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United States v. Sierra Pacific Industries

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 21, 2010

THE UNITED STATES OF AMERICA, PLAINTIFF,
v.
SIERRA PACIFIC INDUSTRIES, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Honorable John A. Mendez United States District Judge

AND RELATED CROSS-ACTIONS.

STIPULATION AND ORDER PERMITTING THE UNITED STATES OF AMERICA TO FILE SECOND AMENDED COMPLAINT AND TO WITHDRAW ITS MOTION TO DISMISS SPI'S COUNTERCLAIMS AND TO STRIKE CERTAIN OF ITS AFFIRMATIVE DEFENSES [Fed.R.Civ.P. 16]

Pursuant to Rule 16 of the Federal Rules of Civil Procedure, Plaintiff the United States of America, Defendants Sierra Pacific Industries, et al. (collectively "Defendants") and Third PartyDefendant Caterpillar, Inc., through their respective counsel, hereby submit the following stipulation and proposed order to grant the United States leave to file a second amended complaint.

RECITALS

1. On August 31, 2009, the United States filed its complaint in this action. On October 22, 2009, the United States filed a First Amended Complaint, which is the operative complaint in this action. Service has been completed on all named Defendants.

2. Defendants have filed answers to the First Amended Complaint and asserted various crossclaims and third-party claims. Sierra Pacific Industries ("SPI") has also asserted counterclaims against the United States.

3. On February 11, 2010, this Court entered its status (pretrial scheduling) order that, among other things, provided that amendment would only be allowed by leave of Court with good cause shown.

4. On March 15, 2010, the United States filed a motion to dismiss SPI's counterclaims and to strike certain of its affirmative defenses [Docket No. 47]. The motion is noticed to be heard by the Court on May 19, 2010.

5. Subsequent to the Court's February 22, 2010 scheduling order, discovery has occurred in consolidated actions pending in California superior court that arise from the same Moonlight Fire that is at issue in this action. The parties have also begun written discovery in this matter.

6. Based on the discovery that has occurred to date, the United States seeks leave of Court to file a Second Amended Complaint to assert additional claims against some or all of the Defendants.

7. Additionally, absent the filing of an amended pleading by the United States, SPI might seek leave to make various amendments to its answer and counterclaims against the United States, including amendments based on information obtained on or around May 3, 2010, concerning the Herger Feinstein Quincy Library Group Forest Recovery Act.

8. The parties agree that it is in the interest of judicial efficiency to permit the United States to file the Second Amended Complaint attached hereto as Exhibit A and to allow Defendants, including SPI, to file any appropriate responsive pleadings.

9. By reaching such agreement, the parties in no way concede, explicitly or implicitly, the truth or legal sufficiency of any allegations in the Second Amended Complaint or in any pleadings by Defendants in response to the Second Amended Complaint. Nor do any of the parties waive any defenses, claims, or arguments they have to Second Amended Complaint or to any pleadings by Defendants in response to the Second Amended Complaint.

10. Permitting the United States to file the attached Second Amended Complaint, which will entitle Defendants, including SPI, to file new responsive pleadings, will also render moot the United States's motion to dismiss and motion to strike, set for hearing on May 19, 2010.

STIPULATION

Based on the foregoing recitals, the parties hereby STIPULATE that:

1. The United States shall file the attached Second Amended Complaint no later than twenty (20) days from the date of an order of the Court granting the United States leave to file a Second Amended Complaint;

2. Defendants shall file their responsive pleadings to the Second Amended Complaint no later than twenty (20) days after the United States files its Second Amended Complaint;

3. The United States shall have twenty (20) days to file a responsive pleading to any counterclaims asserted by Defendants against the United States;

4. The parties expressly reserve the right to file any appropriate responsive pleading permitted under Federal Rule of Civil Procedure 12, or otherwise, to the Second Amended Complaint and to any counterclaims asserted by Defendants, and in no way waive any defense, claims, or argument to the allegations stated in the Second Amended Complaint or to any pleadings filed in response thereto;

5. The United States shall withdraw its motion to dismiss and to strike [Docket No. 47] upon an order of the Court granting the United States leave to file a Second Amended Complaint; and

6. All remaining dates and deadlines as set by the Court in its February 11, 2010 Scheduling Order remain and are otherwise unaffected by this Stipulation and Proposed Order.

DATED: May 13, 2010

BENJAMIN B. WAGNER UNITED STATES ATTORNEY KELLI L. TAYLOR TODD A. PICKLES Assistant U.S. Attorneys Attorney for Plaintiff, UNITED STATES OF AMERICA

DOWNEY BRAND LLP WILLIAM R. WARNE Attorney for Defendant, SIERRA PACIFIC INDUSTRIES

RUSHFORD & BONOTTO, LLP PHILLIP R. BONOTTO, Esq. Attorney for Defendant, EUNICE E. HOWELL, individually and d/b/a HOWELL'S FOREST HARVESTING COMPANY

MATHENY, SEARS, LINKERT & JAIME LLP RICHARD S. LINKERT, Esq. Attorney for Defendants, W.M. BEATY AND ASSOCIATES, INC. and LANDOWNER DEFENDANTS

DATED: May 14, 2010

SEDGWICK, DETERT, MORAN & ARNOLD FREDERIC GRANNIS, Esq. Attorney for Third Party Defendant, CATERPILLAR INC.

ORDER

This matter came before the Court on the parties' Stipulation to Permit the United States of America to File a Second Amended Complaint and to Withdraw Its Motion to Dismiss SPI's Counterclaims and to Strike Certain of Its Affirmative Defenses. For the reasons stated in the Stipulation and for good cause showing under Rule 16 of the Federal Rules of Civil Procedure, the Court ADOPTS the Stipulation and GRANTS the relief requested therein.

Accordingly, IT IS HEREBY ORDERED THAT:

1. The United States is granted leave to file the attached Second Amended Complaint and the Defendants may file any appropriate responsive pleadings thereto, all in accordance with the times set forth in the Stipulation. The United States may also file a responsive pleading to any counterclaims asserted against it in accordance with the times set forth in the Stipulation.

2. The United States's motion to dismiss [Docket No. 47] is withdrawn and the hearing set for May 19, 2010 is vacated.

3. All remaining dates and deadlines as set by the Court's February 11, 2010 Scheduling Order remain as set and are otherwise unaffected by this Order.

IT IS SO ORDERED.

20100521

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