Opinion
NO: 1:07-CV-01043-LJO-BAM
10-21-2011
ENNS PONTIAC, BUICK, & GMC TRUCK, et al.; Plaintiffs, v. ORELIA FLORES, et al.; Defendants, AND RELATED ACTIONS.
CAUFIELD & JAMES LLP Jeffery L. Caufield, Esq. Matthew Friedrichs, Esq. Attorney for Plaintiffs/Counter- Defendants THE CRONIN LAW GROUP Timothy C. Cronin, Esq. Dennis J. Byrne, Esq. Attorneys for Defendants PATRICIA CLOTHEIR AND CAROLYN WHITESIDES, as Administrators to the ESTATE OF MABEL LEE, THE ESTATE OF MABEL LEE, deceased, REEDLEY STEAM LAUNDRY and REEDLEY DRY CLEANING WORKS DOWNEY BRAND LLP Jennifer Hartman King, Esq. Attorneys for Defendants, SACHIKO YAMAGUCHI, as administrator to THE ESTATE OF SIETO YAMAGUCHI and THE ESTATE OF SIETO YAMAGUCHI, deceased LAW OFFICES OF KATHLEEN CLACK Kathleen Clack, Esq. Attorneys for Defendant, JOHN PEARCE LOUIS MARTINEZ PATSY MARTINEZ
Jeffery L. Caufield, Esq. (SBN 166524)
Kenneth E. James, Esq. (SBN 173775)
CAUFIELD & JAMES, LLP
Attorneys for Plaintiffs Enns Pontiac, Buick,
& GMC Truck, Earl L. Enns & Esther Enns
as Trustees of the 2004 Enns Family Trust,
Harold J. Enns & Patricia L. Enns as Trustees
for the Family Trust
STIPULATION AND ORDER REGARDING CONTINUANCE OF SCHEDULING ORDER
DEADLINES DUE TO ADDITION OF NEW PARTIES, NEW COUNTER-CLAIMS, NEW
CROSS-CLAIMS, AND NEED FOR SETTLEMENT DISCUSSIONS
Date: TBD
Time: TBD
Courtroom: 3
Judge: Honorable Lawrence J. O'Neill
The parties to this matter, by and through their undersigned counsel, stipulate to the following joint request to the Court that it continue the Scheduling Order deadlines for approximately nine (9) months as set forth in the proposed schedule below.
I. UNDERLYING ACTION
The present action is a complex case arising under, inter alia, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments & Reauthorization Act of 1986, 42 United States Code Sections 9601 et seq. ("CERCLA"). The underlying dispute between Plaintiffs/Counter-Defendants Enns Pontiac, Buick, & GMC Truck, Earl L. Enns and Esther J. Enns; and Harold J. Enns and Patricia L. Enns ("Enns"), and Defendants, John Pearce ("Pearce"), Louis and Patsy Martinez ("Martinezes"), Patricia Clothier and Carolyn Whitesides, as Administrators to the Estate of Mabel Lee, the Estate of Mabel Lee, Deceased, Reedley Steam Laundry, and Reedley Dry Cleaning Works (collectively, the "Lees"), and Sachiko Yamaguchi, as administrator to the Estate of Sieto Yamaguchi, and the Estate of Sieto Yamaguchi, deceased (collectively, the "Yamaguchis"), involves claims related to the source, nature and extent of alleged contamination underlying and/or surrounding three or more properties located on G Street in Reedley, California, including 1307, 1319, and 1340 G Street, Reedley, California ("G Street Properties"). The case involves private parties, many of whom are elderly and without significant resources, and a relevant time period that spans multiple decades dating back to the 1960s. Prior businesses at 1319 and 1340 G Street in Reedley, California include dry cleaning operations. A prior business at 1307 G Street, Reedley, CA 93654 included an automobile dealership with an automotive repair shop. Contamination allegedly existed and/or exists beneath the G Street Properties and surrounding areas. Other dry cleaning, automotive, and/or industrial businesses in the area may also be contributing to contamination in and around the G Street Properties.
