Nuwintore v. United States of America et al

Filing 58

SCHEDULING ORDER, signed by Magistrate Judge Jennifer L. Thurston on 5/14/2014. Consent/Decline Deadline 5/27/2014. Pleading Amendment Deadline 8/1/2014. Discovery Deadlines: Initial Disclosures 5/30/2014; Non-Expert 12/26/2014; Expert 2/13/2015. Mid-Discovery Status Conference set for 8/26/2014 at 08:30 AM in Bakersfield at 510 19th Street (JLT) before Magistrate Judge Jennifer L. Thurston. Non-Dispositive Motion Deadlines: Filed by 2/27/2015; Hearing by 3/27/2015. Dispositive Motio n Deadlines: Filed by 4/17/2015; Hearing by 6/15/2015. Settlement Conference set for 12/18/2014 at 09:30 AM in Bakersfield at 510 19th Street (JLT) before Magistrate Judge Jennifer L. Thurston. Pretrial Conference set for 8/11/2015 at 10:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. Jury Trial set for 10/6/2015 at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. (Hall, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

RICHARD NUWINTORE,

11
12

Plaintiff,
v.

13

UNITED STATES OF AMERICA, et al.,

14

Defendants.

15

)
)
)
)
)
)
)
)
)

Case No.:1:13-cv-00967 AWI JLT
SCHEDULING ORDER (Fed. R. Civ. P. 16)
Pleading Amendment Deadline: 8/1/2014
Discovery Deadlines:
Initial Disclosures: 5/30/2014
Non Expert: 12/26/2014
Expert: 2/13/2015
Mid-Discovery Status Conference:
8/26/2014 at 8:30 a.m.

16
17

Non-Dispositive Motion Deadlines:
Filing: 2/27/2015
Hearing: 3/27/2015

18
19
20

Dispositive Motion Deadlines:
Filing: 4/17/2015
Hearing: 6/15/2015

21
22

Settlement Conference:
12/18/2014 at 9:30 a.m.
510 19th Street, Bakersfield, CA

23
24

26

Pre-Trial Conference:
8/11/2015 at 10:30 a.m.
Courtroom 2

27

Trial:

25

28
1

10/6/2015 at 8:30 a.m.
Courtroom 2
Jury: 5-6 days

1

I.

May 14, 2014.

2
3

Date of Scheduling Conference

II.

Appearances of Counsel

4

Jason Feldman appeared on behalf of Plaintiff.

5

Kristina Gruenberg appeared on behalf of Defendant Management Training Corporation.

6

Allison Berg appeared on behalf of Defendant United States of America.

7
8
9

III.

Information Concerning the Court’s Schedule
Out of fairness, the Court believes it is necessary to forewarn litigants that the Fresno Division

of the Eastern District of California now has the heaviest District Court Judge caseload in the entire

10

nation. While the Court will use its best efforts to resolve this case and all other civil cases in a timely

11

manner, the parties are admonished that not all of the parties’ needs and expectations may be met as

12

expeditiously as desired. As multiple trials are now being set to begin upon the same date, parties may

13

find their case trailing with little notice before the trial begins. The law requires that the Court give any

14

criminal trial priority over civil trials or any other matter. The Court must proceed with a criminal trial

15

even if a civil trial was filed earlier and set for trial first. Continuances of any civil trial under these

16

circumstances will no longer be entertained, absent a specific and stated finding of good cause. All

17

parties should be informed that any civil trial set to begin during the time a criminal trial is proceeding

18

will trail the completion of the criminal trial.

19

The parties are reminded of the availability of a United States Magistrate Judge to conduct all

20

proceedings in this action. A United States Magistrate Judge is available to conduct trials, including

21

entry of final judgment, pursuant to 28 U.S.C. § 28 U.S.C. 636(c), Federal Rule of Civil Procedure 73,

22

and Local Rule 305. The same jury pool is used by both United States Magistrate Judges and United

23

States District Court Judges. Any appeal from a judgment entered by a United States Magistrate Judge

24

is taken directly to the United States Court of Appeal for the Ninth Circuit. However, the parties are

25

hereby informed that no substantive rulings or decisions will be affected by whether a party chooses to

26

consent.

27

Finally, the Fresno Division of the Eastern District of California, whenever possible, is utilizing

28

United States Article III District Court Judges from throughout the nation as Visiting Judges. Pursuant
2

1

to the Local Rules, Appendix A, reassignments will be random, and the parties will receive no advance

2

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

3

District of California.
Therefore, the parties are directed to consider consenting to Magistrate Judge jurisdiction to

4
5

conduct all further proceedings, including trial. Within 10 days of the date of this order, counsel

6

SHALL file a consent/decline form (provided by the Court at the inception of this case) indicating

7

whether they will consent to the jurisdiction of the Magistrate Judge.

8

IV.

Pleading Amendment Deadline
Any requested pleading amendments are ordered to be filed, either through a stipulation or

9
10

motion to amend, no later than August 1, 2014.

11

V.

