Arrow Electronics, Inc. v. Logical Design, Inc.

Filing 13

PRETRIAL SCHEUDLING ORDER signed by Judge Morrison C. England, Jr., on 9/7/11. All discovery shall be completed BY 8/3/2012. Designation of Expert Witnesses is due BY 10/3/2012. The last day to hear dispositive motions shall BE 2/7/2013. The Final P retrial Conference is SET for 4/4/2013 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr.. The parties' joint final pretrial conference statement shall be filed BY 3/14/2013. The parties shall FILE trial briefs not later than 3/21/2013. Any evidentiary or procedural motions are to be filed BY 3/14/2013, oppositions must be filed BY 3/21/2013, and any reply must be filed BY 3/28/2013. A Jury Trial is SET for 6/3/2013 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr.. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARROW ELECTRONICS, INC., 12 13 No. 2:11-cv-00845-MCE-GGH Plaintiff, v. PRETRIAL SCHEDULING ORDER 14 LOGICAL DESIGN, 15 Defendant. ___________________________/ 16 17 18 After reviewing the parties’ Joint Status Report, the Court makes the following Pretrial Scheduling Order. 19 I. SERVICE OF PROCESS 20 All named Defendants have been served and no further service 21 is permitted without leave of court, good cause having been 22 shown. 23 II. 24 No joinder of parties or amendments to pleadings is 25 ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS permitted without leave of court, good cause having been shown. 26 III. JURISDICTION/VENUE 27 Jurisdiction is predicated upon 28 U.S.C. § 1332(a). 28 Jurisdiction and venue are not contested. 1 1 IV. DISCOVERY 2 All discovery, with the exception of expert discovery, shall 3 be completed by August 3, 2012. 4 means that all discovery shall have been conducted so that all 5 depositions have been taken and any disputes relative to 6 discovery shall have been resolved by appropriate order if 7 necessary and, where discovery has been ordered, the order has 8 been obeyed. 9 the magistrate judge’s calendar in accordance with the local 10 In this context, “completed” All motions to compel discovery must be noticed on rules of this Court. 11 V. DISCLOSURE OF EXPERT WITNESSES 12 All counsel are to designate in writing, file with the 13 Court, and serve upon all other parties the name, address, and 14 area of expertise of each expert that they propose to tender at 15 trial not later than October 3, 2012.1 16 accompanied by a written report prepared and signed by the 17 witness. 18 26(a)(2)(B). 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// The designation shall be The report shall comply with Fed. R. Civ. P. 26 1 27 28 The discovery of experts will include whether any motions based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and/or Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167 (1999) are anticipated. 2 1 Within twenty (20) days after the designation of expert 2 witnesses, any party may designate a supplemental list of expert 3 witnesses who will express an opinion on a subject covered by an 4 expert designated by an adverse party. 5 supplemental expert for rebuttal purposes only shall apply to a 6 party who has not previously disclosed an expert witness on the 7 date set for expert witness disclosure by this Pretrial 8 Scheduling Order. 9 The right to designate a Failure of a party to comply with the disclosure schedule as 10 set forth above in all likelihood will preclude that party from 11 calling the expert witness at the time of trial. 12 witness not appearing on the designation will not be permitted to 13 testify unless the party offering the witness demonstrates: 14 (a) that the necessity for the witness could not have been 15 reasonably anticipated at the time the list was proffered; 16 (b) that the Court and opposing counsel were promptly notified 17 upon discovery of the witness; and (c) that the witness was 18 promptly made available for deposition. 19 An expert For purposes of this Pretrial Scheduling Order, an “expert” 20 is any person who my be used at trial to present evidence under 21 Rules 702, 703, and 705 of the Federal Rules of Evidence, which 22 include both “percipient experts” (persons who, because of their 23 expertise, have rendered expert opinions in the normal course of 24 their work duties or observations pertinent to the issues in the 25 case) and “retained experts” (persons specifically designated by 26 a party to be a testifying expert for the purposes of 27 litigation). 