II. STATUS OF THE PLEADINGS AND UPCOMING DEADLINES
New parties were added to this litigation pursuant to the Court's May 2, 2011 Order. (See Docket No. 161). Some of these new parties still need to make FRCP Rule 26 initial disclosures. On or about September 22, 2011, the Lees and Sachiko Yamaguchi, as administrator to the Estate of Sieto Yamaguchi each filed counterclaims and cross-claims against the parties in this case, as required by the Court's August 30, 2011, Memorandum Decision and Order Re Defendants' Motions to Dismiss Second Amended Complaint. (See Docket Nos. 250, 259, 260, 263). In addition, on or about October 13, 2011, John Pearce filed counterclaims and cross-claims against the parties in this case. (See Docket Nos. 286, 287). The responses to these newly-asserted claims have not yet been filed. However, under the current Scheduling Order (discussed in more detail, below), expert witness disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure ("FRCP") are due on November 1, 2011. (See Docket No. 207). This leaves the parties insufficient time to answer and evaluate the new claims, retain additional experts (if necessary), and have expert reports prepared in time to meet the disclosure deadline.
III. SITE INVESTIGATION AND SETTLEMENT STATUS
Ongoing testing and characterization work is being conducted beneath the G Street Properties and surrounding areas to determine the nature and extent of alleged contamination, and to identify the appropriate remedial approach. Enns has conducted multiple rounds of testing and installed additional monitoring wells in an attempt to understand and evaluate the full extent of the contamination in and around the G Street Properties. Multiple rounds of soil vapor testing have been conducted by defendant John Pearce. Additional sampling and analysis must be completed before the alleged contamination can be fully characterized and before an appropriate remedy may be proposed to the Central Valley Regional Water Quality Control Board, which has oversight and approval authority over the investigation and remedy selection. However, with the completion of the most recent characterization efforts in August 2011, the parties believe they will have sufficient information to pursue productive settlement negotiations soon after the pleadings are closed. Doing so before significant additional expenditures are incurred on further site investigation work and expert discovery will preserve resources for settlement, and increase the likely success of the parties' settlement negotiations. As discussed further below, the parties' intention to pursue settlement negotiations is one of the bases for the request for a continuance.
IV. DISCOVERY STATUS
The non-expert discovery deadline passed on June 3, 2011. Expert disclosures pursuant to FRCP 26(a)(2), (A) and (B) are scheduled to occur on November 1, 2011. (See Docket No. 207). This stipulation proposes to extend that (and other) deadline(s), as explained below.
V. GOOD CAUSE EXISTS FOR THE CONTINUANCE OF THE SCHEDULING ORDER DEADLINES
Scheduling orders entered before the final pretrial conference may be modified upon a showing of "good cause." Hannon v. Chater, 887 F.Supp. 1303 (N.D.Cal. 1995); FRCP 16(b)(4). The reason for the "good cause" requirement for modification of a court's scheduling order is that such orders and their enforcement are regarded as an essential mechanism for cases becoming trial-ready in an efficient, just, and certain manner. Rouse v. Farmers State Bank of Jewell, Iowa, 866 F.Supp. 1191 (N.D.Iowa 1994). With this understanding in mind, the parties believe "good cause" is present to support the need for an extension of the case deadlines.
