Case Information
*1 Thomas P. Griffin, Jr., Esq. (SBN 155133)
HEFNER, STARK & MAROIS, LLP 2150 River Plaza Drive, Suite 450
Sacramento, CA 95833
Telephone: (916) 925-6620
Facsimile: (916) 925-1127
Email: tgriffin@hsmlaw.com
Seth L. Berman, Esq. (admitted pro hac vice )
ABRAMS FENSTERMAN, LLP
3 Dakota Drive, Suite 300
Lake Success, NY 11042 Telephone: (516) 328-2300
Facsimile: (516) 328-6638
Email: sberman@abramslaw.com Attorneys for Plaintiff Yellowcake, Inc.
Richard J. Idell, Esq. (SBN 069033)
Ory Sandel, Esq. (SBN 233204)
DICKENSON PEATMAN & FOGARTY P.C. 1500 First Street, Suite 200
Napa, CA 94559 Telephone: (707) 261-7000
Facsimile: (707) 255-6876
Email: ridell@dpf-law.com osandel@dpf-law.com
Attorneys for Defendants Dashgo, Inc., Audiomicro, Inc. d.b.a. Adrev, Benjamin Patterson and Noah
Becker
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA YELLOWCAKE, INC., a California CASE NO. 1:21-cv-00803-AWI-BAM corporation, STIPULATION RE: CONTINUANCE OF
Plaintiff, TRIAL AND RELATED DATES; v. [PROPOSED] ORDER
DASHGO, INC., a Delaware corporation; (E-filing) AUDIOMICRO, INC. d/b/a ADREV, a Hon. Magistrate Judge Barbara A. McAuliffe, Delaware corporation; BENJAMIN Presiding PATTERSON, an individual; and NOAH BECKER, an individual,
Defendants. *2
1 Plaintiff Yellowcake, Inc. (“Plaintiff” or “Yellowcake”), on the one hand, and defendants 2 Dashgo, Inc. (“Dashgo”), Audiomicro, Inc. d.b.a. Adrev (“Adrev”), Benjamin Patterson and 3 Noah Becker (collectively, “Defendants”), on the other hand (collectively, the “Parties”; each 4 individually, a “Party”), by and through their respective attorneys, hereby agree and stipulate as 5 follows with reference to the following facts:
6 1. On June 9, 2022, the Court issued a Scheduling Order in this action. Docket No. 7 67.
8 2. On February 21, 2023, the Court issued an Amended Scheduling Order in this 9
action. Docket No. 106.
10 3. On May 10, 2023, the Court issued a further Amended Scheduling Order in this
11 action. Docket No. 118.
4. According to the May 10, 2023, Amended Scheduling Order (“Schedule”), the following deadlines are currently pending:
August 31, 2023: Non-Party Discovery and Depositions September 22, 2023: Expert Disclosure
October 20, 2023: Supplemental Expert Disclosure November 17, 2023: Expert Discovery Deadline
January 26, 2024: Dispositive Motion Filing Deadline July 15, 2024: Pretrial Conference
September 17, 2024: Jury Trial The May 10, 2023, Amended Scheduling Order provides, in pertinent part: “If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent status conference. The dates set in this Order are considered to be firm and will not be modified absent a showing of good cause even if the request to modify is made by stipulation. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate, attached exhibits, which establish good cause for granting the relief requested. The failure to comply with this order may result in the imposition of sanctions.”
*3 1 6. Defendants have issued and served subpoenas for both documents and testimony 2 on each of two third-parties, Colonize Media, Inc. and David Hernandez a.k.a. Jose David 3 Hernandez, and have noticed the depositions of those third parties, as well as the depositions of 4 Plaintiff’s person most knowledgeable and of Plaintiff’s principal, Kevin Berger. Those 5 depositions are currently set for July 25 and 26, 2023 (as to Colonize Media, Inc. and Mr. 6 Hernandez), and August 1 and 2, 2023 (as to Mr. Berger and Plaintiff’s person most 7 knowledgeable). The return date on the document subpoenas to Colonize Media, Inc. and Mr. 8 Hernandez was July 18, 2023.
