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

August 24, 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 opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

STIPULATION TO CONTINUE TRIAL AND RELATED DATES; ORDER THEREON AND RELATED COUNTERCLAIMS.

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, on January 26, 2012, 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 continued ill health of Plaintiff John Brisbin, who was required to undergo chemotherapy and radiation treatments. Accordingly, the Parties delayed the depositions and rescheduled mediation to April 18, 2012. By Order dated February 3, 2012, the Court granted the Parties' request and established new dates and deadlines, including a new discovery completion date of May 16, 2012.

WHEREAS, on May 11, 2012, the Parties submitted a Stipulation and Proposed Order requesting to Amend the Scheduling Order to continue the deadline for completion of discovery, which request was granted by the Court on May 15, 2012.

WHEREAS, CDS, WESTERN and Vulcan participated in a Mandatory Settlement Conference before the Court on July 17, 2012 and, in anticipation of potentially resolving the dispute between them, held off on taking expert witness depositions in the hopes of resolving the dispute without further expenditures of costs and fees.

WHEREAS, during the Mandatory Settlement Conference before the Court on July 17, 2012, it was disclosed to the Court and to counsel for Vulcan that based upon the medical condition of Plaintiff John Brisbin and setbacks suffered as a result of continued side effects of chemotherapy and radiation treatments to combat cancer, Plaintiff would be seeking a continuance of the trial date currently scheduled for November 27, 2012.

WHEREAS, the Court indicated at the Mandatory Settlement Conference that it would review the request for continuance of the trial by Plaintiff upon a showing of good cause.

WHEREAS, declarations of Plaintiff John Brisbin and Cross-Defendant Western Surety Company are attached hereto and incorporated herein as though set forth at length as Exhibits A and B in support of Plaintiff John Brisbin's request to continue the trial;

WHEREAS, Plaintiff John Brisbin seeks a continuance of the trial date of November 27, 2012, to March 26, 2013, and in accord with the Court's calendar;

WHEREAS, each of the Parties has asserted that the other Parties' Expert Witness Disclosure is deficient and does not satisfy the requirements of F.R.C.P. 26(a)(2)(C), and the Parties have ...


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