28 /// 3 1 Each party shall identify whether a disclosed expert is 2 percipient, retained, or both. 3 designating a retained expert has acquired the express permission 4 of the witness to be so listed. 5 experts must state in the designation who is responsible for 6 arranging the deposition of such persons. 7 It will be assumed that a party Parties designating percipient All experts designated are to be fully prepared at the time 8 of designation to render an informed opinion, and give their 9 bases for their opinion, so that they will be able to give full 10 and complete testimony at any deposition taken by the opposing 11 party. 12 to any information gathered or evaluated, or opinion formed, 13 after deposition taken subsequent to designation. 14 Experts will not be permitted to testify at the trial as Counsel are instructed to complete all discovery of expert 15 witnesses in a timely manner in order to comply with the Court’s 16 deadline for filing dispositive motions. 17 VI. MOTION HEARING SCHEDULE 18 The last day to hear dispositive motions shall be 19 February 7, 2013. 20 filing deadlines: 21 The parties shall comply with the following Dispositive motion filed at least 8 weeks prior to hearing 23 Opposition and any cross-motion filed at least 5 weeks prior to hearing 24 Reply and opposition to cross-motion filed at least 3 weeks prior to hearing Reply to cross-motion filed at least 1 week prior to hearing 22 25 26 27 /// 28 /// 4 1 The parties are directed to the Court’s website for ( ÷ choose Court 2 available hearing dates. 3 Calendar ÷ choose Judge England ÷ choose More Calendaring 4 Information) 5 All purely legal issues are to be resolved by timely 6 pretrial motions. Failure to comply with Local Rules 230 and 7 260, as modified by this Order, may be deemed consent to the 8 motion and the Court may dispose of the motion summarily. 9 Further, failure to timely oppose a summary judgment motion2 may 10 result in the granting of that motion if the movant shifts the 11 burden to the nonmovant to demonstrate that a genuine issue of 12 material fact remains for trial. 13 The Court places a page limit for points and authorities 14 (exclusive of exhibits and other supporting documentation) of 15 twenty (20) pages on all initial moving papers, twenty (20) pages 16 on oppositions, and ten (10) pages for replies. 17 page limit increases must be made in writing to the Court setting 18 forth any and all reasons for any increase in page limit at least 19 fourteen (14) days prior to the filing of the motion. All requests for 20 For the Court’s convenience, citations to Supreme Court 21 cases should include parallel citations to the Supreme Court 22 Reporter. 23 /// 24 /// 25 /// 26 27 28 2 The Court urges any party that contemplates bringing a motion for summary judgment or who must oppose a motion for summary judgment to review Local Rule 260. 5 1 The parties are reminded that a motion in limine is a 2 pretrial procedural device designed to address the admissibility 3 of evidence. 4 dispositional motions presented at the Final Pretrial Conference 5 or at trial in the guise of motions in limine. The Court will look with disfavor upon 6 The parties are cautioned that failure to raise a 7 dispositive legal issue that could have been tendered to the 8 court by proper pretrial motion prior to the dispositive motion 9 cut-off date may constitute waiver of such issue. 10 VII. FINAL PRETRIAL CONFERENCE 11 The Final Pretrial Conference is set for April 4, 2013, at 12 2:00 p.m. 13 trial for each of the parties shall attend the Final Pretrial 14 Conference. 15 circumstance a trial attorney is unable to attend, the attorney 16 who attends in place of the trial attorney shall have equal 17 familiarity with the case and equal authorization to make 18 commitments on behalf of the client. 19 At least one of the attorneys who will conduct the If by reason of illness or other unavoidable Counsel for all parties are to be fully prepared for trial 20 at the time of the Final Pretrial Conference, with no matters 21 remaining to be accomplished except production of witnesses for 22 oral testimony. The parties shall file, not later than March 14, 2013, a 23 24 Joint Final Pretrial Conference Statement. 