The opinion
1 Neil M. Kliebenstein (#226060)
Lucina N. Rios (#325856)
2 BOWMAN AND BROOKE LLP
1741 Technology Drive, Suite 200
3 San Jose, CA 95110-1364
Telephone:(408) 279-5393
4 Facsimile: (408) 279-5845
Neil.kliebenstein@bowmanandbrooke.com
5 Lucina.rios@bowmanandbrooke.com
6 Attorneys for Defendants
Takeuchi Mfg. Co. (U.S.), Ltd.
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
JOHN BROWN, an individual, ) Case No. 2:21-cv-00392-JAM-DMC
10 )
Plaintiff, )
11 )
vs. ) STIPULATION AND ORDER TO
12 ) AMEND PRETRIAL
TAKEUCHI MFG. CO. (U.S.), LTD, a ) SCHEDULING ORDER
13 foreign entity; TAKEUCHI MFG, CO. )
LTD., a foreign entity; UNITED )
14 RENTALS (NORTH AMERICA), ) Action Filed: March 3, 2021
INC., a Delaware Corporation; ) Trial Date: 7, 22, 2024
15 UNITED RENTALS INC., a Delaware )
Corporation; AND DOES 1 through )
16 50, INCLUSIVE, )
)
17 Defendant(s). )
)
18
19 WHEREAS, Plaintiff John Brown and Defendants Takeuchi Mfg. Co. USA
20 (“Takeuchi”), and United Rentals (North America) Inc., (hereinafter the “Parties”)
21 jointly file this stipulation to request an order to continue all deadlines by 45 days,
22 except the Final Pretrial Conference and the Trial Dates which are set for May 24,
23 2024 and July 22, 2024 respectively. The parties need the extra time to complete
24 certain discovery needed by the experts to complete their reports. The current
25 expert disclosure date is October 4, 2023.
26 WHEREAS, Plaintiff filed this action on March 3, 2021, filed the First
27 Amended Complaint on October 1, 2021, and Defendants answered on May 19,
28 2022.
1 WHEREAS, on May 20, 2022, Judge John A. Mendez approved the Pretrial
2 Scheduling Order for this matter. (ECF 59). On August 19, 2022, the Parties
3 stipulated to extending the deadline to file the initial disclosures and clarifying the
4 Parties served and the Court granted the proposed order. (ECF 60, 61). On
5 November 14, 2022, the Parties stipulated to continue the case and amend the
6 pretrial scheduling order and the Court granted the proposed order. (ECF 67, 68).
7 On November 29, 2022, the Parties stipulated to changing the bench trial to a jury
8 trial and the Court granted the proposed order. (ECF 69, 70).
9 WHEREAS, on December 30, 2022, Defendant Takeuchi moved to compel
10 Plaintiff’s discovery responses and the Court granted Takeuchi’s motion. (ECF
11 74, 75, 81). On January 20, 2023, Takeuchi moved to compel Plaintiff to provide
12 supplemental initial disclosures and the Court granted Takeuchi’s motion. (ECF
13 82, 84, 86). On February 28, 2023, Takeuchi moved to dismiss for Plaintiff’s
14 failure to comply with the January 17, 2023 order to produce discovery responses
15 and the motion was heard on April 19, 2023. (ECF 85, 97). At the hearing, the
16 Court ordered Plaintiff to produce discovery responses within seven days or the
17 matter would be dismissed, and the Court issued an order on April 20, 2023
18 regarding the same. (ECF 97). On April 21, 2023, Plaintiff filed supplemental
19 initial disclosures. (ECF 98). On April 26, 2023, Plaintiff filed a notice of
20 compliance to avoid dismissal.
21 WHEREAS, following Plaintiff’s notice of compliance, the Parties
22 stipulated to continuing the case and to amend the pre-trial scheduling order to
23 move all dates three months out and the Court approved the stipulation on May
24 22, 2023. (ECF 104, 105).
25 GOOD CAUSE EXISTS to grant the stipulation to amend the pre-trial
26 order. Fed. R. Civ. P. 16(b)(4). Despite the Parties due diligence, they will not be
27 able to meet the current scheduling order. Johnson v. Mammoth Recreations, Inc.,
28 975 F.2d 604, 609 (9th Cir. 1992).
1 The Parties have been diligently working to meet the pre-trial scheduling
2 order. Takeuchi’s counsel has been diligently contacting Plaintiff and United
3 Rentals to set up a date for the inspection. The inspection requires the attendance
4 of several experts along with the Parties. All of the Parties have been responsive
5 and are communicating about efforts to set this inspection. Despite their efforts,
6 no date has yet been set because each proposed date has had a scheduling conflict.
