YellowCake, Inc. v. DashGo, Inc. ( 2023 )

1 Thomas P. Griffin, Jr., Esq. (SBN 155133) HEFNER, STARK & MAROIS, LLP 2 2150 River Plaza Drive, Suite 450 3 Sacramento, CA 95833 Telephone: (916) 925-6620 4 Facsimile: (916) 925-1127 Email: tgriffin@hsmlaw.com 5 6 Seth L. Berman, Esq. (admitted pro hac vice) ABRAMS FENSTERMAN, LLP 7 3 Dakota Drive, Suite 300 Lake Success, NY 11042 8 Telephone: (516) 328-2300 9 Facsimile: (516) 328-6638 Email: sberman@abramslaw.com 10 Attorneys for Plaintiff Yellowcake, Inc. 11 Richard J. Idell, Esq. (SBN 069033) 12 Ory Sandel, Esq. (SBN 233204) DICKENSON PEATMAN & FOGARTY P.C. 13 1500 First Street, Suite 200 14 Napa, CA 94559 Telephone: (707) 261-7000 15 Facsimile: (707) 255-6876 Email: ridell@dpf-law.com 16 osandel@dpf-law.com 17 Attorneys for Defendants Dashgo, Inc., Audiomicro, Inc. d.b.a. Adrev, Benjamin Patterson and Noah 18 Becker 19 UNITED STATES DISTRICT COURT 20 EASTERN DISTRICT OF CALIFORNIA 21 YELLOWCAKE, INC., a California CASE NO. 1:21-cv-00803-AWI-BAM corporation, 22 STIPULATION RE: CONTINUANCE OF Plaintiff, TRIAL AND RELATED DATES; 23 v. [PROPOSED] ORDER 24 DASHGO, INC., a Delaware corporation; (E-filing) 25 AUDIOMICRO, INC. d/b/a ADREV, a Hon. Magistrate Judge Barbara A. McAuliffe, Delaware corporation; BENJAMIN Presiding 26 PATTERSON, an individual; and NOAH BECKER, an individual, 27 Defendants. 28 1 Plaintiff Yellowcake, Inc. (“Plaintiff” or “Yellowcake”), on the one hand, and defendants 2 Dashgo, Inc. (“Dashgo”), Audiomicro, Inc. d.b.a. Adrev (“Adrev”), Benjamin Patterson and 3 Noah Becker (collectively, “Defendants”), on the other hand (collectively, the “Parties”; each 4 individually, a “Party”), by and through their respective attorneys, hereby agree and stipulate as 5 follows with reference to the following facts: 6 1. On June 9, 2022, the Court issued a Scheduling Order in this action. Docket No. 7 67. 8 2. On February 21, 2023, the Court issued an Amended Scheduling Order in this 9 action. Docket No. 106. 10 3. On May 10, 2023, the Court issued a further Amended Scheduling Order in this 11 action. Docket No. 118. 12 4. According to the May 10, 2023, Amended Scheduling Order (“Schedule”), the 13 following deadlines are currently pending: 14 15 August 31, 2023: Non-Party Discovery and Depositions 16 September 22, 2023: Expert Disclosure 17 October 20, 2023: Supplemental Expert Disclosure 18 November 17, 2023: Expert Discovery Deadline 19 January 26, 2024: Dispositive Motion Filing Deadline 20 July 15, 2024: Pretrial Conference 21 September 17, 2024: Jury Trial 22 5. The May 10, 2023, Amended Scheduling Order provides, in pertinent part: 23 “If the parties determine at any time that the schedule outlined in this order cannot 24 be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent status 25 conference. The dates set in this Order are considered to be firm and will not be modified absent a showing of good cause even if the request to modify is 26 made by stipulation. Stipulations extending the deadlines contained herein 27 will not be considered unless they are accompanied by affidavits or declarations, and where appropriate, attached exhibits, which establish good 28 cause for granting the relief requested. The failure to comply with this order may result in the imposition of sanctions.” 1 6. Defendants have issued and served subpoenas for both documents and testimony 2 on each of two third-parties, Colonize Media, Inc. and David Hernandez a.k.a. Jose David 3 Hernandez, and have noticed the depositions of those third parties, as well as the depositions of 4 Plaintiff’s person most knowledgeable and of Plaintiff’s principal, Kevin Berger. Those 5 depositions are currently set for July 25 and 26, 2023 (as to Colonize Media, Inc. and Mr. 6 Hernandez), and August 1 and 2, 2023 (as to Mr. Berger and Plaintiff’s person most 7 knowledgeable). The return date on the document subpoenas to Colonize Media, Inc. and Mr. 8 Hernandez was July 18, 2023. 