Johnson v. Pack et al

Filing 13

STATUS (PRETRIAL SCHEDULING) ORDER signed by Senior Judge Lawrence K. Karlton on 1/22/09 ORDERING that Discovery ddl 3/20/2010; Dispositive Motion Hearing ddl 5/20/2010. Final Pretrial Conference set for 8/23/2010 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Jury Trial set for 11/16/2010 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Case Referred to VDRP. (Duong, D)

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

10 SCOTT N. JOHNSON, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. DERYLL W. PACK, et al., Defendants. / Plaintiff,

NO. CIV. S-08-2388 LKK KJM

STATUS (PRETRIAL SCHEDULING) CONFERENCE READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES WHICH

THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND PARTIES MUST COMPLY. A FAILURE TO COMPLY WITH THE TERMS OF THIS

ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN ORDER OF JUDGMENT. Pursuant to court order, a Status (Pretrial Scheduling) Scott N.

Conference was held in chambers on January 20, 2009.

Johnson appeared as counsel for plaintiff; Robert C. Lorbeer 1

1 appeared as counsel for defendants. After hearing, the court makes 2 the following findings and orders: 3 4 SERVICE OF PROCESS All parties defendant have been served and no further service

5 is permitted except with leave of court, good cause having been 6 shown. 7 8 JOINDER OF PARTIES/AMENDMENTS No further joinder of parties or amendments to pleadings is

9 permitted except with leave of court, good cause having been shown. 10 See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 11 1992). 12 13 JURISDICTION/VENUE Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1367 is

14 undisputed and is hereby found to be proper, as is venue. 15 16 MOTION HEARING SCHEDULES All law and motion except as to discovery is left open, save

17 and except that it shall be conducted so as to be completed by May 18 20, 2010. The word "completed" in this context means that all law Because this

19 and motion matters must be heard by the above date.

20 date is not necessarily a date previously set aside for law and 21 motion hearings, it is incumbent upon counsel to contact this 22 court's courtroom deputy, Ana Rivas at [phone], sufficiently 23 in advance so as to ascertain the dates upon which law and motion 24 will be heard and to properly notice its motion for hearing before 25 that date. Counsel are cautioned to refer to Local Rule 78-230

26 regarding the requirements for noticing such motions on the court's 2

1 regularly

scheduled

law

and

motion

calendar.

Opposition

or

2 statement of non-opposition to all motions shall be filed not later 3 than 4:30 p.m. fourteen (14) days preceding the hearing date, or by 4 proof of service by mail not less than seventeen (17) days

5 preceding the hearing date.

This paragraph does not preclude

6 motions for continuances, temporary restraining orders or other 7 emergency applications, and is subject to any special scheduling 8 set forth in the "MISCELLANEOUS PROVISIONS" paragraph below. 9 At the time of filing a motion, opposition, or reply, counsel lkk-

10 are directed to email a copy in word processing format to 11 [e-mail]. 12

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

13 motion is to narrow and refine the legal issues raised by the case, 14 and to dispose of by pretrial motion those issues that are

15 susceptible to resolution without trial.

To accomplish that

16 purpose, the parties need to identify and fully research the issues 17 presented by the case, and then examine those issues in light of 18 the evidence gleaned through discovery. If it appears to counsel

19 after examining the legal issues and facts that an issue can be 20 resolved by pretrial motion, counsel are to file the appropriate 21 motion by the law and motion cutoff set forth supra. 22 Unless prior permission has been granted, memoranda of law in

23 support of and in opposition to motions are limited to thirty (30) 24 pages, and reply memoranda are limited to fifteen (15) pages. The

25 parties are also cautioned against filing multiple briefs to 26 circumvent this rule. 3

1

Where the parties bring motions for summary judgment, the

2 court will deem facts which are apparently undisputed as undisputed 3 under Fed. R. Civ. P. 56(d), unless specifically reserved and that 4 party tenders evidence to support the reservation. 5 ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL

6 MOTION AND A FAILURE TO MAKE SUCH A MOTION WILL ORDINARILY BE 7 VIEWED AS A WAIVER AT THE TIME OF PRETRIAL. COUNSEL ARE CAUTIONED

8 THAT IF ANY LEGAL ISSUE THAT SHOULD HAVE BEEN TENDERED TO THE COURT 9 BY PRETRIAL MOTION MUST BE RESOLVED BY THE COURT AFTER LAW AND 10 MOTION CUTOFF, FOR INSTANCE WHERE THE ISSUE IS JURISDICTION, 11 SUBSTANTIAL SANCTIONS WILL BE LEVIED AGAINST COUNSEL WHO FAIL TO 12 TIMELY FILE AN APPROPRIATE MOTION. 13 Counsel are further reminded that motions in limine are devices designed to address the admissibility of

14 procedural 15 evidence.

