Zambrano v. Cellco Partnership

Filing 13

STATUS (PRETRIAL SCHEDULING) ORDER signed by District Judge Kimberly J. Mueller on 07/12/11; Initial Disclosures due by 7/12/2011; Discovery due by 3/15/2012; Designation of Expert Witnesses due by 4/16/2012; Dispositive Motions shall be heard no lat er than 8/22/2012; Joint Pretrial Conference Statement due by 9/19/2012; Final Pretrial Conference set for 10/10/2012 at 11:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller; Trial Briefs due by 11/19/2012; Jury Trial set for 12/3/2012 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. ORDER to SHOW CAUSE: Plaintiffs counsel shall show cause why he should not be sanctioned $250.00 for his failure to appear as ordered within 14 days. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 EDUWIGES ZAMBRANO,
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v.

14 CELLCO PARTNERSHIP, dba VERIZON
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NO. CIV. S-11-0507 KJM KJN

Plaintiff,
STATUS (PRETRIAL SCHEDULING)
ORDER

WIRELESS, et al.,

Defendants.

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ORDER TO SHOW CAUSE

An initial scheduling conference was held in this case on July 6, 2011. There was no

18 appearance entered for plaintiff; Rochelle Wilcox, Davis Wright Tremaine LLP appeared for
19 defendant. Having reviewed the parties’ Joint Status Report filed on June 29, 2011, and
20 discussed a schedule for the case with counsel at the hearing, the court makes the following
21 orders:
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I.

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All named defendants have been served and no further service is permitted without leave

SERVICE OF PROCESS

24 of court, good cause having been shown.
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II.

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No further joinder of parties or amendments to pleadings is permitted without leave of

ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS

27 court, good cause having been shown. See FED. R. CIV. P. 16(b); Johnson v. Mammoth
28 Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).

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III.

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Jurisdiction is predicated upon diversity. Jurisdiction and venue are not disputed.

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IV.

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Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be

JURISDICTION/VENUE

DISCOVERY

5 completed by July 12, 2011. All discovery shall be completed by March 15, 2012. In this
6 context, “completed” means that all discovery shall have been conducted so that all depositions
7 have been taken and any disputes relative to discovery shall have been resolved by appropriate
8 order if necessary and, where discovery has been ordered, the order has been obeyed. All
9 motions to compel discovery must be noticed on the magistrate judge’s calendar in accordance
10 with the local rules of this court.
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V.

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All counsel are to designate in writing, file with the court, and serve upon all other

DISCLOSURE OF EXPERT WITNESSES

13 parties the name, address and area of expertise of each expert that they propose to tender at trial
14 not later than April 16, 2012. The designation shall be accompanied by a written report
15 prepared and signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B).
16 By May 7, 2012, any party who previously disclosed expert witnesses may submit a
17 supplemental list of expert witnesses who will express an opinion on a subject covered by an
18 expert designated by an adverse party, if the party supplementing an expert witness designation
19 has not previously retained an expert to testify on that subject. The supplemental designation
20 shall be accompanied by a written report which shall also comply with the conditions as stated
21 above.
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Failure of a party to comply with the disclosure schedule as set forth above in all

23 likelihood will preclude that party from calling the expert witness at the time of trial. An expert
24 witness not appearing on the designation will not be permitted to testify unless the party offering
25 the witness demonstrates: (a) that the necessity for the witness could not have been reasonably
26 anticipated at the time the list was proffered; (b) that the court and opposing counsel were
27 promptly notified upon discovery of the witness; and (c) that the witness was promptly made
28 available for deposition.
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For purposes of this scheduling order, an “expert” is any person who may be used at trial

2 to present evidence under Rules 702, 703, and 705 of the Federal Rules of Evidence, and
3 includes both “percipient experts” (persons who, because of their expertise, have rendered expert
4 opinions in the normal course of their work duties or observations pertinent to the issues in the
5 case) and “retained experts” (persons specifically designated by a party to be a testifying expert
6 for the purposes of litigation). Each party shall identify whether a disclosed expert is percipient,
7 retained, or both. It will be assumed that a party designating a retained expert has acquired the
8 express permission of the witness to be so listed. Parties designating percipient experts must
9 state in the designation who is responsible for arranging the deposition of such persons.
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All experts designated are to be fully prepared at the time of designation to render an

11 informed opinion, and give their bases for their opinion, so that they will be able to give full and
12 complete testimony at any deposition taken by the opposing party. Experts will not be permitted
13 to testify at the trial as to any information gathered or evaluated, or opinion formed, after
14 deposition taken subsequent to designation. All expert discovery shall be completed by June 15,
15 2012.
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VI.

