City of Lincoln v. County of Placer ( 2022 )

1 OFFICE OF THE PLACER COUNTY COUNSEL GREGORY S. WARNER (SBN 282490) 2 ERIC C. BRUMFIELD (SBN 306642) 3 175 Fulweiler Avenue Auburn, California 95603 4 Telephone: (530) 889-4044 Facsimile: (530) 889-4069 5 Email: GWarner@placer.ca.gov EBrumfield@placer.ca.gov 6 7 JENNIFER HARTMAN KING (SBN 211313) ALANNA LUNGREN (SBN 269668) 8 J. R. PARKER (SBN 320526) ANDREYA WOO NAZAL (SBN 327651) 9 HARTMAN KING PC 520 Capitol Mall, Suite 750 10 Sacramento, CA 95814 11 Telephone: (916) 379-7530 Facsimile: (916) 379-7535 12 Email: JHartmanKing@HartmanKingLaw.com ALungren@HartmanKingLaw.com 13 JRParker@HartmanKingLaw.com AWooNazal@HartmanKingLaw.com 14 15 Attorneys for Defendant and Counterclaimant COUNTY OF PLACER 16 17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 CITY OF LINCOLN, Case No.: 2:18-CV-00087-KJM-AC 20 Plaintiff, JOINT STIPULATION AND ORDER REGARDING 21 v. MODIFICATION OF THE SIXTH AMENDED PRETRIAL SCHEDULING 22 COUNTY OF PLACER; and DOES 1 ORDER through 100, inclusive, 23 Defendants. 24 _______________________________________ 25 AND RELATED COUNTER CLAIMS. 26 27 28 1 The parties to this action, Plaintiff/Counter-Defendant City of Lincoln (“City”) and 2 Defendant/Counterclaimant County of Placer (“County”) (hereinafter collectively, “Parties”), have met 3 and conferred and hereby jointly and respectfully request that the Court modify the Sixth Amended 4 Pretrial Scheduling Order (Dkt. 45) to allow an extension of the expert witness discovery deadline of 5 October 14, 2022, by fourteen (14) days to October 28, 2022. The parties also jointly request an 6 extension of the December 9, 2022 dispositive motion hearing deadline, by seventy (70) days to 7 February 17, 2023. The parties also agree to a stay on filing any dispositive motions until after January 8 1, 2023. 9 The Parties jointly submit the following summary of previous modifications to the deadlines in 10 the scheduling orders and a statement of good cause in support of their instant request. 11 PREVIOUS MODIFICATIONS TO THE PRETRIAL SCHEDULING ORDER 12 A. First Amended Pretrial Scheduling Order 13 In November 2019, the Parties requested and received an Order (Dkt. 17, 18) extending the 14 deadline for fact discovery in this matter from December 16, 2019, to March 9, 2020. The Parties 15 provided the following reasons for that initial 12-week extension of the fact discovery deadline: 16 1. To allow the City to complete its review and voluntary production to the County of select 17 documents from the voluminous County Archive documents; 18 2. To allow the City to complete its sixth voluntary production (consisting of approximately 19 1,600 pages that the City copied from County archives, and approximately 3,500 pages 20 of additional supplemental information that City’s counsel obtained from publicly 21 available locations); 22 3. To allow the Parties to determine whether there are additional percipient witnesses, locate 23 those witnesses and interview them, with the goal of taking depositions; 24 4. To allow the Parties to conduct any further written discovery arising from their review of 25 the County Archive documents; 26 /// 27 /// 28 /// 1 5. To allow the Parties to have a full opportunity to meet and confer, narrow the scope of 2 their Rule 30(b)(6) deposition notices, and hopefully ease the burden on their respective 3 public entity employees/representatives; and 4 6. To possibly aid in the mediation and settlement process, by f urther eliminating factual 5 disputes related to the Parties’ alleged contribution to conditions at the Landfill and their 6 respective liability, if any, therefore. 7 B. Second Amended Pretrial Scheduling Order 8 In February 2020, the Parties requested and received an Order (Dkt. 20, 21) continuing the 9 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 10 in this matter by six (6) months. The Parties provided the following reasons for a six-month continuance 11 of deadlines: 12 1. To allow the Parties to continue their meet and confer efforts and complete fact and expert 13 discovery in a timely manner; 14 2. To allow the Parties to continue their search for potential witnesses with relevant 15 knowledge of events that took place over 60 years ago; 16 3. To allow the County’s recently retained outside environmental counsel adequate time to 17 review the voluminous production of documents; 18 4. To allow the Parties adequate time to prepare their Federal Rule of Civil Procedure 19 30(b)(6) witnesses for their respective depositions; and 20 5. To allow the Parties to explore settlement discussions after completing the discovery 21 process. 