Burns v. Barreto et al

Filing 42

STATUS (PRETRIAL SCHEDULING) ORDER signed by Magistrate Judge Kendall J. Newman on 8/1/11: Discovery is DUE by 4/20/2012. Designation of Expert Witnesses is DUE by 1/13/2012, and rebuttal expert disclosures is DUE by 2/13/2012. Final Pretrial Conference is SET for 11/15/2012 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. Jury Trial is SET for 1/14/2013 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr.. (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY L. BURNS,

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Plaintiff,

No. 2:10-cv-01563 MCE KJN PS

v.
OFCR KEVIN BARRETO
OFCR MARK SIMONSON OF THE
BENICIA POLICE DEPT,

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Defendant.

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

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THAT THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL

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AND PARTIES MUST COMPLY.1 FAILURE TO COMPLY WITH THE TERMS OF THIS

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ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER

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SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN

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ORDER OF JUDGMENT.

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On July 28, 2011, this case was before the undersigned for a status (pretrial
scheduling) conference. Plaintiff, who is proceeding without counsel, appeared on his own

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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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behalf. Attorney Gregg A. Thornton appeared behalf of defendants. The parties filed a joint

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status report in advance of the scheduling conference. Defendant, who is proceeding without

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counsel, appeared on his own behalf. Following the conference, and in consideration of the

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parties’ Joint Status Conference Statement filed July 21, 2011, the court enters the following

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scheduling order:

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NATURE OF CASE

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Plaintiff’s Second Amended Complaint alleges claims pursuant to 42 U.S.C.

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§ 1983, which are premised on alleged violations of plaintiff’s Fourth Amendment rights, against

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officers Kevin Barreto and Mark Simonson of the Benicia Police Department. (See Second Am.

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Compl., Dkt. No. 37.) In essence, plaintiff alleges that on June 28, 2008, officers of the Benicia

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Police Department unlawfully searched plaintiff during a traffic stop and unlawfully used a Taser

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on plaintiff, all of which violated plaintiff’s constitutional rights. (See id. ¶¶ 2(1)-(2).) Although

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plaintiff had alleged a Section 1983 claim against the Benicia Police Department in his prior

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complaints, plaintiff’s Second Amended Complaint and representations at the scheduling

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conference confirm that plaintiff is no longer pursuing such a municipal liability claim.

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SERVICE OF PROCESS

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The parties do not dispute that service of process was proper, and defendants filed

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an answer to plaintiff’s Second Amended Complaint on June 15, 2011. (Answer, Dkt. No. 38.)

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JOINDER OF PARTIES/AMENDMENTS

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No further joinder of parties or amendments to pleadings will be permitted except

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with leave of court and upon a showing of good cause.

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JURISDICTION/VENUE

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Jurisdiction and venue are undisputed and are hereby found to be proper. See 28

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U.S.C. §§ 1331, 1343, and 1391(b).

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MOTION HEARING SCHEDULES

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All law and motion, except as to discovery-related matters, shall be completed by
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June 14, 2012. The word “completed” in this context means that all law and motion matters

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must be heard by the above date. Counsel (and/or pro se parties)2 are cautioned to refer to the

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Local Rules regarding the requirements for noticing such motions on the court’s regularly

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scheduled law and motion calendar. This paragraph does not preclude motions for continuances,

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temporary restraining orders or other emergency applications, and is subject to any special

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scheduling set forth in the “MISCELLANEOUS PROVISIONS” paragraph below.

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The parties should keep in mind that the purpose of law and motion is to narrow

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and refine the legal issues raised by the case and to dispose of by pretrial motion those issues that

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are susceptible to resolution without trial. To accomplish that purpose, the parties need to

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identify and fully research the issues presented by the case, and then examine those issues in light

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of the evidence obtained through discovery. If it appears to counsel after examining the legal

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issues and facts that an issue can be resolved by pretrial motion, counsel are to file the

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appropriate motion consistent with the law and motion cutoff set forth above.

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ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY

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PRETRIAL MOTION. Counsel are reminded that motions in limine are procedural devices

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designed to address the admissibility of evidence. COUNSEL ARE CAUTIONED THAT THE

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COURT WILL LOOK WITH DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED

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UNDER THE GUISE OF MOTIONS IN LIMINE AT THE TIME OF TRIAL.

