Johnson v. Demaray et al

Filing 10

PRETRIAL SCHEDULING ORDER signed by Judge Morrison C. England, Jr., on 9/12/11. All discovery shall be completed BY 7/27/2012. Designation of Expert Witnesses is due BY 9/27/2012. The last day to hear dispositive motions shall BE 1/24/2013. The Fi nal Pretrial Conference is SET for 4/4/2013 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr. Joint Final Pretrial Conference Statement shall BE filed, not later than 3/14/2013. Trial briefs shall BE filed not later than 3/21/2 013. Any evidentiary or procedural motions are to be filed BY 3/14/2013, oppositions due BY 3/21/2013, and any reply is due BY 3/28/2013. A Bench Trial is SET for 5/28/2013 at 09:00 AM in Courtroom 7 (MCE) before Judge Morrison C. England, Jr.; and is estimated to last three days. Case Referred to VDRP. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:11-cv-01091-MCE-DAD

Plaintiff,

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v.

PRETRIAL SCHEDULING ORDER

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DALE DEMARAY,

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Defendant.
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After reviewing the parties’ Joint Status Report, the Court
makes the following Pretrial Scheduling Order.

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I.

SERVICE OF PROCESS

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All named Defendants have been served and no further service

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is permitted without leave of court, good cause having been

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shown.

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II.

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No joinder of parties or amendments to pleadings is

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ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS

permitted without leave of court, good cause having been shown.

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III. JURISDICTION/VENUE

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Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343 and

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1367.

Jurisdiction and venue are not contested.
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IV.

DISCOVERY

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All discovery, with the exception of expert discovery, shall

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be completed by July 27, 2012.

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means that all discovery shall have been conducted so that all

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depositions have been taken and any disputes relative to

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discovery shall have been resolved by appropriate order if

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necessary and, where discovery has been ordered, the order has

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been obeyed.

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the magistrate judge’s calendar in accordance with the local

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In this context, “completed”

All motions to compel discovery must be noticed on

rules of this Court.

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V.

DISCLOSURE OF EXPERT WITNESSES

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All counsel are to designate in writing, file with the

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Court, and serve upon all other parties the name, address, and

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area of expertise of each expert that they propose to tender at

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trial not later than September 27, 2012.1

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be accompanied by a written report prepared and signed by the

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witness.

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26(a)(2)(B).

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The designation shall

The report shall comply with Fed. R. Civ. P.

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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.
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Within twenty (20) days after the designation of expert

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witnesses, any party may designate a supplemental list of expert

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witnesses who will express an opinion on a subject covered by an

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expert designated by an adverse party.

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supplemental expert for rebuttal purposes only shall apply to a

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party who has not previously disclosed an expert witness on the

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date set for expert witness disclosure by this Pretrial

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Scheduling Order.

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The right to designate a

Failure of a party to comply with the disclosure schedule as

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set forth above in all likelihood will preclude that party from

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calling the expert witness at the time of trial.

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witness not appearing on the designation will not be permitted to

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testify unless the party offering the witness demonstrates:

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(a) that the necessity for the witness could not have been

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reasonably anticipated at the time the list was proffered;

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(b) that the Court and opposing counsel were promptly notified

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upon discovery of the witness; and (c) that the witness was

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promptly made available for deposition.

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An expert

For purposes of this Pretrial Scheduling Order, an “expert”

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is any person who my be used at trial to present evidence under

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Rules 702, 703, and 705 of the Federal Rules of Evidence, which

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include both “percipient experts” (persons who, because of their

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expertise, have rendered expert opinions in the normal course of

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their work duties or observations pertinent to the issues in the

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case) and “retained experts” (persons specifically designated by

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a party to be a testifying expert for the purposes of

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litigation).

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Each party shall identify whether a disclosed expert is

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percipient, retained, or both.

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designating a retained expert has acquired the express permission

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of the witness to be so listed.

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experts must state in the designation who is responsible for

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arranging the deposition of such persons.

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It will be assumed that a party

Parties designating percipient

All experts designated are to be fully prepared at the time

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of designation to render an informed opinion, and give their

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bases for their opinion, so that they will be able to give full

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and complete testimony at any deposition taken by the opposing

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party.

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to any information gathered or evaluated, or opinion formed,

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after deposition taken subsequent to designation.

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Experts will not be permitted to testify at the trial as

Counsel are instructed to complete all discovery of expert

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witnesses in a timely manner in order to comply with the Court’s

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deadline for filing dispositive motions.

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VI.

MOTION HEARING SCHEDULE

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The last day to hear dispositive motions shall be

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January 24, 2013.