22 C. Third Amended Pretrial Scheduling Order 23 In August 2020, the Parties requested and received an Order (Dkt. 22, 23) continuing the 24 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 25 in this matter by eight (8) months. The Parties provided the following reasons for an eight-month 26 continuance of deadlines: 27 1. Challenges that were unforeseen in February 2020, resulting from the COVID-19 28 pandemic that impacted this country beginning in March, including difficulties in 1 scheduling and preparing government employees for deposition, as they were required 2 to work remotely, and difficulties in taking such depositions remotely, in light of the 3 document-intensive nature of said depositions; 4 2. To allow the Parties to continue their meet and confer efforts to finalize various discovery 5 and evidentiary authentication agreements, with the goal of streamlining evidentiary 6 presentations at trial; 7 3. To allow the Parties to explore settlement discussions after completing discovery. 8 D. Fourth Amended Pretrial Scheduling Order 9 In March 2021, the Parties requested and received an Order (Dkt. 27, 28) continuing the 10 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 11 in this matter by six (6) months. The Parties provided the following reasons for a six-month continuance 12 of deadlines: 13 1. To allow the Parties to continue their meet and confer efforts to finalize various 14 discovery and evidentiary authentication agreements, with the goal of streamlining 15 evidentiary presentations at trial; 16 2. Challenges resulting from the continued COVID-19 pandemic that impacted this 17 country beginning in March 2020, including difficulties in scheduling and preparing 18 government employees for deposition, as they were required to work remotely, and 19 difficulties in taking such depositions remotely, in light of the document-intensive nature 20 of said depositions; 21 3. To allow the Parties to explore settlement discussions after completing discovery. 22 E. Fifth Amended Pretrial Scheduling Order 23 In August 2021, the Parties requested and received an Order (Dkt. 31, 32) continuing the 24 deadlines for fact discovery, designation of expert witnesses, expert discovery and dispositive motions 25 in this matter by ninety (90) days. The Parties provided the following reasons for a ninety-day 26 continuance of deadlines: 27 /// 28 /// 1 1. To allow the Parties to diligently identify and review the voluminous supplemental 2 production of relevant documents; identify and prepare fact witnesses for deposition; and 3 finalize discovery and evidentiary agreements. 4 2. To allow the Parties to meet and confer regarding the scope and timing of their respective 5 Fed. R. Civ. Proc. Rule 30(b)(6) depositions. 6 3. To allow the Parties to explore settlement discussions after completing discovery. 7 F. Sixth Amended Pretrial Scheduling Order 8 In March 2022, the Parties requested and received an Order (Dkt. 45) continuing the deadlines 9 for designation of expert witnesses by ninety (90) days to June 7, 2022, and an extension of the deadline 10 to exchange rebuttal lists of expert witnesses was extended by seventy-seven (77) days to August 22, 11 2022. The deadline to conclude expert discovery was extended by thirty-eight (38) days to October 14, 12 2022. Our dispositive motion deadline remained December 9, 2022. The Parties provided the following 13 reasons for the requested continuance: 14 1. The County’s lead expert was at the hospital with his immediate family member, who 15 had been involved in a serious accident. The County was informed that this situation 16 would impact his availability for all of the expert’s matters for an indeterminate amount 17 of time. 18 Now, the Parties seek the Court’s approval to extend the completion of expert discovery and 19 dispositive motion hearing deadlines, based upon the unavailability of the County’s lead expert and one 20 of the City’s experts for deposition before the current expert discovery deadline expires. An extension 21 of the deadlines for expert discovery and dispositive motion related deadlines is required and 22 respectfully requested, for the reasons set forth below. 