9 7. The Parties have mutually expressed an agreement to mediate the matter, but only 10 recently have they been able to agree on a mediator and a mediation date. The Parties have now 11 agreed on a mediator and a mediation date. The Parties agree that mediation should occur before 12 any depositions are taken. The meditator is John Bates, Esq. of JAMS. Based on various factors, 13 including without limitation the requirements of Defendants’ insurance carrier, and the 14 15 availability of counsel, the parties and the mediator, the mediation is currently scheduled for 16 October 3, 2023. 17 8. On Friday, July 7, 2023, Thomas P. Griffin, Jr., counsel for Plaintiff, advised 18 defense counsel by email, inter alia, that Mr. Berger is currently overseas and is facing health 19 concerns that prevent him from returning to California as planned; that Mr. Berger’s return date 20 is presently unknown; and that it could be a few weeks before Mr. Berger is permitted to return. 21 Mr. Griffin also informed Defendants’ counsel that he has been addressing medical issues 22 affecting multiple family members which has interfered with his ability to tend to matters in this 23 case, including selecting a mediator and scheduling a mediation. Mr. Griffin also stated that, 24 because of Mr. Berger’s absence, the scheduling of the mediation is on hold; the production of 25 documents by Colonize Media, Inc. and Mr. Hernandez scheduled for July 18, 2023, and the 26 corresponding depositions will need to be reset; and that Plaintiff’s counsel will work with 27 defense counsel to re-set the depositions previously noticed by Defendants. One or more 28 1 declarations attesting to the foregoing shall be filed herewith, and Plaintiff shall provide any 2 further evidence requested by the Court regarding the same. 3 9. In view of the various issues raised by Mr. Griffin, Defendants and Plaintiff are 4 all agreeable to stipulate to a modification of the Schedule and a continuance of the dates for the 5 depositions and document production pursuant to the subpoenas regarding the four above-noted 6 deponents on the terms set forth hereinbelow. 7 NOW THEREFORE, the Parties hereby agree and stipulate as follows: 8 A. Colonize Media, Inc. and David Hernandez a.k.a. Jose David Hernandez shall 9 produce all documents responsive to Defendants’ document subpoenas on or before 10 August 7, 2023, subject to any objections on the grounds of attorney-client privilege 11 and/or the attorney work product doctrine. Counsel for the parties shall meet and 12 confer in good faith with regard to any issues relating to the scope of the document 13 subpoenas. 14 15 B. The Parties shall mediate this matter on October 3, 2023, with John Bates, Esq. of 16 JAMS. 17 C. If the matter does not settle at mediation, depositions will take place as follows unless 18 otherwise agreed by the Parties: 19 a. The deposition of David Hernandez a.k.a. Jose David Hernandez shall 20 commence on October 23, 2023, at 9:30 a.m. and shall continue on October 21 24, 2023 until completed. 22 b. The deposition of the person(s) most knowledgeable of Colonize Media, Inc. 23 shall commence immediately upon the completion of Mr. Hernandez’s 24 deposition, anticipated to be on October 24, 2023, and shall continue on 25 date(s) agreed up by the Parties. 26 c. The deposition of Kevin Berger shall commence on November 7, 2023, at 27 9:30 a.m. and shall continue on November 8, 2023, at 10:00 a.m., until 28 completed. 1 d. The deposition of the person(s) most knowledgeable of Yellowcake, Inc. 2 shall commence immediately upon the completion of Mr. Berger’s deposition, 3 anticipated to be on November 8, 2023, and shall continue until completed. 4 e. The deposition of Eric Gressinger shall commence on November 13, 2023, at 5 9:30 a.m. and shall continue until completed. 6 f. The deposition of Benjamin Patterson shall commence on November 14, 7 2023, at 9:30 a.m. and shall continue until completed. 8 g. The deposition of the person(s) most knowledgeable of DashGo, Inc. shall 9 commence on November 15, 2023, at 9:30 a.m. and shall continue until 10 completed. 