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DISCOVERY

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To the extent that the parties have not already exchanged initial disclosures

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pursuant to Federal Rule of Civil Procedure 26(a)(1), they shall exchange such initial disclosures

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on or before August 5, 2011. The parties had previously agreed upon an exchange date of July

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21, 2011. Defendants’ counsel represented at the scheduling conference that defendants already

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provided their disclosures to plaintiff. Plaintiff represented that his disclosures are forthcoming.

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Any reference to “counsel” in this order includes parties appearing without counsel,
otherwise referred to as appearing in propria persona or pro se.
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In their joint status report, the parties jointly requested that the number of

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depositions permitted in this case be increased to ten per side, and that the number of

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interrogatories permitted in this case be increased to fifty per side. The parties’ joint request is

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granted.
All discovery shall be completed by April 20, 2012. The word “completed”

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means that all discovery shall have been conducted so that all depositions have been taken and

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any disputes relative to discovery shall have been resolved by appropriate order if necessary and,

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where discovery has been ordered, the order has been complied with. Motions to compel

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discovery must be noticed on the undersigned’s law and motion calendar in accordance with the

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Local Rules and must be heard not later than April 5, 2012. The parties are reminded that

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discovery-related motions must conform to the requirements of the Federal Rules of Civil

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Procedure and this court’s Local Rules, including Local Rule 251.

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EXPERT DISCLOSURES

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The parties are to designate in writing and file with the court, and serve upon all

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other parties, the names of all experts they propose to tender at trial, pursuant to the following

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schedule: initial expert disclosures shall be made on or before January 13, 2012; rebuttal expert

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disclosures shall be made on or before February 13, 2012.

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An expert witness not appearing on such lists will not be permitted to testify

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unless the party offering the witness demonstrates: (a) that the necessity of the witness could not

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have been reasonably anticipated at the time the lists were exchanged; (b) the court and opposing

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counsel were promptly notified upon discovery of the witness; and (c) that the witness was

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promptly proffered for deposition. Failure to provide the information required along with the

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expert designation may lead to preclusion of the expert’s testimony or other appropriate

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sanctions.

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For the purposes of this scheduling order, experts are defined as “percipient” and
“Rule 26” experts. Both types of experts shall be listed. Percipient experts are persons who,
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because of their expertise, have rendered expert opinions in the normal course of their work

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duties or observations pertinent to the issues in the case. Another term for their opinions are

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“historical opinions.” Percipient experts are experts who, unless also designated as Rule 26

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experts, are limited to testifying to their historical opinions and the reasons for them. That is,

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they may be asked to testify about their opinions given in the past and the whys and wherefores

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concerning the development of those opinions. However, they may not be asked to render a

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current opinion for the purposes of the litigation.

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Rule 26 experts, who may also be percipient experts, shall be specifically
designated by a party to be a testifying expert for the purposes of the litigation. A Rule 26 expert

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may express opinions formed for the purposes of the litigation. A party designating a Rule 26

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expert will be assumed to have acquired the express permission of the witness to be so listed.

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The parties shall comply with the information disclosure provisions of Federal

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Rule of Civil Procedure 26(a)(2) for any expert, who is in whole or in part designated as a

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Rule 26 expert. This information is due at the time of designation. Failure to supply the required

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information may result in the Rule 26 expert being stricken. All Rule 26 experts are to be fully

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prepared to render an informed opinion at the time of designation so that they may fully

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participate in any deposition taken by the opposing party. Rule 26 experts will not be permitted

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to testify at trial as to any information gathered or evaluated, or opinion formed, which should

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have been reasonably available at the time of designation. The court will closely scrutinize for

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discovery abuse opinions offered at deposition that differ markedly in nature and/or in bases from

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those expressed in the mandatory information disclosure.

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FINAL PRETRIAL CONFERENCE

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The final pretrial conference is set before United States District Morrison C.

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England, Jr. on November 15, 2012, at 2:00 p.m., in Courtroom No. 7. Counsel are cautioned

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that counsel appearing at the pretrial conference will in fact try the matter. Counsel for all parties

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are to be fully prepared for trial at the time of the pretrial conference, with no matters remaining
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to be accomplished except production of witnesses for oral testimony. Counsel are referred to

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Local Rules 281 and 282 relating to pretrial statements and conferences. A FAILURE TO

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COMPLY WITH LOCAL RULES 281 AND 282 WILL BE GROUNDS FOR SANCTIONS.