25 Local Rules 281 shall apply with respect to the matters to be 26 included in the Joint Final Pretrial Conference Statement. 27 /// 28 /// 6 The provisions of 1 In addition to those subjects listed in Local Rule 281(b), the 2 parties are to provide the Court with a plain, concise statement 3 that identifies every non-discovery motion tendered to the Court 4 and its resolution. 5 modified by this Pretrial Scheduling Order, may be grounds for 6 sanctions. 7 Failure to comply with Local Rule 281, as At the time of filing the Joint Final Pretrial Conference 8 Statement, counsel shall also electronically mail to the Court in 9 digital format compatible with Microsoft Word or WordPerfect, the 10 Joint Final Pretrial Conference Statement in its entirety 11 including the witness and exhibit lists. 12 be sent to: 13 These documents shall The parties should identify first the core undisputed facts 14 relevant to all claims. 15 manner, identify those undisputed core facts that are relevant to 16 each claim. 17 manner. 18 disputed facts are properly before the Court for trial, they 19 should nevertheless list all disputed facts asserted by each 20 party. 21 separately numbered or lettered. 22 The parties should then, in a concise The disputed facts should be identified in the same Where the parties are unable to agree as to what Each disputed fact or undisputed fact should be Each party shall identify and concisely list each disputed 23 evidentiary issue which will be the subject of a motion in 24 limine. 25 /// 26 /// 27 /// 28 /// 7 1 Each party shall identify the points of law which concisely 2 describe the legal issues of the trial which will be discussed in 3 the parties’ respective trial briefs. 4 reflect issues derived from the core undisputed and disputed 5 facts. 6 any point of law. 7 Points of law should Parties shall not include argument or authorities with The parties are reminded that pursuant to Local Rule 281 8 they are required to list in the Joint Final Pretrial Conference 9 Statement all witnesses and exhibits they propose to offer at 10 trial. 11 a brief statement of the nature of the testimony to be proffered. 12 The parties may file a joint list or each party may file separate 13 lists. 14 Joint Final Pretrial Conference Statement itself, but shall be 15 attached as separate documents to be used as addenda to the Final 16 Pretrial Order. 17 After the name of each witness, each party shall provide These list(s) shall not be contained in the body of the Plaintiff’s exhibits shall be listed numerically. 18 Defendant’s exhibits shall be listed alphabetically. The parties 19 shall use the standard exhibit stickers provided by the Court 20 Clerk’s Office: pink for plaintiff and blue for defendant. 21 the event that the alphabet is exhausted, the exhibits shall be 22 marked “AA-ZZ” and “AAA-ZZZ” etc. 23 number of letters in parenthesis (i.e., “AAAA(4)”) to reduce 24 confusion at trial. 25 otherwise fastened together and each page within the exhibit 26 shall be numbered. 27 The list of exhibits shall not include excerpts of depositions, 28 which may be used to impeach witnesses. In After three letters, note the All multi-page exhibits shall be stapled or All photographs shall be marked individually. 8 1 In the event that Plaintiff and Defendant offer the same exhibit 2 during trial, that exhibit shall be referred to by the 3 designation the exhibit is first identified. 4 the parties to pay attention to this detail so that all concerned 5 will not be confused by one exhibit being identified with both a 6 number and a letter. 7 The Court cautions The Final Pretrial Order will contain a stringent standard 8 for the offering at trial of witnesses and exhibits not listed in 9 the Final Pretrial Order, and the parties are cautioned that the 10 standard will be strictly applied. 11 listing of exhibits or witnesses that a party does not intend to 12 offer will be viewed as an abuse of the court’s processes. 