Davis v. United Postal Services

Filing 24

ORDER Setting Mandatory Scheduling Conference, signed by Magistrate Judge Michael J. Seng on 6/1/11. Scheduling Conference set for 9/8/2011 at 09:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. (Verduzco, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

THOMAS L. DAVIS,

11

Plaintiff,

12
13

CASE NO. 1:10-cv-1457-MJS
ORDER SETTING MANDATORY
SCHEDULING CONFERENCE

v.
DATE: 9/8/2011
TIME: 9:30 AM

UNITED POSTAL SERVICES

14

Courtroom 6 (7th Floor)

Defendants.
15
16

/

MICHAEL J. SENG
U.S. MAGISTRATE JUDGE

17
18
19
20
21

Rule 16 of the Federal Rules of Civil Procedure requires the Court to enter a
Scheduling Order within 120 days of service of the Complaint upon the defendant.
Pursuant thereto, you are ORDERED to appear for a formal Scheduling Conference before

22
23

United States Magistrate Judge Michael J. Seng, in Courtroom 6 at the United States

24

Courthouse, 2500 Tulare Street, Fresno CA 93721, at the time and date specified above.

25

///

26

///

27

///

1

I.

2
3

Service to be Complete
The Court is unable to conduct a Scheduling Conference until Defendant1 has been

served with the summons and complaint. Accordingly, Plaintiff shall diligently pursue

4
5

service of the summons and complaint and dismiss those Defendants against whom

6

Plaintiff will not pursue claims. Counsel are referred to Federal Rule of Civil Procedure

7

4 regarding the requirement of timely service of the complaint. Failure to timely serve the

8

summons and complaint may result in the imposition of sanctions, including the dismissal

9

of unserved Defendants. When service is effectuated, Plaintiff shall promptly file proofs

10

of service.

11
12

II.

Service of this Order

13

If this Order is served on counsel for Plaintiff before Defendant has appeared,

14

counsel for the Plaintiff shall serve a copy of this Order on the Defendant, or, if identified,

15

on Defendant’s counsel, promptly upon receipt of this Order. Plaintiff’s counsel also shall

16

file an appropriate proof of such service with the Court in compliance with Rule 135 (a) of

17

the Local Rules of Practice for the Eastern District of California.

18
19

III.

Attendance at Conference

20

Attendance at the Scheduling Conference is mandatory for counsel and each party

21

not represented by counsel. Though usually quite brief, some Conferences last forty-five

22

minutes to an hour.

23
24

Only counsel who are thoroughly familiar with the facts and the law of the case and
who have full authority to bind the client shall appear. Trial counsel should participate in

25
26
27

1

This Order will refer to the parties in the singular regardless of the num ber of parties nam ed in
the Com plaint. This Order applies equally to all parties.

-2-

1

this Scheduling Conference whenever possible.

2
3

Personal appearances are encouraged, but unless the Court orders otherwise,
counsel may appear telephonically by making reservations through Court Call at 866-582-

4
5

6878.

Counsel are directed to send confirmation of Court Call reservations to

6

[e-mail] and [e-mail]. Additionally, counsel are to

7

indicate on the face page of their Joint Scheduling that the conference will be telephonic.

8

IV.

9
10

Pre-Conference Meet and Confer
At least twenty (20) days prior to the Mandatory Scheduling Conference, the

expected trial counsel for all parties shall conduct a conference at a time and place

11
12

arranged by counsel for the Plaintiff. The parties are encouraged to hold a conference with

13

all counsel personally present but, because of the size of the District and concern for

14

client costs, a telephonic conference call among all counsel is permissible.

15

V.

16
17

Settlement to be Discussed
Among other things, counsel will be expected to discuss the possibility of settlement

with the Court at the Scheduling Conference. Accordingly, counsel are to throughly

18
19

discuss settlement with each other before preparing the Joint Scheduling Report

20

(discussed below) and engaging in extensive discovery. However, even if settlement

21

negotiations are underway, the parties are to comply with the requirements of this Order

22

unless otherwise excused by the Court.

23
24

If the case is settled, counsel must promptly inform the Court. Once such notice
is given, the filing of a Joint Scheduling Report and attendance at a Scheduling Conference

25
26

will be excused.

27
-3-

1

VI.

