Keszler, et al v. First Horizon Home Loan Corporation

Filing 14

[DISREGARD - REFER TO 16 SCHEDULING ORDER AS ORIGINAL] STATUS (PRETRIAL SCHEDULING) ORDER signed by Senior Judge Lawrence K. Karlton on 1/22/09 ORDERING that Discovery ddl 10/20/2009; Dispositive Motion Hearing ddl 12/20/2009. Final Pretrial Confe rence set for 3/22/2010 at 02:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Bench Trial set for 6/15/2010 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Case Referred to VDRP. (Duong, D) Modified on 1/22/2009 (Marciel, M).

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JENNIFER CUTTS KESZLER, et al., 11 12 13 v. Plaintiffs,

NO. CIV. S-08-2359 LKK KJM

14 FIRST HORIZON HOME LOANS, et al., 15 Defendants. 16 / 17 STATUS (PRETRIAL SCHEDULING) CONFERENCE 18 READ THIS ORDER CAREFULLY. 19 THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND 20 PARTIES MUST COMPLY. 21 ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER 22 SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN 23 ORDER OF JUDGMENT. 24 Pursuant 25 Conference was held in chambers on January 20, 2009. 26 1 David A. to court order, a Status (Pretrial Scheduling) A FAILURE TO COMPLY WITH THE TERMS OF THIS IT CONTAINS IMPORTANT DATES WHICH

1 Scharlach appeared as counsel for plaintiffs; Brett L. Messinger 2 appeared telephonically as counsel for defendant. 3 the court makes the following findings and orders: 4 5 SERVICE OF PROCESS All parties defendant have been served and no further service After hearing,

6 is permitted except with leave of court, good cause having been 7 shown. 8 9 JOINDER OF PARTIES/AMENDMENTS Except as set for below, no further joinder of parties or

10 amendments to pleadings is permitted except with leave of court, 11 good cause having been shown. See Johnson v. Mammoth Recreations,

12 Inc., 975 F.2d 604 (9th Cir. 1992). 13 Plaintiff is granted thirty (30) days to file an amended A failure to do so will be deemed a waiver of the issue Defendant is granted twenty

14 complaint.

15 of declaratory and injunctive relief.

16 (20) days after February 19, 2009 to add additional parties. 17 18 JURISDICTION/VENUE Jurisdiction is predicated upon 28 U.S.C. § 1332 is undisputed

19 and is hereby found to be proper, as is venue. 20 21 MOTION HEARING SCHEDULES All law and motion except as to discovery is left open, save

22 and except that it shall be conducted so as to be completed by 23 December 20, 2009. The word "completed" in this context means that 24 all law and motion matters must be heard by the above date. 25 Because this date is not necessarily a date previously set aside 26 for law and motion hearings, it is incumbent upon counsel to 2

1 contact this court's courtroom deputy, Ana Rivas at [phone], 2 sufficiently in advance so as to ascertain the dates upon which law 3 and motion will be heard and to properly notice its motion for 4 hearing before that date. Counsel are cautioned to refer to Local

5 Rule 78-230 regarding the requirements for noticing such motions on 6 the court's regularly scheduled law and motion calendar.

7 Opposition or statement of non-opposition to all motions shall be 8 filed not later than 4:30 p.m. fourteen (14) days preceding the 9 hearing date, or by proof of service by mail not less than 10 seventeen (17) days preceding the hearing date. This paragraph

11 does not preclude motions for continuances, temporary restraining 12 orders or other emergency applications, and is subject to any 13 special scheduling set forth in the "MISCELLANEOUS PROVISIONS" 14 paragraph below. 15 At the time of filing a motion, opposition, or reply, counsel lkk-

16 are directed to email a copy in word processing format to 17 [e-mail]. 18

The parties should keep in mind that the purpose of law and

19 motion is to narrow and refine the legal issues raised by the case, 20 and to dispose of by pretrial motion those issues that are

21 susceptible to resolution without trial.

To accomplish that

22 purpose, the parties need to identify and fully research the issues 23 presented by the case, and then examine those issues in light of 24 the evidence gleaned through discovery. If it appears to counsel

25 after examining the legal issues and facts that an issue can be 26 resolved by pretrial motion, counsel are to file the appropriate 3

1 motion by the law and motion cutoff set forth supra. 2 Unless prior permission has been granted, memoranda of law in

3 support of and in opposition to motions are limited to thirty (30) 4 pages, and reply memoranda are limited to fifteen (15) pages. The

5 parties are also cautioned against filing multiple briefs to 6 circumvent this rule. 7 Where the parties bring motions for summary judgment, the

8 court will deem facts which are apparently undisputed as undisputed 9 under Fed. R. Civ. P. 56(d), unless specifically reserved and that 10 party tenders evidence to support the reservation. 11 ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL

12 MOTION AND A FAILURE TO MAKE SUCH A MOTION WILL ORDINARILY BE 13 VIEWED AS A WAIVER AT THE TIME OF PRETRIAL. COUNSEL ARE CAUTIONED

14 THAT IF ANY LEGAL ISSUE THAT SHOULD HAVE BEEN TENDERED TO THE COURT 15 BY PRETRIAL MOTION MUST BE RESOLVED BY THE COURT AFTER LAW AND 16 MOTION CUTOFF, FOR INSTANCE WHERE THE ISSUE IS JURISDICTION, 17 SUBSTANTIAL SANCTIONS WILL BE LEVIED AGAINST COUNSEL WHO FAIL TO 18 TIMELY FILE AN APPROPRIATE MOTION. 19 Counsel are further reminded that motions in limine are devices designed to address the admissibility of

20 procedural 21 evidence.