7. The Parties have mutually expressed an agreement to mediate the matter, but only recently have they been able to agree on a mediator and a mediation date. The Parties have now agreed on a mediator and a mediation date. The Parties agree that mediation should occur before any depositions are taken. The meditator is John Bates, Esq. of JAMS. Based on various factors, including without limitation the requirements of Defendants’ insurance carrier, and the availability of counsel, the parties and the mediator, the mediation is currently scheduled for October 3, 2023. On Friday, July 7, 2023, Thomas P. Griffin, Jr., counsel for Plaintiff, advised
defense counsel by email, inter alia , that Mr. Berger is currently overseas and is facing health concerns that prevent him from returning to California as planned; that Mr. Berger’s return date is presently unknown; and that it could be a few weeks before Mr. Berger is permitted to return. Mr. Griffin also informed Defendants’ counsel that he has been addressing medical issues affecting multiple family members which has interfered with his ability to tend to matters in this case, including selecting a mediator and scheduling a mediation. Mr. Griffin also stated that, because of Mr. Berger’s absence, the scheduling of the mediation is on hold; the production of documents by Colonize Media, Inc. and Mr. Hernandez scheduled for July 18, 2023, and the corresponding depositions will need to be reset; and that Plaintiff’s counsel will work with defense counsel to re-set the depositions previously noticed by Defendants. One or more *4 declarations attesting to the foregoing shall be filed herewith, and Plaintiff shall provide any further evidence requested by the Court regarding the same. In view of the various issues raised by Mr. Griffin, Defendants and Plaintiff are
all agreeable to stipulate to a modification of the Schedule and a continuance of the dates for the depositions and document production pursuant to the subpoenas regarding the four above-noted deponents on the terms set forth hereinbelow.
NOW THEREFORE, the Parties hereby agree and stipulate as follows: A. Colonize Media, Inc. and David Hernandez a.k.a. Jose David Hernandez shall
produce all documents responsive to Defendants’ document subpoenas on or before August 7, 2023, subject to any objections on the grounds of attorney-client privilege and/or the attorney work product doctrine. Counsel for the parties shall meet and confer in good faith with regard to any issues relating to the scope of the document subpoenas.
B. The Parties shall mediate this matter on October 3, 2023, with John Bates, Esq. of
JAMS. C. If the matter does not settle at mediation, depositions will take place as follows unless
otherwise agreed by the Parties:
a. The deposition of David Hernandez a.k.a. Jose David Hernandez shall commence on October 23, 2023, at 9:30 a.m. and shall continue on October 24, 2023 until completed.
b. The deposition of the person(s) most knowledgeable of Colonize Media, Inc. shall commence immediately upon the completion of Mr. Hernandez’s deposition, anticipated to be on October 24, 2023, and shall continue on date(s) agreed up by the Parties.
c. The deposition of Kevin Berger shall commence on November 7, 2023, at 9:30 a.m. and shall continue on November 8, 2023, at 10:00 a.m., until completed.
*5 d. The deposition of the person(s) most knowledgeable of Yellowcake, Inc. shall commence immediately upon the completion of Mr. Berger’s deposition, anticipated to be on November 8, 2023, and shall continue until completed.
e. The deposition of Eric Gressinger shall commence on November 13, 2023, at 9:30 a.m. and shall continue until completed.
f. The deposition of Benjamin Patterson shall commence on November 14, 2023, at 9:30 a.m. and shall continue until completed.
g. The deposition of the person(s) most knowledgeable of DashGo, Inc. shall commence on November 15, 2023, at 9:30 a.m. and shall continue until completed.
h. The deposition of Noah Becker shall commence on November 28, 2023, at 9:30 a.m. and shall continue until completed.
i. The deposition of the person(s) most knowledgeable of Audiomicro, Inc., dba AdRev shall commence on November 29, 2023, at 9:30 a.m. and shall continue until completed.
j. The depositions of David Hernandez, the person most knowledgeable of Colonize Media, Inc., Kevin Berger and the person most knowledgeable of Yellowcake, Inc. shall be in-person at the law office of Tom Griffin in Sacramento, California; attorney Seth Berman may appear remotely at these depositions. All depositions scheduled by Plaintiff shall occur by remote video conference unless otherwise agreed.
D. The Parties agree that a continuance of at least ninety (90) days of the Schedule in
this action is appropriate, and, subject to the Court’s approval and entry of an order hereon, that the Schedule shall be modified as follows or as otherwise set by the Court in the Court’s discretion:
November 30, 2023: Non-Party Discovery and Depositions December 22, 2023: Expert Disclosure
*6 January 19, 2024: Supplemental Expert Disclosure February 16, 2024: Expert Discovery Deadline
April 26, 2024: Dispositive Motion Filing Deadline October 15, 2024: Pretrial Conference
December 17, 2024: Jury Trial E. The Parties jointly request that the Court approve of this Stipulation and enter an
order hereon.
SO STIPULATED.
A BRAMS , F ENSTERMAN , F ENSTERMAN , E ISMAN , F ORMATO , F ERRARA , W OLF & C ARONE , LLP By: /s/ Seth L. Berman Dated: July 24, 2023 Seth L. Berman (admitted pro hac vice )
Attorneys for Plaintiff Yellowcake, Inc. H EFNER , S TARK & M AROIS , LLP Dated: July 24, 2023 By: /s/ Thomas P. Griffin, Jr.
Thomas P. Griffin, Jr., Esq. (SBN 155133) Attorneys for Plaintiff Yellowcake, Inc. D ICKENSON P EATMAN & F OGARTY P.C. By: /s/ Richard Idell
Dated: July 24, 2023 Richard J. Idell
Ory Sandel
Attorneys for Defendants Dashgo, Inc., Audiomicro, Inc. d.b.a. Adrev, Benjamin Patterson and Noah Becker *7 ORDER
For good cause, based upon the medical condition of Plaintiff’s principal and third party availability, the Court adopts the stipulation of the parties. The schedule in this action is hereby modified as follows:
Non-Party Discovery and Depositions: November 30, 2023 Expert Disclosure: December 22, 2023
Supplemental Expert Disclosure: January 19, 2024
Expert Discovery Deadline: February 16, 2024 Dispositive Motion Filing Deadline: April 26, 2024 Pretrial Conference: October 21, 2024, at 1:30 p.m. in Dept. 1 (ADA) Jury Trial: December 17, 2024, at 8:30 a.m. in Dept. 1 (ADA) (7 days) The parties are further cautioned that settlement discussions are not good cause to amend a scheduling order. See Gerawan Farming, Inc. v. Rehrig Pac. Co ., No. 1:11-CV-01273-LJO, 2013 WL 645741, at *5 (E.D. Cal. Feb. 21, 2013) (“…settlement negotiations are not good cause to modify a Scheduling Order… Settlement discussions, in and of themselves, are not good cause.”); Eckert v. City of Sacramento , No. 2:0-7C-V00825 GEB GGH, 2009 WL 3211278, at *2 (E.D. Cal. Sept. 30, 2009) (“Moreover, ongoing settlement negotiations do not constitute good cause justifying modification of the pretrial scheduling order in this case.”); Lehman Bros. Holdings v. Golden Empire Mortg., Inc ., No. 1:09-CV-01018LJO JLT, 2010 WL 2679907, at *2 (E.D. Cal. July 2, 2010) (noting that “settlement discussions generally are not an “unanticipated” development…” and therefore the parties’ ongoing settlement discussions “did not constitute good cause to modify the Scheduling Order.”). The Court will not grant further continuances, absent good cause, which will be narrowly construed.
IT IS SO ORDERED. /s/ Barbara A. McAuliffe _
Dated: July 24, 2023 UNITED STATES MAGISTRATE JUDGE