United States of America v. Approximately $42,000.00 in U.S. Currency, et al.

Filing 18

STATUS (PRETRIAL SCHEDULING) ORDER signed by Judge Kimberly J. Mueller on 9/23/13: Designation of Expert Witnesses due by 7/20/2014. Discovery due by 9/1/2014. Dispositive Motions filed by 10/10/2014. Final Pretrial Conference set for 12/18/2014 at 03:30 PM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. Jury Trial set for 2/23/2015 at 09:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 Plaintiff, 13 14 15 No. 2:13-cv-00764-KJM-DAD v. STATUS (PRETRIAL SCHEDULING) APPROXIMATELY $42,000.00 IN U.S. CURRENCY, and APPROXIMATELY $18,000.00 IN U.S. CURRENCY, 16 ORDER Defendants. 17 18 An initial scheduling conference was held in this case on September 19, 2013. 19 Kevin Khasigian appeared for plaintiff; Edward Burch appeared for claimants Mark Anthony 20 Brown and Enrique Espinoza Leon. Having reviewed the parties’ Joint Status Report filed on 21 August 30, 2013, and discussed a schedule for the case with counsel at the hearing, the court 22 makes the following orders: 23 I. SERVICE OF PROCESS/NOTICE All notice as required in this in rem action has been provided. All potential 24 25 claimants to the defendant assets have been served. 26 ///// 27 ///// 28 ///// 1 1 II. 2 ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS No further joinder of parties or amendments to pleadings is permitted without 3 leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth 4 Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). 5 III. 6 JURISDICTION/VENUE Jurisdiction is predicated upon 28 U.S.C. §§ 1345 and 1355(a). Venue is based on 7 28 U.S.C. §§ 1355(b) and 1395. Jurisdiction and venue are not disputed. 8 IV. 9 DISCOVERY Civil forfeiture actions are exempt from the initial disclosure requirements under 10 Federal Rule of Civil Procedure 26(a)(1)(B)(ii). All discovery shall be completed by September 11 1, 2014. In this context, “completed” means that all discovery shall have been conducted so that 12 all depositions have been taken and any disputes relative to discovery shall have been resolved by 13 appropriate order if necessary and, where discovery has been ordered, the order has been obeyed. 14 All motions to compel discovery must be noticed on the magistrate judge’s calendar in 15 accordance with the local rules of this court. While the assigned magistrate judge reviews 16 proposed discovery phase protective orders, requests to seal or redact are decided by Judge 17 Mueller as discussed in more detail below. 18 As to non-retained witnesses only, including law enforcement officers, fingerprint 19 experts and chemists, the parties stipulate that the reports prepared by these persons during the 20 course of their work will satisfy Rule 26(a)(2)(B) requirements. 21 V. 22 DISCLOSURE OF EXPERT WITNESSES All counsel are to designate in writing, file with the court, and serve upon all other 23 parties the name, address, and area of expertise of each expert that they propose to tender at trial 24 not later than July 20, 2014. The designation shall be accompanied by a written report prepared 25 and signed by the witness. The report shall comply with Federal Rule of Civil Procedure 26 26(a)(2)(B). By August 10, 2014, any party who previously disclosed expert witnesses may 27 submit a supplemental list of expert witnesses who will express an opinion on a subject covered 28 by an expert designated by an adverse party, if the party supplementing an expert witness 2 1 designation has not previously retained an expert to testify on that subject. The supplemental 2 designation shall be accompanied by a written report, which shall also comply with the conditions 3 stated above. 4 Failure of a party to comply with the disclosure schedule as set forth above in all 5 likelihood will preclude that party from calling the expert witness at the time of trial. An expert 6 witness not appearing on the designation will not be permitted to testify unless the party offering 7 the witness demonstrates: (a) that the necessity for the witness could not have been reasonably 8 anticipated at the time the list was proffered; (b) that the court and opposing counsel were 9 promptly notified upon discovery of the witness; and (c) that the witness was promptly made 10 available for deposition. 11 For purposes of this scheduling order, an “expert” is any person who may be used 12 at trial to present evidence under Rules 702, 703 and 705 of the Federal Rules of Evidence, which 13 include both “percipient experts” (persons who, because of their expertise, have rendered expert 14 opinions in the normal course of their work duties or observations pertinent to the issues in the 15 case) and “retained experts” (persons specifically designated by a party to be a testifying expert 16 for the purposes of litigation). A party shall identify whether a disclosed expert is percipient, 17 retained, or both. It will be assumed that a party designating a retained expert has acquired the 18 express permission of the witness to be so listed. Parties designating percipient experts must state 19 in the designation who is responsible for arranging the deposition of such persons. 20 All experts designated are to be fully prepared at the time of designation to render 21 an informed opinion, and give the bases for their opinion, so that they will be able to give full and 22 complete testimony at any deposition taken by the opposing party. Experts will not be permitted 23 to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition 24 taken subsequent to designation. All expert discovery shall be completed by September 10, 25 2014. 