7 The deposition of Plaintiff John Brown is calendared for August 16, 2023.
8 Initially, Takeuchi noticed the deposition for August 1, 2023 but Plaintiff’s
9 attorney said that Mr. Brown was not available. Plaintiff’s attorney advised that
10 Mr. Brown had an “unavoidable prosthetic surgery that he ha[d] schedule for the
11 same time.” Therefore, the Plaintiff’s deposition was re-noticed for August 16,
12 2023.
13 Moreover, Takeuchi and United Rentals have served a Notice of Request
14 for a Physical Examination by their retained physical rehabilitation consultant, Dr.
15 Michael Hembd, M.D. set for the earliest date available on his calendar which is
16 September 29, 2023. Takeuchi will move for an order allowing the exam if
17 plaintiff does not agree to allow the exam.
18 Takeuchi has served notices of deposition to several fact witnesses. They
19 include the deposition of fact witnesses Rick Lederer scheduled for August 18,
20 2023, the deposition of Plaintiff’s former employer, Dig It, which is scheduled for
21 Tuesday August 22, 2023, the September 6, 2023 deposition of Elizabeth Gray,
22 the deposition of consultant Scott Buske set for September 8, 2023, the deposition
23 of first responder Captain Houston scheduled for September 11, 2023 (originally
24 noticed for August 22, 2023).
25 Therefore, the current pre-trial dates do not provide the Parties with
26 sufficient time to: 1) complete fact witness depositions so they can provide the
27 transcripts to their experts for review before their reports are due; 2) review Dr.
28 Hembd’s report on his physical examination before their reports are due; 3)
1 complete and process the data from a second scene inspection before their reports
2 are due. The Parties agree that none of them will be prejudiced by amending the
3 pretrial scheduling order and that more time is needed by the Parties and their
4 experts to complete discovery and for the expert reports.
5 The Parties now stipulate to continue all deadlines by 45 days, except the
6 Final Pretrial Conference and the Trial Dates which are set for May 24, 2024 and
7 July 22, 2024 respectively.
8 Whereas, the current scheduling order is as follows:
9 Discovery Cutoff Date: 12/1/2023
10 Disclosures of Expert(s) Deadline: 10/4/2023
11 Supplemental Disclosures Deadline: 11/1/2023
12 Dispositive Motion Filing Deadline: 1/10/2024
13 Dispositive Motion Hearing: 3/26/2024 at 1:30 PM
14 Joint Mid-Litigation Statement Filing Deadline: 14 days prior to close of
15 discovery
16 Final Pretrial Conference: 5/24/24 at 11:00 AM
17 Jury Trial: 7/22/24 at 9:00 AM
18 The Parties respectfully request the dates be AMENDED as follows, or
19 to dates convenient for the Court:
20 Discovery Cutoff Date: 1/12/2024
21 Disclosures of Expert(s) Deadline: 11/17/2023
22 Supplemental Disclosures Deadline: 12/15/2023
23 Dispositive Motion Filing Deadline: 2/23/2024
24 Dispositive Motion Hearing: 4/23/2024, at 1:30 PM
25 Joint Mid-Litigation Statement Filing Deadline: 14 days prior to close of
26 discovery
27 Final Pretrial Conference: 5/24/24, at 11:00 AM
28 Jury Trial: 7/22/24 at 9:00 AM
1 Dated: 8/11/2023 BOWMAN AND BROOKE LLP
2
/s/ Neil Kliebenstein
3 ___________________________
Neil M. Kliebenstein
4
Lucina N. Rios
5 Attorneys for Defendant
Takeuchi Mfg. Co. (U.S.), Ltd.
6
7
Dated: 8/11/2023 ACQUEST LAW
8
/s/ Nareshwar Virdi
9
___________________________
10 Nareshwar S. Virdi
Acquest Law Inc.
11
Attorneys for the Plaintiff
12 John Brown
13
14 Dated: 8/11/2023 GORDON & REES LLP
15 /s/ Russell Mortyn
___________________________
16
Russell M. Mortyn
17 Attorneys for Defendants
United Rentals (North America)
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19
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IT IS SO ORDERED.
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Dated: August 14, 2023 /s/ John A. Mendez
22
THE HONORABLE JOHN A. MENDEZ
23
SENIOR UNITED STATES DISTRICT JUDGE
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