Loskot v. MD Imaging, Inc. et al

Filing 10

PRETRIAL SCHEDULING ORDER signed by District Judge Troy L. Nunley on 7/5/13: Designation of Expert Witnesses due by 5/30/2014. Discovery due by 3/31/2014. Dispositive Motions filed by 9/25/2014. Final Pretrial Conference set for 11/20/2014 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. Jury Trial set for 2/2/2015 at 09:00 AM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Kaminski, H) .

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARSHALL LOSKOT, 12 No. 2:13-cv-0361-TLN-KJN Plaintiff, PRETRIAL SCHEDULING ORDER 13 14 15 16 v. MD IMAGING, INC., a California Professional Medical Corporation, PHOTON INVESTMENTS, LLC., a California Limited Liability Company, 17 18 Defendants. ___________________________/ 19 20 After reviewing the parties’ Joint Status Report, the Court makes the following Pretrial Scheduling Order. 21 I. SERVICE OF PROCESS 22 All named Defendants have been served and no further service 23 is permitted without leave of court, good cause having been 24 shown. 25 II. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS 26 No joinder of parties or amendments to pleadings is 27 permitted without leave of court, good cause having been shown. 28 /// 1 1 III. JURISDICTION/VENUE 2 Jurisdiction is predicated upon 28 U.S.C. § 1331. 3 Jurisdiction and venue are not contested. 4 IV. DISCOVERY 5 All discovery, with the exception of expert discovery, shall 6 be completed by March 31, 2014. 7 means that all discovery shall have been conducted so that all 8 depositions have been taken and any disputes relative to 9 discovery shall have been resolved by appropriate order if In this context, “completed” 10 necessary and, where discovery has been ordered, the order has 11 been obeyed. 12 the magistrate judge’s calendar in accordance with the local 13 rules of this Court. 14 15 All motions to compel discovery must be noticed on Any request to deviate from the Federal Rules of Civil Procedure should be made to the assigned Magistrate Judge. 16 V. DISCLOSURE OF EXPERT WITNESSES 17 All counsel are to designate in writing, file with the 18 Court, and serve upon all other parties the name, address, and 19 area of expertise of each expert that they propose to tender at 20 trial not later than May 30, 2014.1 21 accompanied by a written report prepared and signed by the 22 witness. 23 26(a)(2)(B). The designation shall be The report shall comply with Fed. R. Civ. P. 24 Within twenty (20) days after the designation of expert 25 witnesses, any party may designate a supplemental list of expert 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 witnesses who will express an opinion on a subject covered by an 2 expert designated by an adverse party. 3 The right to designate a supplemental expert for rebuttal 4 purposes only shall apply to a party who has not previously 5 disclosed an expert witness on the date set for expert witness 6 disclosure by this Pretrial Scheduling Order. 7 Failure of a party to comply with the disclosure schedule as 8 set forth above in all likelihood will preclude that party from 9 calling the expert witness at the time of trial. An expert 10 witness not appearing on the designation will not be permitted to 11 testify unless the party offering the witness demonstrates: 12 (a) that the necessity for the witness could not have been 13 reasonably anticipated at the time the list was proffered; 14 (b) that the Court and opposing counsel were promptly notified 15 upon discovery of the witness; and (c) that the witness was 16 promptly made available for deposition. 17 For purposes of this Pretrial Scheduling Order, an “expert” 18 is any person who my be used at trial to present evidence under 19 Rules 702, 703, and 705 of the Federal Rules of Evidence, which 20 include both “percipient experts” (persons who, because of their 21 expertise, have rendered expert opinions in the normal course of 22 their work duties or observations pertinent to the issues in the 23 case) and “retained experts” (persons specifically designated by 24 a party to be a testifying expert for the purposes of 25 litigation). 26 Each party shall identify whether a disclosed expert is 27 percipient, retained, or both. It will be assumed that a party 28 designating a retained expert has acquired the express permission 3 1 2 of the witness to be so listed. Parties designating percipient experts must state in the 3 designation who is responsible for arranging the deposition of 4 such persons. 5 All experts designated are to be fully prepared at the time 6 of designation to render an informed opinion, and give their 7 bases for their opinion, so that they will be able to give full 8 and complete testimony at any deposition taken by the opposing 9 party. Experts will not be permitted to testify at the trial as 10 to any information gathered or evaluated, or opinion formed, 11 after deposition taken subsequent to designation. 12 Counsel are instructed to complete all discovery of expert 13 witnesses in a timely manner in order to comply with the Court’s 14 deadline for filing dispositive motions. 15 VI. 16 The last day to hear dispositive motions shall be September 17 25, 2014. 18 MOTION HEARING SCHEDULE deadlines: 19 The parties shall comply with the following filing Dispositive motion filed at least 8 weeks prior to hearing 21 Opposition and any cross-motion filed at least 5 weeks prior to hearing 22 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 20 23 24 25 26 All purely legal issues are to be resolved by timely 27 pretrial motions. 