Dei Rossi, et al v. Whirlpool Corporation, et al
Filing
88
PRETRIAL SCHEDULING ORDER signed by District Judge Troy L. Nunley on 12/20/13: Designation of Expert Witnesses due by 5/26/2015. Discovery due by 3/26/2015. Dispositive Motions filed by 8/27/2015. Final Pretrial Conference set for 11/19/2015 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. Jury Trial set for 1/25/2016 at 09:00 AM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Kaminski, H)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
12
13
KYLE DEI ROSSI and MARK
LINTHICUM, individually and
on behalf of all others
similarly situated,
Plaintiff,
14
Defendant.
18
After reviewing the parties’ Joint Status Report, the Court
makes the following Pretrial Scheduling Order.
20
I.
21
22
23
is permitted without leave of court, good cause having been
shown.
II.
25
27
SERVICE OF PROCESS
All named Defendants have been served and no further service
24
26
PRETRIAL SCHEDULING ORDER
WHIRLPOOL CORPORATION,
17
19
2:12-cv-0125-TLN-CKD
v.
15
16
No.
ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS
No joinder of parties or amendments to pleadings is
permitted without leave of court, good cause having been shown.
///
28
1
1
III.
2
Jurisdiction is predicated upon 28 U.S.C. sections 1331.
3
JURISDICTION/VENUE
Jurisdiction and venue are not contested.
4
PHASE I
5
6
IV.
CLASS CERTIFICATION
7
The Plaintiff’s motion for class certification shall be
8
filed by July 31, 2014.
9
August 21, 2014.
Defendant’s opposition shall be filed by
Plaintiff’s reply shall be filed by
10
September 11, 2014.
11
September 25, 2014, at 2:00 p.m.
12
The Class Certification Hearing is set for
PHASE II
13
14
V.
DISCOVERY
15
All discovery, with the exception of expert discovery, shall
16
be completed by March 26, 2015.
In this context, “completed”
17
means that all discovery shall have been conducted so that all
18
depositions have been taken and any disputes relative to
19
discovery shall have been resolved by appropriate order if
20
necessary and, where discovery has been ordered, the order has
21
been obeyed.
22
the magistrate judge’s calendar in accordance with the local
23
rules of this Court.
All motions to compel discovery must be noticed on
24
VI.
DISCLOSURE OF EXPERT WITNESSES
25
All counsel are to designate in writing, file with the
26
Court, and serve upon all other parties the name, address, and
27
area of expertise of each expert that they propose to tender at
28
2
1
trial not later than May 26, 2015.1
2
accompanied by a written report prepared and signed by the
3
witness.
4
26(a)(2)(B).
The designation shall be
The report shall comply with Fed. R. Civ. P.
5
Within thirty (30) days after the designation of expert
6
witnesses, any party may designate a supplemental list of expert
7
witnesses who will express an opinion on a subject covered by an
8
expert designated by an adverse party.
9
supplemental expert for rebuttal purposes only shall apply to a
10
party who has not previously disclosed an expert witness on the
11
date set for expert witness disclosure by this Pretrial
12
Scheduling Order.
13
The right to designate a
Failure of a party to comply with the disclosure schedule as
14
set forth above in all likelihood will preclude that party from
15
calling the expert witness at the time of trial.
16
witness not appearing on the designation will not be permitted to
17
testify unless the party offering the witness demonstrates: (a)
18
that the necessity for the witness could not have been reasonably
19
anticipated at the time the list was proffered; (b) that the
20
Court and opposing counsel were promptly notified upon discovery
21
of the witness; and (c) that the witness was promptly made
22
available for deposition.
An expert
23
For purposes of this Pretrial Scheduling Order, an “expert”
24
is any person who may be used at trial to present evidence under
25
Rules 702, 703, and 705 of the Federal Rules of Evidence, which
26
include both “percipient experts” (persons who, because of their
27
1
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.
