Mercado, et al. v. Sandoval, Inc., et al

Filing 11

STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Garland E. Burrell, Jr on 2/2/09: Discovery due by 3/17/2010. Dispositive Motion due by 5/17/2010. Final Pretrial Conference set for 7/26/2010 at 01:30 PM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. Jury Trial set for 10/26/2010 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Kaminski, H)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The caption has been amended according to the Dismissal of Doe Defendants portion of this Order. 1
1

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

MOISES MERCADO; MARCO A. RAMIREZ,

) ) Plaintiffs, ) ) v. ) ) SANDOVAL, INC., a California ) Corporation; MARCHINI LAND CO., a ) California General Partnership; ) BRUNO P. MARCHINI, individually and) d/b/a Marchini Land Co.; RICHARD B.) MARCHINI, individually and d/b/a ) Marchini Land Co.; VINCENT M. ) MARCHINI, individually and d/b/a ) Marchini Land Co.; ROSETTA ) MARCHINI, individually and d/b/a ) Marchini Land Co., ) ) Defendants.1 ) )

2:08-cv-02648-GEB-EFB STATUS (PRETRIAL SCHEDULING) ORDER

The status (pretrial scheduling) conference scheduled for February 2, 2009, is vacated since the parties' Joint Status Report ("JSR") indicates the following Order should issue. Plaintiffs state in the JSR that they intend to file a motion for conditional certification of this action as a collective

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

action under the Fair Labor Standards Act.

This motion shall be

notified for hearing on or before April 6, 2009. DOE DEFENDANTS The parties do not make a practicable proposal in the JSR as to when the identities of Doe Defendants will be disclosed. unclear why this was not done. It is

Since this action was commenced in

state court early in 2008, the parties appear to have had ample time to proposed a practicable and comprehensive schedule for this action. Since they did not, the Doe Defendants are dismissed. See Order

Setting Status (Pretrial Scheduling) Conference filed October 28, 2008, at 2 n.2 ("Failure to set forth specific information regarding the time Plaintiff(s) needs to identify any `Doe' Defendants will be deemed an abandonment of any claims against such Defendants, and a dismissal order will follow."). SERVICE, JOINDER OF ADDITIONAL PARTIES, AMENDMENT 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 March 17, 2010. 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 been complied with or, alternatively, the time allowed for such compliance shall have expired.2 In this

2

The parties are advised that the Magistrate Judges in the (continued...) 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 230(b). 9:00 a.m.3

MOTION HEARING SCHEDULE The last hearing date for motions shall be May 17, 2010, at

Motions shall be filed in accordance with Local Rule 78Opposition 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: (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.

(...continued) 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
3

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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 July 26, 2010, at 1:30 p.m. 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-trial worthy 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). The parties shall file a JOINT pretrial statement no later than seven (7) calendar days prior to the final pretrial conference.4 The joint pretrial statement shall specify the issues for trial and

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. 4

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

shall estimate the length of the trial.5

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 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].

The joint pretrial statement shall also state how much time each party desires for voir dire, opening statements, and closing arguments. 5

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated:

TRIAL SETTING Trial is set for October 26, 2010, 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. February 2, 2009

GARLAND E. BURRELL, JR. United States District Judge

6