Pelletier v. Pacific Webworks, Inc.
AMENDED STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Frank C. Damrell, Jr on 07/15/10. Discovery pre-certification due by 11/30/2010, Discovery post certification due 09/30/11. Designation of Expert Witnesses due by 10/17/2011. Dispositive Mot ions filed by 1/27/2012, Motions filed by 3/25/2011. Motion Hearing set for 4/29/2011 at 10:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Joint pretrial statement due 7 days prior to Final Pretrial Conference set for 4/27/2012 at 02:00 PM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. Jury Trial set for 7/31/2012 at 09:00 AM in Courtroom 2 (FCD) before Judge Frank C. Damrell Jr. (Williams, D) Modified on 7/16/2010 (Krueger, M).
Pelletier v. Pacific Webworks, Inc.
1 2 3 4 5 6 7 8 9 10 11 DEANNA PELLETIER, 12 13 15 16 17 19 20 22 23
v. Plaintiff, NO. CIV. S-09-3503 FCD KJN AMENDED STATUS (PRETRIAL SCHEDULING) ORDER UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
14 PACIFIC WEBWORKS, INC., et. al.,
After reviewing the parties' Stipulation filed on July 15, 2010, the court amends its order
18 as follows:
I. SERVICE OF PROCESS All named defendants have been served and no further service is permitted without leave
21 of court, good cause having been shown.
II. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS No further joinder of parties or amendments to pleadings is permitted without leave of
24 court, good cause having been shown. See Fed. R. Civ. P.16 (b); Johnson v. Mammoth 25 Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). 26 27
III. JURISDICTION/VENUE Jurisdiction is predicated upon 28 U.S.C. § 1332. Jurisdiction and venue are not
2 8 contested.
Discovery pre-certification shall be completed by November 30, 2010, and Discovery
3 post-certification shall be completed by September 30, 2011. In this context, "completed" 4 means that all discovery shall have been conducted so that all depositions have been taken and 5 any disputes relative to discovery shall have been resolved by appropriate order if necessary and, 6 where discovery has been ordered, the order has been obeyed. All motions to compel discovery 7 must be noticed on the magistrate judge's calendar in accordance with the local rules of this 8 court. 9 10 11 12 13 14 15 16 17 18 19 20
(b) (c) V. DISCLOSURE OF EXPERT WITNESSES The Court hereby sets a pre-certification expert witness disclosure schedule as follows: (a) All counsel are to designate in writing, file with the court, and serve upon all other parties the name, address, and area of expertise of each expert that they propose. Pre-certification expert disclosure is due December 15, 2010. The designation shall be accompanied by a written report prepared and signed by the witness; Rebuttals expert disclosures are due by January 5, 2011; and All pre-certification expert discovery shall be completed by February 7, 2011. The Court hereby sets a post-certification expert witness disclosure schedule. All
21 counsel are to designate in writing, file with the court, and serve upon all other parties the name, 22 address, and area of expertise of each expert that they propose to tender at trial not later than 23 October 17, 2011. The designation shall be accompanied by a written report prepared and 24 signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B). By 25 November 7, 2011, any party who previously disclosed expert witnesses may submit a 26 supplemental list of expert witnesses who will express an opinion on a subject covered by an 27 expert designated by an adverse party, if the party supplementing an expert witness designation 28 has not previously retained an expert to testify on that subject. The supplemental designation
1 shall be accompanied by a written report which shall also comply with the conditions as stated 2 above. 3
Failure of a party to comply with the disclosure schedule as set forth above in all
4 likelihood will preclude that party from calling the expert witness at the time of trial. An expert 5 witness not appearing on the designation will not be permitted to testify unless the party offering 6 the witness demonstrates: (a) that the necessity for the witness could not have been reasonably 7 anticipated at the time the list was proffered; (b) that the court and opposing counsel were 8 promptly notified upon discovery of the witness; and (c) that the witness was promptly made 9 available for deposition. 10
For purposes of this scheduling order, an "expert" is any person who my be used at trial
11 to present evidence under Rules 702, 703, and 705 of the Federal Rules of Evidence, which 12 include both "percipient experts" (persons who, because of their expertise, have rendered expert 13 opinions in the normal course of their work duties or observations pertinent to the issues in the 14 case) and "retained experts" (persons specifically designated by a party to be a testifying expert 15 for the purposes of litigation). Each party shall identify whether a disclosed expert is percipient, 16 retained, or both. It will be assumed that a party designating a retained expert has acquired the 17 express permission of the witness to be so listed. Parties designating percipient experts must 18 state in the designation who is responsible for arranging the deposition of such persons. 19
All experts designated are to be fully prepared at the time of designation to render an
20 informed opinion, and give their bases for their opinion, so that they will be able to give full and 21 complete testimony at any deposition taken by the opposing party. Experts will not be permitted 22 to testify at the trial as to any information gathered or evaluated, or opinion formed, after 23 deposition taken subsequent to designation. All post-certification expert discovery shall be 24 completed by December 7, 2011. 25 26 27 28
VI. MOTION HEARING SCHEDULE The Court hereby sets a class motion schedule as follows: (a) Plaintiff's Motion for Class Certification shall be filed by March 25, 2011; 3
1 2 3 4 5
(b) (c) (d)
Defendant's opposition shall be filed by April 15, 2011; Plaintiff's reply shall be filed by April 22, 2011; and The hearing on the motion shall be heard on April 29, 2011, at 10:00 a.m.