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filing deadlines:

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The parties shall comply with the following

Dispositive motion

filed at least 8 weeks
prior to hearing

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Opposition and any
cross-motion

filed at least 5 weeks
prior to hearing

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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

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The parties are directed to the Court’s website for
(www.caed.uscourts.gov ÷ choose Court

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available hearing dates.

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Calendar ÷ choose Judge England ÷ choose More Calendaring

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Information)

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All purely legal issues are to be resolved by timely

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pretrial motions.

Failure to comply with Local Rules 230 and

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260, as modified by this Order, may be deemed consent to the

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motion and the Court may dispose of the motion summarily.

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Further, failure to timely oppose a summary judgment motion2 may

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result in the granting of that motion if the movant shifts the

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burden to the nonmovant to demonstrate that a genuine issue of

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material fact remains for trial.

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The Court places a page limit for points and authorities

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(exclusive of exhibits and other supporting documentation) of

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twenty (20) pages on all initial moving papers, twenty (20) pages

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on oppositions, and ten (10) pages for replies.

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page limit increases must be made in writing to the Court setting

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forth any and all reasons for any increase in page limit at least

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fourteen (14) days prior to the filing of the motion.

All requests for

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For the Court’s convenience, citations to Supreme Court

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cases should include parallel citations to the Supreme Court

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Reporter.

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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.
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The parties are reminded that a motion in limine is a

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pretrial procedural device designed to address the admissibility

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of evidence.

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dispositional motions presented at the Final Pretrial Conference

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or at trial in the guise of motions in limine.

The Court will look with disfavor upon

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The parties are cautioned that failure to raise a

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dispositive legal issue that could have been tendered to the

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court by proper pretrial motion prior to the dispositive motion

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cut-off date may constitute waiver of such issue.

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VII. FINAL PRETRIAL CONFERENCE

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The Final Pretrial Conference is set for April 4, 2013, at

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2:00 p.m.

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trial for each of the parties shall attend the Final Pretrial

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Conference.

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circumstance a trial attorney is unable to attend, the attorney

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who attends in place of the trial attorney shall have equal

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familiarity with the case and equal authorization to make

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commitments on behalf of the client.

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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

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at the time of the Final Pretrial Conference, with no matters

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remaining to be accomplished except production of witnesses for

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oral testimony.

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The parties shall file, not later than March 14, 2013, a

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Joint Final Pretrial Conference Statement.

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Local Rules 281 shall apply with respect to the matters to be

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included in the Joint Final Pretrial Conference Statement.

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addition to those subjects listed in Local Rule 281(b), the

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parties are to provide the Court with a plain, concise statement

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that identifies every non-discovery motion tendered to the Court

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and its resolution.

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modified by this Pretrial Scheduling Order, may be grounds for

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The provisions of

In

Failure to comply with Local Rule 281, as

sanctions.
At the time of filing the Joint Final Pretrial Conference

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Statement, counsel shall also electronically mail to the Court in

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digital format compatible with Microsoft Word or WordPerfect, the

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Joint Final Pretrial Conference Statement in its entirety

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including the witness and exhibit lists.

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be sent to: [e-mail].

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These documents shall

The parties should identify first the core undisputed facts

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relevant to all claims.

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manner, identify those undisputed core facts that are relevant to

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each claim.

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manner.

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disputed facts are properly before the Court for trial, they

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should nevertheless list all disputed facts asserted by each

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party.

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separately numbered or lettered.

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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

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evidentiary issue which will be the subject of a motion in

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limine.
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Each party shall identify the points of law which concisely

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describe the legal issues of the trial which will be discussed in

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the parties’ respective trial briefs.

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reflect issues derived from the core undisputed and disputed

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facts.

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any point of law.

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Points of law should

Parties shall not include argument or authorities with

The parties are reminded that pursuant to Local Rule 281

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they are required to list in the Joint Final Pretrial Conference

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Statement all witnesses and exhibits they propose to offer at

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trial.

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a brief statement of the nature of the testimony to be proffered.

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The parties may file a joint list or each party may file separate

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lists.

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Joint Final Pretrial Conference Statement itself, but shall be

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attached as separate documents to be used as addenda to the Final

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Pretrial Order.

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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.

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Defendant’s exhibits shall be listed alphabetically.

The parties

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shall use the standard exhibit stickers provided by the Court

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Clerk’s Office: pink for plaintiff and blue for defendant.

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the event that the alphabet is exhausted, the exhibits shall be

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marked “AA-ZZ” and “AAA-ZZZ” etc.

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number of letters in parenthesis (i.e., “AAAA(4)”) to reduce

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confusion at trial.

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otherwise fastened together and each page within the exhibit

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shall be numbered.

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In

After three letters, note the

All multi-page exhibits shall be stapled or

All photographs shall be marked individually.