28 260, as modified by this Order, may be deemed consent to the Failure to comply with Local Rules 230 and 4 1 motion and the Court may dispose of the motion summarily. 2 Further, failure to timely oppose a summary judgment motion2 may 3 result in the granting of that motion if the movant shifts the 4 burden to the nonmovant to demonstrate that a genuine issue of 5 material fact remains for trial. 6 The Court places a page limit for points and authorities 7 (exclusive of exhibits and other supporting documentation) of 8 twenty (20) pages on all initial moving papers, twenty (20) pages 9 on oppositions, and ten (10) pages for replies. All requests for 10 page limit increases must be made in writing to the Court setting 11 forth any and all reasons for any increase in page limit at least 12 fourteen (14) days prior to the filing of the motion. 13 For the Court’s convenience, citations to Supreme Court 14 cases should include parallel citations to the Supreme Court 15 Reporter. 16 The parties are reminded that a motion in limine is a 17 pretrial procedural device designed to address the admissibility 18 of evidence. 19 dispositional motions presented at the Final Pretrial Conference 20 or at trial in the guise of motions in limine. The Court will look with disfavor upon 21 The parties are cautioned that failure to raise a 22 dispositive legal issue that could have been tendered to the 23 court by proper pretrial motion prior to the dispositive motion 24 cut-off date may constitute waiver of such issue. 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 VII. FINAL PRETRIAL CONFERENCE 2 The Final Pretrial Conference is set for November 20, 2014, 3 at 2:00 p.m. 4 trial for each of the parties shall attend the Final Pretrial 5 Conference. 6 circumstance a trial attorney is unable to attend, the attorney 7 who attends in place of the trial attorney shall have equal 8 familiarity with the case and equal authorization to make 9 commitments on behalf of the client. 10 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 11 at the time of the Final Pretrial Conference, with no matters 12 remaining to be accomplished except production of witnesses for 13 oral testimony. The parties shall file, not later than October 23, 2014, a 14 15 Joint Final Pretrial Conference Statement. 16 Local Rules 281 shall apply with respect to the matters to be 17 included in the Joint Final Pretrial Conference Statement. 18 addition to those subjects listed in Local Rule 281(b), the 19 parties are to provide the Court with a plain, concise statement 20 that identifies every non-discovery motion tendered to the Court 21 and its resolution. 22 modified by this Pretrial Scheduling Order, may be grounds for 23 sanctions. 24 The provisions of In Failure to comply with Local Rule 281, as At the time of filing the Joint Final Pretrial Conference 25 Statement, counsel shall also electronically mail to the Court in 26 digital format compatible with Microsoft Word or WordPerfect, the 27 Joint Final Pretrial Conference Statement in its entirety 28 /// 6 1 including the witness and exhibit lists. 2 These documents shall be sent to: tlnorders@caed.uscourts.gov. 3 The parties should identify first the core undisputed facts 4 relevant to all claims. The parties should then, in a concise 5 manner, identify those undisputed core facts that are relevant to 6 each claim. 7 manner. 8 disputed facts are properly before the Court for trial, they 9 should nevertheless list all disputed facts asserted by each The disputed facts should be identified in the same Where the parties are unable to agree as to what 10 party. 11 separately numbered or lettered. 12 Each disputed fact or undisputed fact should be Each party shall identify and concisely list each disputed 13 evidentiary issue which will be the subject of a motion in 14 limine. 15 Each party shall identify the points of law which concisely 16 describe the legal issues of the trial which will be discussed in 17 the parties’ respective trial briefs. 18 reflect issues derived from the core undisputed and disputed 19 facts. 20 any point of law. 21 Points of law should Parties shall not include argument or authorities with The parties shall prepare a joint statement of the case in 22 plain concise language which will be read to the jury at the 23 beginning of the trial. 24 inform the jury what the case is about. 25 The purpose of the joint statement is to The parties are reminded that pursuant to Local Rule 281 26 they are required to list in the Joint Final Pretrial Conference 27 Statement all witnesses and exhibits they propose to offer at 28 trial. After the name of each witness, each party shall provide 7 1 a brief statement of the nature of the testimony to be proffered. 2 The parties may file a joint list or each party may file separate 3 lists. 4 Joint Final Pretrial Conference Statement itself, but shall be 5 attached as separate documents to be used as addenda to the Final 6 Pretrial Order. 7 These list(s) shall not be contained in the body of the Plaintiff’s exhibits shall be listed numerically. 8 Defendants’ exhibits shall be listed alphabetically. The parties 9 shall use the standard exhibit stickers provided by the Court 10 Clerk’s Office: pink for plaintiff and blue for defendant. 