Bender v. Orozco ( 2020 )

1 Kevin G. Little, SBN 149818 LAW OFFICE OF KEVIN G. LITTLE 2 Post Office Box 8656 Fresno, California 93747 3 Telephone: (559) 342-5800 4 Facsimile: (559) 242-2400 E-Mail: kevin@kevinglittle.com 5 Attorneys for Plaintiff Tara Elaine Bender 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 FRESNO DIVISION 10 11 TARA ELAINE BENDER, Case No.: 1:l8-cv-01168-NONE-BAM 12 Plaintiff, THIRD STIPULATION AND ORDER TO EXTEND TIME TO COMPLETE 13 v. PLAINTIFF’S DEPOSITION AND TO CONTINUE PRE-TRIAL DEADLINES 14 J. OROZCO, AND TRIAL IN LIGHT OF COVID-19 PANDEMIC 15 Defendants. 16 17 The parties, by and through their respective attorneys, and pursuant to Local Rules 143 and 18 144, stipulate as follows: 19 RECITALS: 20 1. On February 14, 2019, the Court issued its Scheduling Order. ECF No. 19. 21 2. On March 2, 2020, the Court held an informal telephone conference off the record to 22 address the deposition of Plaintiff Tara Elaine Bender, which was cancelled due to unspecified 23 medical reasons, and the discovery deadlines in this action. Pursuant to the agreement of the parties, 24 Plaintiff's deposition was rescheduled for March 31, 2020 in Fresno, California. All deadlines in the 25 Court's Scheduling Order were continued sixty (60) days as follows: Expert Disclosure - June 2, 26 2020; Supplemental Expert Disclosure - July 21, 2020; Non-Expert Discovery - March 31, 2020; 27 Expert Discovery - August 25, 2020; and Pretrial Motion Filing Deadline - September 15, 2020. The 1 Judge Dale A. Drozd and the Jury Trial was continued to 2/9/2021 at 08:30 AM in Courtroom 4 2 (DAD) before District Judge Dale A. Drozd. ECF No. 30. 3 3. The court has issued General Orders addressing the national, regional and local public 4 health emergency posed by the coronavirus (COVID-19) outbreak. General Order Nos. 610-611. 5 Since the issuance of the court’s prior orders circumstances related to the outbreak have continued to 6 quickly evolve, with state and local public agencies instituting further enhanced measures to manage 7 the spread of the virus and limit the potential for the illness and death it can cause. General Order 8 No. 612. 9 4. On March 16, 2020, in response to COVID-19, the Health Officer of the County of 10 Alameda directed all individuals living in the County to shelter at their place of residence, and 11 directed all businesses to cease non-essential operations in the County, with certain exceptions. 12 Counsel for defendant reside in Alameda County. 13 5. On March 19, 2020, in response to COVID-19, the California State Public Health 14 Officer and Director of the California Department of Public Health ordered all individuals living in 15 the State of California to stay home or at their place of residence, except for essential needs as 16 needed to maintain continuity of operation of the federal critical infrastructure sectors. 17 6. In response to the directions of the State and County Health Officers, many counsel 18 and staff of the law firms representing the parties have been working remotely since mid-March 19 2020. 20 7. On March 30, 2020, and pursuant to the stipulation of the parties, the deadline to 21 complete Plaintiff’s deposition was continued to June 29, 2020; All deadlines in the Court's 22 Scheduling Order were continued sixty (60) days as follows Expert Disclosure – August 31, 2020; 23 Supplemental Expert Disclosure – October 19, 2020; Non-Expert Discovery – June 29, 2020; Expert 24 Discovery – November 23, 2020; and Pretrial Motion Filing Deadline – December 14, 2020. The 25 Pretrial Conference was continued to 3/17/2021 at 09:00 AM in Courtroom 4 (DAD) before District 26 Judge Dale A. Drozd and the Jury Trial was continued to 5/11/2021 at 08:30 AM in Courtroom 4 27 (DAD) before District Judge Dale A. Drozd. 