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Yetunda Wright, Individually and As the Successor In Interest of Traveon John Avila, Deceased v. Ity of Bakersfield

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 21, 2013

YETUNDA WRIGHT, INDIVIDUALLY AND AS THE SUCCESSOR IN INTEREST OF TRAVEON JOHN AVILA, DECEASED, PLAINTIFF,
v.
ITY OF BAKERSFIELD, TIMOTHY BERCHTOLD, NOAH LANDERS, JAMIE AVILA AS NOMINAL DEFENDANT, AND DOES 1 TO 100, INCLUSIVE, DEFENDANTS.

The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

STIPULATION TO AMEND THE SCHEDULING ORDER; ORDER THEREON Trial Date: January 28, 2014

Plaintiff YETUNDA WRIGHT and defendants CITY OF BAKERSFIELD, TIMOTHY BERCHTOLD and NOAH LANDERS, by and through their counsel of record, hereby stipulate and agree as follows:

The parties stipulate and agree that the Court should enter an Order amending the scheduling order in this case, such that the schedule be modified as follows. The requested continuances will not, in any way, affect the trial date of January 28, 2014.

Deadline/Hearing Current Date Requested Date Settlement Conference April 3, 2013 November 18, 2013 Non-Expert Discovery Cutoff April 30, 2013 August 2, 2013 Joint Expert Disclosure May 7, 2013 August 9, 2013 Joint Rebuttal Expert Disclosure May 28, 2013 August 30, 2013 Expert Discovery Cutoff June 21, 2013 September 20, 2013 Non-Dispositive Motion Filing June 21, 2013 September 20, 2013 Non-Dispositive Motion Hearing July 19, 2013 October 18, 2013 Dispositive Motion Filing August 9, 2013 November 8, 2013 Dispositive Motion Hearing September 13, 2013 December 6, 2013

The pretrial conference date of December 16, 2013, and the trial date of January 28, 2014, shall remain as currently set.

The parties so stipulate because:

1. The deposition of defendant and former Bakersfield police officer Noah Landers remains to be taken in this case. Noah Landers resides in Northfield, Minnesota, and as such additional time is needed to coordinate his appearance for deposition;

2. Plaintiff's counsel, Daniel Rodriguez and John A. Kawai, are scheduled to begin a three-week trial on April 8, 2013, in Kern County Superior Court, case no. S-1500-CV- 270679. The sixteen (16) expert depositions taken in February and March of this year have made scheduling discovery in the present case particularly difficult.

3. Defense counsel, Michael G. Marderosian and Heather S. Cohen, are scheduled to begin a two-month trial in the United States District Court in Santa Ana on June 25, 2013, in the case of Abarca, et al. v. Merck & Co., Inc., et al., case no. 1:07-CV-388-

-SAB. The Abarca case was originally scheduled for trial on January 22, 2013 but was reset several times because the trial judge underwent surgery. The trial was set to commence on March 26, 2013 but recently had to be rescheduled to commence on June 25, 2013 because a long-delayed criminal matter was scheduled for the same date and took precedence over the civil matter.

4. It is not possible for the parties to complete all necessary discovery prior to the current non-expert discovery cutoff date of April 30, 2013.

5. The parties believe that this constitutes exceptionally good cause for an amendment of the scheduling order in this case, and believe that the additional requested will be sufficient to complete non-expert discovery.

Dated: March 21, 2013 RODRIGUEZ & ASSOCIATES By:_________________________________ Daniel Rodriguez John A. Kawai Attorneys for Plaintiff Dated: March 21, 2013 MARDEROSIAN, RUNYON, CERCONE & COHEN By:_________________________________ Michael G. Marderosian Heather S. Cohen Attorney for Defendants above-named.

ORDER

Though the Court understands the difficulties facing counsel's due to busy trial schedules, the schedule proposed in the stipulation is not workable.

Judges in the Eastern District of California carry the heaviest caseload in the nation, and the District Judges are unable to devote inordinate time and resources to individual cases and matters. The Court encourages parties' counsel to consider, and if necessary, to reconsider, consent to a U.S. Magistrate Judge to conduct all further proceedings, including trial. The Magistrate Judges' availability is far more realistic and accommodating to parties than that of Judge O'Neill who must prioritize criminal and older civil cases over more recently filed civil cases.

Moreover, civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill is unavailable on the original date set for trial. In addition, this Court's Fresno Division randomly and without advance notice, reassigns civil actions to U.S. District Judges throughout the nation to serve as visiting judges. Thus, in the absence of Magistrate Judge consent, this action is subject to reassignment to a U.S. District Judge from outside the Eastern District of California.

The parties and counsel are encouraged to contact the offices of United States Senators Diane Feinstein and Barbara Boxer to address this Court's inability to accommodate the parties and this action.

With this in mind, it is not possible for Judge O'Neill to hear a dispositive motion a mere 10 days before the pretrial conference. Thus, in order to attempt to accommodate the need to conduct non-expert discovery, the stipulation to amend the scheduling order is GRANTED IN PART as follows:

1. All non-expert discovery shall be completed no later than August 2, 2013;

2. Joint expert disclosure, in the manner required by the scheduling order, shall occur no later than July 5, 2013;

3. Joint rebuttal expert disclosure, in the manner required by the scheduling order, shall occur no later than July 19, 2013;

4. All expert discovery shall be completed no later than August 9, 2013;

5. All non-dispositive motions shall be filed no later than August 9, 2013, and heard no later than September 9, 2013;

6. All dispositive pre-trial motions shall be filed no later than September 13, 2013, and heard no later than October 28, 2013;

7. The settlement conference is continued to November 18, 2013 at 9:30 a.m. No further amendments to the scheduling order are authorized.

IT IS SO ORDERED.

20130321

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