Messer v. Lehigh Southwest Cement Company, et al.

Filing 15

SCHEDULING ORDER, signed by Magistrate Judge Jennifer L. Thurston on 12/6/2017. Pleading Amendment Deadline 3/2/2018. Discovery Deadlines: Initial Disclosures 12/13/2017; Non-Expert 5/11/2018; Expert 7/13/2018. Mid-Discovery Status Conference set fo r 3/22/2018 at 08:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Non-Dispositive Motion Deadlines: Filed by 7/27/2018; Hearing by 8/24/2018. Dispositive Motion Deadlines: Filed by 9/4/2018; Hearing by 10/16/2018. Settlement Conference set for 11/5/2018 at 10:00 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Pretrial Conference set for 12/17/2018 at 01:30 PM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. Jury Trial set for 1/12/2019 at 08:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd. (Hall, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

JOHN MESSER,
Plaintiff,

11
12
13
14
15

v.
LEHIGH SOUTHWEST CEMENT
COMPANY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

1: 17-CV-01154 - DAD - JLT
SCHEDULING ORDER (Fed. R. Civ. P. 16)
Pleading Amendment Deadline: 3/2/2018
Discovery Deadlines:
Initial Disclosures: 12/13/2017
Non-Expert: 5/11/2018
Expert: 7/13/2018
Mid-Discovery Status Conference:
3/22/2018 at 8:30 a.m.

16
17

Non-Dispositive Motion Deadlines:
Filing: 7/27/2018
Hearing: 8/24/2018

18
19

Dispositive Motion Deadlines:
Filing: 9/4/2018
Hearing: 10/16/2018

20
21
22

Settlement Conference:
11/5/2018 at 10:00 a.m.
510 19th Street, Bakersfield, CA

23
24

26

Pre-Trial Conference:
12/17/2018 at 1:30 p.m.
Courtroom 5

27

Trial:

25

28
1

1/12/2019 at 8:30 a.m.
Courtroom 5
Jury trial: 5 days

1

I.

Magistrate Judge Consent: Notice of Congested Docket and Court Policy of Trailing
Due to the District Judges’ heavy caseload, the newly adopted policy of the Fresno Division of

2
3

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

4

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

5

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

6

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

7
8

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

9

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

10

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

11

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

12

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

13
14

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

15

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

16

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

17

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

18
19

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

20

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

21

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

22

IV.

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

23
24

motion to amend, no later than March 2, 2018. Any motion to amend the pleadings shall be heard by

25

the Honorable Dale A. Drozd, United States District Court Judge.

26

V.

27
28

Discovery Plan and Cut-Off Date
The parties are ordered to exchange the initial disclosures required by Fed. R. Civ. P. 26(a)(1)

on or before December 13, 2017.
2

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

1
2

11, 2018 and all discovery pertaining to experts on or before July 13, 2018.

3

The parties are directed to disclose all expert witnesses1, in writing, on or before May 25, 2018,

4

and to disclose all rebuttal experts on or before July 22, 2018. The written designation of retained and

5

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

6

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

7

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

8

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

9
10

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

11

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

12

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

13
14

disclosures and responses to discovery requests will be strictly enforced.
A mid-discovery status conference is scheduled for March 22, 2018 at 8:30 a.m. before the

15
16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

VI.

25
26

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

than July 27, 2018, and heard on or before August 24, 2018. Discovery motions are heard before the

27
1

28

In the event an expert will offer opinions related to an independent medical or mental health
evaluation, the examination SHALL occur sufficiently in advance of the disclosure deadline so the expert’s
report fully details the expert’s opinions in this regard.