1 8. On or about June 26, 2020, counsel for the parties agreed and requested an 2 enlargement of time for approximately ninety (90) days as to each of the existing discovery 3 deadlines, as well as the pre-trial conference and trial dates in this matter in light of the COVID-19 4 pandemic. 5 9. On or about July 2, 2020, counsel for the parties agreed to amend the Second 6 Stipulation (ECF No. 34) to correct deadlines that were erroneously set on Sundays due to defense 7 counsel’s error. The amended deadline to complete Plaintiff’s deposition was continued to 8 September 28, 2020; Expert Disclosure – November 30, 2020; Supplemental Expert Disclosure – 9 January 19, 2021; Non-Expert Discovery – September 28, 2020; Expert Discovery – February 22, 10 2021; and Pretrial Motion Filing Deadline – March 8, 2021. The Pretrial Conference was continued 11 to June 18, 2021 at 1:30 p.m. in Dept 4 (NONE) and the Jury Trial was continued to August 10, 2021 12 at 8:30 a.m. in Dept 4 (NONE). (ECF No. 36.) 13 10. The parties agreed to set the deposition of the Plaintiff on September 18, 2020; 14 however, prior to that time, Plaintiff was incarcerated and was expected to be in custody at the time 15 of her September 18 deposition. Plaintiff’s counsel notified Defendants’ counsel of Plaintiff’s 16 unavailability, and the deposition was cancelled. 17 11. Plaintiff has been released from custody, but her deposition has not yet been 18 rescheduled, and on or about September 24, 2020, counsel for the parties agreed, and respectfully 19 request, an enlargement of time for approximately one hundred eighty (180) days as to each of the 20 existing discovery deadlines, as well as the pre-trial conference and trial dates in this matter in light 21 of the Plaintiff’s current and future unavailability for deposition. 22 IT IS SO STIPULATED. 23 Dated: September 25, 2020 ANDRADA & ASSOCIATES 24 /s/ Lynne G. Stocker 25 By LYNNE G. STOCKER 26 Attorneys for Defendant J. OROZCO 27 1 Dated: September 25, 2020 LAW OFFICE OF KEVIN G. LITTLE 2 3 By: /s/ Kevin G. Little Kevin G. Little 4 Attorneys for Plaintiff Tara Bender 5 6 I hereby attest that concurrence in the filing of the foregoing document has been obtained 7 from each of the other Signatories. 8 9 /s/ Kevin G. Little 10 11 ORDER 12 The parties’ stipulation does not adequately explain why a continuance of one hundred and 13 eighty (180) days is necessary. See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreations, Inc., 14 975 F.2d 604, 609 (9th Cir. 1992). The Court therefore finds good cause to partially grant and 15 partially deny the parties’ request to modify the Scheduling Order in this action. To accommodate 16 the Court’s calendar and in light of the Standing Order issued by District Judge Dale A. Drozd (Doc. 17 No. 25-1), the Scheduling Order (Doc. No. 19) is modified as follows: 18 Expert Disclosure: January 29, 2021 19 20 Supplemental Expert Disclosure: March 19, 2021 21 Non-Expert Discovery 22 Cutoff: November 27, 2020 23 Expert Discovery Cutoff: April 23, 2021 24 Pretrial Motion 25 Filing Deadline: May 7, 2021 26 Pretrial Conf: November 19, 2021 27 1:30 p.m. Dept 4 (NONE) 1 Trial: January 18, 2022 8:30 a.m. 2 Dept 4 (NONE) 3 Plaintiff’s deposition shall be re-noticed for a mutually convenient date on or before November 27, 4 2020. The remainder of the parties’ request is denied without prejudice and all other deadlines set 5 forth in the Scheduling Order remain unchanged. 6 The Court notes that this is the fourth request and the third stipulation to modify the 7 Scheduling Order in this case. (See Doc. Nos. 30, 31, 33, 35.) The parties are cautioned that further 8 modifications of the Scheduling Order will not be granted absent a demonstrated showing of good 9 cause, which will be narrowly construed. Fed. R. Civ. P. 16(b). Good cause may consist of the 10 inability to comply with court orders in light of the COVID-19 pandemic. Any such future 11 difficulties should be explained. 12 IT IS SO ORDERED. 13 14 Dated: September 30, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27