M.D. Mark, Inc. v. Pacseis, Inc.

Filing 12

SCHEDULING ORDER, signed by Magistrate Judge Jennifer L. Thurston on 5/11/2017. Consent/Decline due within 10 days. Pleading Amendment Deadline 7/10/2017. Discovery Deadlines: Non-Expert 8/10/2017; Expert 9/28/2017. Mid-Discovery Status Conferen ce set for 6/28/2017 at 08:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Non-Dispositive Motion Deadlines: Filed by 10/12/2017; Hearing by 11/9/2017. Dispositive Motion Deadlines: Filed by 11/28/2017; Hearing by 1/9/2018. Pretrial Conference set for 3/6/2018 at 08:30 AM in Courtroom 4 (LJO) before Chief Judge Lawrence J. O'Neill. Jury Trial set for 5/1/2018 at 08:30 AM in Courtroom 4 (LJO) before Chief Judge Lawrence J. O'Neill. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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M.D. MARK, INC.,
Plaintiff,

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v.

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PACSEIS, INC.,
Defendant.

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1: 17-CV-00258 - LJO - JLT
SCHEDULING ORDER (Fed. R. Civ. P. 16)
Pleading Amendment Deadline: 7/10/2017
Discovery Deadlines:
Non-Expert: 8/10/2017
Expert: 9/28/2017
Mid-Discovery Status Conference:
6/28/2017 at 8:30 a.m.

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Non-Dispositive Motion Deadlines:
Filing: 10/12/2017
Hearing: 11/9/2017

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Dispositive Motion Deadlines:
Filing: 11/28/2017
Hearing: 1/9/2018

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Pre-Trial Conference:
3/6/2018 at 8:30 a.m.
Courtroom 4

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Trial:

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I.

Date of Scheduling Conference
May 11, 2017.

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5/1/2018 at 8:30 a.m.
Courtroom 4
Jury trial: 5 days

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II.

Appearances of Counsel

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Richard Nervig and Daniele Bonifazi appeared on behalf of Plaintiff.

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William Alexander appeared on behalf of Defendant.

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III.

Magistrate Judge Consent:

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Notice of Congested Docket and Court Policy of Trailing

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Due to the District Judges’ heavy caseload, the newly adopted policy of the Fresno Division of

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the Eastern District is to trail all civil cases. The parties are hereby notified that for a trial date set

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before a District Judge, the parties will trail indefinitely behind any higher priority criminal or older

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civil case set on the same date until a courtroom becomes available. The trial date will not be reset to a

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continued date.
The Magistrate Judges’ availability is far more realistic and accommodating to parties than that

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of the U.S. District Judges who carry the heaviest caseloads in the nation and who must prioritize

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criminal and older civil cases over more recently filed civil cases. A United States Magistrate Judge

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may conduct trials, including entry of final judgment, pursuant to 28 U.S.C. § 636(c), Federal Rule of

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Civil Procedure 73, and Local Rule 305. Any appeal from a judgment entered by a United States

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Magistrate Judge is taken directly to the United States Court of Appeal for the Ninth Circuit.
The Fresno Division of the Eastern District of California, whenever possible, is utilizing United

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

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

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

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District of California.
Therefore, Plaintiff is directed to consider consenting to Magistrate Judge jurisdiction to

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

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

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

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IV.

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

motion to amend, no later than July 10, 2017.
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V.

Discovery Plan and Cut-Off Date

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The parties have exchanged the initial disclosures required by Fed. R. Civ. P. 26(a)(1).

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The parties are ordered to complete all discovery pertaining to non-experts on or before August

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10, 2017, and all discovery pertaining to experts on or before September 28, 2017.
The parties are directed to disclose all expert witnesses, in writing, on or before August 17,

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2017, and to disclose all rebuttal experts on or before September 7, 2017. The written designation of

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

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

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

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through such experts that are not disclosed pursuant to this order.
The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to experts

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

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

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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

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disclosures and responses to discovery requests will be strictly enforced.
A mid-discovery status conference is scheduled for June 28, 2017 at 8:30 a.m. before the

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

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California. Counsel SHALL file a joint mid-discovery status conference report one week before the

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conference. Counsel also SHALL lodge the status report via e-mail to [e-mail].

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The joint statement SHALL outline the discovery counsel have completed and that which needs to be

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completed as well as any impediments to completing the discovery within the deadlines set forth in this

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order. Counsel may appear via teleconference by dialing [phone] and entering Access Code

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1652736, provided the Magistrate Judge's Courtroom Deputy Clerk receives a written notice of the

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intent to appear telephonically no later than five court days before the noticed hearing date.

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VI.