23 STATEMENT OF GOOD CAUSE FOR MODIFYING THE EXISTING EXPERT DISCOVERY AND DISPOSITIVE MOTION DEADLINES 24 25 The Parties jointly submit the following statement of good cause in support of their stipulation 26 and request a fourteen (14) day extension for completion of expert discovery; a seventy (70) day 27 extension for the dispositive motion hearing deadline; and a stay until after January 1, 2023, for the 28 parties to file any dispositive motions. 1 A district court has “broad discretion in supervising the pretrial phase of litigation.” C.F. v. 2 Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). A scheduling order may be modified 3 “for good cause and with the judge’s consent.” Fed. R. Civ. Proc. 16(b)(4); Johnson v. Mammoth 4 Recreations, 975 F.2d 604, 608 (9th Cir. 1992); see also, Dkt. 16, 6:22-26. T he key factors considered 5 in determining good cause are whether the party moving for modification was diligent in trying to 6 complete discovery in a timely manner, and the party’s reasons for seeking modification. Johnson, 7 supra, 975 F.2d at 609; C.F., supra, 654 F.3d at 984; Tapias v. Mallet & Co., 2017 U.S. Dist. LEXIS 8 144406, at *1-2 (N.D. Cal. Sep. 6, 2017). The district court may modify the pretrial schedule “if it 9 cannot reasonably be met despite the diligence of the party seeking the extension.” Johnson, supra, 975 10 F.2d at 609; Tapia, supra, 2017 U.S. Dist. LEXIS 144406, at *1. 11 Generally, courts use a three-step inquiry in assessing diligence for determining good cause 12 under Rule 16: 13 [T]o demonstrate diligence under Rule 16’s “good cause” standard, the movant may be required to show the following: (1) that she was diligent in assisting the Court in creating 14 a workable Rule 16 order; (2) that her noncompliance with a Rule 16 deadline occurred or will occur, notwithstanding her diligent efforts to comply, because of the development 15 of matters which could not have been reasonably foreseen or anticipated at the time of the Rule 16 scheduling conference; and (3) that she was diligent in seeking amendment 16 of the Rule 16 order, once it became apparent that she could not comply with the order. 17 Grant v. United States, 2011 U.S. Dist. LEXIS 131662, at *14 (E.D. Cal. Nov. 14, 2011) (citing Jackson 18 v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999)). 19 A. The Parties’ Efforts to Prepare a Workable Rule 16 Order 20 The Parties were diligent in assisting the Court in creating a Rule 16 Order. As mentioned in the 21 prior Stipulation and Orders, the Parties met and conferred, and filed their “Joint Report of Parties’ 22 Planning Meeting” on May 16, 2018 (Dkt. 12). From the outset, the Parties recognized that this action 23 would be complex, both factually and legally. The City alleges that waste disposal activities occurred 24 over sixty years ago, from the late 1940s to 1976. The City’s asserted contaminant response activities 25 have spanned several decades since the closure of the Landfill, and the City alleges those are ongoing 26 today. The Parties brought claims against one another under, inter alia, the 27 Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), legislation 28 which has been aptly called an inherently “complex statute with a maze-like structure and baffling 1 language.” ASARCO, LLC v. Celanese Chemical Co., 792 F.3d 1203, 1208 (9th Cir. 2015) (citing 2 California ex. rel. Cal. Dep’t. of Toxic Substances Control v. Neville Chem. Co., 358 F.3d 661, 663 (9th 3 Cir. 2004)) (internal quotations omitted). Recognizing that this case involved a complex environmental 4 statute, six decades of documentation and potentially numerous witness es, the Parties requested 5 approximately a year-and-a-half to complete fact discovery. See Dkt. 16, p. 14. 