(PS) McCune v. Singh, No. 2:2010cv02207 - Document 12 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/26/2010 recommending that Defendant's 10 Motion to stay and request for early evaluation conference, filed September 30, 2010, be denied. Defendant file an answer w/in 28 days of an order adopting these findings and recommendations. Objections to F&R due w/in 14 days. (Matson, R)
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(PS) McCune v. Singh Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL McCUNE, 11 12 13 14 Plaintiff, vs. SATNAM SINGH, FINDINGS AND RECOMMENDATIONS Defendant. 15 16 No. CIV S-10-2207 FCD GGH PS / Presently before the court is defendant’s motion for a stay of proceedings and 17 early evaluation conference. Plaintiff has filed objections, referring to a prior order issued by 18 Judge Karlton in a similar case. 19 The case referred to by plaintiff, O’Campo v. Chico Mall, LP, No. Civ.S. 10-1105 20 LKK CMK, directly addresses a similar request by defendant in another ADA case. The 21 Construction-Related Accessibility Standards Compliance Act (“Act”) permits some defendants 22 to obtain a stay and an early evaluation conference. Cal. Civ. Code §§ 55.51-55.54. The ADA 23 has no similar provision. The undersigned agrees with Judge Karlton’s analysis that the Act is 24 preempted in regard to plaintiff’s ADA claim, and in regard to the supplemental state law claims, 25 a settlement conference and mandatory stay of proceedings are not outcome determinative under 26 Guaranty Trust Co. v. York, 326 U.S. 99 (1945). Therefore, plaintiff cannot be ordered to 1 Dockets.Justia.com 1 participate in an early evaluation conference. If and when plaintiff requests attorney’s fees, 2 however, plaintiff’s unwillingness to resolve the case early will be a point of concern. Referral to 3 the court’s Voluntary Dispute Resolution Program is optional but recommended. 4 Accordingly, IT IS RECOMMENDED that: 5 1. Defendant’s motion to stay and request for early evaluation conference, filed 6 7 8 9 September 30, 2010, be denied. 2. Defendant file an answer within 28 days of an order adopting these findings and recommendations. These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 fourteen (14) days after being served with these findings and recommendations, any party may 12 file written objections with the court and serve a copy on all parties. Such a document should be 13 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 14 objections shall be served and filed within fourteen (14) days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: 10/26/2010 /s/ Gregory G. Hollows U. S. MAGISTRATE JUDGE 18 19 GGH:076/McCune2207.stay.wpd 20 21 22 23 24 25 26 2
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