¦ +---------------------------------+---------------------+---------------------¦ ¦Dispositive Motion Filing ¦4/18/2012 ¦5/23/2012 ¦ ¦Deadline ¦ ¦ ¦ +---------------------------------+---------------------+---------------------¦ ¦Dispositive Motion Hearing ¦5/16/2012 @9:30 a.m. ¦6/20/2012 at 9:30 ¦ ¦ ¦ ¦a.m. ¦ +---------------------------------+---------------------+---------------------¦ ¦Discovery Deadline ¦3/9/2012 ¦4/20/2012 ¦ +---------------------------------+---------------------+---------------------¦ ¦Disclosure of Expert Witnesses ¦1/13/2012 ¦2/24/2012 ¦ +---------------------------------+---------------------+---------------------¦ ¦Disclosure of Rebuttal Experts ¦1/20/2012 ¦3/2/2012 ¦ +---------------------------------+---------------------+---------------------¦ ¦Joint Pre-Trial Statement ¦6/29/2012 ¦7/27/2012 ¦ ¦Deadline ¦ ¦ ¦ +---------------------------------+---------------------+---------------------¦ ¦Final Pre-Trial Hearing ¦7/6/2012 ¦8/3/2012 at 11:00 ¦ ¦ ¦ ¦a.m. ¦ +---------------------------------+---------------------+---------------------¦ ¦Trial of Matter ¦8/20/2012 at 9:00 ¦9/10/2012 at 9:00 ¦ ¦ ¦a.m. ¦a.m. ¦ +-----------------------------------------------------------------------------+
Accordingly, pursuant to Local Rule 143, the parties respectfully request that this Court approve the parties' Stipulation, and grant the Joint Request to amend the pre-trial scheduling order.
Respectfully Submitted,
CANNON & NELMS
ROBERT W. NELMS
Attorneys for Defendant
DE FRANCESCO & SONS, INC.
PAGLIERO & ASSOCIATES
CANDACE M. PAGLIERO
JAMES R. PAGLIERO
Attorneys for Defendant
VAN EEGHEN INTERNATIONAL
BV
FILICE BROWN EASSA & McLEOD LLP
ROBERT D. EASSA
DELIA A. ISVORANU
Attorneys for Plaintiff
INTERNATIONAL FLAVORS &
FRAGRANCES INC.
IT IS SO ORDERED.
HON. JOHN A. MENDEZ
U.S. DISTRICT COURT JUDGE