Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-04874-TEH

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DAVID F. FAUSTMAN (SBN 81862) FOX ROTHSCHILD 235 Pine Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 364-5540 Facsimilie: (415) 391-4436 Attorneys for Defendants MEDICIS PHARMACEUTICAL CORPORATION and ROBERT NEVIN G. WHITNEY LEIGH (SBN 153457) GONZALEZ & LEIGH LLP Two Shaw Alley, Third Floor San Francisco, CA 94105 Telephone: (415) 512-2000 Facsimile: (415) 512-2001 JUAN ENRIQUE PEARCE (SBN 236228) PEARCE LAW OFFICES 530 Jackson Street, Second Floor San Francisco, CA 94133 Telephone: (415) 434-9000 Facsimile: (415) 434-9010 Attorneys for Plaintiff KIMBERLEA MCMANIGAL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KIMBERLEA MCMANIGAL, et al., Plaintiff(s), v. MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation and ROBERT NEVIN, an individual, Defendants. Case No. Case No. 3:07-cv-04874 TEH JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER

Pursuant to Northern District Local Rule 16-9 and the Court's Order dated March 3, 2008, the parties to the above-entitled action, by and through their respective attorneys of record, jointly submit this Case Management Statement and Proposed Order and request the Court to adopt it as its Case 1
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Management Order in this case. 1. JURISDICTION AND SERVICE a. Pursuant to 28 U.S.C. § 1332, this action was properly removed to this Court by

Defendants on September 20, 2007 based on the Court's original diversity of citizenship jurisdiction. b. 2. The parties which have not been served and the reasons: None.

FACTS AND LEGAL ISSUES a. A brief description of the events underlying the action:

Plaintiff Kimberlea McManigal ("McManigal") alleges that she worked for Medicis Pharmaceutical Corporation, Inc. ("Medicis") as a Territory Manager beginning August 8, 2005. She further alleges that in January 2007, she announced her pregnancy and her intention to take maternity leave beginning on or around June 2007. Ms. McManigal also alleges that she was subjected to discriminatory and harassing comments based on her sex made by Medicis management, including her direct supervisor Robert Nevin ("Nevin"). Ms. McManigal further alleges that she reported this treatment to the Human Resources Department at Medicis, but that no investigation took place. Medicis denies Ms. McManigal's claims. Medicis further alleges that Ms. McManigal accepted an agreement to arbitrate employment disputes. The principal factual issues which the parties dispute: b. Ms. McManigal believes that the following factual contentions are in dispute: i. Does Medicis have a policy or protocol regarding pregnant employees that

disadvantages those employees in any manner? ii. performance? iii. What actions did Medicis take toward Ms. McManigal after she reported What were the objective criteria used to measure Ms. McManigal's job

discriminatory and harassing behavior to Human Resources? iv. How did Medicis react when Ms. McManigal alleged to Human Resources that

her direct supervisor Robert Nevin was discriminating and harassing her based on her sex? v. What corrective action did Medicis take regarding Ms. McManigal's complaints
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of sex discrimination and harassment? vi. What were the circumstances surrounding Ms. McManigal's bonus pay after

she informed Medicis of her pregnancy? c. Defendants believe that the following factual contentions are in dispute: i. Whether Ms. McManigal was subjected to any "harassment" or

"discriminatory" treatment and whether Ms. McManigal suffered any damage therefrom. 3. LEGAL ISSUES The principal legal issues which the parties dispute: a. Ms. McManigal believes that the following legal issues are in dispute: i. Is Ms. McManigal required to arbitrate her claims based upon a mandatory

arbitration provision to a contract to which she never signed or otherwise entered into? b. Defendants believe that the following legal issues are in dispute: i. Is Ms. McManigal required to arbitrate her claims based upon a mandatory

arbitration provision in a contract which was validly offered and accepted, and for which sufficient consideration was presented? ii. Medicis? iii. Nevin? iv. corrective action? v. Does Ms. McManigal have a viable claim against Medicis or Nevin for Does Ms. McManigal have a viable claim against Medicis for failure to take Does Ms. McManigal have a viable claim of harassment against Medicis or Does Ms. McManigal have a viable claim of sex discrimination against

intentional infliction of emotional distress? vi. 4. MOTIONS a. Prior Motions Defendants filed a Motion to Compel Arbitration and Dismiss the Action on January
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Is Ms. McManigal entitled to damages or other relief?

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21, 2008, which was heard by this Court on February 25, 2008. The Court issued an order denying Defendants' motion on March 3, 2008. b. Anticipated Motions Defendant: If the parties are unable to informally resolve Plaintiff's claims asserted Plaintiff's complaint, Defendant anticipates that it will file a motion for summary judgment or, in the alternative, summary adjudication. 5. AMENDMENT OF PLEADINGS The extent to which parties, claims, or defenses are expected to be added or dismissed and a proposed deadline for amending the pleadings: None. 6. EVIDENCE PRESERVATION The parties have taken steps taken to preserve evidence relevant to the issues reasonably evidence in this action, including interdiction of any document-destruction program and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material. 7. DISCLOSURES The parties certify that they have timely completed initial disclosures, pursuant to Fed. R. Civ. P. 26(a)(1), of the witnesses and documents believed to support their respective claims or defenses, damage computations and insurance agreements. 8. DISCOVERY a. Defendants have responded to Plaintiff's First Set of Requests for Production of

Documents. Plaintiff will respond to Defendants' First Set of Requests for Production of Documents on or before June 21, 2008. b. c. The parties agreed to take the depositions of each party prior to the ENE session. The parties have met and conferred pursuant to this Court's order and Federal Rule

26(f). Subject to the Court's approval, the parties have stipulated to defer on a more detailed discovery plan until after the Early Neutral Evaluation session is conducted, no later than July 31, 2008.

