Carlin et al v. DairyAmerica, Inc. et al, No. 1:2009cv00430 - Document 430 (E.D. Cal. 2017)

Court Description: STIPULATION and ORDER as follows: For the reasons provided in the parties' stipulation, the June 30, 2017 deadline to take the depositions of Ms. Ellingsworth, Ms. Bimemiller, and three depositions of current or former California Dairies employe es is vacated. Within fourteen days of either an answer to the Fourth Amended Complaint or an order denying leave to file a Fourth Amended Complaint, the parties shall submit a proposed schedule for taking the depositions with a status report. The remainder of the December 5, 2016 order (ECF No. 371 ) remains in effect. Order signed by Magistrate Judge Erica P. Grosjean on 5/17/2017. (Rooney, M)
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1 2 3 4 BENJAMIN D. BROWN (SBN 202545) bbrown@cohenmilstein.com COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, D.C. 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 5 Counsel for Plaintiffs and the Proposed Class 6 [Additional counsel listed on signature page] 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 FRESNO DIVISION 12 13 14 GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, 15 16 v. 17 DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., 18 Defendants. 19 20 21 22 23 24 25 26 27 28 Case No. 1:09 CV 00430-AWI (EPG) CLASS ACTION STIPULATION AND ORDER REGARDING DEPOSITIONS OF CALIFORNIA DAIRIES’ FORMER EMPLOYEES AND OF NON-PARTIES BIMEMILLER AND ELLINGSWORTH 1 WHEREAS, on May 12, 2017, this Court permitted the parties to file a stipulation and 2 proposed order modifying the current schedule to take the depositions of non-parties 3 Lani Ellingsworth and Candice Bimemiller and three current or former employees of Defendant 4 California Dairies until such time as Plaintiffs’ motion to amend the complaint is resolved (Doc. 5 428). 6 WHEREAS, on November 14, 2016, the parties submitted a Stipulation Governing 7 Discovery Issues (Doc. 368). Per that stipulation, the parties agreed to, among other things, stay 8 all deposition discovery pending either Judge Ishii's denial of Plaintiffs’ anticipated motion to 9 amend the complaint or the filing of Defendants’ answer to that amended complaint, except for 10 the depositions of Ellingsworth, Bimemiller, and three current or former California Dairies 11 employees. The stipulation expressly states that those depositions would be permitted to proceed 12 “to help facilitate settlement.” Id. 13 WHEREAS, on December 5, 2016, the Court issued an order on that stipulation, the 14 Order Granting in Part and Denying in Part Proposed Order Governing Discovery Issues (Doc. 15 371) (“Discovery Order”), permitting those five depositions to proceed per the parties’ 16 agreement and, further, requiring them to be taken by June 30, 2017. Additionally, the Court 17 limited document and written discovery to the claims and parties upheld in the Third Amended 18 Complaint, thereby staying document and written discovery regarding the additional allegations 19 in Plaintiffs’ proposed Fourth Amended Complaint until resolution of the motion to amend. 20 WHEREAS, after the Court’s Discovery Order was issued, and pursuant to settlement 21 discussions, Plaintiffs shared with Defendants their draft proposed Fourth Amended Complaint. 22 The parties proceeded with a private mediation on December 20, 2016, after which settlement 23 discussions continued through the mediator for many weeks. No settlement was reached. On 24 February 9, 2017, Plaintiffs filed their motion to amend the complaint. Through the proposed 25 Fourth Amended Complaint, Plaintiffs seek to add a California class of dairy farmers, add two 26 new defendants (Dairy Farmers of America and Land O’Lakes), and add allegations and claims 27 based in part on information contained in the declarations of Ellingsworth and Bimemiller. The 28 1 motion to amend has now been fully briefed and was taken under submission by Judge Ishii on 2 May 8, 2017. WHEREAS, in accordance with the Court’s Discovery Order, DairyAmerica issued 3 4 subpoenas for the depositions of non-parties Ellingsworth and Bimemiller, and Plaintiffs issued 5 notices for the depositions of three former California Dairies employees. Further, the parties 6 appeared for an informal telephonic conference before the Court on Wednesday, May 3, 2017, to 7 discuss the Ellingsworth and Bimemiller depositions, which were subject to motions to quash 8 filed by their respective attorneys. 9 WHEREAS, since that informal telephonic conference, the parties have met and 10 conferred further and have agreed that the interests of efficiency, economy, and expediency 11 would be best served by postponing all five depositions until such time as Judge Ishii denies 12 Plaintiffs’ motion to amend or Defendants file their answers to the Fourth Amended Complaint.1 13 There is good cause for this postponement that applies equally to all five depositions. In their 14 proposed Fourth Amended Complaint, Plaintiffs seek to add a class of California dairy farmers, 15 add two new defendants, and add allegations and claims against Defendants based in part on 16 information contained in the declarations of Ellingsworth and Bimemiller. Accordingly, since 17 the scope of Plaintiffs’ claims is subject to change, and additional parties may be added to the 18 case, the parties wish to postpone all depositions until such time as the scope of claims and 19 parties is resolved. Furthermore, in accordance with and since the Court’s December 5, 2016 20 order, the parties were not required to respond to written discovery relating to the potential 21 additional allegations in the proposed Fourth Amended Complaint, which would likely be 22 addressed in each of the five depositions at issue. 