Whitaker v. Hot Topic, Inc.

Filing 11

SCHEDULING ORDER, signed by Magistrate Judge Jennifer L. Thurston on 6/7/2021. Pleading Amendment Deadline 9/10/2021. Discovery Deadlines: Non-Expert 4/28/2022; Expert 5/23/2022. Mid-Discovery Status Conference set for 11/1/2021 at 08:30 AM in B akersfield, 510 19th Street before Magistrate Judge Jennifer L. Thurston. Non-Dispositive Motion Deadlines: Filed by 4/28/2022; Hearing by 5/26/2022. Dispositive Motion Deadlines: Filed by 6/2/2022; Hearing by 7/11/2022. Pretrial Conference set for 8/25/2022 at 10:00 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. Jury Trial set for 10/18/2022 at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRIAN WHITAKER,

)
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Plaintiff,
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v.
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HOT TOPIC, INC., a California Corporation, )
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Defendant.
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)

Case No.: 1:20-cv-01832-AWI-JLT
SCHEDULING ORDER (Fed. R. Civ. P. 16)
Pleading Amendment Deadline: 9/10/2021
Discovery Deadlines:
Initial Disclosures: 6/30/2021
Non-Expert: 4/28/2022
Expert: 5/23/2022
Mid-Discovery Status Conference:
11/1/2021 at 8:30 a.m.

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Non-Dispositive Motion Deadlines:
Filing: 4/28/2022
Hearing: 5/26/2022

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Dispositive Motion Deadlines:
Filing: 6/2/2022
Hearing: 7/11/2022

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Pre-Trial Conference:
8/25/2022 at 10:00 a.m.
Courtroom 2

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Trial:

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10/18/2022 at 8:30 a.m.
Courtroom 2
Jury trial: 3-7 days

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I.

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

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

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

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

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

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

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

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

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

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

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will trail the completion of the criminal trial.

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

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

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

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

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

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taken directly to the United States Court of Appeal for the Ninth Circuit. The parties are informed that

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no substantive rulings or decisions will be affected by whether a party chooses to consent.

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

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

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to the Local Rules, Appendix A, 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.

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Therefore, the parties are 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 they will consent to the jurisdiction of the Magistrate Judge.
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II.

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 10, 2021.

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III.

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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 June 30, 2021.
The parties are ordered to complete all discovery pertaining to non-experts on or before April
28, 2022, and all discovery pertaining to experts on or before May 23, 2022.
The parties are directed to disclose all expert witnesses, in writing, on or before May 5, 2022,

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and to disclose all rebuttal experts on or before May 13, 2022. The written designation of retained and

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

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

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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.
A mid-discovery status conference is scheduled for November 1, 2021 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 SHALL discuss settlement and certify that they have done so. Counsel may appear

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via teleconference by dialing [phone] and entering Access Code 1652736, provided the
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Magistrate Judge's Courtroom Deputy Clerk receives a written notice of the intent to appear

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

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IV.

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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 28, 20221, and heard on or before May 26, 2022. Non-dispositive motions are heard at 9:00

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

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

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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]. At least three days before the conference,

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counsel SHALL file informal letter briefs detailing their positions. The briefs may not exceed 7 pages,

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excluding exhibits. Counsel must comply with Local Rule 251 with respect to discovery disputes

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or the motion will be denied without prejudice and dropped from the Court’s calendar.

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In scheduling such motions, the Magistrate Judge may grant applications for an order shortening

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

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notice of motion must comply with Local Rule 251.

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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.

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Non-dispositive motions related to non-expert discovery SHALL be filed within a reasonable time of
discovery of the dispute but not later than 30 days after the expiration of the non-expert discovery deadline.

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All dispositive pre-trial motions shall be filed no later than June 2, 2022, and heard no later

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than July 11, 2022, in Courtroom 2 at 8:30 a.m. before the Honorable Anthony W. Ishii, United States

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

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Local Rules 230 and 260.

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Motions for Summary Judgment or Summary Adjudication
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 to

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be raised in the motion.
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 or

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

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

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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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VI.

Pre-Trial Conference Date

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August 25, 2022, at 10:00 a.m. in Courtroom 2 before Judge Ishii.

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

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

October 18, 2022, at 8:30 a.m. in Courtroom 2 before the Honorable Anthony W. Ishii, 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: 3-7 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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VIII. Settlement Conference
The parties engaged in the Voluntary Dispute Resolution Program (VDRP) pursuant to Local

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Rule 271, and upon completion of the VDRP process, the case was not settled. (See Docs. 9-10.)

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However, the parties may jointly request a settlement conference if they believe one is likely to be

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fruitful.

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IX.

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Trial
Not applicable at this time.

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

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Related Matters Pending
The parties indicate that on March 11, 2021, Plaintiff filed another action against Defendant

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which is pending in this Court (21-cv-00436-TLN-KJN), and while the case involves a facility located

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at 1151 Galleria Blvd, Roseville, California, the underlying causes of action against Defendant are

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identical. (Doc. 8 at 8.)

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XI.

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

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XII.

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Effect of this Order
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 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

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contained herein will not be considered unless they are accompanied by affidavits or declarations,

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and where appropriate attached exhibits, which establish good cause for granting the relief

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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:

June 7, 2021

_ /s/ Jennifer L. Thurston
CHIEF UNITED STATES MAGISTRATE JUDGE

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