13 On the other hand, the The parties also are reminded that pursuant to Rule 16 of 14 the Federal Rules of Civil Procedure it will be their duty at the 15 Final Pretrial Conference to aid the Court in: (a) the 16 formulation and simplification of issues and the elimination of 17 frivolous claims or defenses; (b) the settling of facts that 18 should properly be admitted; and (c) the avoidance of unnecessary 19 proof and cumulative evidence. 20 prepare the Joint Final Pretrial Conference Statement and 21 participate in good faith at the Final Pretrial Conference with 22 these aims in mind. 23 imposition of sanctions which may include monetary sanctions, 24 orders precluding proof, elimination of claims or defenses, or 25 such other sanctions as the Court deems appropriate. 26 /// 27 /// 28 /// Counsel must cooperatively A failure to do so may result in the 9 1 VIII. TRIAL BRIEFS 2 The parties shall file trial briefs not later than March 21, 3 2013. 4 content of trial briefs. Counsel are directed to Local Rule 285 regarding the 5 IX. EVIDENTIARY AND/OR PROCEDURAL MOTIONS 6 Any evidentiary or procedural motions are to be filed by 7 March 14, 2013. Oppositions must be filed by March 21, 2013, and 8 any reply must be filed by March 28, 2013. 9 heard by the Court at the same time as the Final Pretrial The motions will be 10 Conference. 11 X. 12 The trial is set for June 3, 2013, at 9:00 a.m. TRIAL SETTING 13 be a bench trial. 14 Trial will The parties estimate a trial length of five (5) days. 15 XI. SETTLEMENT CONFERENCE 16 At the Final Pretrial Conference, the Court may set a 17 settlement conference if the parties so request. 18 settlement conference is requested, the parties are free to 19 continue to mediate or attempt to settle the case with the 20 understanding that the trial date is a firm date. 21 In the event no In the event a settlement conference is set by the Court, 22 counsel are instructed to have a principal with full settlement 23 authority present at the Settlement Conference or to be fully 24 authorized to settle the matter on any terms. 25 calendar days before the settlement conference, counsel for each 26 party shall submit to the chambers of the settlement judge a 27 confidential Settlement Conference Statement. 28 /// 10 At least seven (7) 1 Such statements are neither to be filed with the Clerk nor served 2 on opposing counsel. 3 all other parties that the statement has been submitted. 4 settlement judge is not the trial judge, the Settlement 5 Conference Statement shall not be disclosed to the trial judge. 6 Each party, however, shall serve notice on If the Notwithstanding the foregoing, the parties may request a 7 settlement conference prior to the Final Pretrial Conference if 8 they feel it would lead to the possible resolution of the case. 9 In the event an early settlement conference date is requested, 10 the parties shall file said request jointly, in writing. The 11 request must state whether the parties waive disqualification, 12 pursuant to Local Rule 270(b), before a settlement judge can be 13 assigned to the case. 14 requesting that the assigned Judge or Magistrate Judge 15 participate in the settlement conference AND waiver, pursuant to 16 Local Rule 270(b), a settlement judge will be randomly assigned 17 to the case. Absent the parties’ affirmatively 18 XII. VOLUNTARY DISPUTE RESOLUTION PROGRAM 19 Pursuant to Local Rule 271 parties will need to lodge a 20 stipulation and proposed order requesting referral to the 21 Voluntary Dispute Resolution Program. 22 XIII. MODIFICATION OF PRETRIAL SCHEDULING ORDER 23 The parties are reminded that pursuant to Rule 16(b) of the 24 Federal Rules of Civil Procedure, the Pretrial Scheduling Order 25 shall not be modified except by leave of court upon a showing of 26 good cause. 27 alone to modify the Pretrial Scheduling Order does not constitute 28 good cause. Agreement by the parties pursuant to stipulation 11 1 Except in extraordinary circumstances, unavailability of 2 witnesses or counsel will not constitute good cause. 3 XIV. OBJECTIONS TO PRETRIAL SCHEDULING ORDER 4 This Pretrial Scheduling Order will become final without 5 further order of the Court unless objections are filed within 6 seven (7) court days of service of this Order. 7 8 IT IS SO ORDERED. Dated: September 7, 2011 9 10 11 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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