Bever v. Cal-Western Reconveyance Corp. et al

Filing 87

SCHEDULING ORDER (Fed. R. Civ. P. 16) signed by Magistrate Judge Sheila K. Oberto on 12/6/2013. (Any requests for leave to amend pleadings: 2/7/2014, Initial Disclosures: 12/20/2013, Non Expert Discovery: 6/6/2014, Expert Disclosure: 6/13/2014, Supp lemental Expert Disclosures: 6/27/2014, Expert Discovery: 7/11/2014, Non-Dispositive Motion Filing ddl: 7/14/2014, Non-Dispositive Motion Hrg ddl: 8/13/2014, Dispositive Motion Filing ddl: 7/14/2014, Dispositive Motion Hrg ddl: 8/18/2014, Settleme nt Conference set for 6/30/2014, at 10:30 AM in Courtroom 9 (SAB) before Magistrate Judge Stanley A. Boone, Pretrial Conference set for 10/1/2014, at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii, and Bench Trial (2 days) set for 11/18/2014, at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii.) (Gaumnitz, R)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

GLEN W. BEVER,

10
11
12

Plaintiff,
v.
CAL WESTERN RECONVEYANCE
CORP. and CITIMORTGAGE, INC.,

13
Defendants.

Case No. 1: 1:11-cv-1584-AWI-SKO AWI SKO
SCHEDULING ORDER (Fed. R. Civ. P. 16)
Discovery Deadlines:
Initial Disclosures: December 20, 2013
Non Expert Discovery: June 6, 2014,
Expert Disclosure: June 13, 2014
Supplemental Expert Disclosures: June 27, 2014
Expert Discovery: July 11, 2014

14
15

Non-Dispositive Motion Deadlines:
Filing: July 14, 2014,
Hearing: August 13, 2013

16
17

Dispositive Motion Deadlines:
Filing: July 14, 2014,
Hearing: August 18, 2014

18
19

Settlement Conference:
June 30, 2014, at 10:30 a.m.
Courtroom 9

20
21

Pre-Trial Conference:
October 1, 2014, at 8:30 a.m.
Courtroom 2

22
23

Trial: November 18, 2014, at 8:30 a.m.
Courtroom 2
2 Trial Days

24
25
26

This Court conducted a scheduling conference on December 5, 2013. Plaintiff Glenn W.

27

Bever appeared telephonically in Pro Se. Counsel Jillian Benbow appeared telephonically on

28

behalf of Defendant CitiMortgage, Inc. There was no appearance made by Defendant Cal1

1

Western Reconveyance Corporation ("Cal-Western"), as this defendant has filed a "Notice of

2

Filing Bankruptcy." (Doc. 71.)

3

Western, the parties agreed the litigation could proceed against CitiMortgage, while the case

4

against Cal-Western would be stayed pursuant to 11 U.S.C. § 362. Pursuant to Fed. R. Civ. P.

5

16(b), the Court sets the following schedule for this action.

6

1.

Because of the discrete nature of the claims against Cal-

Important Information about Scheduling and Trailing

7

District Court Judges of the Fresno Division of the Eastern District of California currently

8

have the heaviest caseload in the nation. As a result, each District Judge schedules multiple trials

9

to begin on each available trial date. Civil cases will "trail" and begin as soon as a courtroom is

10

cleared. The law requires that the Court give any criminal trial priority over civil trials or any

11

other matter. A civil trial set to begin while a criminal trial is proceeding will trail the completion

12

of the criminal trial.

13

Without the ability to definitively predict which cases will actually go to trial or precisely

14

how long each will last, the Court cannot provide advance notice of which cases will trail or for

15

how long. Once the trial date arrives, counsel, parties and witnesses must remain on 24-hour

16

standby until a court is available. Since continuance to a date certain will simply postpone, but

17

not solve, the problem, continuances of any civil trial under these circumstances will no longer be

18

entertained, absent a specific and stated finding of good cause.

