Donovan v. American Property Development, Inc., et al

Filing 11

STATUS ORDER signed by Judge Garland E. Burrell, Jr on 2/8/08: status conference HELD on 2/4/08. Discovery due by 1/23/2009. Last date to hear motions is 3/23/2009. Final Pretrial Conference set for 5/18/2009 at 02:30 PM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. Trial set for 8/18/2009 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Carlos, K)

Donovan v. American Property Development, Inc., et al

Doc. 11

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Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JAMES C. DONOVAN, Plaintiff, v. AMERICAN CAPITAL GROUP, INC., a Washington Corporation; AMERICAN PROPERTY DEVELOPMENT, INC., a Washington Corporation; AMERICAN CAPITAL HOMES, INC., a Washington Corporation; and DOES 1 through 20, inclusive, Defendants.

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2:07-cv-02160-GEB-DAD STATUS (PRETRIAL SCHEDULING) ORDER

The status (pretrial scheduling) conference was held on February 4, 2008. Plaintiff's counsel, James Cahalan, and Defendants'

counsel, Kenneth O'Brien, were present. SERVICE, JOINDER OF ADDITIONAL PARTIES, AMENDMENT If Plaintiff fails to effect service of process on Defendant, American Capital Group, Inc. on or before February 11, 2008, that defendant may be dismissed from this action without prejudice under Federal Rule of Civil Procedure 4(m). To avoid

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dismissal, a proof of service shall be filed for Defendant American Capital Group, Inc. no later than February 11, 2008. If Plaintiff believes it has good cause to justify extension of Rule 4(m)'s 120-day service period for Defendant American Capital Group, Inc., it shall file a declaration no later than February 11, 2008, showing good cause why American Capital Group, Inc. should not be dismissed without prejudice. Additionally, the parties' Joint Status Report ("JSR') indicates that "Plaintiff expects that the identities of any `Doe' defendants should be discovered by August 4, 2008." Plaintiff has

sixty days from the date on which this order is filed to file a motion in which leave is sought under Federal Rule of Civil Procedure 15(a) to file an Amended Complaint which could add a party to this action. The motion must be noticed for hearing on the Court's earliest available law and motion date. If leave is not sought as stated, this

will automatically effectuate dismissal of Does 1 through 20 from this action. No further service, joinder of parties or amendments to pleadings is permitted, except with leave of Court, good cause having been shown. DISCOVERY All discovery shall be completed by January 23, 2009. In

this context, "completed" means that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate orders, if necessary, and, where discovery has been ordered, the order has

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been complied with or, alternatively, the time allowed for such compliance shall have expired.1 Each party shall comply with Federal Rule of Civil Procedure 26(a)(2)'s initial expert witness disclosure and report requirements on or before August 22, 2008, and with any rebuttal expert disclosure authorized under the Rule on or before September 22, 2008. MOTION HEARING SCHEDULE The last hearing date for motions shall be March 23, 2009, at 9:00 a.m.2 Motions shall be filed in accordance with Local Rule 78230(b). Opposition papers shall be filed in accordance with Local Failure to comply with this local rule may be deemed

Rule 78-230(c).

consent to the motion and the Court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651, 652-53 (9th Cir. 1994).

Further, failure to timely oppose a summary judgment motion may result in the granting of that motion if the movant shifts the burden to the nonmovant to demonstrate a genuine issue of material fact remains for trial. Cf. Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995). Absent highly unusual circumstances, reconsideration of a motion is appropriate only where:

The parties are advised that the Magistrate Judges in the Eastern District are responsible for resolving discovery disputes. See Local Rule 72-302(c)(1). Accordingly, counsel shall direct all discovery-related matters to the Magistrate Judge assigned to this case. A party conducting discovery near the discovery "completion" date runs the risk of losing the opportunity to have a judge resolve discovery motions pursuant to the Local Rules. This time deadline does not apply to motions for continuances, temporary restraining orders, emergency applications, or motions under Rule 16(e) of the Federal Rules of Civil Procedure. 3
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(1)

The Court is presented with newly discovered evidence

that could not reasonably have been discovered prior to the filing of the party's motion or opposition papers; (2) The Court committed clear error or the initial decision

was manifestly unjust; or (3) There is an intervening change in controlling law.

A motion for reconsideration based on newly discovered evidence shall set forth, in detail, the reason why said evidence could not reasonably have been discovered prior to the filing of the party's motion or opposition papers. Motions for reconsideration shall comply

with Local Rule 78-230(k) in all other respects. The parties are cautioned that an untimely motion characterized as a motion in limine may be summarily denied. in limine addresses the admissibility of evidence. FINAL PRETRIAL CONFERENCE The final pretrial conference is set for May 18, 2009, at The parties are cautioned that the lead attorney who WILL A motion

TRY THE CASE for each party shall attend the final pretrial conference. In addition, all persons representing themselves and

appearing in propria persona must attend the pretrial conference. The parties are warned that non-trialworthy issues could be eliminated sua sponte "[i]f the pretrial conference discloses that no material facts are in dispute and that the undisputed facts entitle one of the parties to judgment as a matter of law." Portsmouth Square

v. S'holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985). /// /// /// 4

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The parties shall file a JOINT pretrial statement no later than seven (7) calendar days prior to the final pretrial conference.3 The joint pretrial statement shall specify the issues for trial and shall estimate the length of the trial.4 The Court uses the parties'

joint pretrial statement to prepare its final pretrial order and could issue the final pretrial order without holding the scheduled final pretrial conference. See Mizwicki v. Helwig, 196 F.3d 828, 833 (7th

Cir. 1999) ("There is no requirement that the court hold a pretrial conference."). The final pretrial order supersedes the pleadings and Issues

controls the facts and issues which may be presented at trial.

asserted in pleadings which are not preserved for trial in the final pretrial order cannot be raised at trial. Hotel Emp., et al. Health

Tr. v. Elks Lodge 1450, 827 F.2d 1324, 1329 (9th Cir. 1987) ("Issues not preserved in the pretrial order are eliminated from the action."); Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550, 554 (5th Cir. 1992) (indicating that an issue omitted from the pretrial order is waived, even if it appeared in the pleading); cf. Raney v. Dist. of Columbia, 892 F. Supp. 283 (D.D.C. 1995) (refusing to modify the pretrial order to allow assertion of a previously-pled statute of limitations defense); Olympia Co. v. Celotex Corp., 597 F. Supp. 285, 289 (E.D. La. 1984) (indicating that "[a]ny factual contention, legal

The failure of one or more of the parties to participate in the preparation of any joint document required to be filed in this case does not excuse the other parties from their obligation to timely file the document in accordance with this Order. In the event a party fails to participate as ordered, the party or parties timely submitting the document shall include a declaration explaining why they were unable to obtain the cooperation of the other party. The joint pretrial statement shall also state how much time each party desires for voir dire, opening statements, and closing arguments. 5
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contention, any claim for relief or defense in whole or in part, or affirmative matter not set forth in [the pretrial statement] shall be deemed . . . withdrawn, notwithstanding the contentions of any pleadings or other papers previously filed [in the action]"). If possible, at the time of filing the joint pretrial statement counsel shall also email it in a format compatible with WordPerfect to: [e-mail]. TRIAL SETTING Trial is set for August 18, 2009, commencing at 9:00 a.m. MISCELLANEOUS The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b), the Status (Pretrial Scheduling) Order shall not be modified except by leave of Court upon a showing of good cause. Counsel are cautioned that a mere stipulation by itself to change dates does not constitute good cause. IT IS SO ORDERED. Dated: February 8, 2008

GARLAND E. BURRELL, JR. United States District Judge

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