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John C. Brisbin, An Individual, Dba Construction Development Systems v. Vulcan Materials Company

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION


February 2, 2012

JOHN C. BRISBIN, AN INDIVIDUAL, DBA CONSTRUCTION DEVELOPMENT SYSTEMS, PLAINTIFF,
v.
VULCAN MATERIALS COMPANY, A NEW JERSEY CORPORATION; AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANTS.
THE UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF CALMAT CO., A DELAWARE CORPORATION, DBA VULCAN MATERIALS COMPANY -- WESTERN DIVISION; ET AL, COUNTER-CLAIMANTS,
v.
JOHN C. BRISBIN, AN INDIVIDUAL, DBA CONSTRUCTION DEVELOPMENT SYSTEMS; WESTERN SURETY COMPANY, A SOUTH DAKOTA CORPORATION, COUNTER DEFENDANT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

STIPULATION TO AMEND SCHEDULING ORDER; ORDER THEREON

Plaintiff and Counter-Defendant JOHN C. BRISBIN, an individual, dba CONSTRUCTION DEVELOPMENT SYSTEMS ("CDS"), Counter-Defendant WESTERN SURETY COMPANY, a South Dakota corporation ("WESTERN"), and Defendant and Counter-Claimant CALMAT CO., a Delaware corporation, dba VULCAN MATERIALS COMPANY -- WESTERN DIVISION ("VULCAN"), hereby agree and stipulate as follows:

RECITALS

WHEREAS, the Scheduling Order dated July 12, 2011 contained a deadline of October 31, 2011 for the completion of all discovery pertaining to non-experts.

WHEREAS, on October 12, 2011, the Parties submitted a Stipulation and Proposed Order requesting to Amend the Scheduling Order to continue the deadline for completion of non-expert discovery from October 31, 2011 to January 31, 2012, which request was granted by the Court on October 17, 2011.

WHEREAS, on December 29, 2011, the Parties submitted a Stipulation and Proposed Order requesting to Amend the Scheduling Order to continue all deadlines and dates in the case for sixty (60) days. This Stipulation was necessitated by the ill health of Plaintiff John Brisbin, who was going to require surgery. Accordingly, the Parties delayed the depositions which had been scheduled for early December 2011, and a mediation that had been scheduled for December 15, 2011. By Order dated January 4, 2012, the Court granted the Parties' request and established new dates and deadlines, including a new discovery completion date of March 16, 2012.

WHEREAS, CDS, WESTERN and VULCAN have responded to Interrogatories and Requests for Production of Documents propounded by the other party, and are obtaining documents from non-party witnesses, but have yet to commence depositions.

WHEREAS, CDS, WESTERN and VULCAN had scheduled a private mediation on January 27, 2012, before Mediator James M. Phillips, Esq., and agreed to conduct the necessary depositions and completion of other discovery in the case after the mediation, if unsuccessful, in order to save attorney's fees and costs.

WHEREAS, on or about January 17, 2012, counsel for Plaintiff was advised that Mr. Brisbin was required to undergo chemotherapy and radiation treatment and would be unavailable for at least 6 weeks to conduct the previously scheduled mediation and subsequent depositions.

WHEREAS, the Parties are in the process of re-scheduling the mediation before Mr. Phillips for the latter part of March 2012.

WHEREAS, CDS, WESTERN and VULCAN will not be able to meet the March 16, 2012 deadline for completion of discovery, as currently dictated by the Scheduling Order, if they conduct the mediation in the latter part of March and, if the mediation is unsuccessful, the necessary depositions thereafter. Accordingly, the Parties respectfully request that this Court extend each date and deadline by approximately sixty (60) days.

NOW, THEREFORE, IT IS HEREBY STIPULATED by and between CDS, WESTERN and VULCAN as follows:

1. The deadline for completion of non-expert discovery shall be continued from March 16, 2012 for 60 days to on or about May 16, 2012;

2. The deadline for completion of expert discovery shall be continued from March 16, 2012 for 60 days to on or about May 16, 2012;

3. The deadline for filing of Non-Dispositive Motions shall be continued from March 21, 2012 for 60 days to on or about May 21, 2012;

4. The deadline for filing of Dispositive Motions shall be continued from April 27, 2012 for 60 days to on or about June 27, 2012;

5. The Settlement Conference shall be continued from May 17, 2012 for 60 days to on or about July 17, 2012, or any later date convenient on the Court's calendar;

6. The Pre-Trial Conference shall be continued from July 25, 2012 for 60 days to on or about September 25, 2012, or any later date convenient on the Court's calendar;

7. The Trial shall be continued from September 18, 2012 for 60 days to on or about November 19, 2012, or any later date convenient on the Court's calendar;

8. No other provisions of the Scheduling Order dated July 12, 2011 are otherwise modified herein.

ORDER

The parties' stipulated request for an amendment to the schedule is GRANTED.

However, the dates proposed by the parties for the Pre-Trial Conference and the Trial

have been adjusted to comport with Judge Ishii's trial calendar. The parties' amended

schedule is as follows:

1. The deadline for completion of non-expert discovery is May 16, 2012;

2. The deadline for completion of expert discovery is May 16, 2012;

3. Non-dispositive motions shall be filed on or before May 21, 2012;

4. Non-dispositive motions shall be heard on or before June 20, 2012;

5. Dispositive motions shall be filed on or before June 27, 2012;

6. Dispositive motions shall be heard on or before August 6, 2012;

7. The Settlement Conference is set for July 17, 2012 at 10:30 a.m.;

8. The Pre-Trial Conference is set for September 26, 2012; and

9. The Trial date is November 27, 2012.

IT IS SO ORDERED.

DEAC_Signature-END:

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20120202

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