3
1
expertise, have rendered expert opinions in the normal course of
2
their work duties or observations pertinent to the issues in the
3
case) and “retained experts” (persons specifically designated by
4
a party to be a testifying expert for the purposes of
5
litigation).
6
Each party shall identify whether a disclosed expert is
7
percipient, retained, or both.
It will be assumed that a party
8
designating a retained expert has acquired the express permission
9
of the witness to be so listed.
Parties designating percipient
10
experts must state in the designation who is responsible for
11
arranging the deposition of such persons.
12
All experts designated are to be fully prepared at the time
13
of designation to render an informed opinion, and give their
14
bases for their opinion, so that they will be able to give full
15
and complete testimony at any deposition taken by the opposing
16
party.
17
to any information gathered or evaluated, or opinion formed,
18
after deposition taken subsequent to designation.
19
Experts will not be permitted to testify at the trial as
Counsel are instructed to complete all discovery of expert
20
witnesses in a timely manner in order to comply with the Court’s
21
deadline for filing dispositive motions.
22
VII.
MOTION HEARING SCHEDULE
23
All dispositive motions, except motions for continuances,
24
temporary restraining orders or other emergency applications,
25
shall be heard no later than August 27, 2015.
26
All purely legal issues are to be resolved by timely
27
pretrial motions.
Local Rule 230 governs the calendaring and
28
procedures of civil motions with the following additions:
4
1
(a)
2
The opposition and reply must be filed by 4:00
p.m. on the day due; and
3
(b)
When the last day for filing an opposition brief
4
falls on a legal holiday, the opposition brief
5
shall be filed on the last court day immediately
6
preceding the legal holiday.
7
Failure to comply with Local Rule 230(c), as modified by this
8
order, may be deemed consent to the motion and the court may
9
dispose of the motion summarily.
Further, failure to timely
10
oppose a summary judgment motion2 may result in the granting of
11
that motion if the movant shifts the burden to the nonmovant to
12
demonstrate that a genuine issue of material fact remains for
13
trial.
14
The Court places a page limit for points and authorities
15
(exclusive of exhibits and other supporting documentation) of
16
twenty (20) pages on all initial moving papers, twenty (20) pages
17
on oppositions, and ten (10) pages for replies.
18
page limit increases must be made in writing to the Court setting
19
forth any and all reasons for any increase in page limit at least
20
fourteen (14) days prior to the filing of the motion.
All requests for
21
For the Court’s convenience, citations to Supreme Court
22
cases should include parallel citations to the Supreme Court
23
Reporter.
24
The parties are reminded that a motion in limine is a
25
pretrial procedural device designed to address the admissibility
26
of evidence.
27
2
28
The Court will look with disfavor upon
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
dispositional motions presented at the Final Pretrial Conference
2
or at trial in the guise of motions in limine.
3
The parties are cautioned that failure to raise a
4
dispositive legal issue that could have been tendered to the
5
court by proper pretrial motion prior to the dispositive motion
6
cut-off date may constitute waiver of such issue.
7
VIII. FINAL PRETRIAL CONFERENCE
8
The Final Pretrial Conference is set for November 19, 2015,
9
at 2:00 p.m.
At least one of the attorneys who will conduct the
10
trial for each of the parties shall attend the Final Pretrial
11
Conference.
12
circumstance a trial attorney is unable to attend, the attorney
13
who attends in place of the trial attorney shall have equal
14
familiarity with the case and equal authorization to make
15
commitments on behalf of the client.
16
If by reason of illness or other unavoidable
Counsel for all parties are to be fully prepared for trial
17
at the time of the Final Pretrial Conference, with no matters
18
remaining to be accomplished except production of witnesses for
19
oral testimony.
20
The parties shall file, not later than November 12, 2015, a
21
Joint Final Pretrial Conference Statement.
The provisions of
22
Local Rules 281 shall apply with respect to the matters to be
23
included in the Joint Final Pretrial Conference Statement.
