UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION
September 15, 2010
TERRY SANDRES, AN INDIVIDUAL, PLAINTIFF,
CORRECTIONS CORPORATION OF AMERICA, A MARYLAND CORPORATION; AND DOES 1 THROUGH 50, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
Assigned to: Hon. Oliver W. Wanger/Room 3
STIPULATION AND ORDER FOR A TELEPHONIC CONFERENCE WITH THE COURT TO CONTINUE TRIAL AND RELATED DATES
District Judge: Oliver W. Wanger
Magistrate Judge: Jennifer L. Thurston
Action filed: July 24, 2009
Trial Date: May 24, 2011
THE PARTIES TO THE ABOVE-CAPTIONED MATTER, by and through their respective attorneys of record, hereby enter into this stipulation to continue trial and all related dates, based on the following:
WHEREAS, the Court issued a Scheduling Conference Order on February 3, 2010; WHEREAS, thereafter the parties commenced discovery and the scheduling of depositions; WHEREAS, Plaintiff had his first day of deposition taken June 2, 2010 during which Plaintiff testified that he had previously filed for bankruptcy on December 5, 2008;
WHEREAS, Defendants take the position that Plaintiff's claims in the instant lawsuit belong to the bankruptcy estate because his claims arose prior to the filing of his bankruptcy petition and Defendants contend that Plaintiff did not disclose his claims on his schedules in Bankruptcy Court with sufficient specificity;
WHEREAS, Defendants also take the position that Plaintiff does not have standing to proceed in this case since the United States Trustee is the real party in interest in this matter;
WHEREAS, it is Defendants' position that the parties cannot proceed with discovery until the bankruptcy issue is resolved;
WHEREAS, on June 2, 2010, Defendants advised the United States Trustee assigned to administer Plaintiff's bankruptcy estate of the existence of this case to give the Trustee the opportunity to re-open Plaintiff's bankruptcy file;
WHEREAS, the United States Trustee, through his Trustee Administrator, has informed Defendants' counsel that they do not intend to take action on Plaintiff's claims;
WHEREAS, it is Defendants' position that there is no order from the Bankruptcy court that the United States Trustee has abandoned the claims in this lawsuit;
WHEREAS, Defendants have filed a motion to dismiss Plaintiff's claims in the Third Amended Complaint, set for hearing on October 25, 2010 at 10:00 a.m., on the grounds that Plaintiff lacks standing and is judicially stopped from pursuing the claims based on Plaintiff's failure to disclose them with sufficient specificity in his bankruptcy petition;
WHEREAS, on August 24, 2010, this Court signed the order on the parties' previous stipulation to continue trial and all related dates for at least 90 days (the "Order");
WHEREAS, the Order continued the deadlines for Plaintiff's expert disclosures and completion of all non-expert discovery to occur before the hearing of October 25, 2010 on Defendants' motion to dismiss Plaintiff's claims in the Third Amended Complaint;
WHEREAS, the parties have met and conferred and believe that the deadline for Plaintiff's expert disclosures and completion of all non-expert discovery should be continued until after the October 25, 2010 hearing date to resolve Plaintiff's bankruptcy issue;
WHEREAS, the parties have met and conferred in good faith but have been unable to agree to a stipulation on new dates, and thus jointly seek the Court's assistance in issuing a new scheduling order;
WHEREAS, the parties request that the Court schedule a telephonic conference with the parties on September 17, 2010 at 11:00am to address this issue.
THEREFORE, THE PARTIES IN THE ABOVE-ENTITLED ACTION HEREBY STIPULATE and agree, and request that this Court make the following orders:
1. That the Court set a telephonic conference with the parties on September 17, 2010 at 11:00am to address scheduling issues.
Dated: September 14, 2010 APPELL | HILAIRE | BENARDO LLP Barry Appell Attorney for Plaintiff
Dated: September 14, 2010 GLEASON & FAVAROTE, LLP Richard Chen Attorney for Defendants
Pursuant to the parties' stipulation and good cause being shown therefore, the Court hereby makes the following orders:
1. The parties shall participate in a telephonic conference with the Court to discuss scheduling issues on September 17, 2010 at 11:00AM.
IT IS SO ORDERED.
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