(PS) Schmitz v. Asman

1 DIANNE MALLIA Atkinson Street Roseville, CA 95678 [email protected] [email protected] Telephone: (707) 694-8158 Plaintiff, ProSe ROB BONTA (State Bar No. 202668) Attorney General of California JAY M. GOLDMAN (State Bar No. 168141) Supervising Deputy Attorney General JENNIFER J. NYGAARD (State Bar No. 229494) Deputy Attorney General [email protected] 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-0802 Fax: (510) 622-2270 Attorneys for Defendant ERIC BRADLEY MICHAEL A. TERHORST, SR. [email protected] BEESON TERHORST LLP 510 Bercut Drive, Suite V Sacramento, CA 95811 Telephone: 707-301-7504 Attorneys for Defendants KEVIN KUICH and JOE A. LIZARRAGA PETER J. HIRSIG (State Bar No. 197993) [email protected] MARIA ZHURNALOVA-JUPPUNOV (State Bar No. 319004) [email protected] DANIEL R. MAYER (State Bar No. 300077) [email protected] MCNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP Kentucky Street, Fairfield, CA 94533 Telephone: (707) 427-3998 Facsimile: (707) 427-0268 Attorneys for Defendants ADAMS, ANDALUZ, ASHE, ASMAN, BRANMAN, BRIZENDINE, BROCKENBOROGH, CEBALLOS, HEATLEY, J. JOHNSON, R. JOHNSON, PONCIANO, RAMKUMAR, REKART, ROBINSON, RUDAS, M. SMITH, C. SMITH, TIEBROCK, TOCHE and WAINE 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA On behalf of Estate of WILLIAM Case No.: 2:20-CV-00195-DJC-CKD SCHMITZ, deceased, by and through THOMAS J. SCHMITZ and DIANNE STIPULATION TO MODIFY MALLIA, as Successors in Interest; SCHEDULING ORDER ECF. NO. 286; THOMAS SCHMITZ, Individually; and [PROPOSED] ORDER DIANNE MALLIA, Individually, Plaintiffs, 8 Courtroom: 24 vs. Judge: Hon. Carolyn K. Delaney CDCR Correction Officer ADAM Action Filed: 1/27/2020 ASMAN; et al., 11 Defendants.

13 Plaintiff Dianne Mallia in pro se, and defendants Bradley, Kuich, Lizarraga, Adams, Andaluz, Ashe, Asman, Branman, Brizendine, Brockenborogh, Ceballos, Heatley, J. Johnson, R. Johnson, Ponciano, Ramkumar, Rekart, Robinson, Rudas, M. Smith, C. Smith, Tebrock, Toche, and Waine (“Defendants”) by and through their attorneys hereby agree and stipulate as follows: 17 WHEREAS, on May 31, 2023, the parties filed a Joint Status Report with a mutually agreed Proposed Schedule (EFC No. 283); 19 WHEREAS, on June 20, 2023, the Court issued a Scheduling Order setting pre-trial dates in this case, such that all non-expert discovery, except for any phase two discovery discussed below, shall be completed by May 17, 2024; expert witness disclosures shall be completed by September 30, 2024; rebuttal expert disclosures shall be made no later than October 30, 2024; and all expert discovery shall be completed by February 28, 2025; all law and motion, except as to discovery- related matters, shall be completed (i.e. heard) by August 29, 2025 and the Court will set a schedule for phase two discovery upon resolution of dispositive motions; 26 WHEREAS, the parties have continued to engage in written discovery and have updated their written disclosures, 28 //// 1 WHEREAS, on February 6, 2024, counsel for Defendants were put on notice by plaintiff Dianne Mallia regarding doubts as to plaintiff Dr. Thomas Schmitz’s capacity to proceed in this litigation in pro se due to mental health issues; 4 Defense counsel served and filed a notice regarding the same on February 23, 2024. (ECF No. 348.)