19

The parties are also informed that in response to its large caseload, the Fresno Division of

20

the Eastern District of California is assigning cases, whenever possible, to Article III District

21

Court Judges from around the nation as Visiting Judges. Pursuant to the Local Rules, Appendix

22

A, such reassignments will be random, and the parties will receive no advance notice before their

23

case is reassigned to an Article III District Court Judge from outside of the Eastern District of

24

California.

25

The parties are reminded that they may consent to a United States Magistrate Judge to

26

conduct all proceedings, including trial and entry of final judgment, pursuant to 28 U.S.C. §

27

636(c), Federal Rule of Civil Procedure 73, and Local Rule 305. The Eastern District Magistrate

28

Judges, all experienced former trial lawyers, use the same jury pool and same court facilities as
2

1

United States District Court Judges. Since Magistrate Judges do not conduct felony trials, they

2

have greater flexibility and can schedule firm trial dates. Judgment entered by a United States

3

Magistrate Judge is appealable directly to the United States Court of Appeals for the Ninth

4

Circuit.1

5

2.

Current Status of Consent to the Magistrate Judge Jurisdiction

6

Pursuant to 28 U.S.C. § 636(c), the parties have not consented to conduct all further

7

proceedings in this case, including trial, before the Honorable Sheila K. Oberto, U.S. Magistrate

8

Judge.

9

3.

Amendment to the Parties’ Pleadings

10

Any motions or stipulations requesting leave to amend the pleadings must be filed by no

11

later than February 7, 2014. The parties are advised that filing motions and/or stipulations

12

requesting leave to amend the pleadings by February 7, 2014, does not reflect on the propriety of

13

the amendment or imply good cause to modify the existing schedule, if necessary. All proposed

14

amendments must (A) be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the

15

amendment requires any modification to the existing schedule, see Johnson v. Mammoth

16

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), and (B) establish, under Fed. R. Civ. P.

17

15(a), that such an amendment is not (1) prejudicial to the opposing party, (2) the product of

18

undue delay, (3) proposed in bad faith, or (4) futile, see Foman v. Davis, 371 U.S. 178, 182

19

(1962).

20

4.

Initial disclosures shall be completed on or before December 20, 2013.

21
22

5.

Discovery Cutoffs and Limits
The parties are ordered to complete all discovery pertaining to non-experts on or before

23
24

Fed. R. Civ. P. 26(a)(1) Initial Disclosures

June 6, 2014, and all discovery pertaining to experts on or before July 11, 2014.

25

The parties are directed to disclose all expert witnesses, in writing, on or before June 13,

26

2014, and to disclose all rebuttal experts on or before June 27, 2014. The written designation of

27

1

28

While there are scheduling benefits to consenting to Magistrate Judge jurisdiction, substantive rulings and decisions
will not be affected whether or not a party chooses to consent.

3

1

retained and non-retained experts shall be made pursuant to Fed. R. Civ. P. Rule 26(a)(2), (A),

2

(B) and (C) and shall include all information required thereunder. Failure to designate

3

experts in compliance with this order may result in the Court excluding the testimony or other

4

evidence offered through such experts that are not disclosed pursuant to this order.

5

The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to

6

experts and their opinions. Experts must be fully prepared to be examined on all subjects and

7

opinions included in the designation. Failure to comply will result in the imposition of sanctions,

8

which may include striking the expert designation and preclusion of expert testimony.
The provisions of Fed. R. Civ. P. 26(e) regarding a party's duty to timely supplement

9
10

disclosures and responses to discovery requests will be strictly enforced.

11

6.

Pre-Trial Motion Schedule

12

a.

Non-Dispositive Pre-Trial Motions

13

Unless prior leave of the Court is obtained, all moving and opposition briefs or legal

14

memorandum in civil cases before Judge Oberto shall not exceed twenty-five (25) pages. Reply

15

briefs by the moving party shall not exceed ten (10) pages. These page limitations do not include

16

exhibits. Briefs that exceed this page limitation, or that are sought to be filed without leave, may

17

not be considered by the Court.

