Kalani v. Lukowicz et al

Filing 14

STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Kimberly J. Mueller on 9/27/12 ORDERING that initial disclosures shall be completed by 9/27/2012, an inspection of the facility shall occur by 10/9/2012, and all discovery shall be completed 6/10/20 13; Disclosure of Expert Witnesses due by 7/12/2013 with any rebuttal due by 8/2/2013; all dispositive motions shall be heard no later than 11/8/2013; Final Pretrial Conference set for 12/12/2013 at 03:30 PM in Courtroom 3 (KJM) before Judge Kimber ly J. Mueller with a joint pretrial confererence statement due by 11/21/2013; Jury Trial set for 2/3/2014 at 09:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller with trial briefs due by 1/17/2014; Settlement Conference set for 10/16/2012 at 09:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 ROBERT KALANI,
NO. CIV. S-12-1316 KJM DAD
Plaintiff,

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v.

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STATUS (PRETRIAL SCHEDULING)

13 STANLEY J. LUKOWICZ, et al.,
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ORDER

Defendants.
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An initial scheduling conference was held in this case on September 20, 2012.

17 Tanya Moore appeared for plaintiff; Esther Ralich appeared for defendant Lukowicz; and
18 defendant Balhar Dosanjh appeared pro se. Having reviewed the parties’ Joint Status Report
19 filed on September 13, 2012, and discussed a schedule for the case with counsel at the hearing,
20 the court makes the following orders:
21 I.
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SERVICE OF PROCESS
All named defendants have been served and no further service is permitted

23 without leave of court, good cause having been shown.
24 II.
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ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS
Plaintiff may seek to amend his complaint. Any such amendment shall be filed

26 by November 16, 2012.
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1 III.
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JURISDICTION/VENUE
Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. Jurisdiction and

3 venue are not disputed.
4 IV.
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DISCOVERY
Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be

6 completed by September 27, 2012. The parties confirmed that an inspection of the facility
7 identified in the complaint shall occur by October 9, 2012. All discovery shall be completed by
8 June 10, 2013. In this context, “completed” means that all discovery shall have been conducted
9 so that all depositions have been taken and any disputes relative to discovery shall have been
10 resolved by appropriate order if necessary and, where discovery has been ordered, the order has
11 been obeyed. All motions to compel discovery must be noticed on the magistrate judge’s
12 calendar in accordance with the local rules of this court. While the assigned magistrate judge
13 reviews proposed discovery phase protective orders, requests to seal or redact are decided by
14 Judge Mueller as discussed in more detail below.
15 V.
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DISCLOSURE OF EXPERT WITNESSES
All counsel are to designate in writing, file with the court, and serve upon all

17 other parties the name, address, and area of expertise of each expert that they propose to tender
18 at trial not later than July 12, 2013. The designation shall be accompanied by a written report
19 prepared and signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B).
20 By August 2, 2013, any party who previously disclosed expert witnesses may submit a
21 supplemental list of expert witnesses who will express an opinion on a subject covered by an
22 expert designated by an adverse party, if the party supplementing an expert witness designation
23 has not previously retained an expert to testify on that subject. The supplemental designation
24 shall be accompanied by a written report, which shall also comply with the conditions stated
25 above.
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Failure of a party to comply with the disclosure schedule as set forth above in all

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

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

16 an informed opinion, and give the bases for their opinion, so that they will be able to give full
17 and complete testimony at any deposition taken by the opposing party. Experts will not be
18 permitted to testify at trial as to any information gathered or evaluated, or opinion formed, after
19 deposition taken subsequent to designation. All expert discovery shall be completed by
20 September 3, 2013.
21 VI.
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MOTION HEARING SCHEDULE
All dispositive motions, except motions for continuances, temporary restraining

23 orders or other emergency applications, shall be heard no later than November 8, 2013. The
24 parties may obtain available hearing dates by calling Casey Schultz, the Courtroom Deputy, at
25 [phone].
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All purely legal issues are to be resolved by timely pretrial motions. Local Rule

27 230 governs the calendaring and procedures of civil motions; the following provisions also
28 apply:
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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.

5 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to
6 the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651,
7 652-53 (9th Cir. 1994).
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The court places a page limit of twenty (20) pages on all moving papers, twenty

9 (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases
10 must be made through the courtroom deputy clerk at least fourteen (14) days prior to the filing of
11 the motion.
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Prior to filing a motion in a case in which the parties are represented by counsel,

13 counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the
14 contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate
15 the defendant’s contentions as to deficiencies in the complaint and in many instances the party
16 considering a motion should agree to any amendment that would cure a curable defect. Counsel
17 should discuss the issues sufficiently so that if a motion of any kind is filed, including for
18 summary judgment, the briefing is directed only to those substantive issues requiring resolution
19 by the court. Counsel should resolve minor procedural or other non-substantive matters during
20 the meet and confer. A notice of motion shall contain a certification by counsel filing the
21 motion that meet and confer efforts have been exhausted, with a brief summary of meet
22 and confer efforts.
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The parties are reminded that a motion in limine is a pretrial procedural device

24 designed to address the admissibility of evidence. The court looks with disfavor upon
25 dispositional motions presented at the Final Pretrial Conference or at trial in the guise of motions
26 in limine. Although all motions in limine must be filed in conjunction with the joint pretrial
27 statement, the court will hear only those motions it has identified to counsel before the hearing
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The parties are cautioned that failure to raise a dispositive legal issue that could

