City of Merced Redevelopment Agency v. Exxon Mobil Corporation, et al

Filing 67

SCHEDULING ORDER: All motions shall be filed by 11/12/2014 at 4:00 PM; all oppositions due by 12/15/2014 at 4:00 PM; any replies due by 1/9/2015 at 4:00 PM; Pretrial Conference set for 4/14/2015 at 08:15 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill; and the Jury Trial is set for 6/16/2015 at 08:30 AM in Courtroom 4 (LJO) before District Judge Lawrence J. O'Neill (six week estimate). The Court further directs the parties to meet and confer and submit, by 10/16/2014, a proposed stipulation identifying the discovery that will be completed, as well as proposed dates of completion. Order signed by Magistrate Judge Gary S. Austin on 10/10/2014. (Rooney, M)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
9

CITY OF MERCED DEVELOPMENT
AGENCY,
Plaintiff,

10

SCHEDULING CONFERENCE ORDER

v.

11
12

08-cv-714 LJO-GSA

EXXON MOBIL CORPORATION, et al.,
Defendants.

13
14
15

I.

16
17
18

Introduction
A scheduling conference was held on October 8, 2014 at 10:30 a.m. Plaintiff's Counsel,

Tracy O'Reilly personally appeared on behalf of City of Merced Redevelopment Agency
(“Plaintiff”). Defense Counsel, Peter Condron personally appeared on behalf of Shell Oil

19
Company; Charles Correll and Jeremiah Anderson telephonically appeared on behalf of Chevron
20
21

USA, Inc.; Whitney Roy telephonically appeared and Jeffrey Parker personally appeared on

22

behalf of Exxon Mobil Corporation; and Stephanie Chen telephonically appeared on behalf of

23

Tesoro Corporation.

24

II.

25
26

Consent To Magistrate Judge
The parties have not consented to conduct all further proceedings in this case, including

trial, before the Honorable Gary S. Austin, United States Magistrate Judge. Due to this Court’s

27
28

heavy caseload, the parties are strongly encouraged to consent to Magistrate Judge jurisdiction
1

1

pursuant to 28 U.S.C. § 636(c).

2
3
4

The parties are advised that due to the high number of cases in the district, the District
Court Judges are setting multiple trials on the same day. When a civil trial is set before the
Honorable District Judge Lawrence O’Neill, any scheduled criminal trial will take priority over

5
6

the civil case, even if the civil trial was set first. Civil trials will no longer be continued under

7

these circumstances absent a specific finding of good cause. Instead, when multiple trials are

8

scheduled on the same date, criminal cases will proceed first. Civil cases will trail from day to

9

day or week to week, until the criminal cases are completed. In some instances, cases may be

10
11

assigned to visiting District Court Judges from other districts. Pursuant to Local Rules, Appendix
A, such reassignments will be random, and the parties will receive no advance notice before their

12
13
14

case is reassigned to a visiting judge. In contrast, a case assigned to a Magistrate Judge is likely
to proceed on the scheduled date. Finally, a judgment entered by a Magistrate Judge is

15

appealable directly to the United States Court of Appeals for the Ninth Circuit.

16

III.

17
18

The Filing of Summary Judgment Motions
The parties may file the following dispositive motions on the following issues only:
1)

Defendants may file a motion for summary judgment on the issue of whether they
are responsible parties under the Polanco Act, and whether that claim may be
precluded given the notice requirements under California Health and Safety Code
§ 33459.1(A)(2)(b)(2);

2)

Defendant Shell may file a motion for summary judgment addressing the extent
that collateral estoppel/res judicata may apply as it relates to Shell’s responsibility
for release of gasoline based on the verdict in City of Merced v. Chevron U.S.A.
Inc., et al., Merced Superior Court No. 148415; and

3)

Plaintiff may file a motion for summary judgment addressing the extent collateral
estoppel/res judicata may apply to Defendants Exxon and Chevron based on the
verdict in the Merced v. Chevron U.S.A. Inc., et al.

19
20
21
22
23
24
25
26
27
28

The motions will be heard before the Honorable Lawrence J. O’Neill in accordance with
the following briefing schedule:
2

1

All motions shall be filed by November 12, 2014 at 4:00 p.m.

2

All oppositions due: December 15, 2014, at 4:00 p.m.

3

Any replies due: January 9, 2015 at 4:00 p.m.

