The opinion of the court was delivered by: Assigned to Honorable Edward J. Davila
PLAINTIFFS' SECOND REQUEST TO CONTINUE FURTHER CASE MANAGEMENT CONFERENCE AND DATE SET FOR AMENDMENT OF PLEADINGS; [PROPOSED] ORDER
Plaintiffs Alma Clarisa Hernandez, Theresa Wallen and Ronald Moore ("Plaintiffs") 20 hereby respectfully request that the Court again continue the Further Case Management 21 Conference currently set for March 16, 2012 and the deadline of February 29, 2012 for 22 amendment of pleadings, both set upon request of Plaintiffs and by the Court's Order dated 23 December 15, 2011, for the following reasons: 24
1. This matter was brought by Plaintiffs under the Americans with Disabilities Act
Title III ("ADA") to have alleged barriers to their access removed from defendants' facilities 26 located at the Vallco Shopping Mall in Cupertino, California. Accordingly, this Court's 27 General Order 56 ("GO 56") has governed the procedural course of this matter to date. The 28 mediation required under GO 56 was originally set by the mediator Daniel Bowling for Hernandez, et al. v. Vallco Shopping Mall, LLC, et al.
January 23 and 24, 2012, but those dates were cancelled at the last minute due to the sudden 2 and unanticipated hospitalization of defendants' expert Kim Blackseth whose participation was 3 determined by the mediator and various defendants to be indispensable. Mr. Bowling has 4 rescheduled the mediation to March 2, 2012, March 8, 2012 and March 9, 2012, with an 5 additional date of April 12, 2012 proposed (although yet to be confirmed, and which date may 6 be forced into May 2012) as a follow-up date if the matter is not resolved at the previous 7 mediation dates. 8
2. Plaintiffs have now resolved this matter as to all but ten (10) defendants (seven (7) 9 pro se defendants and three (3) represented defendants), are finalizing those settlements, and 10 are optimistic that mediation will resolve the matter as to most if not all the remaining 11 defendants. 12
3. The purpose of GO 56 is "to require the parties to engage in a structured process 13 designed to achieve early compliance with the ADA while minimizing the adversarial litigation 14 process and concomitant fees." White v. Ming R. Shen, 2011 U.S. Dist. LEXIS 2174 (N.D. 15 Cal. Jan. 5, 2011). The Further Case Management Conference will best serve the purpose of 16 GO 56 if held after mediation in order to afford the parties an opportunity to reach an informal 17 resolution prior to incurring the costs preparing for and attending the conference. 18
4. Requiring amendment of Plaintiffs' operative complaint prior to the completion of 19 mediation will needlessly add significant attorney fees to address allegations against 20 defendants who may be dismissed after mediation. Plaintiffs must amend their complaint to 21 conform to the standing requirements of Chapman v. Pier One Imports (U.S.), Inc., 631 F.3d 22 939 (9th Cir. 2011) (decided after Plaintiffs' filing of their Second Amended Complaint) and 23 also to allege every barrier they seek to have removed from each of defendants' facilities 24 (information obtained as a result of the joint site inspections which occurred after Plaintiffs' 25 initial filing). Amongst other relief, Plaintiffs seek the recovery of attorney fees and costs in 26 this matter. Therefore, minimizing the amount of such fees is beneficial to all defendants in 27 this action. 28 Hernandez, et al. v. Vallco Shopping Mall, LLC, et al.
5. Accordingly, Plaintiffs hereby respectfully request that the Court continue the Further Case Management Conference to a date after June 8, 2012 to afford time for the 3 completion of mediation, and the last date to file a motion for leave to amend their Second 4 Amended Complaint to June 8, 2012. 5
Dated: February 16, 2012 MOORE LAW FIRM, P.C. 6 7 /s/ Tanya E. Moore Tanya E. Moore, Attorneys for Plaintiffs Alma Clarisa Hernandez, Ronald Moore and Theresa Wallen
Upon request of Plaintiffs and good cause appearing,
IT IS HEREBY ORDERED that the Further Case Management Conference be continued to ______________, 2012 at _____ in Courtroom 1. The Parties are ordered to file
May 4 10:00 a.m. in Courtroom 4 an updated Case Management Conference Statement one week ...