23 WHEREAS, the parties believe and agree that postponing all five depositions is the most 24 efficient and expedient way to proceed under the circumstances, and the least burdensome to the 25 26 27 28 1 Plaintiffs have also met and conferred with counsel for non-parties Ellingsworth and Bimemiller, and in the interests of efficiency and to avoid undue burden including potential multiple depositions, they support this agreement to postpone the depositions of their clients. 1 deponents, all of whom are former employees of Defendants and therefore subject to subpoena. 2 If the depositions take place prior to the decision on the motion to amend the complaint, the 3 deponents may be subject to multiple depositions due to the unresolved nature of the pleadings 4 and parties, and the parties may not have the benefit of certain written discovery relevant to an 5 amended complaint in conducting such depositions. 6 7 8 WHEREAS, this modification of the scheduling order is sought only for purposes of efficiency and not for purposes of delay. IT IS STIPULATED, subject to court approval, that the June 30, 2017 deadline to take 9 the depositions of Ms. Ellingsworth, Ms. Bimemiller, and three depositions of current or former 10 California Dairies employees be vacated. Within fourteen days of either an answer to the Fourth 11 Amended Complaint or an order denying leave to file a Fourth Amended Complaint, the parties 12 shall submit a proposed schedule for taking these depositions with the status report and proposed 13 amended scheduling order. 14 15 16 DATED: May 17, 2017 Respectfully submitted, BERMAN DeVALERIO 17 18 By: /s/ A. Chowning Poppler A. Chowning Poppler (SBN 272870) 19 20 21 22 23 24 25 26 27 28 Joseph J. Tabacco, Jr. (SBN 75484) Christopher T. Heffelfinger (SBN 118058) 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 Email: jtabacco@bermandevalerio.com cheffelfinger@bermandevalerio.com cpoppler@bermandevalerio.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Benjamin D. Brown (SBN 202545) COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 Email: bbrown@cohenmilstein.com George F. Farah COHEN MILSTEIN SELLERS & TOLL, PLLC 88 Pine Street 14th Floor New York, NY 10005 Telephone: (212) 838-7797 Facsimile: (212) 838-7745 Email: gfarah@cohenmilstein.com Lynn L. Sarko Mark A. Griffin Cari Campen Laufenberg KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101 Telephone: (206)-623-1900 Facsimile: (206)-623-3384 Email: lsarko@kellerrohrback.com mgriffin@kellerrohrback.com claufenberg@kellerrohrback.com Ron Kilgard KELLER ROHRBACK L.L.P. 3101 North Central Avenue, Suite 1400 Phoenix, AZ 85012 Telephone: (602)-248-0088 Facsimile: (602)-248-2822 Email: rkilgard@kellerrohrback.com Counsel for Plaintiffs and the Proposed Class 1 Dated: May 17, 2017 DAVIS WRIGHT TREMAINE LLP 2 By: 3 4 /s/ Allison A. Davis Allison A. Davis (SBN 139203) Sanjay M. Nangia (# 264986) 505 Montgomery Street, Suite 800 San Francisco, CA 94111-6533 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 Email: allisondavis@dwt.com sanjaynangia@dwt.com 5 6 7 8 Charles M. English, Jr. DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Avenue, N.S., Suite 800 Washington, D.C. 20006-3401 Telephone: (202) 973-4272 Facsimile: (202) 973-4499 Email: chipenglish@dwt.com 9 10 11 12 16 Joseph M. Marchini BAKER MANOCK & JENSEN, PC 5260 North Palm Avenue, Fourth Floor Fresno, CA 93704 Telephone: (559) 432-5400 Facsimile: (549) 432-5620 Email: jmarchini@bakermanock.com 17 Counsel for Defendant DairyAmerica, Inc. 13 14 15 18 19 20 Dated: May 17, 2017 HANSON BRIDGETT LLP By: /s/ Megan Oliver Thompson Megan Oliver Thompson (SBN 256654) 25 Lawrence M. Cirelli (SBN 114710) Shannon M. Nessier (SBN 267644) 425 Market Street, Suite 2600 San Francisco, CA 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 Email: lcirelli@hansonbridgett.com moliverthompson@hansonbridgett.com snessier@hansonbridgett.com 26 Counsel for Defendant California Dairies, Inc. 21 22 23 24 27 28 1 ORDER 2 3 4 5 6 7 8 9 For the reasons provided in the parties’ stipulation, the June 30, 2017 deadline to take the depositions of Ms. Ellingsworth, Ms. Bimemiller, and three depositions of current or former California Dairies employees is vacated. Within fourteen days of either an answer to the Fourth Amended Complaint or an order denying leave to file a Fourth Amended Complaint, the parties shall submit a proposed schedule for taking the depositions with a status report. The remainder of the December 5, 2016 order (ECF No. 371) remains in effect. IT IS SO ORDERED. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: May 17, 2017 /s/ UNITED STATES MAGISTRATE JUDGE