Brown v. Takeuchi Mfg. Co. (U.S.)

1 Neil M. Kliebenstein (#226060) Lucina N. Rios (#325856) BOWMAN AND BROOKE LLP 1741 Technology Drive, Suite 200 San Jose, CA 95110-1364 Telephone:(408) 279-5393 Facsimile: (408) 279-5845 [email protected] [email protected] Attorneys for Defendants Takeuchi Mfg. Co. (U.S.), Ltd. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 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 foreign entity; TAKEUCHI MFG, CO. ) LTD., a foreign entity; UNITED ) RENTALS (NORTH AMERICA), ) Action Filed: March 3, 2021 INC., a Delaware Corporation; ) Trial Date: 7, 22, 2024 UNITED RENTALS INC., a Delaware ) Corporation; AND DOES 1 through ) 50, INCLUSIVE, ) ) 17 Defendant(s). ) ) 19 WHEREAS, Plaintiff John Brown and Defendants Takeuchi Mfg. Co. USA (“Takeuchi”), and United Rentals (North America) Inc., (hereinafter the “Parties”) jointly file this stipulation to request an order to continue all deadlines by 45 days, except the Final Pretrial Conference and the Trial Dates which are set for May 24, 2024 and July 22, 2024 respectively. The parties need the extra time to complete certain discovery needed by the experts to complete their reports. The current expert disclosure date is October 4, 2023.

26 WHEREAS, Plaintiff filed this action on March 3, 2021, filed the First Amended Complaint on October 1, 2021, and Defendants answered on May 19, 2022.

1 WHEREAS, on May 20, 2022, Judge John A. Mendez approved the Pretrial Scheduling Order for this matter. (ECF 59). On August 19, 2022, the Parties stipulated to extending the deadline to file the initial disclosures and clarifying the Parties served and the Court granted the proposed order. (ECF 60, 61). On November 14, 2022, the Parties stipulated to continue the case and amend the 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 trial and the Court granted the proposed order. (ECF 69, 70).

9 WHEREAS, on December 30, 2022, Defendant Takeuchi moved to compel Plaintiff’s discovery responses and the Court granted Takeuchi’s motion. (ECF 74, 75, 81). On January 20, 2023, Takeuchi moved to compel Plaintiff to provide supplemental initial disclosures and the Court granted Takeuchi’s motion. (ECF 82, 84, 86). On February 28, 2023, Takeuchi moved to dismiss for Plaintiff’s failure to comply with the January 17, 2023 order to produce discovery responses and the motion was heard on April 19, 2023. (ECF 85, 97). At the hearing, the Court ordered Plaintiff to produce discovery responses within seven days or the matter would be dismissed, and the Court issued an order on April 20, 2023 regarding the same. (ECF 97). On April 21, 2023, Plaintiff filed supplemental initial disclosures. (ECF 98). On April 26, 2023, Plaintiff filed a notice of compliance to avoid dismissal.

21 WHEREAS, following Plaintiff’s notice of compliance, the Parties stipulated to continuing the case and to amend the pre-trial scheduling order to move all dates three months out and the Court approved the stipulation on May 22, 2023. (ECF 104, 105).

25 GOOD CAUSE EXISTS to grant the stipulation to amend the pre-trial order. Fed. R. Civ. P. 16(b)(4). Despite the Parties due diligence, they will not be able to meet the current scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992).

1 The Parties have been diligently working to meet the pre-trial scheduling order. Takeuchi’s counsel has been diligently contacting Plaintiff and United Rentals to set up a date for the inspection. The inspection requires the attendance of several experts along with the Parties. All of the Parties have been responsive and are communicating about efforts to set this inspection. Despite their efforts, 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 attorney said that Mr. Brown was not available. Plaintiff’s attorney advised that Mr. Brown had an “unavoidable prosthetic surgery that he ha[d] schedule for the same time.” Therefore, the Plaintiff’s deposition was re-noticed for August 16, 2023.

13 Moreover, Takeuchi and United Rentals have served a Notice of Request for a Physical Examination by their retained physical rehabilitation consultant, Dr. Michael Hembd, M.D. set for the earliest date available on his calendar which is September 29, 2023. Takeuchi will move for an order allowing the exam if plaintiff does not agree to allow the exam.

18 Takeuchi has served notices of deposition to several fact witnesses. They include the deposition of fact witnesses Rick Lederer scheduled for August 18, 2023, the deposition of Plaintiff’s former employer, Dig It, which is scheduled for Tuesday August 22, 2023, the September 6, 2023 deposition of Elizabeth Gray, the deposition of consultant Scott Buske set for September 8, 2023, the deposition of first responder Captain Houston scheduled for September 11, 2023 (originally noticed for August 22, 2023).

25 Therefore, the current pre-trial dates do not provide the Parties with sufficient time to: 1) complete fact witness depositions so they can provide the transcripts to their experts for review before their reports are due; 2) review Dr. Hembd’s report on his physical examination before their reports are due; 3) complete and process the data from a second scene inspection before their reports are due. The Parties agree that none of them will be prejudiced by amending the pretrial scheduling order and that more time is needed by the Parties and their experts to complete discovery and for the expert reports.

5 The Parties now stipulate to continue all deadlines by 45 days, except the Final Pretrial Conference and the Trial Dates which are set for May 24, 2024 and 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 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 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 discovery 27 Final Pretrial Conference: 5/24/24, at 11:00 AM 28 Jury Trial: 7/22/24 at 9:00 AM Dated: 8/11/2023 BOWMAN AND BROOKE LLP /s/ Neil Kliebenstein 3 ___________________________ Neil M. Kliebenstein Lucina N. Rios 5 Attorneys for Defendant Takeuchi Mfg. Co. (U.S.), Ltd. Dated: 8/11/2023 ACQUEST LAW /s/ Nareshwar Virdi ___________________________ 10 Nareshwar S. Virdi Acquest Law Inc. Attorneys for the Plaintiff 12 John Brown Dated: 8/11/2023 GORDON & REES LLP 15 /s/ Russell Mortyn ___________________________ Russell M. Mortyn 17 Attorneys for Defendants United Rentals (North America) IT IS SO ORDERED.

Dated: August 14, 2023 /s/ John A. Mendez THE HONORABLE JOHN A. MENDEZ SENIOR UNITED STATES DISTRICT JUDGE