Keonkongchack v. Advanced Call Center Technologies, LLC

Filing 16

PRETRIAL SCHEDULING ORDER signed by District Judge Troy L. Nunley on 12/18/13: Designation of Expert Witnesses due by 9/30/2015. Discovery due by 7/30/2015. Dispositive Motions filed by 1/14/2016. Final Pretrial Conference set for 4/7/2016 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. Jury Trial set for 6/13/2016 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

DEVRA KEOKONGCHACK,
individually and on behalf of
all others similarly
situated,
Plaintiff,

14

2:13-cv-1385-TLN-AC

PRETRIAL SCHEDULING ORDER

v.

15
16

No.

ADVANCED CALL CENTER
TECHNOLOGIES, LLC.,

17

Defendant.

18
After reviewing the parties’ Joint Status Report, the Court

19
20

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.

2

Jurisdiction is predicated upon 28 U.S.C. sections 1332(d)

3

and 1446.

JURISDICTION/VENUE

Jurisdiction and venue are not contested.

4

PHASE I - CLASS CERTIFICATION

5
6

IV.

CLASS CERTIFICATION

7

The Plaintiff’s motion for class certification shall be

8

filed by July 31, 2014.

9

September 18, 2014.

Defendant’s opposition shall be filed by

Plaintiff’s reply shall be filed by

10

October 16, 2014.

The Class Certification Hearing is set for

11

November 6, 2014, at 2:00 p.m.

12

PHASE II

13
14

V.

DISCOVERY

15

All discovery, with the exception of expert discovery, shall

16

be completed by July 30, 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 September 30, 2015.1

2

be accompanied by a written report prepared and signed by the

3

witness.

4

26(a)(2)(B).

The designation shall

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 January 14, 2016.

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 April 7, 2016, at

9

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 March 31, 2016, 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

[e-mail].

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 June 13, 2016, at 9:00 a.m.

Trial will

5

be by jury.

The panel will consist of eight (8) jurors.

6

length of trial shall be determined at the Final Pretrial

7

Conference.

8

XII.

9

The

SETTLEMENT CONFERENCE

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 18, 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