Joint Scheduling Report Content

2

A Joint Scheduling Report, thoughtfully prepared and executed by all counsel, shall

3

be electronically filed in CM/ECF one (1) full week prior to the Scheduling Conference and

4

be e-mailed, in WordPerfect (preferred) or Word format, to [e-mail].

5
6
7
8
9
10

The Joint Scheduling Report shall indicate the date, time, and courtroom of the Scheduling
Conference opposite the caption on the first page of the Report.
The Joint Scheduling Report shall address each of the following items in
correspondingly numbered paragraphs:
1.

11

Contentions. A summary of the factual and legal contentions as reflected
in the pleadings of each party and a statement of the relief sought by each

12
party.

13
14

2.

Amendments. A proposed deadline for amendments to the pleadings. Any

15

amendment which reasonably could be anticipated as of the date the

16

Conference shall be filed contemporaneously with the Scheduling

17

Conference report. If issues regarding amendment are not resolved at the

18

Scheduling Conference, a motion to amend deadline may be set in

19
accordance with Court rules.

20
21

3.

Facts. A summary detailing the uncontested and contested facts.

22

4.

Legal Issues. A summary of the legal issues as to which there are no

23

disputes, e.g., jurisdiction, venue, applicable federal or state law, etc., and

24

a summary of the disputed legal issues.

25
5.

Pending matters status. The status of all matters (motions, hearings, etc.)

26
27

presently set before the Court in this case.
-4-

1

6.

Discovery plan. A complete and detailed discovery plan addressing the

2

following:

3

(a)

4

A firm date for the exchange of initial Rule 26(a)(1) disclosures or a
statement that disclosures have been exchanged;

5
(b)

7

A firm deadline for conducting non-expert discovery;

(c)

6

Firm date(s) for disclosure of expert witnesses as required by Rule
26(a)(2);

8
9

(d)

A firm cut-off date for expert witness discovery; and,

10

(e)

If applicable2:

11

(i)

Any proposed changes in the limits on discovery imposed by

12
Rule 26(b); 30(a)(2)(A), (B) or (C); 30(d); or 33(a)

13
(ii)

14

A statement as to whether the parties anticipate the need for

15

a protective order relating to the discovery of personal,

16

medical, financial, commercial or other confidential information;

17

(iii)

18

Identification of any unique issues or proposals relating to the
timing/sequencing/phasing/scheduling of discovery;

19
(iv)

20

A statement of whether the parties anticipate discovery outside

21

the United States and, if so, a description of the proposed

22

discovery;

23

(v)

24

A statement as to whether any party anticipates video and/or
sound recording of depositions;

25
26
27

2

Item s (e)(i) thru (e)(vi) need not be addressed if the item s listed therein do not apply and are not
requested in this case.

-5-

(vi)

1

A statement as to whether a Mid-Discovery Status Report and

2

Conference might be productive and, if so, a proposed date for

3

same;

4

7.

5

Electronic media discovery. The parties shall state whether they anticipate
discovery of electronic, digital and/or magnetic data. The parties are directed

6
to review and ensure compliance with the specific instructions regarding

7
8

electronic discovery set out as Appendix A, at the end of this Order. The

9

Joint Scheduling Report shall summarize the parties’ conference relating to

10
11

discovery of electronic data.
8.

12

Other dates and deadlines. The parties shall set out deadlines agreed to
by all counsel for:

13
(a)

14

Filing non-dispositive motions (e.g., to remand, amend, compel

15

discovery, etc.) and filing and hearing dispositive pre-trial motions

16

(e.g., to dismiss, to strike, for summary adjudication or judgment,

17

etc.). Motions other than motion in limine or other trial motions will not

18

be entertained after the agreed-upon deadline.

19

The proposed

deadline for hearing dispositive motions shall be at least seven weeks

20
prior to the proposed Pre-Trial conference date3.

21
(b)

22

Pre-Trial Conference date, which shall be at least six (6) weeks prior
to the proposed trial date.

23
24

(c)

Trial date.

25
26
27

3

This interval and the interval between the Pre-Trail Conference and trial m ay be shortened and
the trial date m ay be advanced if the parties consent to Magistrate Judge jurisdiction.

-6-

1

All proposed dates should be considered firm dates. Dates should be set to

2

allow the Court the time to decide submitted matters before the Pre-Trial

3

Conference.

4

9.