COUNSEL ARE CAUTIONED THAT THE COURT WILL LOOK WITH

22 DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED IN THE GUISE OF MOTIONS 23 IN LIMINE 24 25 AT THE TIME OF TRIAL.

DISCOVERY No modifications of the discovery requirements found in the

26 Federal Rules is ordered. 4

1

All discovery is left open, save and except that it shall be The word

2 so conducted as to be completed by October 20, 2009.

3 "completed" means that all discovery shall have been conducted so 4 that all depositions have been taken and any disputes relative to 5 discovery shall have been resolved by appropriate order if

6 necessary and, where discovery has been ordered, the order has been 7 complied with. Motions to compel discovery must be noticed on the

8 magistrate judge's calendar in accordance with the local rules of 9 this court and so that such motions will be heard not later than 10 September 20, 2009. In this regard, all counsel are to designate

11 in writing and file with the court and serve upon all other parties 12 a final list of the names of all experts that they propose to 13 tender at trial not later than forty-five (45) days before the 14 close of discovery herein established. At the time of designation, 15 all experts shall submit a written report. 16 report must comply with Federal Rule of The contents of the Civil Procedure 26

17 (A)(2)(b).

All experts so designated are to be fully prepared to

18 render an informed opinion at the time of designation so that they 19 may fully participate in any deposition taken by the opposing 20 party. Experts will not be permitted to testify at the trial as to

21 any information gathered or evaluated, or opinion formed, after 22 deposition taken subsequent to designation. 23 An expert witness not appearing on said lists will not be to testify unless the party offering the witness

24 permitted

25 demonstrates: (a) that the necessity of the witness could not have 26 been reasonably anticipated at the time the lists were exchanged; 5

1 (b) the court and opposing counsel were promptly notified upon 2 discovery of the witness; and (c) that the witness was promptly 3 proffered for deposition. 4 5 MID-LITIGATION STATEMENTS Not later than fourteen (14) days prior to the close of

6 discovery, all parties shall file with the court and serve on all 7 other parties a brief statement summarizing all law and motion 8 practice heard by the court as of the date of the filing of the 9 statement, whether the court has disposed of the motion at the time 10 the statement is filed and served, and the likelihood that any 11 further motions will be noticed prior to the close of law and 12 motion. The filing of this statement shall not relieve the parties 13 or counsel of their obligation to timely notice all appropriate 14 motions as set forth above. 15 16 17 2:30 FINAL PRETRIAL CONFERENCE The Final Pretrial Conference is SET for March 22, 2010, at p.m. Counsel are cautioned that counsel appearing for

18 Pretrial will in fact try the matter. 19 Counsel for all parties are to be fully prepared for trial at

20 the time of the Pretrial Conference, with no matters remaining to 21 be accomplished except production of witnesses for oral testimony. 22 Counsel are referred to Local Rules 40-280 and 16-281 relating to 23 the contents of and time for filing Pretrial Statements. In

24 addition to those subjects listed in Local Rule 16-281(b), the 25 parties are to provide the court with a plain, concise statement 26 which identifies every non-discovery motion tendered to the court, 6

1 and its resolution.

A FAILURE TO COMPLY WITH LOCAL RULES 40-280

2 AND 16-281 WILL BE GROUNDS FOR SANCTIONS. 3 The parties shall file Separate Pretrial Statements, the

4 contents and timing of which are set forth in Local Rule 16-281, 5 except that the parties are to prepare a JOINT STATEMENT with 6 respect to the undisputed facts and disputed factual issues of the 7 case. See Local Rule 16-281(b)(3), (4), and (6). The parties are

8 reminded to include in their joint statement all disputed and 9 undisputed special factual information as required by Local Rule 10 16-281(b)(6). 11 The undisputed facts and disputed factual issues are to be set In each section, the parties

12 forth in two separate sections.

13 should identify first the general facts relevant to all causes of 14 action. After identifying the general facts, the parties should

15 then identify those facts which are relevant to each separate cause 16 of action. In this regard, the parties are to number each Where the parties are unable to

17 individual fact or factual issue.