2 have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off
3 date may constitute waiver of such issue.
4 VII.
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SEALING
No document will be sealed, nor shall a redacted document be filed, without the

6 prior approval of the court. If a document for which sealing or redaction is sought relates to the
7 record on a motion to be decided by Judge Mueller, the request to seal or redact should be
8 directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be
9 governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the
10 discovery phase of litigation shall not govern the filing of sealed or redacted documents on the
11 public docket. The court will only consider requests to seal or redact filed by the proponent of
12 sealing or redaction. If a party plans to make a filing that includes material an opposing party
13 has identified as confidential and potentially subject to sealing, the filing party shall provide the
14 opposing party with sufficient notice in advance of filing to allow for the seeking of an order of
15 sealing or redaction from the court.
16 VIII. FINAL PRETRIAL CONFERENCE
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The Final Pretrial Conference is set for December 12, 2013, at 3:30 p.m. At least

18 one of the attorneys who will conduct the trial for each of the parties shall attend the Final
19 Pretrial Conference. If by reason of illness or other unavoidable circumstance a trial attorney is
20 unable to attend, the attorney who attends in place of the trial attorney shall have equal
21 familiarity with 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

23 Pretrial Conference, with no matters remaining to be accomplished except production of
24 witnesses for oral testimony. The parties shall confer and file a joint pretrial conference
25 statement by November 21, 2013. The provisions of Local Rule 281 shall apply with respect to
26 the matters to be included in the joint pretrial statement. In addition to those subjects listed in
27 Local Rule 281(b), the parties are to provide the court with the following:
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- A plain, concise statement that identifies every non-discovery motion previously

2 tendered to the court and its resolution.
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- A concise, joint list of undisputed core facts that are relevant to each claim.

4 Disputed core facts should then be identified in the same manner. The parties are reminded not
5 to identify every fact in dispute but only those disputed facts that are essential to the formulation
6 of each claim. Each disputed fact and undisputed fact should be separately numbered or lettered.
7 Where the parties are unable to agree on the core disputed facts, they should nevertheless list
8 core disputed facts in the above manner.
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- Concise lists of disputed evidentiary issues that will be the subject of a party’s

10 motion in limine.
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- Each party’s points of law, which concisely describe the legal issues of the trial

12 which will be discussed in the parties’ respective trial briefs. Points of law should reflect issues
13 derived from the core undisputed and disputed facts. Parties shall not include argument or
14 authorities with any point of law.
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- A joint statement of the case in plain concise language, which will be read to the

16 jury during voir dire and at the beginning of the trial. The purpose of the joint statement is to
17 inform the jury what the case is about.
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Discovery documents to be listed in the pretrial statement shall not include

19 documents to be used only for impeachment and in rebuttal.
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The parties are reminded that pursuant to Local Rule 281 they are required to

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

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

15 of witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that
16 the standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a
17 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,

19 no later than 3:00 p.m. on the Friday before trial.
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Failure to comply with Local Rule 281, as modified by this order, may be grounds

21 for sanctions.
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The parties also are reminded that pursuant to Rule 16 of the Federal Rules of

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

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5 counsel shall submit to chambers the word processable version of the Statement, in its entirety
6 (including the witness and exhibit lists) to: [e-mail].
7 IX.

TRIAL SETTING
The jury trial is set for February 3, 2014 at 9:00 a.m. The parties estimate a trial

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9 length of approximately five days. Trial briefs are due by January 17, 2014.
10 X.

SETTLEMENT CONFERENCE
The parties have expressed interest in appearing before another judge of the court

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12 for settlement conference. Magistrate Judge Gregory G. Hollows has been randomly selected. A
13 settlement conference is scheduled before Judge Hollows for October 16, 2012 at 9:00 a.m. in
14 Courtroom No. 9, 13th Floor.
Counsel are instructed to have a principal with full settlement authority present at

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16 any Settlement Conference or to be fully authorized to settle the matter on any terms. At least
17 seven (7) calendar days before the Settlement Conference, counsel for each party shall submit to
18 the chambers of the settlement judge a confidential Settlement Conference Statement. Such
19 statements are neither to be filed with the Clerk nor served on opposing counsel. Each party,
20 however, shall serve notice on all other parties that the statement has been submitted. The
21 Settlement Conference Statements shall not be disclosed to the trial judge.
22 XI.

MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER
The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil

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24 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court
25 upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not
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“If the pretrial conference discloses that no material facts are in dispute and that the
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.,
770 F.2d 866, 868-69 (9th Cir. 1985).
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1 constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or
2 counsel does not constitute good cause.
3 XII.

RELATED CASES

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Defendant Lukowicz indicates he believes this case is related to two other cases

5 proceeding in this court: Kalani v. Mother Lode Investors, Stan Lukowicz, Barbara Wierschein
6 dba Wierschein’s Train Town, Civ S-12-0304 KJM GGH and Kalani v. Mother Lode Real
7 Investors, Richard Glade dba Full Circle Trading, Civ S-12-0212 MCE EFB. Having reviewed
8 the dockets of those two cases, the court does not find them related within the meaning of Local
9 Rule 123(a).
10 XIII. OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER
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This Status Order will become final without further order of the court unless

12 objections are filed within fourteen (14) calendar days of service of this Order.
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IT IS SO ORDERED.

14 DATED: September 27, 2012.
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UNITED STATES DISTRICT JUDGE

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