COUNSEL ARE CAUTIONED THAT THE COURT WILL LOOK WITH

16 DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED IN THE GUISE OF MOTIONS 17 IN LIMINE 18 19 AT THE TIME OF TRIAL.

DISCOVERY No modifications of the discovery requirements found in the

20 Federal Rules is ordered. 21 All discovery is left open, save and except that it shall be The word

22 so conducted as to be completed by March 20, 2010.

23 "completed" means that all discovery shall have been conducted so 24 that all depositions have been taken and any disputes relative to 25 discovery shall have been resolved by appropriate order if

26 necessary and, where discovery has been ordered, the order has been 4

1 complied with.

Motions to compel discovery must be noticed on the

2 magistrate judge's calendar in accordance with the local rules of 3 this court and so that such motions will be heard not later than 4 February 20, 2010. In this regard, all counsel are to designate in 5 writing and file with the court and serve upon all other parties a 6 final list of the names of all experts that they propose to tender 7 at trial not later than forty-five (45) days before the close of 8 discovery herein established. At the time of designation, all The contents of the report

9 experts shall submit a written report.

10 must comply with Federal Rule of Civil Procedure 26 (A)(2)(b). All 11 experts so designated are to be fully prepared to render an 12 informed opinion at the time of designation so that they may fully 13 participate in any deposition taken by the opposing party. Experts 14 will not be permitted to testify at the trial as to any information 15 gathered or evaluated, or opinion formed, after deposition taken 16 subsequent to designation. 17 An expert witness not appearing on said lists will not be to testify unless the party offering the witness

18 permitted

19 demonstrates: (a) that the necessity of the witness could not have 20 been reasonably anticipated at the time the lists were exchanged; 21 (b) the court and opposing counsel were promptly notified upon 22 discovery of the witness; and (c) that the witness was promptly 23 proffered for deposition. 24 25 MID-LITIGATION STATEMENTS Not later than fourteen (14) days prior to the close of

26 discovery, all parties shall file with the court and serve on all 5

1 other parties a brief statement summarizing all law and motion 2 practice heard by the court as of the date of the filing of the 3 statement, whether the court has disposed of the motion at the time 4 the statement is filed and served, and the likelihood that any 5 further motions will be noticed prior to the close of law and 6 motion. The filing of this statement shall not relieve the parties 7 or counsel of their obligation to timely notice all appropriate 8 motions as set forth above. 9 10 FINAL PRETRIAL CONFERENCE The Final Pretrial Conference is SET for August 23, 2010, at Counsel are cautioned that counsel appearing for

11 1:30 p.m.

12 Pretrial will in fact try the matter. 13 Counsel for all parties are to be fully prepared for trial at

14 the time of the Pretrial Conference, with no matters remaining to 15 be accomplished except production of witnesses for oral testimony. 16 Counsel are referred to Local Rules 40-280 and 16-281 relating to 17 the contents of and time for filing Pretrial Statements. In

18 addition to those subjects listed in Local Rule 16-281(b), the 19 parties are to provide the court with a plain, concise statement 20 which identifies every non-discovery motion tendered to the court, 21 and its resolution. A FAILURE TO COMPLY WITH LOCAL RULES 40-280

22 AND 16-281 WILL BE GROUNDS FOR SANCTIONS. 23 The parties shall file Separate Pretrial Statements, the

24 contents and timing of which are set forth in Local Rule 16-281, 25 except that the parties are to prepare a JOINT STATEMENT with 26 respect to the undisputed facts and disputed factual issues of the 6

1 case.

See Local Rule 16-281(b)(3), (4), and (6).

The parties are

2 reminded to include in their joint statement all disputed and 3 undisputed special factual information as required by Local Rule 4 16-281(b)(6). 5 The undisputed facts and disputed factual issues are to be set In each section, the parties

6 forth in two separate sections.

7 should identify first the general facts relevant to all causes of 8 action. After identifying the general facts, the parties should

9 then identify those facts which are relevant to each separate cause 10 of action. In this regard, the parties are to number each Where the parties are unable to

11 individual fact or factual issue.