18 agree as to what factual issues are properly before the court for 19 trial, they should nevertheless list in the section on "DISPUTED 20 FACTUAL ISSUES" all issues asserted by any of the parties and 21 explain by parenthetical the controversy concerning each issue. 22 Each individual disputed fact or factual issue shall include the 23 following introductory language: "Whether or not . . . ." The

24 parties should keep in mind that, in general, each fact should 25 relate or correspond to an element of the relevant cause of action. 26 Notwithstanding the provisions of Local Rule 16-281, the Joint 7

1 Statement of Undisputed Facts and Disputed Factual Issues is to be 2 filed with the court concurrently with the filing of plaintiff's 3 Pretrial Statement. If the case is tried to a jury, the undisputed

4 facts will be read to the jury. 5 Pursuant to Local Rule 16-281(b)(10) and (11), the parties are to provide in their Pretrial Statements a list of

6 required

7 witnesses and exhibits that they propose to proffer at trial, no 8 matter for what purpose. These lists shall not be contained in the

9 Pretrial Statement itself, but shall be attached as separate 10 documents to be used as addenda to the Final Pretrial Order. 11 Plaintiff's exhibits shall be listed numerically; defendant's

12 exhibits shall be listed alphabetically.

In the event that the

13 alphabet is exhausted, defendant's exhibits shall be marked "2A-2Z, 14 3A-3Z, etc." The Pretrial Order will contain a stringent standard

15 for the proffering of witnesses and exhibits at trial not listed in 16 the Pretrial Order. 17 be strictly applied. Counsel are cautioned that the standard will On the other hand, the listing of exhibits or

18 witnesses which counsel do not intend to call or use will be viewed 19 as an abuse of the court's processes. 20 Pursuant to Local Rule 16-281(b)(12), a party is required to

21 provide a list of all answers to interrogatories and responses to 22 requests for admission that the party expects to offer at trial. 23 This list should include only those documents or portions thereof 24 which the party expects to offer in its case-in-chief. Unless

25 otherwise barred by a rule of evidence or order of this court, the 26 parties remain free to tender appropriate discovery documents 8

1 during trial for such purposes as, but not limited to, impeachment 2 or memory refreshment. 3 Pursuant to Local Rule 16-281(b)(8), the parties' Pretrial Each

4 Statements shall contain a "statement of legal theory, etc."

5 party shall commence this section by specifying as to each claim 6 whether federal or state law governs, and if state law, the state 7 whose law is applicable. 8 Counsel are also reminded that, pursuant to Fed. R. Civ. P.

9 16, it will be their duty at the Pretrial Conference to aid the 10 court in (a) formulation and simplification of issues and the 11 elimination of frivolous claims or defenses; (b) settling of facts 12 which should be properly admitted; and (c) the avoidance of

13 unnecessary proof and cumulative evidence.

Counsel must prepare

14 their Pretrial Statements, and participate in good faith at the 15 Pretrial Conference, with these aims in mind. 16 MAY RESULT IN THE IMPOSITION of SANCTIONS A FAILURE TO DO SO which may include

17 monetary sanctions, orders precluding proof, eliminations of claims 18 or defenses, or such other sanctions as the court deems

19 appropriate. 20 21 TRIAL SETTING Trial is SET for June 15, 2010, at 10:30 a.m. Trial will be

22 by the court without jury.

The parties represent in good faith

23 that the trial will take approximately four (4) days. 24 25 SETTLEMENT CONFERENCE A Settlement Conference will be set before a judge other than

26 the trial judge at the time of the Pretrial Conference. 9

1

Counsel

are

cautioned

to

have

a

principal

capable

of

2 disposition present at the Settlement Conference or to be fully 3 authorized to settle the matter on any terms and at the Settlement 4 Conference. 5 6 MISCELLANEOUS PROVISIONS Pursuant to to the the request of the parties, this matter is

7 referred 8 (VDRP). 9

court's

Voluntary

Dispute

Resolution

Program

The parties are reminded that pursuant to Fed. R. Civ. P.

10 16(b), the Status (pretrial scheduling) Order shall not be modified 11 except by leave of court upon a showing of good cause. 12 cautioned that changes to any of the scheduled Counsel are dates will

13 necessarily result in changes to all other dates. Thus, even where 14 good cause has been shown, the court will not grant a request to 15 change the discovery cutoff date without modifying the pretrial and 16 trial dates. 17 Agreement by the parties pursuant to stipulation does not

18 constitute good cause. Nor does the unavailability of witnesses or 19 counsel, except in extraordinary circumstances, constitute good 20 cause. 21 The parties are reminded of their continuing obligation to

22 supplement their statements relative to the identification of 23 parent corporations and any publicly held company that owns 10% or 24 more of the party's stock within a reasonable time of any change in 25 the information. 26 The parties are admonished that they are not to cite or refer 10

1 to any of the quotations inscribed in the pavers on the front plaza 2 of the United States Courthouse in any written or oral presentation 3 to the court or a jury. 4 There appear to be no other matters presently pending before

5 the court that will aid the just and expeditious disposition of 6 this matter. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 IT IS SO ORDERED. DATED: January 22, 2009.