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Notwithstanding Local Rule 281, the parties shall submit a joint pretrial statement

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not later than fourteen (14) days prior to the pretrial conference. The joint pretrial statement shall

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conform with the requirements of Local Rule 281(b). The undisputed facts and disputed factual

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issues shall be set forth in two separate sections. The parties should identify those facts which

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are relevant to each separate cause of action. In this regard, the parties are to number each

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individual fact or factual issues. Where the parties are unable to agree as to what factual issues

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are properly before the court for trial, they should nevertheless list in the section on “DISPUTED

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FACTUAL ISSUES” all issues asserted by any of the parties and explain by parenthetical the

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controversy concerning each issue. The parties should keep in mind that, in general, each fact

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should relate or correspond to an element of the relevant cause of action. The parties should also

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keep in mind that the purpose of listing the disputed factual issues is to apprise the court and all

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parties about the precise issues that will be litigated at trial. The court is not interested in a

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listing of all evidentiary facts underlying the issues that are in dispute.3 The joint statement of

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undisputed facts and disputed factual issues is to be filed with the court concurrently with the

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filing of the joint pretrial statement.

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Pursuant to Local Rule 281(b), the parties are required to provide with their

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pretrial statement a list of witnesses and exhibits that they propose to proffer at trial, no matter

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for what purpose. These lists shall not be contained in the pretrial statement itself, but shall be

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attached as separate documents to be used as addenda to the final pretrial order. Plaintiff’s

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exhibits shall be listed numerically; defendants’ exhibits shall be listed alphabetically. The

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pretrial order will contain a stringent standard for the proffering of witnesses and exhibits at trial

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However, with respect to the listing of undisputed facts, the court will accept agreements
as to evidentiary facts.
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not listed in the pretrial order. Counsel are cautioned that the standard will be strictly applied.

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On the other hand, the listing of exhibits or witnesses which counsel do not intend or use will be

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viewed as an abuse of the court’s processes.

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Counsel (and pro se parties) are reminded that, pursuant to Federal Rule of Civil

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Procedure 16, it will be their duty at the pretrial conference to aid the court in: (a) formulation

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and simplification of issues and the elimination of meritless claims or defenses; (b) settling of

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facts that should be properly admitted; and (c) avoidance of unnecessary proof and cumulative

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evidence. The parties must prepare their joint pretrial statement and participate in good faith at

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the pretrial conference with these aims in mind. A FAILURE TO DO SO MAY RESULT IN

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THE IMPOSITION OF SANCTIONS, which may include monetary sanctions, orders precluding

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proof, eliminations of claims or defenses, or such other sanctions as the court deems appropriate.

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TRIAL SETTING

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All parties have demanded a jury trial in this case. Accordingly, a jury trial is set

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to commence before Judge England on January 14, 2013, at 9:00 a.m., in Courtroom No. 7. The

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court anticipates that the trial will take approximately five trial days.

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SETTLEMENT CONFERENCE & VOLUNTARY DISPUTE RESOLUTION PROGRAM

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From the representations in the joint status report, it appears that the parties are

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amenable to settlement discussions of some type. Once the parties believe that a settlement

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conference would be beneficial, they shall file with the court a written stipulation to participate in

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a proposed settlement conference. The parties shall conduct any settlement conference before a

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magistrate judge other than the undersigned unless the parties stipulate to the undersigned acting

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as the settlement judge and also file written waivers of any disqualification by virtue thereof.

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The parties shall file settlement conference statements drafted in conformity with Local Rule 270

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no later than fourteen days before any settlement conference.

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The court’s Voluntary Dispute Resolution Program (“VDRP”) is unavailable
unless all parties are represented by an attorney. See E. Dist. Local Rule 271(a)(2). As plaintiff
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is proceeding pro se, no referral to VDRP may be made at this time.

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MISCELLANEOUS PROVISIONS

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The parties are reminded that pursuant to Federal Rule of Civil

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Procedure 16(b)(4), this order shall not be modified except by leave of court upon a showing of

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“good cause.” See, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).

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The parties and counsel are cautioned that changes to any of the scheduled dates might result in

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changes to all other dates. Thus, even where good cause has been shown, the court will not grant

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a request to change the discovery cutoff date without modifying the pretrial and trial dates.

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Mere agreement by the parties pursuant to a stipulation does not constitute good

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cause. Nor does the unavailability of witnesses or counsel, except in extraordinary

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circumstances, constitute good cause.

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IT IS SO ORDERED.

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DATED: August 1, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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