26 VI. 27 28 MOTION HEARING SCHEDULE All dispositive motions, except motions for continuances, temporary restraining orders, or other emergency applications, shall be heard no later than October 10, 2014. The 3 1 parties may obtain available hearing dates by calling Casey Schultz, the Courtroom Deputy, at 2 (916) 930-4193. 3 4 All purely legal issues are to be resolved by timely pretrial motions. Local Rule 230 governs the calendaring and procedures of civil motions; the following provisions also apply: 5 (a) The opposition and reply must be filed by 4:00 p.m. on the day due; and 6 (b) When the last day for filing an opposition brief falls on a legal holiday, the 7 opposition brief shall be filed on the last court day immediately preceding the legal holiday. 8 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to 9 the motion, and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651, 10 652-53 (9th Cir. 1994). 11 The court places a page limit of twenty (20) pages on all moving papers, twenty 12 (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases 13 must be made through the courtroom deputy clerk at least fourteen (14) days prior to the filing of 14 the motion. 15 Prior to filing a motion in a case in which the parties are represented by counsel, 16 counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the 17 contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate 18 the defendants’ contentions as to deficiencies in the complaint, and in many instances, the party 19 considering a motion should agree to any amendment that would cure a curable defect. Counsel 20 should discuss the issues sufficiently so that if a motion of any kind is filed, including for 21 summary judgment, the briefing is directed only to those substantive issues requiring resolution 22 by the court. Counsel should resolve minor procedural or other non-substantive matters during 23 the meet and confer. A notice of motion shall contain a certification by counsel filing the 24 motion that meet and confer efforts have been exhausted, with a brief summary of meet and 25 confer efforts. 26 The parties are reminded that a motion in limine is a pretrial procedural device 27 designed to address the admissibility of evidence. The court looks with disfavor upon 28 dispositional motions presented at the Final Pretrial Conference or at trial in the guise of motions 4 1 in limine. Although all motions in limine must be filed in conjunction with the joint pretrial 2 statement, the court will hear only those motions it has identified to counsel before the hearing 3 date. 4 The parties are cautioned that failure to raise a dispositive legal issue that could 5 have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off 6 date may constitute waiver of such issue. 7 VII. 8 9 SEALING No document will be sealed, nor shall a redacted document be filed, without the prior approval of the court. If a document for which sealing or redaction is sought relates to the 10 record on a motion to be decided by Judge Mueller, the request to seal or redact should be 11 directed to her and not the assigned magistrate judge. All requests to seal or redact shall be 12 governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the 13 discovery phase of litigation shall not govern the filing of sealed or redacted documents on the 14 public docket. The court will only consider requests to seal or redact filed by the proponent of 15 sealing or redaction. If a party plans to make a filing that includes material an opposing party has 16 identified as confidential and potentially subject to sealing, the filing party shall provide the 17 opposing party with sufficient notice in advance of filing to allow for the seeking of an order of 18 sealing or redaction from the court. 19 VIII. 20 FINAL PRETRIAL CONFERENCE The Final Pretrial Conference is set for December 18, 2014, at 3:30 p.m. At least 21 one of the attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial 22 Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable to 23 attend, the attorney who attends in place of the trial attorney shall have equal familiarity with the 24 case and equal authorization to make commitments on behalf of the client. 25 Counsel for all parties are to be fully prepared for trial at the time of the Final 26 Pretrial Conference, with no matters remaining to be accomplished except production of 27 witnesses for oral testimony. The parties shall confer and file a joint pretrial conference 28 statement by November 27, 2014. The provisions of Local Rule 281 shall apply with respect to 5 1 the matters to be included in the joint pretrial statement. In addition to those subjects listed in 2 Local Rule 281(b), the parties are to provide the court with the following: 3 4 5 - A plain, concise statement that identifies every non-discovery motion previously tendered to the court and its resolution. - A concise, joint list of undisputed core facts that are relevant to each claim. 6 Disputed core facts should then be identified in the same manner. The parties are reminded not to 7 identify every fact in dispute but only those disputed facts that are essential to the formulation of 8 each claim. Each disputed fact and undisputed fact should be separately numbered or lettered. 9 Where the parties are unable to agree on the core disputed facts, they should nevertheless list core 10 11 12 disputed facts in the above manner. - Concise lists of disputed evidentiary issues that will be the subject of a party’s motion in limine. 