12

Discovery Plan and Cut-Off Date
All discovery as to the United States is STAYED until the Court has issued an order adopting

13

or rejecting the Findings and Recommendations to grant the United States’ motion(s) to dismiss. If the

14

Findings and Recommendations are rejected, Plaintiff and the United States SHALL exchange initial

15

disclosures within two weeks of the order rejecting the Findings and Recommendations. Alternatively,

16

at that time, the parties may request a telephonic conference with Magistrate Judge Thurston to discuss

17

the initiation of discovery and the case schedule.

18
19
20
21
22

The parties are ordered to exchange the initial disclosures required by Fed. R. Civ. P. 26(a)(1)
on or before May 30, 2014.
The parties are ordered to complete all discovery pertaining to non-experts on or before
December 26, 2014, and all discovery pertaining to experts on or before February 13, 2015.
The parties are directed to disclose all expert witnesses in writing on or before January 2, 2015,

23

and to disclose all rebuttal experts on or before January 21, 2015. The written designation of retained

24

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

25

and shall include all information required thereunder. Failure to designate experts in compliance

26

with this order may result in the Court excluding the testimony or other evidence offered through such

27

experts that are not disclosed pursuant to this order.

28

The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to experts
3

1

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

2

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

3

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

4
5

disclosures and responses to discovery requests will be strictly enforced.
A mid-discovery status conference is scheduled for August 26, 2014, at 8:30 a.m. before the

6
7

Honorable Jennifer L. Thurston, U.S. Magistrate Judge, located at 510 19th Street, Bakersfield,

8

California. A Joint Mid-Discovery Status Conference Report, carefully prepared and executed by all

9

counsel, shall be electronically filed in CM/ECF, one full week prior to the Conference, and shall be e-

10

mailed, in Word format, to [e-mail]. Counsel may appear via CourtCall,

11

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

12

than five court days before the noticed hearing date.

13

VI.

14

Pre-Trial Motion Schedule
All non-dispositive pre-trial motions, including any discovery motions, shall be filed no later

15

than February 27, 2015, and heard on or before March 27, 2015. Non-dispositive motions are heard

16

at 9:00 a.m., before the Honorable Jennifer L. Thurston, United States Magistrate Judge, at the United

17

States District Courthouse located at 510 19th Street, Bakersfield, California.

18

No written discovery motions shall be filed without the prior approval of the assigned

19

Magistrate Judge. A party with a discovery dispute must first confer with the opposing party in a good

20

faith effort to resolve by agreement the issues in dispute. If that good faith effort is unsuccessful, the

21

moving party promptly shall seek a telephonic hearing with all involved parties and the Magistrate

22

Judge. It shall be the obligation of the moving party to arrange and originate the conference call to the

23

court. To schedule this telephonic hearing, the parties are ordered to contact Courtroom Deputy Clerk,

24

Susan Hall at [phone] or via email at [e-mail]. Counsel must comply with

25

Local Rule 251 with respect to discovery disputes or the motion will be denied without prejudice

26

and dropped from calendar.

27
28

In scheduling such motions, the Magistrate Judge may grant applications for an order shortening
time pursuant to Local Rule 144(e). However, if counsel does not obtain an order shortening time, the
4

1

notice of motion must comply with Local Rule 251.
Counsel may appear and argue non-dispositive motions via CourtCall, providing a written

2
3

request to so appear is made to the Magistrate Judge's Courtroom Clerk no later than five court days

4

before the noticed hearing date.
All dispositive pre-trial motions shall be filed no later than April 17, 2015, and heard no later

5
6

than June 15, 2015, in Courtroom 2 at 1:30 p.m. before the Honorable Anthony W. Ishii, United States

7

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

8

Local Rules 230 and 260.

9

VII.

Motions for Summary Judgment or Summary Adjudication

10

Prior to filing a motion for summary judgment or motion for summary adjudication the parties

11

are ORDERED to meet, in person or by telephone, and confer to discuss the issues to be raised in the

12

motion at least 21 days before filing of the motion.

13

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

14

question of fact exists; 2) determine whether the respondent agrees that the motion has merit in whole

15

or in part; 3) discuss whether issues can be resolved without the necessity of briefing; 4) narrow the

16

issues for review by the court; 5) explore the possibility of settlement before the parties incur the

17

expense of briefing a summary judgment motion; 6) to arrive at a joint statement of undisputed facts.

18

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

19

undisputed facts. In addition to the requirements of Local Rule 260, the moving party shall file a

20

joint statement of undisputed facts.

21

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

22

ordered above, or set forth a statement of good cause for the failure to meet and confer.

23

VIII. Pre-Trial Conference Date

24

August 11, 2015, at 10:30 a.m. in Courtroom 2 before Judge Ishii.

25

The parties are ordered to file a Joint Pretrial Statement pursuant to Local Rule 281(a)(2).

26

The parties are further directed to submit a digital copy of their pretrial statement in Word format,

27

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

28

Counsels' attention is directed to Rules 281 and 282 of the Local Rules of Practice for the
5

1

Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference.