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All dispositive motions, except motions for continuances, temporary restraining orders or

MOTION HEARING SCHEDULE

18 other emergency applications, shall be heard no later than August 22, 2012. The parties may
19 obtain available hearing dates by calling Casey Schultz, the Courtroom Deputy, at (916) 93020 4193.
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All purely legal issues are to be resolved by timely pretrial motions. Local Rule 230

22 governs the calendaring and procedures of civil motions with the following additions:
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(a)

The opposition and reply must be filed by 4:00 p.m. on the day due; and

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(b)

When the last day for filing an opposition brief falls on a legal holiday, the

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opposition brief shall be filed on the last court day immediately preceding

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the legal holiday.

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1 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to
2 the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651,
3 652-53 (9th Cir. 1994).
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The court places a page limit of twenty (20) pages on all moving papers, twenty (20)

5 pages on oppositions, and ten (10) pages for replies. All requests for page limit increases must
6 be made through the courtroom deputy clerk at least fourteen (14) days prior to the filing of the
7 motion.
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The court requires the parties to submit a joint statement of undisputed facts in

9 connection with any motion for summary judgment. If the nonmoving party refuses to confer
10 about or to join in the statement, the moving party may file a statement of undisputed facts and a
11 declaration explaining why the joint statement was not filed. The court retains the discretion to
12 impose sanctions on any party who fails to participate in the creation and filing of a joint
13 statement of undisputed facts.
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The parties are reminded that a motion in limine is a pretrial procedural device designed

15 to address the admissibility of evidence. The court will look with disfavor upon dispositional
16 motions presented at the Final Pretrial Conference or at trial in the guise of motions in limine.
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The parties are cautioned that failure to raise a dispositive legal issue that could have

18 been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off date
19 may constitute waiver of such issue.
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VII.

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The Final Pretrial Conference is set for October 10, 2012, at 11:00 a.m. At least one of

FINAL PRETRIAL CONFERENCE

22 the attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial
23 Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable
24 to attend, the attorney who attends in place of the trial attorney shall have equal familiarity with
25 the case and equal authorization to make commitments on behalf of the client.
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Counsel for all parties are to be fully prepared for trial at the time of the Final Pretrial

27 Conference, with no matters remaining to be accomplished except production of witnesses for
28 oral testimony. The parties shall confer and file a joint pretrial conference statement by
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1 September 19, 2012. The provisions of Local Rule 281 shall apply with respect to the matters
2 to be included in the joint pretrial statement. In addition to those subjects listed in Local Rule
3 281(b), the parties are to provide the court with a plain, concise statement that identifies every
4 non-discovery motion tendered to the court and its resolution.
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Failure to comply with Local Rule 281, as modified by this order, may be grounds for

6 sanctions.
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Concurrently with the filing of the Joint Final Pretrial Conference Statement, counsel

8 shall submit to chambers the word processing version of the statement, in its entirety (including
9 the witness and exhibit lists) to: [e-mail].
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The parties shall, in a concise manner, jointly identify only undisputed core facts

11 separately that are relevant to each claim. Disputed core facts should then be identified in the
12 same manner. The parties are reminded not to identify every fact in dispute but only those
13 disputed facts that are essential to the formulation of each claim. Each disputed fact and
14 undisputed fact should be separately numbered or lettered. Where the parties are unable to agree
15 what are the core disputed facts, they should nevertheless list core disputed facts in the above
16 manner.
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Each party shall identify and concisely list each disputed evidentiary issue which will be

18 the subject of a party’s motion in limine.
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Each party shall identify the points of law which concisely describe the legal issues of the

20 trial which will be discussed in the parties’ respective trial briefs. Points of law should reflect
21 issues derived from the core undisputed and disputed facts. Parties shall not include argument or
22 authorities with any point of law.
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The parties shall prepare a joint statement of the case in plain concise language which

24 will be read to the jury at the beginning of the trial. The purpose of the joint statement is to
25 inform the jury what the case is about.
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The parties are reminded that pursuant to Local Rule 281 they are required to attach to

27 the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they propose to
28 offer at trial. After the name of each witness, each party shall provide a brief statement of the
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1 nature of the testimony to be proffered. The parties may file a joint list or each party may file
2 separate lists. These list(s) shall not be contained in the body of the Final Pretrial Conference
3 Statement itself, but shall be attached as separate documents to be used as addenda to the Final
4 Pretrial Order.
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Plaintiff’s exhibits shall be listed numerically. Defendant’s exhibits shall be listed