24
addition to those subjects listed in Local Rule 281(b), the
25
parties are to provide the Court with a plain, concise statement
26
that identifies every non-discovery motion tendered to the Court
27
and its resolution.
28
modified by this Pretrial Scheduling Order, may be grounds for
In
Failure to comply with Local Rule 281, as
6
1
2
sanctions.
At the time of filing the Joint Final Pretrial Conference
3
Statement, counsel shall also electronically mail to the Court in
4
digital format compatible with Microsoft Word, the Joint Final
5
Pretrial Conference Statement in its entirety including the
6
witness and exhibit lists.
7
tlnorders@caed.uscourts.gov.
8
9
These documents shall be sent to:
The parties should identify first the core undisputed facts
relevant to all claims.
The parties should then, in a concise
10
manner, identify those undisputed core facts that are relevant to
11
each claim.
12
manner.
13
disputed facts are properly before the Court for trial, they
14
should nevertheless list all disputed facts asserted by each
15
party.
16
separately numbered or lettered.
17
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
18
evidentiary issue which will be the subject of a motion in
19
limine.
20
Each party shall identify the points of law which concisely
21
describe the legal issues of the trial which will be discussed in
22
the parties’ respective trial briefs.
23
reflect issues derived from the core undisputed and disputed
24
facts.
25
any point of law.
26
Points of law should
Parties shall not include argument or authorities with
The parties shall prepare a joint statement of the case in
27
plain concise language which will be read to the jury at the
28
beginning of the trial.
The purpose of the joint statement is to
7
1
2
inform the jury what the case is about.
The parties are reminded that pursuant to Local Rule 281
3
they are required to list in the Joint Final Pretrial Conference
4
Statement all witnesses and exhibits they propose to offer at
5
trial.
6
a brief statement of the nature of the testimony to be proffered.
7
The parties may file a joint list or each party may file separate
8
lists.
9
Joint Final Pretrial Conference Statement itself, but shall be
After the name of each witness, each party shall provide
These list(s) shall not be contained in the body of the
10
attached as separate documents to be used as addenda to the Final
11
Pretrial Order.
12
Plaintiff’s exhibits shall be listed numerically.
13
Defendant’s exhibits shall be listed alphabetically.
The parties
14
shall use the standard exhibit stickers provided by the Court
15
Clerk’s Office: pink for plaintiff and blue for defendant.
16
the event that the alphabet is exhausted, the exhibits shall be
17
marked “AA-ZZ” and “AAA-ZZZ” etc.
18
number of letters in parenthesis (i.e., “AAAA(4)”) to reduce
19
confusion at trial.
20
otherwise fastened together and each page within the exhibit
21
shall be numbered.
22
The list of exhibits shall not include excerpts of depositions,
23
which may be used to impeach witnesses.
24
Plaintiff and Defendant offer the same exhibit during trial, that
25
exhibit shall be referred to by the designation the exhibit is
26
first identified.
27
attention to this detail so that all concerned, including the
28
jury, will not be confused by one exhibit being identified with
In
After three letters, note the
All multi-page exhibits shall be stapled or
All photographs shall be marked individually.
In the event that
The Court cautions the parties to pay
8
1
2
both a number and a letter.
The Final Pretrial Order will contain a stringent standard
3
for the offering at trial of witnesses and exhibits not listed in
4
the Final Pretrial Order, and the parties are cautioned that the
5
standard will be strictly applied.
6
listing of exhibits or witnesses that a party does not intend to
7
offer will be viewed as an abuse of the court’s processes.
8
9
On the other hand, the
The parties also are reminded that pursuant to Rule 16 of
the Federal Rules of Civil Procedure it will be their duty at the
10
Final Pretrial Conference to aid the Court in: (a) the
11
formulation and simplification of issues and the elimination of
12
frivolous claims or defenses; (b) the settling of facts that
13
should properly be admitted; and (c) the avoidance of unnecessary
14
proof and cumulative evidence.