12 agree as to what factual issues are properly before the court for 13 trial, they should nevertheless list in the section on "DISPUTED 14 FACTUAL ISSUES" all issues asserted by any of the parties and 15 explain by parenthetical the controversy concerning each issue. 16 Each individual disputed fact or factual issue shall include the 17 following introductory language: "Whether or not . . . ." The

18 parties should keep in mind that, in general, each fact should 19 relate or correspond to an element of the relevant cause of action. 20 Notwithstanding the provisions of Local Rule 16-281, the Joint 21 Statement of Undisputed Facts and Disputed Factual Issues is to be 22 filed with the court concurrently with the filing of plaintiff's 23 Pretrial Statement. If the case is tried to a jury, the undisputed 24 facts will be read to the jury. 25 Pursuant to Local Rule 16-281(b)(10) and (11), the parties are to provide in their Pretrial 7 Statements a list of

26 required

1 witnesses and exhibits that they propose to proffer at trial, no 2 matter for what purpose. These lists shall not be contained in the 3 Pretrial Statement itself, but shall be attached as separate 4 documents to be used as addenda to the Final Pretrial Order. 5 Plaintiff's exhibits shall be listed numerically; defendant's In the event that the

6 exhibits shall be listed alphabetically.

7 alphabet is exhausted, defendant's exhibits shall be marked "2A-2Z, 8 3A-3Z, etc." The Pretrial Order will contain a stringent standard

9 for the proffering of witnesses and exhibits at trial not listed in 10 the Pretrial Order. Counsel are cautioned that the standard will

11 be strictly applied. On the other hand, the listing of exhibits or 12 witnesses which counsel do not intend to call or use will be viewed 13 as an abuse of the court's processes. 14 Pursuant to Local Rule 16-281(b)(12), a party is required to

15 provide a list of all answers to interrogatories and responses to 16 requests for admission that the party expects to offer at trial. 17 This list should include only those documents or portions thereof 18 which the party expects to offer in its case-in-chief. Unless

19 otherwise barred by a rule of evidence or order of this court, the 20 parties remain free to tender appropriate discovery documents 21 during trial for such purposes as, but not limited to, impeachment 22 or memory refreshment. 23 Pursuant to Local Rule 16-281(b)(8), the parties' Pretrial Each

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

25 party shall commence this section by specifying as to each claim 26 whether federal or state law governs, and if state law, the state 8

1 whose law is applicable. 2 Counsel are also reminded that, pursuant to Fed. R. Civ. P.

3 16, it will be their duty at the Pretrial Conference to aid the 4 court in (a) formulation and simplification of issues and the 5 elimination of frivolous claims or defenses; (b) settling of facts 6 which should be properly admitted; and (c) the avoidance of 7 unnecessary proof and cumulative evidence. Counsel must prepare

8 their Pretrial Statements, and participate in good faith at the 9 Pretrial Conference, with these aims in mind. A FAILURE TO DO SO

10 MAY RESULT IN THE IMPOSITION of SANCTIONS which may include 11 monetary sanctions, orders precluding proof, eliminations of claims 12 or defenses, or such other sanctions as the court deems

13 appropriate. 14 15 TRIAL SETTING Trial is SET for November 16, 2010, at 10:30 a.m. Trial will

16 be by jury.

The parties represent in good faith that the trial

17 will take approximately seven (7) days. 18 19 SETTLEMENT CONFERENCE A Settlement Conference will be set before a judge other than

20 the trial judge at the time of the Pretrial Conference. 21 Counsel are cautioned to have a principal capable of

22 disposition present at the Settlement Conference or to be fully 23 authorized to settle the matter on any terms and at the Settlement 24 Conference. 25 26 MISCELLANEOUS PROVISIONS Pursuant to the request of the parties, this matter is 9

1 referred 2 (VDRP). 3

to

the

court's

Voluntary

Dispute

Resolution

Program

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

4 16(b), the Status (pretrial scheduling) Order shall not be modified 5 except by leave of court upon a showing of good cause. 6 cautioned that changes to any of the scheduled Counsel are dates will

7 necessarily result in changes to all other dates. Thus, even where 8 good cause has been shown, the court will not grant a request to 9 change the discovery cutoff date without modifying the pretrial and 10 trial dates. 11 Agreement by the parties pursuant to stipulation does not

12 constitute good cause. Nor does the unavailability of witnesses or 13 counsel, except in extraordinary circumstances, constitute good 14 cause. 15 The parties are reminded of their continuing obligation to

16 supplement their statements relative to the identification of 17 parent corporations and any publicly held company that owns 10% or 18 more of the party's stock within a reasonable time of any change in 19 the information. 20 The parties are admonished that they are not to cite or refer

21 to any of the quotations inscribed in the pavers on the front plaza 22 of the United States Courthouse in any written or oral presentation 23 to the court or a jury. 24 There appear to be no other matters presently pending before

25 the court that will aid the just and expeditious disposition of 26 this matter. 10

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IT IS SO ORDERED. DATED: January 22, 2009.

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