4
The Court will notify the parties if a hearing on the motions is necessary after reviewing
5
6

the briefs. When filing such motions, the parties shall comply with Fed. R. Civ. P. 56 and Local

7

Rules 230 and 260, except that it is not necessary to set a hearing date on the motions. The

8

parties are also advised that given that this case was recently transferred from the U.S. District

9

Court, Southern District of New York, the motions must include relevant background and

10
11

procedural history so that this Court can effectively rule on the motions. The parties should not
presume that this Court has any prior knowledge of the issues previously litigated as part of the

12
13

multidistrict litigation.
Additionally, prior to filing a motion for summary judgment or motion for summary

14
15

adjudication, the parties are ORDERED to meet and confer, in person or by telephone, to discuss

16

the issues to be raised in the motion. The purpose of meeting shall be to : 1) avoid filing motions

17

for summary judgment where a question of fact exists; 2) determine whether the respondent

18
19

agrees that the motion has merit in whole or in part; 3) discuss whether issues can be resolved
without the necessity of briefing; 4) narrow the issues for review by the court; 5) explore the

20
21

possibility of settlement before the parties incur the expense of briefing a summary judgment

22

motion; and 6) arrive at a joint statement of undisputed facts. The moving party shall initiate the

23

meeting and file the joint statement of undisputed facts. In the notice of motion, the moving party

24

shall certify that the parties have met and conferred as ordered above, or set forth a statement of

25

good cause for the failure to meet and confer.

26

IV.

Discovery

27
The Court will permit supplemental discovery to be performed for the limited purpose of
28
3

1

updating the costs/damages for further remediation incurred by the RDA to address the Methyl

2

Tertiary Butyl Ether (“MTBE”) contamination at the R Street stations. This ruling does not

3
4

include reopening all expert discovery. Instead, Plaintiff may update the expert report of Mr.
David Norman (Plaintiff’s expert), or other experts who were previously retained. Defendant

5
6
7

may use their previously retained experts to rebut any updated report. Other documentation
related to the costs and damages may also be propounded.
The parties shall meet and confer, and no later than October 16, 2014, submit a proposed

8
9
10
11

stipulation identifying the discovery that will be completed, as well as proposed dates of
completion. The parties may contact the Court to conduct an informal telephonic conference if
clarification is needed on the parameters of the discovery if a stipulation cannot be reached. If,

12
13
14

after meeting and conferring, the parties conclude that the schedule outlined in this order needs to
be revised so that discovery can be completed, the stipulation shall include new proposed dates

15

for the filing of the dispositive motions, the pretrial conference, and the trial. When choosing

16

new dates, the parties are advised that Judge O’Neill will require one hundred and twenty (120)

17

days between the filing of the dispositive motions and the pretrial conference, and sixty (60) days

18

between the pretrial conference and the trial.

19
V.

Settlement Conference

20
21

A settlement conference has not been scheduled. The parties should contact the court if

22

they determine that a settlement conference would be beneficial. If a settlement conference is set

23

before Judge Austin, the parties are advised that consideration of settlement is a serious matter

24

that requires thorough preparation prior to the settlement conference. Provided below are the

25

procedures this Court will employ when conducting a settlement conference.

26

A. Required Pre-Settlement Conference Communications

27
A settlement conference is more likely to be productive if the parties have exchanged
28
4

1

written settlement proposals in advance of the conference. Accordingly, at least twenty-one (21)

2

calendar days prior to the settlement conference, Plaintiff’s counsel shall submit a written

3

itemization of damages and a good faith settlement demand to Defendants’ counsel with a brief

4
explanation of why the demand is appropriate. Thereafter, but no later than seven (7) calendar
5
6
7
8
9
10
11

days prior to the settlement conference, Defendants’ counsel shall submit a good faith written
offer to Plaintiff’s counsel with a brief explanation of why the offer is appropriate.
Completion of this process may lead directly to a settlement. If settlement is not achieved,
Plaintiff’s counsel shall e-mail or fax copies of all settlement proposals along with his/her
Confidential Settlement Conference Statement to chambers. Copies of these documents are not to
be filed on the docket.

12
13
14

B. Confidential Settlement Conference Statement
At least four (4) calendar days prior to the settlement conference, the parties shall submit

15

the Confidential Settlement Conference Statement in Word format to Magistrate Judge Austin’s

16

chambers via email [e-mail]. This statement shall include the following:

17

1.

A list of all elements of each cause of action or affirmative defense pled in the
party’s respective complaint or answer

2.