On June 16, 2011 the Honorable Judge Oliver W. Wanger issued an Order Granting Plaintiffs' Motion for Continuance of Scheduling Order Deadlines which provided amended case deadlines. (See Docket No. 207). The dates the Court set were as follows:
+-----------------------------------------------------------------------------+ ¦Deadline/Event ¦Old Date ¦ +--------------------------------------------+--------------------------------¦ ¦Non-Expert Discovery Cut-off ¦June 3, 2011 ¦ +--------------------------------------------+--------------------------------¦ ¦Expert Witness Disclosures pursuant to FRCP ¦November 1, 2011 ¦ ¦26(a)(2), (A) and (B) ¦ ¦ +--------------------------------------------+--------------------------------¦ ¦Expert Rebuttal Disclosure and Expert ¦ ¦ ¦Supplement Deadline pursuant to ¦ ¦ ¦ ¦December 1, 2011 ¦ ¦FRCP 26 (a)(2)(E) and (C), and FRCP ¦ ¦ ¦ ¦ ¦ ¦26(e)(2) ¦ ¦ +--------------------------------------------+--------------------------------¦ ¦Discovery Cut-Off (including experts) ¦January 3, 2012 ¦ +--------------------------------------------+--------------------------------¦ ¦Non-Dispositive Pre-Trial Motions ¦January 18, 2012 (filed) ¦ ¦ ¦February 24, 2012 (heard) ¦ +--------------------------------------------+--------------------------------¦ ¦(including discovery motions) ¦ ¦ +--------------------------------------------+--------------------------------¦ ¦Dispositive Pre-Trial Motions ¦February 3, 2012 (filed) ¦ +--------------------------------------------+--------------------------------¦ ¦ ¦March 5, 2012 (heard) ¦ +--------------------------------------------+--------------------------------¦ ¦Settlement Conference ¦ ¦ +--------------------------------------------+--------------------------------¦ ¦Pre-Trial Conference Date ¦April 9, 2012 ¦ +-----------------------------------------------------------------------------+
The parties agree that all remaining unexpired deadlines need to be revised in order to allow the parties to attempt and complete good faith settlement negotiations, to evaluate and address new claims recently filed in this lawsuit, and, if necessary, engage in expert discovery and fully prepare for trial if settlement negotiations fail. These bases provide good cause to extend the scheduling deadlines by approximately nine (9) months.
A. Additional Time Is Necessary To Complete The Parties' Expert Reports
New parties were added to this litigation pursuant to the Court's May 2, 2011 Order. (See Docket No. 161). Some of the new parties still need to make FRCP Rule 26 initial disclosures. On September 22, 2011, the Lees and Sachiko Yamaguchi, as administrator to the Estate of Sieto Yamaguchi each filed counterclaims and cross claims against the parties in this case, as required by the Court's August 30, 2011, Memorandum Decision and Order Re Defendants' Motions to Dismiss Second Amended Complaint. (See Docket Nos. 250, 259, 260, 263). These counterclaims and cross claims were filed approximately forty (40) days prior to the expert witness disclosures pursuant to FRCP 26(a)(2), (A) and (B). In addition, Pearce filed cross-claims and counterclaims, against the Lees and Enns. (See Docket Nos. 286, 287). Pearce's counterclaims and cross-claims were filed on October 13, 2011, approximately nineteen (19) days prior to the expert witness disclosures pursuant to FRCP 26(a)(2), (A) and (B). As a result, all parties subject to the new claims require time to answer, evaluate, and assess the new claims for preparation of the expert reports due within a month. Some parties believe that additional experts may need to be hired to address issues relating to the new claims.
B. Additional Time Is Necessary To Attempt Settlement Negotiations
Good cause also exists to continue the deadlines so the parties can enter into and complete settlement negotiations.
Subsequent to the recent characterization efforts, testing results, and updated remediation costs estimates all provided in August 2011, the parties have preliminarily discussed entering into settlement negotiations after the next round of pleadings are filed. The parties believe that a continuance may allow them to avoid significant litigation costs, including additional expert report preparation and pre-trial preparation costs, and increase the likely success of the parties' settlement negotiations.