18

All non-dispositive pre-trial motions, including any discovery motions, shall be filed by

19

no later than 4:00 p.m. on July 14, 2014, and heard on or before August 13, 2014. Non-

20

dispositive motions are heard on Wednesdays at 9:30 a.m., before the Honorable Sheila K.

21

Oberto, United States Magistrate Judge in Courtroom 7. In scheduling such motions, the parties

22

shall comply with Local Rule 230. Counsel must comply with Local Rule 251 with respect to

23

discovery disputes or the motion will be denied without prejudice and dropped from

24

calendar. The Magistrate Judge may grant applications for an order shortening time pursuant to

25

Local Rule 144(e). However, if counsel does not obtain an order shortening time, the notice of

26

motion must comply with Local Rule 251. In addition to filing a joint statement electronically, a

27

copy of the joint statement shall also be sent to Judge Oberto's chambers by email to

28

[e-mail].
4

1

Counsel may request to appear and argue non-dispositive motions by telephone, provided

2

a written request to so appear is made to the Magistrate Judge's Courtroom Clerk no later than

3

five (5) court days before the noticed hearing date and such request is granted. In the event that

4

more than one counsel requests to appear by telephone, then it shall be the obligation of the

5

moving part(ies) to arrange and originate a conference call to the court. Prior to filing a non-

6

dispositive motion the parties are ORDERED to meet, in person or by telephone, and confer to

7

discuss the issues to be raised in the motion.

8

b.

Dispositive Pre-Trial Motions

9

All dispositive pre-trial motions shall be filed no later than July 14, 2014, and heard no

10

later than August 18, 2014, in Courtroom 2 before the Honorable Anthony W. Ishii, United States

11

District Judge. In scheduling such motions, counsel shall comply with Fed. R. Civ. P 56 and

12

Local Rules 230 and 260.

13

Motions for Summary Judgment or Summary Adjudication: Prior to filing a motion

14

for summary judgment or motion for summary adjudication the parties are ORDERED to meet

15

and confer, in person or by telephone, to discuss the issues to be raised in the motion.

16

The purpose of the meeting shall be to: 1) avoid filing motions for summary judgment

17

where a question of fact exists, 2) determine whether the respondent agrees that the motion has

18

merit in whole or in part, 3) discuss whether issues can be resolved without the necessity for

19

briefing, 4) narrow the issues for review by the court, 5) explore the possibility of settlement

20

before the parties incur the expense of briefing a summary judgment motion, and 6) arrive at a

21

joint statement of undisputed facts.

22

The moving party shall initiate the meeting and provide a draft of the joint statement of

23

undisputed facts. In addition to complying with the requirements of Local Rule 260 the

24

moving party shall file a joint statement of undisputed facts.

25

In the notice of motion, the moving party shall certify that the parties have met and

26

conferred as ordered above or set forth a statement of good cause for the failure to meet and

27

confer.

28

///
5

1

7.

The Pretrial conference is set for October 1, 2014, at 8:30 a.m. in Courtroom 2 before the

2
3

Pretrial Conference

Honorable Anthony W. Ishii, United States District Judge.

4

The parties are ordered to file a Joint Pretrial Statement pursuant to Local Rule

5

281(a)(2). The parties are further directed to submit a digital copy of their pretrial statement in

6

Word format, directly to Judge Ishii's chambers by email at [e-mail].

7

The parties' attention is directed to Rules 281 and 282 of the Local Rules of Practice for

8

the Eastern District of California, as to the obligations of counsel in preparing for the Pretrial

9

conference. The Court will insist upon strict compliance with those rules. In addition to the

10

matters set forth in the Local Rules the Joint Pretrial Statement shall include a Joint Statement of

11

the case to be used by the Court to explain the nature of the case to the jury during voir dire.
At the Pretrial conference, the Court will set deadlines, among others, to file motions in

12
13

limine, final witness lists, exhibits, jury instructions, objections, and other trial documents.