2

The Court will insist upon strict compliance with those rules. In addition to the matters set forth in the

3

Local Rules the Joint Pretrial Statement shall include a Joint Statement of the case to be used by the

4

Court to explain the nature of the case to the jury during voir dire.

5

IX.

October 6, 2015, at 8:30 a.m. in Courtroom 2 before the Honorable Anthony W. Ishii, United

6
7

Trial Date

States District Court Judge.

8

A.

This is a jury trial.

9

B.

Counsels' Estimate of Trial Time: 5-6 days for the jury trial and 2-3 days for the bench

10

trial related to legal/equitable claims.
C.

11

Counsel's attention is directed to Local Rules of Practice for the Eastern District of

12

California, Rule 285.

13

X.

14

Settlement Conference
A Settlement Conference is scheduled for December 18, 2014 at 9:30 a.m., located at 510 19th

15

Street, Bakersfield, California. The settlement conference will be conducted by Magistrate Judge

16

Thurston. If any party prefers that the settlement conference be conducted by a judicial officer

17

who is not normally assigned to this matter, that party is directed to notify the Court no later

18

than 60 days in advance of the scheduled settlement conference to allow sufficient time for another

19

judicial officer to be assigned to handle the conference.

20

Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall

21

appear at the Settlement Conference with the parties and the person or persons having full authority

22

to negotiate and settle the case on any terms1 at the conference. Consideration of settlement is a

23

serious matter that requires preparation prior to the settlement conference. Set forth below are the

24

procedures the Court will employ, absent good cause, in conducting the conference.

25
26
27
28

1

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 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.

6

1

At least 21 days before the settlement conference, Plaintiff SHALL submit to Defendant via

2

fax or e-mail, a written itemization of damages and a meaningful2 settlement demand which includes a

3

brief explanation of why such a settlement is appropriate. Thereafter, no later than 14 days before the

4

settlement conference, Defendant SHALL respond via fax or e-mail, with an acceptance of the offer or

5

with a meaningful counteroffer and a brief explanation of why such a settlement is appropriate.

6

If settlement is not achieved, each party SHALL attach copies of their settlement offers to their

7

Confidential Settlement Conference Statement, as described below. Copies of these documents shall

8

not be filed on the court docket.
CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT

9
10

At least five court days prior to the Settlement Conference, the parties shall submit, directly to

11

Judge Thurston's chambers by e-mail to [e-mail], a Confidential Settlement

12

Conference Statement. The statement should not be filed with the Clerk of the Court nor served on

13

any other party, although the parties may file a Notice of Lodging of Settlement Conference

14

Statement. Each statement shall be clearly marked "confidential" with the date and time of the

15

Settlement Conference indicated prominently thereon.

16

The Confidential Settlement Conference Statement shall include the following:

17

A.

A brief statement of the facts of the case.

18

B.

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

19

the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on

20

the claims and defenses; and a description of the major issues in dispute.

21

C.

A summary of the proceedings to date.

22

D.

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

23

E.

The relief sought.

24

F.

The party's position on settlement, including present demands and offers and a history of
past settlement discussions, offers and demands.

25
26
2

27
28

“Meaningful” means that the offer is reasonably calculated to settle the case on terms acceptable to the
offering party. “Meaningful” does not include an offer which the offering party knows will not be acceptable to the
other party. If, however, the offering party is only willing to offer a settlement which it knows the other party will not
accept, this should trigger a recognition that the case is not in a settlement posture and the parties should confer about
continuing or vacating the settlement conference via stipulation.

7

1

XI.

Requests for Bifurcation, Appointment of Special Master, or other

2

Techniques to Shorten Trial

3

Not applicable at this time.

4

XII.

Related Matters Pending
There are three related matters pending: Sutton v. Management & Training Corp., Case No.

5
6

1:13-cv-1344-AWI-JLT, Aluya v. Management & Training Corp., Case No. 1:13-cv-01345-AWI-JLT

7

and Hammond v. Management & Training Corp., Case No. 1:13-cv-01209-AWI-JLT.

8

XIII. Other matters
Plaintiff’s counsel agreed that the second amended complaint (Doc. 52) named the United

9
10

States because the Findings and Recommendation granting the U.S.A.’s motion to dismiss has not yet

11

been acted upon by the Court. Plaintiff’s counsel stipulated that the order issued by Judge Ishii related

12

to the motion to dismiss filed by the U.S. A. on December 23, 2012 (Doc. 30), will apply to the second

13

amended complaint as well.

14

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

15
16

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

17

amendments thereto. The Court must insist upon compliance with these Rules if it is to efficiently

18

handle its increasing case load, and sanctions will be imposed for failure to follow the Rules as

19

provided in both the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern

20

District of California.

21

XV.

22

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

23

suitable to dispose of this case. The trial date reserved is specifically reserved for this case. If the

24

parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered

25

to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by

26

subsequent status conference.

27
28

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
8

1

extending the deadlines contained herein will not be considered unless they are accompanied by

2

affidavits or declarations, and where appropriate attached exhibits, which establish good cause

3

for granting the relief requested.

4

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

5
6
7
8

IT IS SO ORDERED.
Dated:

May 14, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9