All post-certification dispositive motions, except motions for continuances, temporary
6 restraining orders or other emergency applications, shall be heard no later than January 27, 7 2012. The parties may obtain available hearing dates by calling Michele Krueger, Deputy 8 Courtroom Clerk, (916) 930-4163. 9 11 12 13 14
All purely legal issues are to be resolved by timely pretrial motions. Local Rule 230
10 governs the calendaring and procedures of civil motions with the following additions:
(a) (b) The opposition and reply must be filed by 4:00 p.m. on the day due; and When the last day for filing an opposition brief falls on a legal holiday, the opposition brief shall be filed on the last court day immediately preceding the legal holiday.
15 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to 16 the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651, 17 652-53 (9th Cir. 1994). Further, failure to timely oppose a summary judgment motion1 may 18 result in the granting of that motion if the movant shifts the burden to the nonmovant to 19 demonstrate that a genuine issue of material fact remains for trial. Marshall v. Gates, 44 F.3d 20 722 (9th Cir. 1995). 21
The court places a page limit of twenty (20) pages on all initial moving papers, twenty
22 (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases 23 must be made through the courtroom deputy clerk at least fourteen (14) days prior to the filing of 24 the motion. 25 27
For the court's convenience, citations to Supreme Court cases should include parallel
26 citations to the Supreme Court Reporter.
28 or who must oppose a motion for summary judgment to review Local Rule 260.
The court urges any party that contemplates bringing a motion for summary judgment
The parties are reminded that a motion in limine is a pretrial procedural device designed
2 to address the admissibility of evidence. The court will look with disfavor upon dispositional 3 motions (except those noted on page 3) presented at the Final Pretrial Conference or at trial in 4 the guise of motions in limine. 5
The parties are cautioned that failure to raise a dispositive legal issue that could
6 have been tendered to the court by proper pretrial motion prior to the dispositive motion 7 cut-off date may constitute waiver of such issue. 8 9
VII. FINAL PRETRIAL CONFERENCE The Final Pretrial Conference is set for April 27, 2012, at 2:00 p.m. At least one of the
10 attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial 11 Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable 12 to attend, the attorney who attends in place of the trial attorney shall have equal familiarity with 13 the case and equal authorization to make commitments on behalf of the client. 14
Counsel for all parties,, are to be fully prepared for trial at the time of the Final Pretrial
15 Conference, with no matters remaining to be accomplished except production of witnesses for 16 oral testimony. The parties shall confer and file, not later than seven (7) calendar days prior to 17 the Final Pretrial Conference, a joint pretrial statement. The provisions of Local Rules 281 shall 18 apply with respect to the matters to be included in the joint pretrial statement. In addition to 19 those subjects listed in Local Rule 281(b), the parties are to provide the court with a plain, 20 concise statement that identifies every non-discovery motion tendered to the court and its 2 1 resolution. 22 24
Failure to comply with Local Rule 281, as modified by this order, may be grounds for
2 3 sanctions.