5

Settlement. A statement reflecting the parties estimation of the likelihood
of settlement (keeping in mind, and advising ones’ clients, that approximately

6
98% of cases filed in this court settle). Counsel shall state whether they want

7
8

a settlement conference and, if so, when relative to discovery cut-offs,

9

designations of experts, and other pre-trial deadlines, and before whom they

10
11

would like the settlement conference to be held.
10.

12

Jury v. Court Trial. A statement as to whether the case is a jury or non-jury
case. If the parties disagree as to whether a jury trial has been properly

13
demanded or is available on all claims, the statement shall include a

14

summary of each party’s position.

15
16

11.

Trial time estimate. An estimate of the number of trial days required. If

17

counsel do not agree, each shall give a best estimate. In estimating the

18

number of trial days, counsel should keep in mind that the Court normally

19

devotes the entire day to trial.

20
21

12.

Magistrate Judge Jurisdiction. District Judges’ dockets are extremely

22

crowded. Magistrate Judge’s dockets generally allow more flexibility and the

23

ability to commit to agreed trial dates, as well as to provide prompt decisions

24

following Court trials. All non-dispositive motions are routinely heard by the

25

Magistrate Judge in any event, and many dispositive motions are addressed

26

first by the Magistrate Judge who makes Findings and Recommendations to

27
-7-

1

the District Judge. Accordingly, the parties should carefully consider and

2

address whether to consent to the jurisdiction of a U.S. Magistrate Judge for

3

all purposes, including trial, pursuant to 28 U.S.C. section 636 (c).The issue

4

of consent will be discussed further at the Scheduling Conference.

5

13.

Bifurcation, etc. A statement as to whether either party requests bifurcation

6
or phasing of trial or has any other suggestion for shortening or expediting

7

discovery, pre-trial motions, or trial.

8
14.

9
10
11
12

Related Matters. A statement as to whether this matter is related to any
matter pending in this or any other court, including bankruptcy court.

VII.

Sanctions for non-compliance.
IF COUNSEL OR A PARTY APPEARING PRO SE FAILS TO APPEAR AT THE

13
14

MANDATORY SCHEDULING CONFERENCE OR FAILS TO COMPLY WITH THE

15

DIRECTIONS IN THIS ORDER, AN EX PARTE HEARING MAY BE HELD AND

16

JUDGEMENT OF DISMISSAL, DEFAULT, OR OTHER APPROPRIATE JUDGEMENT

17

MAY BE ENTERED, AND/OR SANCTIONS, INCLUDING CONTEMPT OF COURT, MAY

18

BE IMPOSED AND/OR ORDERED.

19
20
21

/s/ Michael J. Seng

22

United States Magistrate Judge

23
24
25
26
27
-8-

1

APPENDIX A: ELECTRONIC MEDIA DISCOVERY REQUIREMENTS

2

Prior to a Rule 26 (f) conference, counsel should carefully investigate their client’s

3

information management system to ensure they are knowledgeable as to its operations,

4

how information is stored, and how it can be retrieved. Counsel shall make reasonable

5

efforts to review the client’s computer files to ascertain the contents of existing as well as

6
7

archival and legacy data (outdated formats or media) and disclose in the Rule 26(a)(1)

8

initial disclosure the computer based evidence which may be used to support claim or

9

defenses.

10

(A)

11

Duty to Notify. A party seeking discovery of computer-based information
shall notify the opposing party as soon as practicable, but no later than the

12

Rule 26(f) conference, of that fact and identify as clearly as possible the

13
categories of information which may be sought.

14
15

(B)

Duty to Meet and Confer. The parties shall meet and confer regarding the

16

following matters during the Rule 26 (f) conference:

17

(i)

18

Computer-based information (in general).
Counsel shall attempt to agree on steps the parties will take to

19

segregate and preserve computer-based information in order to avoid

20
accusations of spoilation;

21
22

(ii)

Email information. Counsel shall attempt to agree as to the scope of

23

the email discovery and attempt to agree upon an email search

24

protocol. This should include an agreement regarding inadvertent

25

production of privileged email messages.

26

(iii)

Deleted information. Counsel shall confer and attempt to agree

27
-9-

1

whether or not restoration of deleted information may be necessary,

2

the extent to which restoration of deleted information is needed, and

3

who will bear the costs of restoration; and

4
5

(iv)

Back-up data. Counsel shall attempt to agree whether or not back-up
data may be necessary, the extent to which backup data is needed

6
and who will bear the cost of obtaining backup data.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
-10-