6 The Pretrial Scheduling Order was reasonably calculated to address the complexities of this case, 7 and it was created with the active participation of the Parties. However, as discussed below, the 8 unavailability of the City and County’s expert witnesses is the reason for this request. 9 B. Unavailability of City’s and County's Expert Witnesses for Depositions before Current Expert Witness Discovery Deadline Expires 10 11 The parties believe it is reasonable and necessary to extend the expert discovery deadline to 12 accommodate their respective expert witnesses’ unavailability. The City’s expert is not available for 13 deposition due to travel plans during the months of September and October and is not expected to be 14 available for deposition until mid-October, after the current expert discovery cutoff. The County’s expert 15 is unavailable for deposition prior to the current expert discovery deadline due to the scheduling of two 16 trials. Both the City’s expert and the County’s expert referenced above, are available for deposition after 17 the current expert discovery cutoff and the parties are conferring regarding mutually agreeable 18 deposition dates for the respective experts’ depositions that will allow the parties to complete all expert 19 depositions by October 28, 2022, should the Court grant the parties’ extension request. 20 Based on the parties’ respective experts’ scheduling conflicts and the impact on the expert 21 discovery and dispositive motion hearing deadlines, the parties have agreed to seek extensions of the 22 expert discovery and dispositive motion deadlines. The parties have also agreed to a stay on filing any 23 dispositive motions until after January 1, 2023. 24 PROPOSED MODIFICATIONS TO THE SIXTH AMENDED PRETRIAL SCHEDULING ORDER 25 26 The Parties propose the following sections of the Amended Pretrial Scheduling Order (Dkt. 18) 27 as amended by the Sixth Amended Pretrial Scheduling Order (Dkt. 45) be amended as follows: 28 /// 1 Section V. DISCLOSURE OF EXPERT WITNESSES 2 All expert discovery shall be completed by October 28, 2022. 3 Section VI. MOTION HEARING SCHEDULE 4 All dispositive motions, except motions for continuances, temporary restraining orders or other 5 emergency applications, shall be heard no later than February 17, 2023, as ordered in the Sixth 6 Amended Pretrial Scheduling Order (Dkt. 45). Dispositive motions shall not be filed by the parties until 7 after January 1, 2023. 8 Dated: September 15, 2022 HARTMAN KING PC 9 By: /s/ Jennifer Hartman King 10 JENNIFER HARTMAN KING 11 ALANNA LUNGREN J. R. PARKER 12 ANDREYA WOO NAZAL Attorneys for Defendant and 13 Counterclaimant COUNTY OF PLACER 14 Dated: September 15, 2022 BROWN & WINTERS 15 By: /s/ Jeffrey T. Orrell (as authorized on 9/15/22) 16 WILLIAM D. BROWN JEFFREY T. ORRELL 17 JANET MENACHER Attorneys for Plaintiff and 18 Counter-Defendant CITY OF LINCOLN 19 20 21 22 23 24 25 26 27 28 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4} CITY OF LINCOLN, Case No.: 2:18-CV-00087-KJM-AC 5 Plaintiff, SIXTH AMENDED PRETRIAL 6 SCHEDULING ORDER V. 7 COUNTY OF PLACER; and DOES 1 g through 100, inclusive, 9 Defendants. 10 11 Upon consideration of Plaintiff/Counter-Defendant City of Lincoln’s (“City”) and 12 | Defendant/Counterclaimant County of Placer’s (“County”) Joint Stipulation Regarding Modification of 13 || the Sixth Amended Pretrial Scheduling Order, and finding good cause therefor, the Court hereby amends 14 || the Sixth Amended Pretrial Scheduling Order (Dkt. 45) as follows: 15 Section V. DISCLOSURE OF EXPERT WITNESSES 16 All expert discovery shall be completed by October 28, 2022. 17 Section VI. MOTION HEARING SCHEDULE 18 All dispositive motions, except motions for continuances, temporary restraining orders or other 19 || emergency applications, shall be heard no later than February 17, 2023, as ordered in the Seventh 20 || Amended Pretrial Scheduling Order. Dispositive motions shall not be filed by the parties until after 21 | January 1, 2023. 22 IT IS SO ORDERED. 23 DATED: September 28, 2022. 24 /\ / 25 TVW X 26 CHIEF NT] ED STATES DISTRICT JUDGE 27 28 00055367.1 -8- JOINT STIPULATION AND ORDER REGARDING MODIFICATION OF THE SIXTH AMENDED PRETRIAL