A brief statement identifying facts supporting each cause of action or affirmative\
defense

3.

A description outlining the factual and legal contentions upon which the parties
agree or disagree;

4.

A description identifying the impediments to settlement, including financial,
emotional or legal concerns;

24

5.

A summary of the settlement attempts to date;

25

6.

A statement of the specific relief sought; and

7.

A statement identifying any third party (i.e., lien holder, etc.) with a legal interest
in this action.

18
19
20
21
22
23

26
27
28

5

1

C.

Attendance

2
The attorneys who will try the case shall appear at the settlement conference accompanied

3
4

by the named parties and all persons having authority to negotiate the settlement. If appropriate,

5

the principal representative shall have approval to settle the action on the terms consistent with

6

the opposing party’s most recent demand.

7
D.

8

Mediation Format

9
A mediation format will be employed during the settlement conference. The lawyers, the
10
11

parties, and all representatives must be fully prepared to participate. The Court encourages all

12

participants to be flexible and to reassess their previous positions, as well as to put their best

13

efforts forward so that a mutually agreeable settlement can be reached.

14
E.

15
16
17

Duty of Counsel to Set the Settlement Conference Date

Counsel shall contact the Courtroom Deputy to set a settlement conference when all
parties agree that participation would be effective, but preferably not later than sixty (60) days

18
after the close of discovery.
19
20

F.

Statements Inadmissible

21
The Court expects full and candid participation during the settlement conference. With

22
23

this in mind, statements made by any party or attorney during the settlement conference are not to

24

be used in discovery and will not be admissible at trial.

25
26
27

///
///

28
6

1

G.

Sanctions

2
Failure to follow these procedures will result in removal of the settlement conference from

3
4

the Court’s calendar and may result in additional sanctions.

5
VI.

Pretrial Conference

6
7
8
9

The pretrial conference is set for April 14, 2015 at 8:15 a.m., in Courtroom 4, before
District Court Judge Lawrence J. O’Neill. The parties are directed to file a joint pretrial statement
which complies with the requirements of this Court’s Local Rule 281. In addition, the joint

10
11

pretrial statement should include a brief factual summary and an agreed upon neutral statement of

12

the case. An additional copy of the joint pretrial statement, carefully prepared and executed by all

13

counsel, shall be electronically filed in CM/ECF and shall be e-mailed in Word format to District

14

Court Judge O’Neill’s chambers at [e-mail]. The parties’ attention is directed

15

to this Court’s Local Rules 281 and 282. This Court will insist upon strict compliance with these

16

rules. At the pretrial conference, the Court will set deadlines to file motions in limine, final

17
witness lists, exhibits, jury instructions, objections, and other trial documents.
18
19

VII.

20
21

Jury Trial Date
A six week bench trial is set for June 16, 2015 at 8:30 a.m. in Courtroom 4 before

District Court Judge Lawrence J. O’Neill.1 The parties shall comply with Local Rule 285 when

22
preparing their trial briefs.
23
24

///

25
26

///

27
1

28

The parties are advised that the six week time frame and the date of this trial is subject to change based on the
demands of Judge O’Neill’s trial schedule.

7

1

VIII. Compliance with Federal Procedures

2
All counsel are expected to familiarize themselves with the Federal Rules of Civil

3
4

Procedure and the Local Rules of the Eastern District of California and to keep abreast of any

5

amendments thereto. The Court requires strict compliance with these rules. Sanctions will be

6

imposed for failure to follow the rules as provided in both the Federal Rules of Civil Procedure

7

and the Local Rules of the Eastern District of California.

8
9

IX.

Effect of This Order

10
11

This order represents the Court and the parties’ best estimated schedule to complete this

12

case. Any party unable to comply with the dates outlined in this order shall immediately file an

13

appropriate motion or stipulation identifying the requested modification(s).

14
15
16

The dates set in this Order are considered to be firm and will not be modified absent a
showing of good cause, even if a stipulation to modify is filed. Stipulations extending the

17

deadlines contained herein will not be considered unless they are accompanied by affidavits or

18

declarations with attached exhibits, where appropriate, which establish good cause for granting

19

the requested relief. Due to the impacted nature of the civil case docket, this Court disfavors

20

requests to modify established dates.

21
22

Failure to comply with this order shall result in the imposition of sanctions.

23
24
25
26
27

IT IS SO ORDERED.
Dated:

October 10, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

28
8