11 the event that the alphabet is exhausted, the exhibits shall be 12 marked “AA-ZZ” and “AAA-ZZZ” etc. 13 number of letters in parenthesis (i.e., “AAAA(4)”) to reduce 14 confusion at trial. 15 otherwise fastened together and each page within the exhibit 16 shall be numbered. 17 The list of exhibits shall not include excerpts of depositions, 18 which may be used to impeach witnesses. 19 Plaintiff and Defendants offer the same exhibit during trial, 20 that exhibit shall be referred to by the designation the exhibit 21 is first identified. 22 attention to this detail so that all concerned, including the 23 jury, will not be confused by one exhibit being identified with 24 both a number and a letter. 25 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 The Final Pretrial Order will contain a stringent standard 26 for the offering at trial of witnesses and exhibits not listed in 27 the Final Pretrial Order, and the parties are cautioned that the 28 standard will be strictly applied. 8 On the other hand, the 1 listing of exhibits or witnesses that a party does not intend to 2 offer will be viewed as an abuse of the court’s processes. 3 The parties also are reminded that pursuant to Rule 16 of 4 the Federal Rules of Civil Procedure it will be their duty at the 5 Final Pretrial Conference to aid the Court in: (a) the 6 formulation and simplification of issues and the elimination of 7 frivolous claims or defenses; (b) the settling of facts that 8 should properly be admitted; and (c) the avoidance of unnecessary 9 proof and cumulative evidence. Counsel must cooperatively 10 prepare the Joint Final Pretrial Conference Statement and 11 participate in good faith at the Final Pretrial Conference with 12 these aims in mind. 13 imposition of sanctions which may include monetary sanctions, 14 orders precluding proof, elimination of claims or defenses, or 15 such other sanctions as the Court deems appropriate. A failure to do so may result in the 16 VIII. TRIAL BRIEFS 17 The parties shall file trial briefs not later than November 18 6, 2014. 19 content of trial briefs. Counsel are directed to Local Rule 285 regarding the 20 IX. EVIDENTIARY AND/OR PROCEDURAL MOTIONS 21 Any evidentiary or procedural motions are to be filed by 22 October 30, 2014. Oppositions must be filed by November 6, 2014, 23 and any reply must be filed by November 13, 2014. 24 will be heard by the Court at the same time as the Final Pretrial 25 Conference. 26 /// 27 /// 28 /// 9 The motions 1 X. TRIAL SETTING 2 The trial is set for February 2, 2015, at 9:00 a.m. Trial The panel will consist of eight (8) jurors. 3 will be by jury. 4 The parties estimate a trial length of four to five (4-5) days. 5 XI. SETTLEMENT CONFERENCE 6 At the Final Pretrial Conference, the Court may set a 7 settlement conference if the parties so request. 8 settlement conference is requested, the parties are free to 9 continue to mediate or attempt to settle the case with the 10 11 In the event no understanding that the trial date is a firm date. In the event a settlement conference is set by the Court, 12 counsel are instructed to have a principal with full settlement 13 authority present at the Settlement Conference or to be fully 14 authorized to settle the matter on any terms. 15 calendar days before the settlement conference, counsel for each 16 party shall submit to the chambers of the settlement judge a 17 confidential Settlement Conference Statement. 18 are neither to be filed with the Clerk nor served on opposing 19 counsel. 20 parties that the statement has been submitted. 21 judge is not the trial judge, the Settlement Conference Statement 22 shall not be disclosed to the trial judge. 23 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 24 settlement conference prior to the Final Pretrial Conference if 25 they feel it would lead to the possible resolution of the case. 26 In the event an early settlement conference date is requested, 27 the parties shall file said request jointly, in writing. 28 request must state whether the parties waive disqualification, 10 The 1 pursuant to Local Rule 270(b), before a settlement judge can be 2 assigned to the case. 3 requesting that the assigned Judge or Magistrate Judge 4 participate in the settlement conference AND waiver, pursuant to 5 Local Rule 270(b), a settlement judge will be randomly assigned 6 to the case. Absent the parties’ affirmatively 7 XII. VOLUNTARY DISPUTE RESOLUTION PROGRAM 8 Pursuant to Local Rule 271 parties will need to lodge a 9 10 stipulation and proposed order requesting referral to the Voluntary Dispute Resolution Program. 11 XIII. MODIFICATION OF PRETRIAL SCHEDULING ORDER 12 The parties are reminded that pursuant to Rule 16(b) of the 13 Federal Rules of Civil Procedure, the Pretrial Scheduling Order 14 shall not be modified except by leave of court upon a showing of 15 good cause. 16 alone to modify the Pretrial Scheduling Order does not constitute 17 good cause. 18 unavailability of witnesses or counsel will not constitute good 19 cause. Agreement by the parties pursuant to stipulation Except in extraordinary circumstances, 20 XIV. OBJECTIONS TO PRETRIAL SCHEDULING ORDER 21 This Pretrial Scheduling Order will become final without 22 further order of the Court unless objections are filed within 23 seven (7) court days of service of this Order. 24 25 IT IS SO ORDERED. DATED: July 5, 2013 26 27 Troy L. Nunley United States District Judge 28 11

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