6 WHEREAS, on March 22, 2024, defendants filed an administrative motion under Local Rule 233 seeking to stay the proceedings in this case pending a determination whether a substantial question exists regarding plaintiff Schmitz’s competency to proceed pro se. (ECF No. 364) and Plaintiff Mallia opposed the motion to the extent it requests a stay of all proceedings. (ECF No. 366); 11 WHEREAS, on April 26, 2024, the Court issued an Order granting in part Defendants’ Motion for Stay to the extent that the Court stayed discovery requiring responses or testimony by Dr. Schmitz, pending a determination of his competency to proceed pro se and set a competency hearing for May 15, 2024, at 10:00 a.m. (ECF 376); 15 WHEREAS, Plaintiff Mallia has advised of her intent to depose ten (10) named defendants and defendants intend to depose Plaintiff Mallia; Rose Swift, Dr. Joseph Schmitz, as well as Plaintiff Dr. Thomas Schmitz, and potentially other facts witnesses; 18 WHEREAS, the unanticipated issue regarding Plaintiff Dr. Thomas Schmitz’s capacity has made it impracticable and impossible for Plaintiff Mallia and Defendants to complete depositions and complete all fact discovery prior to the Court’s determination on the issue of Dr. Schmitz’s capacity to proceed pro se, despite their due diligence; 22 WHEREAS, a district court has the inherent power to modify the deadlines on its docket, a power “incidental to the power inherent in every court to control the disposition of cases on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Gold v. Johns-Manville Sales Corp., 723 F.2d 1068, 1077 (3d Cir. 1983) (holding that every court has power to manage cases on its docket and to ensure fair and efficient adjudication of the matter at hand.); and Federal Rule of Civil Procedure 16(b)(4) provides that "[a] schedule may be modified only for good cause and with the judge's consent," where "good cause" standard primarily considers the diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, 975 F.2d 604, 609 (9th Cir. 1992).

3 Plaintiff Mallia and Defendants agree and stipulate that good cause exists under Federal Rule of Civil Procedure 16 (b) and Local Rule 144 for modifying the Court’s Scheduling Order ECF No. 286 by extending the current May 17, 2024 fact discovery deadline with three months from the Court’s determination of plaintiff Dr. Thomas Schmitz’s capacity to proceed pro se in this ligation, as well as, extending all subsequent deadline in the Scheduling Order by for the same period of time accordingly.

9 IT IS SO STIPULATED.

10 Dated: April _____, 2024 MCNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 12 By: _________________________________ Peter J. Hirsig 13 Maria Zhurnalova-Juppunov Daniel R. Mayer 14 Attorneys for Defendants ADAMS, ANDALUZ, ASHE, ASMAN, BRANMAN, 15 BRIZENDINE, BROCKENBOROGH, CEBALLOS, HEATLEY, J. JOHNSON, R. JOHNSON, LEIDNER, 16 PONCIANO, RAMKUMAR, REKART, ROBINSON, RUDAS, M. SMITH, C. SMITH, TIEBROCK, 17 TOCHE and WAINE Dated: ________, 2024 CALIFORNIA DEPT. OF JUSTICE, OFFICE OF ATTORNEY 19 GENERAL 20 By: __________________________________ Jennifer Nygaard 21 Attorneys for Defendant ERIC BRADLEY Dated: ________, 2024 BEESON TERHORST, LLP 24 By: ________________________________ Michael A. Terhorst, Sr. 25 Attorneys for Defendants KEVIN KUICH, M.D. & JOE A. LIZARRAGA 1 [PROPOSED] ORDER 2 Pursuant to Federal Rule of Civil Procedure 16 (b) and Local Rule 144, the Stipulation || among Plaintiff Mallia and Defendants Bradley, Kuich, Lizarraga, Adams, Andaluz, Ashe, Asman, | Branman, Brizendine, Brockenborogh, Ceballos, Heatley, J. Johnson, R. Johnson, Ponciano, || Ramkumar, Rekart, Robinson, Rudas, M. Smith, C. Smith, Tebrock, Toche, and Waine, and good || cause appearing thereof, 7 It is Ordered that the Scheduling Order No. 286 shall be modified to the extent that the || deadline for completion of fact discovery shall be extended to expire ninety days (90 days) from | the date this Court issues an order determining the capacity of plaintiff Dr. Thomas Schmitz to 2 10 | proceed pro se. Other remaining dates in the Scheduling Order shall be extended with the same | period of time accordingly. The Scheduling Order shall remain unchanged in all other respects. The » 12 || stipulating parties shall submit a proposed order with new dates modifying the current Scheduling | Order within 5 court days after the Court issues its Order determining the capacity of Plaintiff Dr. | Thomas Schmitz to proceed pro se.

2 15 IT IS SO ORDERED.

16 | Dated: April 30, 2024 Cod) Ld Ly i eM CAROLYNK.DELANEY 18 UNITED STATES MAGISTRATE JUDGE 2] schm20ev 195.stip.mod.dso STIP TO MODIFY SCHEDULING ORDER; 5