Berkley Assurance Company v. Olam Americas, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BERKLEY ASSURANCE COMPANY, et al., Case No. 1:22-cv-00904-ADA-SAB 12 Plaintiffs, ORDER CONTINUING HEARING ON MOTION TO DISMISS UNTIL JUNE 21, 13 v. 2023 14 OLAM AMERICAS, INC., et al., ORDER CONTINUING SCHEDULING CONFERENCE UNTIL OCTOBER 10, 2023 15 Defendants. (ECF Nos. 37, 40, 42, 50, 51) 16 17 Plaintiff Berkley Assurance Company, individually and on behalf of Arte Sano, LLC, 18 filed this action July 20, 2022, against Defendants Olam Americas, Inc. (“Olam”), and Smirk’s 19 LTD. (ECF No. 1.) On October 18, 2022, Defendant Olam filed a motion to dismiss, and on 20 December 6, 2022, filed a motion for joinder or more definite statement. (ECF No. 22.) On 21 January 11, 2023, the Court held a hearing on the motions. (ECF No. 30.) No appearances were 22 made on behalf of movant Defendant Olam. On January 11, 2023, the Court issued findings and 23 recommendations recommending that Defendant Olam’s motions be deemed withdrawn pursuant 24 to Local Rule 230(i). (ECF No. 33.) 25 After the findings and recommendations issued, on February 8, 2023, Defendant Olam 26 filed the motion to dismiss again, as applied to the first amended complaint. (ECF No. 40.) On 27 February 9, 2023, the District Judge referred the newly filed motion to dismiss to the assigned Magistrate Jude for the preparation of findings and recommendations, and/or other appropriate 1 action. (ECF No. 41.) On February 14, 2023, the Court set the hearing on the motion to dismiss 2 for March 29, 2023, before the assigned Magistrate Judge. (ECF No. 42.) On February 22, 3 2023, Plaintiff Berkley filed an opposition to the motion to dismiss, that in part, argues the 4 motion to dismiss should be denied because of the failure to appear and recommendation to 5 withdraw the initial motion to dismiss. (ECF No. 43.) On March 6, 2023, Defendant Olam filed 6 a reply that argued, in part, the motion to dismiss is proper because the nonappearance should be 7 excused, because the substantive components were not adjudicated, and because the District 8 Judge referred the renewed motion to dismiss. (ECF No. 49.) 9 In light of the fact the findings and recommendations issued on January 11, 2023, are still 10 pending, and given the parties’ arguments proffered in briefing, on March 24, 2023, the Court 11 continued the hearing on the motion to dismiss until April 12, 2023, and on April 10, 2023, 12 continued the hearing on the motion to dismiss until May 10, 2023. (ECF Nos. 50, 51.) Upon 13 review of the docket, the Court finds it prudent to again continue the hearing on the motion to 14 dismiss, to allow additional time for the District Judge to consider the still pending findings and 15 recommendations. 16 The Court further notes that not all parties have returned consent or declination of 17 consent forms in this action. To consent or decline to magistrate judge jurisdiction, a party may 18 sign and file the consent form available on the Court’s website, at: 19 hhttp://www.caed.uscourts.gov/caednew/index.cfm/forms/civil/. Parties may consent, decline or 20 withhold consent without any adverse consequences, and the assigned Magistrate Judge will not 21 be informed of the individual party’s holding or withholding of consent. The Court further notes 22 that the District Judges in the Eastern District are among the busiest in the nation. (See ECF No. 23 40 entered in Case No. 1:20-cv-01069-ADA-SAB (“The parties are further advised that due to 24 the judicial resource emergency and COVID pandemic, there are more than 130 motions 25 currently under submission in Judge de Alba’s recently re-assigned caseload. The Court 26 understands the impact that such a backlog has on the parties and although the Court will 27 continue working diligently to resolve all pending motions, it may still be months before the 1 | caseload in the nation, limited Court resources, and the need to prioritize criminal and older civil 2 | matters over more recently filed actions, this Court strongly encourages the parties to consent to 3 | conduct all further proceedings before a U.S. Magistrate Judge.”).)! 4 The Court shall also continue the scheduling conference currently set for May 30, 2023 5 | (ECF No. 37), in light of the pending motion to dismiss. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The hearing on Defendant’s motion to dismiss currently set for May 10, 2023, in 8 Courtroom 9 (ECF Nos. 40, 42, 50, 51), is CONTINUED to June 21, 2023, in 9 Courtroom 9, at 10:00 a.m.; 10 2. The scheduling conference currently set for May 30, 2023, is CONTINUED to ll October 10, 2023, at 1:30 p.m., in Courtroom 9; and 12 3. The parties shall file a joint scheduling report at least seven (7) days prior to the 13 continued scheduling conference. 14 5 IT IS SO ORDERED. FA. ee 16 | Dated: _ May 8, 2023 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 | ' Judicial notice may be taken “of court filings and other matters of public record.” Reyn’s Pasta Bella, LLC v. 28 | Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).