15
prepare the Joint Final Pretrial Conference Statement and
16
participate in good faith at the Final Pretrial Conference with
17
these aims in mind.
18
imposition of sanctions which may include monetary sanctions,
19
orders precluding proof, elimination of claims or defenses, or
20
such other sanctions as the Court deems appropriate.
Counsel must cooperatively
A failure to do so may result in the
21
IX.
TRIAL BRIEFS
22
The parties shall file trial briefs not later than fourteen
23
(14) days before trial.
Counsel are directed to Local Rule 285
24
regarding the content of trial briefs.
25
X.
EVIDENTIARY AND/OR PROCEDURAL MOTIONS
26
It is the Court’s practice to hear motions in limine on the
27
first day of trial.
However, depending on the number and nature
28
of the parties’ motions, the need to special set a hearing date
9
1
to hear such motions shall be addressed at the Final Pretrial
2
Conference.
3
XI.
TRIAL SETTING
4
The trial is set for January 25, 2016, at 9:00 a.m.
Trial
5
will be by jury.
The panel will consist of eight (8) jurors.
6
The length of trial shall be determined at the Final Pretrial
7
Conference.
8
XII.
SETTLEMENT CONFERENCE
9
At the Final Pretrial Conference, the Court may set a
10
settlement conference if the parties so request.
11
settlement conference is requested, the parties are free to
12
continue to mediate or attempt to settle the case with the
13
understanding that the trial date is a firm date.
14
In the event no
In the event a settlement conference is set by the Court,
15
counsel are instructed to have a principal with full settlement
16
authority present at the Settlement Conference or to be fully
17
authorized to settle the matter on any terms.
18
calendar days before the settlement conference, counsel for each
19
party shall submit to the chambers of the settlement judge a
20
confidential Settlement Conference Statement.
21
are neither to be filed with the Clerk nor served on opposing
22
counsel.
23
parties that the statement has been submitted.
24
judge is not the trial judge, the Settlement Conference Statement
25
shall not be disclosed to the trial judge.
26
At least seven (7)
Such statements
Each party, however, shall serve notice on all other
If the settlement
Notwithstanding the foregoing, the parties may request a
27
settlement conference prior to the Final Pretrial Conference if
28
they feel it would lead to the possible resolution of the case.
10
1
In the event an early settlement conference date is
2
requested, the parties shall file said request jointly, in
3
writing.
4
disqualification, pursuant to Local Rule 270(b), before a
5
settlement judge can be assigned to the case.
6
parties’ affirmatively requesting that the assigned Judge or
7
Magistrate Judge participate in the settlement conference AND
8
waiver, pursuant to Local Rule 270(b), a settlement judge will be
9
randomly assigned to the case.
The request must state whether the parties waive
Absent the
10
XIII. VOLUNTARY DISPUTE RESOLUTION PROGRAM
11
Pursuant to Local Rule 271, parties may stipulate at any
12
stage in the proceedings to refer the action, in whole or in
13
part, to the Voluntary Dispute Resolution Program.
14
XIV.
MODIFICATION OF PRETRIAL SCHEDULING ORDER
15
The parties are reminded that pursuant to Rule 16(b) of the
16
Federal Rules of Civil Procedure, the Pretrial Scheduling Order
17
shall not be modified except by leave of court upon a showing of
18
good cause.
19
alone to modify the Pretrial Scheduling Order does not constitute
20
good cause.
21
unavailability of witnesses or counsel will not constitute good
22
cause.
Agreement by the parties pursuant to stipulation
Except in extraordinary circumstances,
23
XV.
OBJECTIONS TO PRETRIAL SCHEDULING ORDER
24
This Pretrial Scheduling Order will become final without
25
further order of the Court unless objections are filed within
26
fourteen (14) days of service of this Order.
27
///
28
///
11
1
2
IT IS SO ORDERED.
Dated: December 20, 2013
3
4
5
6
7
Troy L. Nunley
United States District Judge
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?