J & J Sports Productions, Inc. v. Salim et al

Filing 39

ORDER to SHOW CAUSE and CONTINUING FINAL PRETRIAL CONFERENCE signed by Judge Garland E. Burrell, Jr on 11/19/13: Show Cause Response in writing due by 12/2/2013. If a hearing is requested, it will be held on 12/10/2013 at 01:30 PM in Courtroom 10 ( GEB) before Judge Garland E. Burrell Jr. Defendant is warned that the failure to timely respond to this order and/or other court orders could result in sanctions, including the striking of Defendant's Answer filed 4/4/12, and the entry of defa ult by the Clerk of the Court. Final Pretrial Conference RESET for 1/13/2014 at 11:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. A joint final pretrial statement shall be filed no later than 7 days prior to the conference. (Meuleman, A)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7
8

J & J SPORTS PRODUCTIONS,
INC.,
Plaintiff,

9
10
11
12

No. 2:11-cv-02440-GEB-AC

ORDER TO SHOW CAUSE AND
CONTINUING FINAL PRETRIAL
CONFERENCE

v.
HUMBERTO LEON SANCHEZ, JR.,
individually and d/b/a
DISCOTECA SANCHEZ,
Defendant.

13

The

14

May

9,

2012

Status

(Pretrial

Scheduling)

Order

15

scheduled a final pretrial conference in this case for November

16

25, 2013. The Status Order required the parties to file a joint

17

final pretrial statement “no later than seven (7) calendar days

18

prior to the final pretrial conference.” (Status Order 3:3-4, ECF

19

No. 23.) Plaintiff filed a Pretrial Conference Statement (“PCS”)

20

on November 15, 2013, in which it states in relevant part: “This

21

Statement is ‘unilateral’ in nature because, as of this writing,

22

Plaintiff’s counsel’s efforts to secure defendant Humberto Leon

23

Sanchez, Jr.’s input and assent to a joint pretrial conference

24

statement

have

25

Defendant

did

26

Further, review of the docket reflects that Defendant has not

27

participated

in

28

permitted

withdraw

to

been
not

unavailing.”

file

this

a

separate

action
on

(PCS

since

October
1

1,

1:22-24,

final

his

ECF

pretrial

former

2012.

No.

36.)

statement.

counsel

Defendant

did

was
not

1

appear at a Status Conference held by Magistrate Judge Carolyn K

2

Delaney on November 7, 2012. (Minutes, ECF No. 33.) Further,

3

Defendant

4

November 8, 2012 Order, which required Defendant to “provide to

5

[P]laintiff’s counsel a phone number at which [D]efendant can be

6

reached

7

(Order 1:18-21, ECF No. 34.)

failed

so

that

to

respond

settlement

to

Magistrate

discussions

may

Judge

be

Delaney’s

facilitated.”

8

Therefore, Defendant is Ordered to Show Cause (“OSC”)

9

in a writing to be filed no later than December 2, 2013, why

10

sanctions should not be imposed against him under Rule 16(f) of

11

the Federal Rules of Civil Procedure for failure to file a timely

12

final pretrial statement and/or for his failure to follow court

13

orders.

14

hearing is requested on the OSC. If a hearing is requested, it

15

will be held on December 10, 2013, at 1:30 p.m. Defendant is

16

warned that the failure to timely respond to this order and/or

17

other

18

striking of Defendant’s Answer filed April 4, 2012, and the entry

19

of default by the Clerk of the Court. See e.g., Dreith v. Nu

20

Image, Inc., 648 F.3d 779, 787-88 (9th Cir. 2011) (affirming

21

district

22

Philips Corp. v. KXD Tech., Inc., No. 2:05-cv-08953-ER-PLAx, 2007

23

WL 4984153, at *3-4 (C.D. Cal. July 27, 2007) (striking answer

24

and entering default as a sanction).

Defendant’s

court

orders

court’s

written

could

response

result

imposition

of

in

shall

state

sanctions,

default

as

a

whether

including

sanction);

a

the

U.S.

25

Further, the final pretrial conference is rescheduled

26

to commence at 11:00 a.m. on January 13, 2014. A joint final

27

pretrial statement shall be filed no later than seven (7) days

28
2

conference.1

1

prior

2

statement shall address the applicable portions of Local Rule

3

281(b), and shall set forth each theory of liability (“claim”)

4

and

5

ultimate

6

Furthermore, each party shall estimate the length of trial. The

7

Court uses the parties’ joint pretrial statement to prepare its

8

final pretrial order and could issue the final pretrial order

9

without

to

the

final

affirmative
facts

holding

pretrial

defense
on

the

which

which

remains

each

scheduled

to

The

be

joint

tried,

theory/defense

final

pretrial

is

pretrial

and

the

based.

conference.

See

10

Mizwicki v. Helwig, 196 F.3d 828, 833 (7th Cir. 1999) (“There is

11

no requirement that the court hold a pretrial conference.”).

12

Final pretrial procedures are “critical for ‘promoting

13

efficiency and conserving judicial resources by identifying the

14

real issues prior to trial, thereby saving time and expense for

15

everyone.’” Friedman & Friedman, Ltd. v. Tim McCandless, Inc.,

16

606 F.3d 494 (8th Cir. 2010) (quoting Fed. R. Civ. P. 16 Advisory

17

Committee Note (1983 Amendment to subdivision (c)). “Toward that

18

end, Rule 16 directs courts to use pretrial conferences to weed

19

out unmeritorious claims and defenses before trial begins.” Smith

20

v. Gulf Oil Co., 995 F.2d 638, 642 (6th Cir. 1993). The parties

21

are therefore provided notice that a claim or affirmative defense

22

may be dismissed sua sponte if it is not shown to be triable in

23

the joint final pretrial statement. Cf. Portland Retail Druggists

24

Ass’n v. Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir.

25

1

26
27
28

The failure of one or
preparation of a joint final
party from his/its obligation
with this Order. In the event
party timely submitting the
declaration explaining why it
other party.

more of the parties to participate in the
pretrial statement does not excuse the other
to timely file a status report in accordance
a party fails to participate as ordered, the
final pretrial conference shall include a
was unable to obtain the cooperation of the

3

1

1981) (indicating that a party shall be provided notice and an

2

opportunity to respond with facts sufficient to justify having a

3

claim

4

Square, Inc. v. S’holders Protective Comm., 770 F.2d 866, 869

5

(9th Cir. 1985) (stating “the district court has . . . authority

6

to grant summary judgment sua sponte in the context of a final

7

pretrial conference”).

or

affirmative

defense

proceed

to

trial);

Portsmouth

8

If feasible, at the time of filing the joint pretrial

9

statement counsel shall also email it in a format compatible with

10

WordPerfect to: [e-mail].

11

IT IS SO ORDERED.

12

Dated:

November 19, 2013

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4