11 h. The deposition of Noah Becker shall commence on November 28, 2023, at 12 9:30 a.m. and shall continue until completed. 13 i. The deposition of the person(s) most knowledgeable of Audiomicro, Inc., dba 14 15 AdRev shall commence on November 29, 2023, at 9:30 a.m. and shall 16 continue until completed. 17 j. The depositions of David Hernandez, the person most knowledgeable of 18 Colonize Media, Inc., Kevin Berger and the person most knowledgeable of 19 Yellowcake, Inc. shall be in-person at the law office of Tom Griffin in 20 Sacramento, California; attorney Seth Berman may appear remotely at these 21 depositions. All depositions scheduled by Plaintiff shall occur by remote 22 video conference unless otherwise agreed. 23 D. The Parties agree that a continuance of at least ninety (90) days of the Schedule in 24 this action is appropriate, and, subject to the Court’s approval and entry of an order 25 hereon, that the Schedule shall be modified as follows or as otherwise set by the 26 Court in the Court’s discretion: 27 November 30, 2023: Non-Party Discovery and Depositions 28 December 22, 2023: Expert Disclosure 1 January 19, 2024: Supplemental Expert Disclosure 2 February 16, 2024: Expert Discovery Deadline 3 April 26, 2024: Dispositive Motion Filing Deadline 4 October 15, 2024: Pretrial Conference 5 December 17, 2024: Jury Trial 6 E. The Parties jointly request that the Court approve of this Stipulation and enter an 7 order hereon. 8 SO STIPULATED. 9 ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, 10 FORMATO, FERRARA, WOLF & CARONE, LLP 11 Dated: July 24, 2023 By: /s/ Seth L. Berman 12 Seth L. Berman (admitted pro hac vice) Attorneys for Plaintiff Yellowcake, Inc. 13 14 HEFNER, STARK & MAROIS, LLP 15 Dated: July 24, 2023 By: /s/ Thomas P. Griffin, Jr. Thomas P. Griffin, Jr., Esq. (SBN 155133) 16 Attorneys for Plaintiff Yellowcake, Inc. 17 DICKENSON PEATMAN & FOGARTY P.C. 18 19 Dated: July 24, 2023 By: /s/ Richard Idell Richard J. Idell 20 Ory Sandel Attorneys for Defendants Dashgo, Inc., 21 Audiomicro, Inc. d.b.a. Adrev, Benjamin 22 Patterson and Noah Becker 23 24 25 26 27 28 1 ORDER 2 For good cause, based upon the medical condition of Plaintiff’s principal and third party 3 availability, the Court adopts the stipulation of the parties. The schedule in this action is hereby 4 modified as follows: 5 Non-Party Discovery and Depositions: November 30, 2023 6 Expert Disclosure: December 22, 2023 7 Supplemental Expert Disclosure: January 19, 2024 8 Expert Discovery Deadline: February 16, 2024 9 Dispositive Motion Filing Deadline: April 26, 2024 10 Pretrial Conference: October 21, 2024, at 1:30 p.m. in Dept. 1 (ADA) 11 Jury Trial: December 17, 2024, at 8:30 a.m. in Dept. 1 (ADA) (7 days) 12 The parties are further cautioned that settlement discussions are not good cause to amend a 13 scheduling order. See Gerawan Farming, Inc. v. Rehrig Pac. Co., No. 1:11-CV-01273-LJO, 14 2013 WL 645741, at *5 (E.D. Cal. Feb. 21, 2013) (“…settlement negotiations are not good cause 15 to modify a Scheduling Order… Settlement discussions, in and of themselves, are not good 16 cause.”); Eckert v. City of Sacramento, No. 2:0-7C-V00825 GEB GGH, 2009 WL 3211278, at 17 *2 (E.D. Cal. Sept. 30, 2009) (“Moreover, ongoing settlement negotiations do not constitute 18 good cause justifying modification of the pretrial scheduling order in this case.”); Lehman Bros. 19 Holdings v. Golden Empire Mortg., Inc., No. 1:09-CV-01018LJO JLT, 2010 WL 2679907, at *2 20 (E.D. Cal. July 2, 2010) (noting that “settlement discussions generally are not an “unanticipated” 21 development…” and therefore the parties’ ongoing settlement discussions “did not constitute 22 good cause to modify the Scheduling Order.”). The Court will not grant further continuances, 23 absent good cause, which will be narrowly construed. 24 25 IT IS SO ORDERED. 26 Dated: July 24, 2023 /s/ Barbara A. McAuliffe _ 27 UNITED STATES MAGISTRATE JUDGE 28