VI. NEW PROPOSED DATES
As shown in the previous section, the current schedule of deadlines needs to be revised such that the parties can adequately prepare for expert witness disclosures due within a month and to engage in settlement negotiations and ultimate case resolution. Accordingly, the parties agree that the deadlines in this case should be revised to reflect the dates shown in the chart below:
+-----------------------------------------------------------------------------------------+ ¦Deadline/Event ¦Old Date ¦New Date ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Non-Expert ¦ ¦ ¦ ¦Discovery Cut- ¦June 3, ¦June 3, 2011 ¦ ¦ ¦2011 ¦ ¦ ¦off ¦ ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Expert Witness ¦ ¦ ¦ ¦Disclosures ¦ ¦ ¦ ¦ ¦November ¦ ¦ ¦pursuant to FRCP¦1, 2011 ¦August 1, 2012 ¦ ¦26(a)(2), ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦(A) and (B) ¦ ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Expert Rebuttal ¦ ¦ ¦ ¦Disclosure ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦and Expert ¦ ¦ ¦ ¦Supplement ¦ ¦ ¦ ¦ ¦December ¦ ¦ ¦Deadline ¦1, 2011 ¦August 31, 2012 ¦ ¦pursuant to FRCP¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦26 (a)(2)(E) and¦ ¦ ¦ ¦(C), and ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦FRCP 26(e)(2) ¦ ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Discovery ¦January 3,¦October 3, 2012 ¦ ¦Cut-Off ¦2012 ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦(including ¦ ¦ ¦ ¦experts) ¦ ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Non-Dispositive ¦January ¦October 18, 2012 ¦ ¦Pre-Trial ¦18, 2012 ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Motions ¦(filed) ¦(filed) ¦ ¦(including ¦ ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦discovery ¦February ¦November 26, 2012 ¦ ¦motions) ¦24, 2012 ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦ ¦(heard) ¦(heard) ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Dispositive ¦February ¦November 5, 2012 ¦ ¦Pre-Trial ¦3, 2012 ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Motions ¦(filed) ¦(filed) ¦ +----------------+----------+-------------------------------------------------------------¦ ¦ ¦March 5, ¦ ¦ ¦ ¦2012 ¦December 10, 2012 (heard) ¦ ¦ ¦(heard) ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Settlement ¦ ¦Parties to contact U.S. Magistrate Judge McAuliffe for date ¦ ¦Conference ¦ ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Pre-Trial ¦April 9, ¦January 29, 2013 at 8:30 a.m. in Dept. 4 ¦ ¦Conference Date ¦2012 ¦ ¦ +----------------+----------+-------------------------------------------------------------¦ ¦Trial Date ¦May 22, ¦March 12, 2013 at 8:30 a.m. in Dept. 4 ¦ ¦ ¦2012 ¦ ¦ +-----------------------------------------------------------------------------------------+
Parties reserve their right to seek leave from the court to conduct additional discovery based on the newly filed claims. Some parties might oppose such a request, if filed.
VII. CONCLUSION
The parties agree that the remaining unexpired deadlines need to be revised in order to allow the parties time to file responsive pleadings, adequately prepare for expert witness disclosures, due within a month, and to engage in settlement negotiations. Accordingly, good cause exists to continue the Scheduling Order Deadlines as set forth above. The parties respectfully request that the Court approve the parties' proposed schedule.
CAUFIELD & JAMES LLP
Jeffery L. Caufield, Esq.
Matthew Friedrichs, Esq.
Attorney for Plaintiffs/Counter
Defendants
THE CRONIN LAW GROUP
Timothy C. Cronin, Esq.
Dennis J. Byrne, Esq.
Attorneys for Defendants
PATRICIA CLOTHEIR AND
CAROLYN WHITESIDES, as
Administrators to the ESTATE OF
MABEL LEE, THE ESTATE OF
MABEL LEE, deceased, REEDLEY
STEAM LAUNDRY and REEDLEY
DRY CLEANING WORKS
DOWNEY BRAND LLP
Jennifer Hartman King, Esq.
Attorneys for Defendants,
SACHIKO YAMAGUCHI, as
administrator to THE ESTATE OF
SIETO YAMAGUCHI and
THE ESTATE OF SIETO
YAMAGUCHI, deceased
LAW OFFICES OF KATHLEEN CLACK
Kathleen Clack, Esq.
Attorneys for Defendant,
JOHN PEARCE
LOUIS MARTINEZ
PATSY MARTINEZ
Good cause appearing therefore, IT IS SO ORDERED that the Scheduling Order Deadlines be continued as set forth above, including dates appearing in bold which are different than those proposed by the parties.
IT IS SO ORDERED.
Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE