Filed: Feb. 13, 2020
Latest Update: Feb. 13, 2020
Summary: STIPULATION TO VACATE INITIAL SCHEDULING CONFERENCE AND SET STATUS CONFERENCE; ORDER SHEILA K. OBERTO , Magistrate Judge . IT IS HEREBY STIPULATED AND AGREED by and between the attorneys of records for plaintiffs Richard Charles Bernier, III ("Bernier") and Nadezhda Ustinenkov ("Ustinenkov") (collectively "Plaintiffs") and defendants 1 County of Fresno ("County"), Fresno County Sheriff's Deputies Garrett Majors ("Deputy Majors"), John Robinson ("Deputy Robinson"), and Nathaniel Wilkinson (
Summary: STIPULATION TO VACATE INITIAL SCHEDULING CONFERENCE AND SET STATUS CONFERENCE; ORDER SHEILA K. OBERTO , Magistrate Judge . IT IS HEREBY STIPULATED AND AGREED by and between the attorneys of records for plaintiffs Richard Charles Bernier, III ("Bernier") and Nadezhda Ustinenkov ("Ustinenkov") (collectively "Plaintiffs") and defendants 1 County of Fresno ("County"), Fresno County Sheriff's Deputies Garrett Majors ("Deputy Majors"), John Robinson ("Deputy Robinson"), and Nathaniel Wilkinson ("..
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STIPULATION TO VACATE INITIAL SCHEDULING CONFERENCE AND SET STATUS CONFERENCE; ORDER
SHEILA K. OBERTO, Magistrate Judge.
IT IS HEREBY STIPULATED AND AGREED by and between the attorneys of records for plaintiffs Richard Charles Bernier, III ("Bernier") and Nadezhda Ustinenkov ("Ustinenkov") (collectively "Plaintiffs") and defendants1 County of Fresno ("County"), Fresno County Sheriff's Deputies Garrett Majors ("Deputy Majors"), John Robinson ("Deputy Robinson"), and Nathaniel Wilkinson ("Deputy Wilkinson") (collectively "County Defendants"); and City of Fresno ("City"), Fresno Police Officers Anthony Rodriguez ("Officer Rodriguez") and Kevin Jones ("Officer Jones") (collectively "City Defendants") as follows:
Bernier was arraigned on November 27, 2018 in Fresno County Superior County (The People of the State of California vs. Richard Charles Bernier, Fresno County Superior Court Case Number F1890078) on criminal charges, which arose from his arrest as alleged in the Second Amended Complaint and make up the basis for this action. Bernier has a pre-preliminary hearing scheduled for February 28, 2020; however, no trial date has been set in the case yet.
On March 14, 2019, the Court ordered the case stayed as to federal and state law claims premised upon excessive force or retaliatory prosecution, with the exception that Plaintiffs may amend those claims to add new defendant. See Doc. No. 30. The Court also ordered that the case may proceed as to the other allegations of retaliation (failure to provide medical care and/or inappropriate jail housing.) Id. This ruling was modified on April 15, 2019 after a motion for reconsideration as follows:
Plaintiffs are entitled to discover information sufficient to permit them to amend their complaint to name as defendants FPD officers at the scene of Plaintiffs' arrest. At a bare minimum, Plaintiffs are entitled to conduct civil discovery to determine the identity of any and all FPD officers who were present during the incident. Beyond that, Defendants have an election to make. They may decline to reveal information beyond that related to the presence of FPD officers at the scene. If they do so, the Court will construe that election as a waiver of any motion to dismiss claims brought by Plaintiffs against those officers on the ground of failure to state a claim. Alternatively, Defendants shall respond to narrowly tailored discovery designed to reveal the role(s) any FPD officers played at the scene of the arrest.
See Doc. No. 35, p. 4:10-18.
Plaintiffs filed a Second Amended Complaint on November 6, 2019. Doc. No. 42. County filed a motion to strike the SAC or in the alternative motion to dismiss and motion to strike portions of the SAC on November 20, 2019. Doc. No. 45. The motion was fully briefed by Plaintiffs (Doc. No. 54) and County Defendants (Doc. No. 55), and ultimately found to be suitable for decision on the papers without oral argument and taken under submission on December 13, 2019. See Doc. No. 57. There has not been a ruling on County's motion as of the filing of this stipulation.
City Defendants filed their answer to the SAC on December 12, 2019. Doc. No. 58. Deputies Majors, Robinson, and Wilkinson filed their answer to the SAC on January 9, 2020. Doc. No. 59.
Considering the partial stay in place during the pendency of Bernier's parallel criminal case, which does not have a trial date yet, and the still pending motion to strike the SAC or in the alternative motion to dismiss and motion to strike portions of the SAC, the parties would like to have the status of the pleadings settled in advance of the Initial Scheduling Conference so that County has an opportunity to file an Answer and so the parties can better evaluate potential discovery issues and better determine a proper discovery and trial schedule.
Accordingly, the parties believe that there is good cause for the Court to approve the following stipulations:
1. The March 12, 2020 Initial Scheduling Conference be vacated, and a Status Conference be scheduled on October 15, 2020, or as soon thereafter as the Court and parties are available, to evaluate the appropriateness of setting a Scheduling Conference depending on the status of the underlying criminal case.
2. A Joint Status Conference Statement will be electronically filed by the parties 7 days prior to the Status Conference date, and will be emailed in Word format to skoorders@caed.uscourts.gov.
Dated: February 11, 2020 WEAKLEY & ARENDT
A Professional Corporation
By: /s/ Brande L. Gustafson
James D. Weakley
Brande L. Gustafson
Attorneys for Defendants
County of Fresno, Garrett Majors, John Robinson,
and Nathaniel Wilkinson
Dated: February 11, 2020 WHITNEY, THOMPSON & JEFFCOACH LLP
By: /s/ Kristi D. Marshall (As authorized on 2/11/20)
Mandy L. Jeffcoach
Kristi D. Marshall
Attorneys for Defendants
Fresno Police Officer Anthony Rodriguez, Fresno
Police Officer Kevin Jones, and The City of
Fresno, erroneously sued as The City of Fresno,
California
Dated: February 12, 2020 LAW OFFICE OF KEVIN G. LITTLE
By: /s/ Kevin G. Little (As authorized on 2/12/20)
Kevin G. Little
Attorneys for Plaintiffs
Richard Charles Bernier, III and Nadezhda
Ustinenkov
ORDER
Pursuant to the parties' above stipulation, the Initial Scheduling Conference currently set for March 12, 2020, is VACATED. A Status Conference is hereby set for October 22, 2020, at 10:15 a.m. in Courtroom 7 (SKO) before Magistrate Judge Sheila K. Oberto. The parties SHALL file a Joint Status Conference Statement by no later than October 15, 2020.
IT IS SO ORDERED.