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

than October 12, 2017, and heard on or before November 9, 2017. Non-dispositive motions are heard
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before the Honorable Jennifer L. Thurston, United States Magistrate Judge at the United States

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Courthouse in Bakersfield, California.
No motion to amend or stipulation to amend the case schedule will be entertained unless it

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is filed at least one week before the first deadline the parties wish to extend. Likewise, no written

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discovery motions shall be filed without the prior approval of the assigned Magistrate Judge. A party

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with a discovery dispute must first confer with the opposing party in a good faith effort to resolve by

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agreement the issues in dispute. If that good faith effort is unsuccessful, the moving party promptly

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shall seek a telephonic hearing with all involved parties and the Magistrate Judge. It shall be the

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obligation of the moving party to arrange and originate the conference call to the court. To schedule

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this telephonic hearing, the parties are ordered to contact the Courtroom Deputy Clerk, Susan Hall, at

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[phone] or via email at [e-mail]. Counsel must comply with Local Rule 251

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with respect to discovery disputes or the motion will be denied without prejudice and dropped

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from the Court’s calendar.
Counsel may appear and argue non-dispositive motions via teleconference by dialing (888) 557-

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8511 and entering Access Code 1652736, provided the Magistrate Judge's Courtroom Deputy Clerk

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receives a written notice of the intent to appear telephonically no later than five court days before the

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noticed hearing date.
All dispositive pre-trial motions shall be filed no later than November 28, 2017, and heard no

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later than January 9, 2018, in Courtroom 4 at 8:30 a.m. before the Honorable Lawrence J. O'Neill,

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United States District Court Judge. In scheduling such motions, counsel shall comply with Fed. R.

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Civ. P. 56 and Local Rules 230 and 260.

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VII.

Motions for Summary Judgment or Summary Adjudication

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At least 21 days before filing a motion for summary judgment or motion for summary

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adjudication, the parties are ORDERED to meet, in person or by telephone, to confer about the issues

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to be raised in the motion.

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

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

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or in part; 3) discuss whether issues can be resolved without the necessity of briefing; 4) narrow the
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issues for review by the court; 5) explore the possibility of settlement before the parties incur the

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expense of briefing a motion; and 6) to develop a joint statement of undisputed facts.
The moving party SHALL initiate the meeting and SHALL provide a complete, proposed

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statement of undisputed facts at least five days before the conference. The finalized joint statement of

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undisputed facts SHALL include all facts that the parties agree, for purposes of the motion, may be

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deemed true. In addition to the requirements of Local Rule 260, the moving party shall file the joint

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statement of undisputed facts.
In the notice of motion the moving party SHALL certify that the parties have met and conferred

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

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comply may result in the motion being stricken.

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VIII. Pre-Trial Conference Date

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March 6, 2018 at 8:30 a.m. in Courtroom 4 before Judge O'Neill.

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

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

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directly to Judge O'Neill's chambers, by email at [e-mail].
Counsels' attention is directed to Rules 281 and 282 of the Local Rules of Practice for the

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

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

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

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

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IX.

May 1, 2018 at 8:30 a.m. in Courtroom 4 before the Honorable Lawrence J. O'Neill, United

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Trial Date

States District Court Judge.

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A.

This is a jury trial.

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B.

Counsels' Estimate of Trial Time: 5 days.

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C.

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

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California, Rule 285.

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X.

Settlement Conference
If the parties believe the matter is in a settlement posture, the parties may file a joint

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written request for a conference with the Court, including proposed dates for the conference.

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Notwithstanding the provisions of Local Rule 270(b), the settlement conference will be conducted by

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Magistrate Judge Thurston. The Court deems the deviation from the Local Rule to be appropriate and

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in the interests of the parties and justice and sound case management based upon the location of the

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parties. If any party prefers that the settlement conference is conducted by a judicial officer not

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already assigned to this case, that party is directed to notify the Court at least 60 days in advance

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of the scheduled settlement conference to allow sufficient time for another judicial officer to be

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assigned to handle the conference.

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XI.

Request for Bifurcation, Appointment of Special Master, or other

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Techniques to Shorten Trial

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Not applicable at this time though there may be request for appointment of a Special Master

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related to examination of proprietary information held by both parties.

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XII.

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Related Matters Pending
There are no pending related matters.

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

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

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

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

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

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California.

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XIV. Effect of this Order

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

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

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

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

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subsequent status conference.

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The dates set in this Order are considered to be firm and will not be modified absent a

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showing of good cause even if the request to modify is made by stipulation. Stipulations

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

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

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for granting the relief requested.

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

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IT IS SO ORDERED.
Dated:

May 11, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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