3

1

Honorable Jennifer L. Thurston, United States Magistrate Judge at the United States Courthouse in

2

Bakersfield, California. For these hearings, counsel may appear via teleconference by dialing (888)

3

557-8511 and entering Access Code 1652736, provided the Magistrate Judge's Courtroom Deputy

4

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

5

the noticed hearing date. All other non-dispositive hearings SHALL be set before Judge Drozd.
No motion to amend or stipulation to amend the case schedule will be entertained unless it

6
7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

from the Court’s calendar.
All dispositive pre-trial motions shall be filed no later than September 4, 2018, and heard no

17
18

later than October 16, 2018, in Courtroom 5 at 9:30 a.m. before the Honorable Dale A. Drozd, United

19

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

20

and Local Rules 230 and 260.

21

VII.

Motions for Summary Judgment or Summary Adjudication

22

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

23

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

24

to be raised in the motion.

25

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

26

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

27

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

28

issues for review by the court; 5) explore the possibility of settlement before the parties incur the
4

1

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

2
3

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

4

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

5

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

6

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

7
8

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

9

comply may result in the motion being stricken.

10

VIII. Pre-Trial Conference Date

11

December 17, 2018 at 1:30 p.m. in Courtroom 5 before Judge Drozd.

12

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

13

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

14

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

15
16

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

17

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

18

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

19

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

20

IX.

January 12, 2019 at 8:30 a.m. in Courtroom 5 before the Honorable Dale A. Drozd, United

21
22

Trial Date

States District Court Judge.

23

A.

This is a jury trial.

24

B.

Counsels' Estimate of Trial Time: 5 days.

25

C.

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

26

California, Rule 285.

27

X.

28

Settlement Conference
A Settlement Conference is scheduled November 5, 2018 at 10:00 a.m, located at 510 19th
5

1

Street, Bakersfield, California.2 Notwithstanding the requirements of Local Rule 270(b), the settlement

2

conference will be conducted by Magistrate Judge Thurston. The Court deems the deviation from the

3

Local Rule to be appropriate and in the interests of the parties and justice and sound case management

4

based upon the location of the parties. If any party prefers that the settlement conference be

5

conducted by a judicial officer who is not assigned to this case, that party is directed to notify the

6

Court no later than 60 days in advance of the scheduled settlement conference to allow sufficient

7

time for another judicial officer to be assigned to handle the conference.

8

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

9

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

10

to negotiate and settle the case on any terms3 at the conference. Consideration of settlement is a

11

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

12

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

13

At least twenty-one days before the settlement conference, Plaintiff SHALL submit to

14

Defendant via fax or e-mail, a written itemization of damages and a meaningful4 settlement demand

15

which includes a brief explanation of why such a settlement is appropriate. Thereafter, no later than

16

fourteen days before the settlement conference, Defendant SHALL respond, via fax or e-mail, with an

17

acceptance of the offer or with a meaningful counteroffer, which includes a brief explanation of why

18

such a settlement is appropriate.

19

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

20

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

21

not be filed on the court docket.

22
23
24
25
26
27
28

2

If the parties believe the action is not in a settlement posture at this time or the case schedule demands
it, the parties may file a joint written request to continue the scheduling conference.
3
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.
4
“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 the case is not in a settlement posture and the parties
should confer about continuing or vacating the settlement conference via stipulation.

6

1

CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT

2

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

3

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

4

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

5

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

6

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

7

Settlement Conference indicated prominently thereon.

8

The Confidential Settlement Conference Statement shall include the following:

9

A.

A brief statement of the facts of the case.

10

B.

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

11

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

12

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

13

C.

A summary of the proceedings to date.

14

D.

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

15

E.

The relief sought.

16

F.

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

17
18

XI.

Request for Bifurcation, Appointment of Special Master, or other

19

Techniques to Shorten Trial

20

Not applicable at this time.

21
22
23
24

XII.

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

25

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

26

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

27

handle its increasing case load and sanctions will be imposed for failure to follow both the Federal

28

Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California.
7

1
2

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

3

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

4

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

5

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

6

subsequent status conference.

7

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

8

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

9

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

10

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

11

for granting the relief requested.

12

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

13
14
15
16

IT IS SO ORDERED.
Dated:

December 6, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
8