H & M Gopher Control, et al v. Benchmark Pest Control, Inc., et al

Filing 15

SCHEDULING ORDER, signed by Magistrate Judge Jennifer L. Thurston on 8/6/2018. Pleading Amendment Deadline: 9/14/2018. Claim Construction Briefing: Joint Statement 2/22/2019; Opening Brief 4/5/2019; Responding Brief 4/19/2019; Rebuttal Brief 4/26/20 19; Hearing set for 5/20/2019 at 09:00 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Discovery Deadlines: Non-Expert 1/17/2019; Expert 3/28/2019. Mid-Discovery Status Conference set for 11/13/2018 at 08:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Non-Dispositive Motion Deadlines: Filed by 4/22/2019; Hearing by 5/20/2019. Dispositive Motion Deadlines: Filed by 6/10/2019; Hearing by 7/8/2019. Settlement Conference s et for 2/5/2019 at 01:00 PM in Courtroom 10 (EPG) before Magistrate Judge Erica P. Grosjean. Pretrial Conference set for 8/5/2019 at 10:00 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Jury Trial set for 9/30/2019 at 08:30 AM in Bakersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. (Hall, S)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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H & M GOPHER CONTROL, et al.,

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Plaintiffs,
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v.
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BENCHMARK PEST CONTROL, INC., et al., )
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Defendants.
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Case No.: 1:17-CV-01700- JLT
SCHEDULING ORDER (Fed. R. Civ. P. 16)
Pleading Amendment Deadline: 9/14/2018
Claim Construction Briefing:
Joint Statement: 2/22/2019
Opening Brief: 4/5/2019
Responding Brief: 4/19/2019
Rebuttal Brief: 4/26/2019
Hearing: 5/20/2019

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Discovery Deadlines:
Non-Expert: 1/17/2019
Expert: 3/28/2019
Mid-Discovery Status Conference:
11/13/2018 at 8:30 a.m.

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Non-Dispositive Motion Deadlines:
Filing: 4/22/2019
Hearing: 5/20/2019

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Dispositive Motion Deadlines:
Filing: 6/10/2019
Hearing: 7/8/2019

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Settlement Conference: 2/5/2019, 1:00 p.m.
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Pre-Trial Conference:
8/5/2019 at 10:00 a.m.
510 19th Street, Bakersfield, CA

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Trial: 9/30/2019 at 8:30 a.m.
510 19th Street, Bakersfield, CA
Jury trial: 5-7 days

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I.

August 4, 2018.

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Date of Scheduling Conference

II.

Appearances of Counsel

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Matthew McCartney and Andrew Dallmann appeared on behalf of Plaintiffs.

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James Duncan appeared on behalf of Defendants.

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III.

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

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motion to amend, no later than September 14, 2018.

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IV.

Fictitiously-Named Defendants
All claims as to “Doe” Defendants, including any counterclaims and cross-claims, are hereby

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DISMISSED.

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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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A.

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

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Non-expert and Expert Discovery

January 17, 2019, and all discovery pertaining to experts on or before March 28, 2019.
The parties are directed to disclose all expert witnesses, in writing, on or January 28, 2019, and

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to disclose all rebuttal experts on or before February 26, 2019. The written designation of retained

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

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

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

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experts that are not disclosed pursuant to this order.

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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.

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The provisions of Fed. R. Civ. P. 26(e) regarding a party’s duty to timely supplement
disclosures and responses to discovery requests will be strictly enforced.
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B.

Mid-Discovery Status Conference

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A mid-discovery status conference is scheduled for November 13, 2018 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. In addition, the plaintiffs’ counsel SHALL detail whether they will need to rely on expert

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discovery determination of the claim construction.

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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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C.

Claim Construction Briefing and Hearing

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The parties SHALL meet and confer to address the terms before filing a Joint Claim

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Construction and Prehearing Statement no later than February 22, 2019. The Joint Statement shall

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include the following information:

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The construction of the terms on which the parties agree;

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2.

A brief description of the parties’ proposed construction of each disputed term,

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which identifies all references from the specification or prosecution history that

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support that construction and identifies any extrinsic evidence which support the

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support the construction;

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3.

The anticipated length of time necessary for the Claim Construction Hearing; and

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4.

An identification of any factual findings requested from the Court related to

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claim construction.
Plaintiffs SHALL file their opening claim construction brief no later than April 5, 2019.

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Defendants SHALL file their responding claim construction brief on or before April 19, 2019. Any

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rebuttal claim construction brief by Plaintiffs SHALL be filed no later than April 26, 2019.

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The claim construction motion will be heard on May 20, 2019 at 9:00 a.m., located at 510 19th
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Street, Bakersfield, California.

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VI.

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

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than April 22, 2019, and heard on or before May 20, 2019. The Court hears non-dispositive motions at

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9:00 a.m. at the United States District 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.

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All dispositive pre-trial motions shall be filed no later than June 10, 2019, and heard no later

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than July 8, 2019, before the Honorable Jennifer L. Thurston, United States Magistrate Judge, at the

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United States District Courthouse in Bakersfield, California. In scheduling such motions, counsel shall

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comply with Fed. R. 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

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

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Failure to comply may result in the motion being stricken.

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VIII. Pre-Trial Conference
August 5, 2019, at 8:30 a.m., located at the United States District Courthouse in Bakersfield,

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California, before the Honorable Jennifer L. Thurston, United States Magistrate Judge.
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 Thurston'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.

September 30, 2019, at 8:30 a.m. at the United States District Courthouse in Bakersfield,

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Trial Date

California, before the Honorable Jennifer L. Thurston, United States Magistrate Judge.

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A.

This is a jury trial.

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B.

Counsels' Estimate of Trial Time: 5-7 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
A Settlement Conference is scheduled for February 5, 2019 at 1:00 p.m., courtroom 10, before

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the Honorable Erica P. Grosjean, located at the Robert E. Coyle Federal Courthouse at 2500 Tulare

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Street, Fresno, California.

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

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

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authority to negotiate and settle the case on any reasonable terms1discussed at the conference.

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Consideration of settlement is a serious matter that requires preparation prior to the settlement

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conference. Set forth below are the procedures the Court will employ, absent good cause, in

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conducting the conference.

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

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

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

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

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offer or with a meaningful counteroffer, which includes a brief explanation of why such a settlement

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is appropriate.

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

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

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shall not be filed on the court docket.

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CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT
At least five court days before the settlement conference, the parties shall submit, directly to

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Judge Grosjean’s chambers by e-mail to [e-mail], a Confidential Settlement

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

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

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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 may be represented by
a person whose recommendations about settlement are relied upon by the ultimate decision makers.
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“Meaningful” means 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 the
settlement conference via stipulation.

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

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Settlement Conference indicated prominently thereon.

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The Confidential Settlement Conference Statement shall include the following:

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A.

A brief statement of the facts of the case.

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B.

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

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

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

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C.

A summary of the proceedings to date.

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D.

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

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E.

The relief sought.

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F.

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

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trial.

of past settlement discussions, offers and demands.

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XI.

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Trial
Not applicable at this time.

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Request for Bifurcation, Appointment of Special Master, or other Techniques to Shorten

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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 to efficiently handle its

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increasing case load, and sanctions will be imposed for failure to follow both the Federal Rules of Civil

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Procedure and the Local Rules of Practice for the Eastern District of 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:

August 6, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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