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The list of exhibits shall not include excerpts of depositions,

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which may be used to impeach witnesses.

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Plaintiff and Defendant offer the same exhibit during trial, that

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exhibit shall be referred to by the designation the exhibit is

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first identified.

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attention to this detail so that all concerned will not be

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confused by one exhibit being identified with both a number and a

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letter.

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In the event that

The Court cautions the parties to pay

The Final Pretrial Order will contain a stringent standard

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for the offering at trial of witnesses and exhibits not listed in

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the Final Pretrial Order, and the parties are cautioned that the

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standard will be strictly applied.

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listing of exhibits or witnesses that a party does not intend to

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offer will be viewed as an abuse of the court’s processes.

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On the other hand, the

The parties also are reminded that pursuant to Rule 16 of

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the Federal Rules of Civil Procedure it will be their duty at the

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Final Pretrial Conference to aid the Court in: (a) the

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formulation and simplification of issues and the elimination of

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frivolous claims or defenses; (b) the settling of facts that

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should properly be admitted; and (c) the avoidance of unnecessary

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proof and cumulative evidence.

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prepare the Joint Final Pretrial Conference Statement and

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participate in good faith at the Final Pretrial Conference with

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these aims in mind.

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imposition of sanctions which may include monetary sanctions,

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orders precluding proof, elimination of claims or defenses, or

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such other sanctions as the Court deems appropriate.

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Counsel must cooperatively

A failure to do so may result in the

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VIII.

TRIAL BRIEFS

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The parties shall file trial briefs not later than March 21,

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2013.

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content of trial briefs.

Counsel are directed to Local Rule 285 regarding the

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IX.

EVIDENTIARY AND/OR PROCEDURAL MOTIONS

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Any evidentiary or procedural motions are to be filed by

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March 14, 2013.

Oppositions must be filed by March 21, 2013, and

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any reply must be filed by March 28, 2013.

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heard by the Court at the same time as the Final Pretrial

The motions will be

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Conference.

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X.

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The trial is set for May 28, 2013, at 9:00 a.m.

TRIAL SETTING

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be a bench trial.

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Trial will

The parties estimate a trial length of three

(3) days.

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XI.

SETTLEMENT CONFERENCE

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At the Final Pretrial Conference, the Court may set a

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settlement conference if the parties so request.

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settlement conference is requested, the parties are free to

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continue to mediate or attempt to settle the case with the

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understanding that the trial date is a firm date.

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In the event no

In the event a settlement conference is set by the Court,

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counsel are instructed to have a principal with full settlement

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authority present at the Settlement Conference or to be fully

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authorized to settle the matter on any terms.

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calendar days before the settlement conference, counsel for each

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party shall submit to the chambers of the settlement judge a

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confidential Settlement Conference Statement.

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are neither to be filed with the Clerk nor served on opposing
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At least seven (7)

Such statements

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counsel.

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parties that the statement has been submitted.

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judge is not the trial judge, the Settlement Conference Statement

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shall not be disclosed to the trial judge.

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Each party, however, shall serve notice on all other
If the settlement

Notwithstanding the foregoing, the parties may request a

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settlement conference prior to the Final Pretrial Conference if

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they feel it would lead to the possible resolution of the case.

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In the event an early settlement conference date is requested,

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the parties shall file said request jointly, in writing.

The

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request must state whether the parties waive disqualification,

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pursuant to Local Rule 270(b), before a settlement judge can be

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assigned to the case.

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requesting that the assigned Judge or Magistrate Judge

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participate in the settlement conference AND waiver, pursuant to

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Local Rule 270(b), a settlement judge will be randomly assigned

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to the case.

Absent the parties’ affirmatively

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XII. VOLUNTARY DISPUTE RESOLUTION PROGRAM

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Upon the stipulation of the parties in their July 12, 2011,

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Joint Status Report, this matter is hereby referred to the

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Voluntary Dispute Resolution Program.

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XIII.

MODIFICATION OF PRETRIAL SCHEDULING ORDER

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

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Federal Rules of Civil Procedure, the Pretrial Scheduling Order

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shall not be modified except by leave of court upon a showing of

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good cause.

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alone to modify the Pretrial Scheduling Order does not constitute

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good cause.

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unavailability of witnesses or counsel will not constitute good

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cause.

Agreement by the parties pursuant to stipulation

Except in extraordinary circumstances,

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XIV. OBJECTIONS TO PRETRIAL SCHEDULING ORDER

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This Pretrial Scheduling Order will become final without

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further order of the Court unless objections are filed within

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seven (7) court days of service of this Order.

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IT IS SO ORDERED.
Dated: September 12, 2011

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MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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