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9.

RELATED CASES Any related cases or proceedings pending before another judge of this court, or before another

court of administrative body: None. 10. RELIEF Plaintiff is seeking compensatory, general, and special damages, with the exact amount in controversy unknown at this time. Plaintiff has also requested unspecified punitive damages and attorneys' fees and costs. 11. ALTERNATIVE DISPUTE RESOLUTION The parties filed a Stipulation and Proposed Order Selecting Early Neutral Evaluation as the requested ADR process and the order was entered by the Court on March 13, 2008. Nordin F. Blacker was assigned as the Early Neutral Evaluator and the parties conducted a telephone conference with him on April 15, 2008. The parties filed a joint motion requesting an extension of the deadline for conducting the ENE session on May 22, 2008. The Court entered an order on May 23, 2008 extending the deadline to July 31, 2008. The ENE session is tentatively scheduled for July 31, 2008, pending confirmation that Defendants have no scheduling conflicts. 12. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES None of the parties consent to assignment of this case to a United States Magistrate Judge for any proceedings. 13. OTHER REFERENCES This case is not suitable for reference to binding arbitration, a special master, or the Judicial Panel on Multidistrict Litigation. 14. NARROWING OF ISSUES Issues that can be narrowed by agreement or motion: None. 15. EXPEDITED SCHEDULE This is not a type of case that can be handled on an expedited basis with streamlined procedures.

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16.

TRIAL AND SCHEDULING a. Subject to the Courts' approval, the parties have stipulated to defer on agreeing to a

trial date until after the Early Neutral Evaluation session is conducted, no later than July 31, 2008. b. 17. The parties expect that the trial will last for the following number of days: 7-10 days.

DISCLOSURE OF NON-PARTY INTERESTED ENTITIES Defendant Medicis filed a Certificate of Interested Entities on September 20, 2007.

18.

OTHER MATTERS The case management conference is currently scheduled for June 16, 2008, at 1:30 PM. The

parties jointly request that the date for the case management conference be continued to a date after the ENE session is completed, which will occur no later than July 31, 2008.

DATED: June 9, 2008

FOX ROTHSCHILD

By _/s/ David F. Faustman____________ David F. Faustman Attorneys for Defendants MEDICIS PHARMACEUTICAL CORPORATION AND ROBERT NEVIN

DATED: June 9, 2008

GONZALEZ AND LEIGH

By _/s/ G. Whitney Leigh_____________ G. Whitney Leigh Attorneys for Plaintiff KIMBERLEA MCMANIGAL

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DAVID F. FAUSTMAN (SBN 81862) FOX ROTHSCHILD 235 Pine Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 364-5540 Facsimilie: (415) 391-4436 Attorneys for Defendants MEDICIS PHARMACEUTICAL CORPORATION and ROBERT NEVIN G. WHITNEY LEIGH (SBN 153457) GONZALEZ & LEIGH LLP Two Shaw Alley, Third Floor San Francisco, CA 94105 Telephone: (415) 512-2000 Facsimile: (415) 512-2001 JUAN ENRIQUE PEARCE (SBN 236228) PEARCE LAW OFFICES 530 Jackson Street, Second Floor San Francisco, CA 94133 Telephone: (415) 434-9000 Facsimile: (415) 434-9010 Attorneys for Plaintiff KIMBERLEA MCMANIGAL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KIMBERLEA MCMANIGAL, et al., Plaintiff(s), v. MEDICIS PHARMACEUTICAL CORPORATION, a Delaware corporation and ROBERT NEVIN, an individual, Defendants. Case No. Case No. 3:07-cv-04874 TEH [PROPOSED] CASE MANAGEMENT ORDER

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JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER
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[PROPOSED] CASE MANAGEMENT ORDER IT IS HERE BY ORDERED that the case management conference and the determination of discovery and trial schedules be continued to a date and time until after the Early Neutral Evaluation is conducted, on __________________, 2008.

DATED: ________________________

___________________________________________ HON. THELTON E. HENDERSON UNITED STATES DISTRICT COURT JUDGE

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PROOF OF SERVICE I am employed in the County of San Francisco, State of California. I am over the age of 18 years and not a party to this action; my business address is: 235 Pine Street, Suite 1500, San Francisco, California 94104. On June 9, 2008, I served the foregoing JOINT CASE MANAGEMENT STATEMENT on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: G. Whitney Leigh, Esq. GONZALEZ & LEIGH LLP Two Shaw Alley, Third Floor San Francisco, California 94105 Juan Enrique Pearce, Esq. PEARCE LAW OFFICES 530 Jackson Street, Second Floor San Francisco, California 94113 BY FIRST CLASS MAIL: I caused said document to be deposited in a facility regularly maintained by the United States Postal Service on the same day, in a sealed envelope, with postage paid, addressed to the above listed persons on whom it is being served in San Francisco, California for collection and mailing on that date following ordinary business practices.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 9th day of June, 2008 at San Francisco, California. /s/ Stacey Lee Stacey Lee

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