13 - Each party’s points of law, which concisely describe the legal issues of the trial 14 which will be discussed in the parties’ respective trial briefs. Points of law should reflect issues 15 derived from the core undisputed and disputed facts. Parties shall not include argument or 16 authorities with any point of law. 17 - A joint statement of the case in plain concise language, which will be read to the 18 jury during voir dire and at the beginning of the trial. The purpose of the joint statement is to 19 inform the jury what the case is about. 20 21 22 Discovery documents to be listed in the pretrial statement shall not include documents to be used only for impeachment and in rebuttal. The parties are reminded that pursuant to Local Rule 281 they are required to 23 attach to the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they 24 propose to offer at trial. After the name of each witness, each party shall provide a brief 25 statement of the nature of the testimony to be proffered. The parties may file a joint list or each 26 party may file separate lists. These list(s) shall not be contained in the body of the Final Pretrial 27 Conference Statement itself, but shall be attached as separate documents to be used as addenda to 28 the Final Pretrial Order. 6 1 Plaintiff’s exhibits shall be listed numerically. Claimants’ exhibits shall be listed 2 alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for 3 plaintiff and blue for defendants. In the event that the alphabet is exhausted, the exhibits shall be 4 marked “AA-ZZ.” However, if the amount of claimants’ exhibits exceeds “ZZ” exhibits shall be 5 then listed as A-3, A-4, A-5, etc. All multi-page exhibits shall be stapled or otherwise fastened 6 together, and each page within the exhibit shall be numbered. The list of exhibits shall not 7 include excerpts of depositions, which may be used to impeach witnesses. In the event that 8 plaintiff and defendants offer the same exhibit during trial, that exhibit shall be referred to by the 9 designation the exhibit is first identified. The court cautions the parties to pay attention to this 10 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. 14 The Final Pretrial Order will contain a stringent standard for the offering at trial of 15 witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the 16 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. 18 19 Counsel shall produce all trial exhibits to Casey Schultz, the Courtroom Deputy, no later than 3:00 p.m. on the Friday before trial. 20 21 22 Failure to comply with Local Rule 281, as modified by this order, may be grounds for sanctions. 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 Conference 27 28 7 1 Statement and participate in good faith at the Final Pretrial Conference with these aims in mind.1 2 A failure to do so may result in the imposition of sanctions, which may include monetary 3 sanctions, orders precluding proof, elimination of claims or defenses, or such other sanctions as 4 the court deems appropriate. 5 Concurrently with the filing of the Joint Final Pretrial Conference Statement, 6 counsel shall submit to chambers the word processable version of the Statement, in its entirety 7 (including the witness and exhibit lists) to: kjmorders@caed.uscourts.gov. 8 IX. TRIAL SETTING 9 The trial is set for February 23, 2015, at 9:00 a.m. The parties estimate a trial 10 length of approximately three (3) days. Trial briefs are due by February 9, 2015. Claimants 11 have demanded a jury trial. 12 X. 13 SETTLEMENT CONFERENCE No settlement conference is currently scheduled. A settlement conference may be 14 set at the time of the Final Pretrial Conference or at an earlier time at the parties’ request. In the 15 event that an earlier settlement conference date or referral to the Voluntary Dispute Resolution 16 Program (VDRP) is requested, the parties shall file said request jointly, in writing. Because the 17 case will be tried to a jury, all parties should be prepared to advise the court whether they will 18 stipulate to the trial judge acting as settlement judge and waive disqualification by virtue thereof. 19 Counsel are instructed to have a principal with full settlement authority present at 20 any Settlement Conference or to be fully authorized to settle the matter on any terms. At least 21 seven (7) calendar days before the Settlement Conference, counsel for each party shall submit to 22 the chambers of the settlement judge a confidential Settlement Conference Statement. Such 23 statements are neither to be filed with the Clerk nor served on opposing counsel. Each party, 24 however, shall serve notice on all other parties that the statement has been submitted. If the 25 ///// 26 1 27 28 “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. S’holders Protective Comm., 770 F.2d 866, 868-69 (9th Cir. 1985). 8 1 settlement judge is not the trial judge, the Settlement Conference Statement shall not be disclosed 2 to the trial judge. 3 XI. 4 MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil 5 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court 6 upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not 7 constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or 8 counsel does not constitute good cause. 9 XII. 10 11 12 13 OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER This Status Order will become final without further order of the court unless objections are filed within fourteen (14) calendar days of service of this Order. IT IS SO ORDERED. DATED: September 23, 2013. 14 15 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 9

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