6 alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for
7 plaintiff and blue for defendant. In the event that the alphabet is exhausted, the exhibits shall be
8 marked “AA-ZZ”. However, if the amount of defendant exhibits exceeds "ZZ" exhibits shall be
9 then listed as A-3, A-4, A-5 etc. All multi page exhibits shall be stapled or otherwise fastened
10 together and each page within the exhibit shall be numbered. The list of exhibits shall not
11 include excerpts of depositions, which may be used to impeach witnesses. In the event that
12 plaintiff(s) and defendant(s) offer the same exhibit during trial, that exhibit shall be referred to
13 by the designation the exhibit is first identified. The court cautions the parties to pay attention to
14 this detail so that all concerned, including the jury, will not be confused by one exhibit being
15 identified with both a number and a letter. The parties are encouraged to consult concerning
16 exhibits and, to the extent possible, provide joint exhibits, which shall be designated as JX and
17 listed numerically, e.g., JX-1, JX-2.
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The Final Pretrial Order will contain a stringent standard for the offering at trial of

19 witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the
20 standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a
21 party does not intend to offer will be viewed as an abuse of the court’s processes.
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Counsel shall produce all trial exhibits to Casey Schultz, the Courtroom Deputy, no later

23 than 3:00 p.m. on the Friday before trial.
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Discovery documents to be listed in the pretrial statement shall not include documents

25 which will be used only for impeachment and in rebuttal.
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The parties also are reminded that pursuant to Rule 16 of the Federal Rules of Civil

27 Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the
28 formulation and simplification of issues and the elimination of frivolous claims or defenses; (b)
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1 the settling of facts that should properly be admitted; and (c) the avoidance of unnecessary proof
2 and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial
3 Conference Statement and participate in good faith at the Final Pretrial Conference with these
4 aims in mind.1 A failure to do so may result in the imposition of sanctions which may include
5 monetary sanctions, orders precluding proof, elimination of claims or defenses, or such other
6 sanctions as the court deems appropriate.
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VIII.

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The trial is set for December 3, 2012 at 9:00 a.m. Trial will be by jury. The parties

TRIAL SETTING

9 estimate a trial length of approximately five to seven days. Trial briefs are due by November
10 19, 2012.
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IX.

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No settlement conference is currently scheduled. A settlement conference may be set at

SETTLEMENT CONFERENCE

13 the time of the Final Pretrial Conference or at an earlier time at the parties’ request. In the event
14 that an earlier settlement conference date or referral to the Voluntary Dispute Resolution
15 Program (VDRP) is requested, the parties shall file said request jointly, in writing. Because the
16 case will be tried to a jury, all parties should be prepared to advise the court whether they will
17 stipulate to the trial judge acting as settlement judge and waive disqualification by virtue thereof.
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Counsel are instructed to have a principal with full settlement authority present at the

19 Settlement Conference or to be fully authorized to settle the matter on any terms. At least seven
20 (7) calendar days before the Settlement Conference, counsel for each party shall submit to the
21 chambers of the settlement judge a confidential Settlement Conference Statement. Such
22 statements are neither to be filed with the Clerk nor served on opposing counsel. Each party,
23 however, shall serve notice on all other parties that the statement has been submitted. If the
24 settlement judge is not the trial judge, the Settlement Conference Statement shall not be
25 disclosed to the trial judge.
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“If the pretrial conference discloses that no material facts are in dispute and that the

27 undisputed facts entitle one of the parties to judgment as a matter of law,” the court may

summarily dispose of the case or claims. Portsmouth Square v. Shareholders Protective Comm.,

28 770 F.2d 866, 868-69 (9th Cir. 1985).

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X.

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The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil

MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER

3 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court
4 upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not
5 constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or
6 counsel does not constitute good cause.
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XI.

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This Status Order will become final without further order of the court unless objections

OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER

9 are filed within fourteen (14) calendar days of service of this Order.
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XII. ORDER TO SHOW CAUSE

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Counsel for plaintiff did not appear at the pretrial scheduling conference despite this

12 court’s order of February 23, 2011 which directed the parties to appear in person through lead
13 counsel. ECF No. 4 ¶ 1. Within fourteen days of the date of this order, plaintiff’s counsel shall
14 show cause why he should not be sanctioned $250.00 for his failure to appear as ordered.
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IT IS SO ORDERED.

16 DATED: July 12, 2011.
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UNITED STATES DISTRICT JUDGE

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