Concurrently with the filing of the Joint Final Pretrial Conference Statement,
25 counsel shall submit to chambers the word processing version of the statement, in its 26 entirety (including the witness and exhibit lists) to: email@example.com. 27 The parties shall, in a concise manner, jointly identify only undisputed core facts 28 separately that are relevant to each claim. Disputed core facts should then be identified in
1 the same manner. The parties are reminded not to identify every fact in dispute but only 2 those disputed facts that are essential to the formulation of each claim. Each disputed 3 fact and undisputed fact should be separately numbered or lettered. Where the parties 4 are unable to agree what are the core disputed facts, they should nevertheless list 5 core disputed facts in the above manner. 6 8 Each party shall identify and concisely list each disputed evidentiary issue which
Each party shall identify the points of law which concisely describe the legal issues of the
7 will be the subject of a party's motion in limine. 9 trial which will be discussed in the parties' respective trial briefs. Points of law should reflect 10 issues derived from the core undisputed and disputed facts. Parties shall not include argument 11 or authorities with any point of law. 12
The parties shall prepare a joint statement of the case in plain concise language which
13 will be read to the jury at the beginning of the trial. The purpose of the joint statement is to 14 inform the jury what the case is about. 15
The parties are reminded that pursuant to Local Rule 281 they are required to attach to
16 the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they propose to 17 offer at trial. After the name of each witness, each party shall provide a brief statement of the 18 nature of the testimony to be proffered. The parties may file a joint list or each party may file 19 separate lists. These list(s) shall not be contained in the body of the Final Pretrial Conference 20 Statement itself, but shall be attached as separate documents to be used as addenda to the Final 21 Pretrial Order. 22
Plaintiff's exhibits shall be listed numerically. Defendant's exhibits shall be listed
23 alphabetically. The parties shall use the standard exhibit stickers provided by the court: yellow 24 for plaintiff and blue for defendant. In the event that the alphabet is exhausted, the exhibits shall 25 be marked "AA-ZZ" and "AAA-ZZZ" etc. All multi page exhibits shall be stapled or otherwise 26 fastened together and each page within the exhibit shall be numbered. The list of exhibits shall 27 not include excerpts of depositions, which may be used to impeach witnesses. In the event that 28 plaintiff(s) and defendant(s) offer the same exhibit during trial, that exhibit shall be
1 referred to by the designation the exhibit is first identified. The court cautions the parties 2 to pay attention to this detail so that all concerned, including the jury, will not be confused 3 by one exhibit being identified with both a number and a letter. 4
The Final Pretrial Order will contain a stringent standard for the offering at trial of
5 witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the 6 standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a 7 party does not intend to offer will be viewed as an abuse of the court's processes. 8 10 12
Counsel shall produce all trial exhibits to Michele Krueger, the Courtroom Clerk, no
9 later than 3:00 p.m. on the Friday before trial.
Discovery documents to be listed in the pretrial statement shall not include documents
11 which will be used only for impeachment and in rebuttal.
The parties also are reminded that pursuant to Rule 16 of the Federal Rules of Civil
13 Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the 14 formulation and simplification of issues and the elimination of frivolous claims or defenses; (b) 15 the settling of facts that should properly be admitted; and (c) the avoidance of unnecessary proof 16 and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial 17 Conference Statement and participate in good faith at the Final Pretrial Conference with 18 these aims in mind.2 A failure to do so may result in the imposition of sanctions which may 19 include monetary sanctions, orders precluding proof, elimination of claims or defenses, or such 20 other sanctions as the court deems appropriate. 21 22 24 / / / 25 / / / 26
VIII. TRIAL SETTING The trial is set for July 31, 2012, at 9:00 a.m. Trial will be by jury. The parties estimate
23 a trial length of approximately seven (7) days.
27 undisputed facts entitle one of the parties to judgment as a matter of law," the court may 28 770 F.2d 866, 868-69 (9th Cir. 1985).
"If the pretrial conference discloses that no material facts are in dispute and that the
summarily dispose of the case or claims. Portsmouth Square v. Shareholders Protective Comm., 7
No settlement conference is currently scheduled. A settlement conference may be set at
3 the time of the Final Pretrial Conference or at an earlier time at the parties' request. In the event 4 that an earlier settlement conference date is requested, the parties shall file said request jointly, in 5 writing. If the case will be tried to a jury, all parties should be prepared to advise the court 6 whether they will stipulate to the trial judge acting as settlement judge and waive disqualification 7 by virtue thereof. 8
Counsel are instructed to have a principal with full settlement authority present at the
9 Settlement Conference or to be fully authorized to settle the matter on any terms. At least seven 10 (7) calendar days before the Settlement Conference, counsel for each party shall submit to the 11 chambers of the settlement judge a confidential Settlement Conference Statement. Such 12 statements are neither to be filed with the Clerk nor served on opposing counsel. Each party, 13 however, shall serve notice on all other parties that the statement has been submitted. If the 14 settlement judge is not the trial judge, the Settlement Conference Statement shall not be 15 disclosed to the trial judge. 16 17
X. MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil
18 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court 19 upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not 20 constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or 21 counsel does not constitute good cause. 22 23 25 27 28
8 XI. OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER This Status Order will become final without further order of the court unless objections
24 are filed within fourteen (14) calendar days of service of this Order.
IT IS SO ORDERED.
26 DATED: July 15, 2010
_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE
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