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Rodriguez v. Frito-Lay

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION


February 24, 2010

DANNY RODRIGUEZ, PLAINTIFF,
v.
FRITO LAY AND DOES 1 TO 25, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Gary S. Austin U.S. Magistrate Judge

STIPULATION ORDER TO ALTER THE SCHEDULING ORDER

TRIAL: October 19, 2010 TIME: 8:30 a.m. CTRM: #2 (8th Floor)

Pursuant to Federal Rule of Civil Procedure ("FRCP") 26(f) and the Court's Scheduling Order, the parties, Plaintiff Danny Rodriguez ("Plaintiff") and Defendant Frito-Lay, Inc. ("Frito-Lay") do hereby submit this Joint Stipulation and [Proposed] Order To Alter Scheduling entered on October 14, 2009.

Currently, the non-expert discovery deadline is February 26, 2010. Because this is a case that involves multiple health care providers who have either treated or evaluated Plaintiff for the condition at issue in this case, the parties anticipate that the depositions of five to seven health care providers may be necessary. The parties wish to extend the non-expert discovery deadline solely for the purpose of deposing Plaintiff's treating or evaluating health care providers, Roger Babb, Mike Castaneda, and Dale Clay. The discovery extension would not apply to any other type of non-expert discovery, including other depositions or written discovery. The purpose for this request is two-fold. Plaintiff's counsel is unavailable to attend any depositions of any of the treating or evaluating health care providers or to take the depositions of three witnesses, Roger Babb, Mike Castaneda, and Dale Clay, during the month of February, 2010. Plaintiff's counsel is a solo practitioner and is currently opposing two separate motions for summary judgment. He is scheduled to be in deposition or otherwise working on these matters for the entire month of February. As such, he is unable to schedule or attend the deposition of any treating or evaluating health care provider during the month of February. In addition, most health care providers charge an hourly rate ranging from $350.00 to $600.00 per hour to appear for deposition. The parties would like additional time to explore potential resolution of this case prior to incurring these significant costs. As such, the parties respectfully request that the deadline for completing the depositions of Plaintiff's treating and evaluating health care providers and of Roger Babb, Mike Castaneda, and Dale Clay be continued until April 27, 2010, which is approximately 25 weeks prior to the ordered trial date of October 19, 2010.

Similarly, the parties wish to continue the deadlines relating to expert discovery for the same reasons. Currently, expert disclosures are due on March 5, 2010, supplemental expert disclosures are due on March 26, 2010, and expert discovery closes on April 30, 2010. The parties respectfully request these deadlines be continued until March 26, 2010, April 16, 2010, and May 21, 2010, respectively, which are approximately more than 4 weeks prior to the ordered Dispositive Motion Deadline of June 18, 2010. The parties further agree that the disclosure of expert testimony under FRCP 26(a)(2)(c)(i) should be 30 days prior to trial (i.e., approximately September 17, 2010), and rebuttal evidence under FRCP 26(a)(2)(c)(ii) should be 15 days prior to trial (i.e., October 4, 2010). The parties further request that the date by which Defendant must move to compel an independent mental examination of Plaintiff be continued until May 15, 2010.

Respectfully submitted, and

IT IS SO STIPULATED.

Dated: February 22, 2010

McCLELLAND LAW OFFICES

W. ROD McCLELLAND, JR. Attorney for Plaintiff DANNY RODRIGUEZ

Dated: February 22, 2010

VILLARREAL HUTNER PC

TRACY S. TODD Attorney for Defendant, FRITO-LAY, INC.

ORDER

Upon the Court's review, the stipulation is adopted IN PART. The parties have until April 27, 2010, to conclude the depositions of Plaintiff's treating and evaluating health care providers and of witnesses Roger Babb, Dale Clay, and Mike Castaneda. For all other non-expert discovery matters, the deadline of February 26, 2010, remains unchanged. Further, expert disclosures are now due on March 26, 2010, supplemental expert disclosures are now due on April 16, 2010, and expert discovery closes on and May 21, 2010. Defendant must move to compel an independent mental examination of Plaintiff by May 15, 2010.

IT IS SO ORDERED.

THE HONORABLE GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

20100224

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