14

8.

Trial is set for November 18, 2014, at 8:30 a.m. in Courtroom 2 before the Honorable

15
16

Trial Date

Anthony W. Ishii, United States District Judge.

17

a.

This is a court trial.

18

b.

Counsel's estimate of trial time: 2 days.

19

c.

Counsel’s attention is directed to Rule 285 of the Local Rules of the United States
District Court for the Eastern District of California, for preparation of trial briefs.

20
21

9.

Settlement Conference

22

A Settlement Conference is scheduled for June 30, 2014, at 10:00 a.m. in Courtroom 9

23

before the Honorable Stanley A. Boone, U.S. Magistrate Judge. Unless otherwise permitted in

24

advance by the Court, the attorneys who will try the case shall appear at the Settlement

25

Conference with the parties and the person or persons having full authority to negotiate and

26

settle the case on any terms2 at the conference.

27

2

28

Insurance carriers, business organizations, and governmental bodies or agencies whose settlement agreements are
subject to approval by legislative bodies, executive committees, boards of directors or the like shall be represented by
a person or persons who occupy high executive positions in the party organization and who will be directly involved

6

1

At least five (5) court days prior to the Settlement Conference, the parties shall submit,

2

directly to Stanley A. Boone chambers by e-mail to [e-mail], a

3

Confidential Settlement Conference Statement. The statement should not be filed with the

4

Clerk of the Court or served on any other party, however, the parties are required to file their

5

Notice of submission of Confidential Settlement Conference Statement (See Local Rule 270(d)).

6

Each statement shall be clearly marked "CONFIDENTIAL" with the date and time of the

7

Settlement Conference indicated prominently thereon. The parties are urged to request the return

8

of their statement if a settlement is not achieved, and if such a request is not made, the Court will

9

dispose of the statement.

10

The Confidential Settlement Conference Statement shall include the following:

11

a.

A brief statement of the facts of the case,

12

b.

A brief statement of the claims and defenses, i.e., statutory or other grounds upon

13

which the claims are founded, a forthright evaluation of the parties' likelihood of

14

prevailing on the claims and defenses, and a description of the major issues in

15

dispute,

16

c.

A summary of the proceedings to date,

17

d.

An estimate of the cost and time to be expended for further discovery, pretrial and
trial,

18
19

e.

The relief sought, and

20

f.

The party's position on settlement, including present demands and offers and a

21

history of past settlement discussions, offers and demands.

22

This Court will vacate the settlement conference if the Court finds the settlement

23

conference will be neither productive nor meaningful in resolving all or part of this case. As far

24

in advance of the settlement conference as possible, a party shall inform the Court and other

25

parties that it believes the case is not in a settlement posture so the Court may vacate or reset the

26

settlement conference. Otherwise the parties shall proceed with the settlement conference in

27

in the process of approval of any settlement offers or agreements. To the extent possible, the representative shall
have the authority, if he or she deems it appropriate, to settle the action on terms consistent with the opposing party's
most recent demand.

28

7

1

good faith to attempt to resolve all or part of this case.

2

10.

3
4

Not applicable at this time.
11.

5
6

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Related Matters Pending
There are no pending related matters.

12.

7
8

Requests for Bifurcation, Appointment of Special Master, or Other Techniques to
Shorten Trial

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

Procedure and the Local Rules of Practice of the Eastern District of California, and to keep
abreast of any amendments thereto. The Court must insist upon compliance with these Rules if it
is to efficiently handle its increasing case load and sanctions will be imposed for failure to follow
the Rules as provided in both the Federal Rules of Civil Procedure and the Local Rules of
Practice for the Eastern District of California.
13.

Effect of this Order
This order represents the best estimate of the court and counsel as to the agenda most

suitable to dispose of this case. The trial date reserved is specifically reserved for this case. 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.
IT IS SO ORDERED.
Dated:

December 6, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

27
28
8