Johnson v. Au, et al.

Filing 15

PRETRIAL SCHEDULING ORDER signed by District Judge Troy L. Nunley on 12/4/14: Designation of Expert Witnesses due by 10/29/2015. Discovery due by 8/31/2015. Dispositive Motions filed by 2/25/2016. Final Pretrial Conference set for 6/2/2016 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. Jury Trial set for 8/1/2016 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 SCOTT JOHNSON, 12 13 14 No. 2:14-cv-01470-TLN-EFB Plaintiff, v. PRETRIAL SCHEDULING ORDER MASON AU, et al., 15 Defendants. 16 17 18 After reviewing the parties’ Joint Status Report, the Court makes the following Pretrial Scheduling Order. 19 I. SERVICE OF PROCESS 20 All named Defendants have been served and no further service 21 is permitted without leave of court, good cause having been 22 shown. 23 II. 24 No joinder of parties or amendments to pleadings is 25 ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS permitted without leave of court, good cause having been shown. 26 III. 27 Jurisdiction is predicated upon U.S.C. §§ 1331 and 28 JURISDICTION/VENUE 1343(a)(3) & (a)(4). Jurisdiction and venue are not contested. 1 1 IV. 2 All discovery, with the exception of expert discovery, shall DISCOVERY 3 be completed by August 31, 2015. 4 means that all discovery shall have been conducted so that all 5 depositions have been taken and any disputes relative to 6 discovery shall have been resolved by appropriate order if 7 necessary and, where discovery has been ordered, the order has 8 been obeyed. 9 the magistrate judge’s calendar in accordance with the local 10 All motions to compel discovery must be noticed on rules of this Court. 11 12 In this context, “completed” Any request to deviate from the Federal Rules of Civil Procedure should be made to the assigned Magistrate Judge. 13 V. DISCLOSURE OF EXPERT WITNESSES 14 All counsel are to designate in writing, file with the 15 Court, and serve upon all other parties the name, address, and 16 area of expertise of each expert that they propose to tender at 17 trial not later than October 29, 2015.1 18 accompanied by a written report prepared and signed by the 19 witness. 20 26(a)(2)(B). The designation shall be The report shall comply with Fed. R. Civ. P. 21 Within twenty (20) days after the designation of expert 22 witnesses, any party may designate a supplemental list of expert 23 witnesses who will express an opinion on a subject covered by an 24 expert designated by an adverse party. 25 /// 26 /// 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. 2 1 The right to designate a supplemental expert for rebuttal 2 purposes only shall apply to a party who has not previously 3 disclosed an expert witness on the date set for expert witness 4 disclosure by this Pretrial Scheduling Order. 5 Failure of a party to comply with the disclosure schedule as 6 set forth above in all likelihood will preclude that party from 7 calling the expert witness at the time of trial. 8 witness not appearing on the designation will not be permitted to 9 testify unless the party offering the witness demonstrates: (a) An expert 10 that the necessity for the witness could not have been reasonably 11 anticipated at the time the list was proffered; (b) that the 12 Court and opposing counsel were promptly notified upon discovery 13 of the witness; and (c) that the witness was promptly made 14 available for deposition. 15 For purposes of this Pretrial Scheduling Order, an “expert” 16 is any person who may be used at trial to present evidence under 17 Rules 702, 703, and 705 of the Federal Rules of Evidence, which 18 include both “percipient experts” (persons who, because of their 19 expertise, have rendered expert opinions in the normal course of 20 their work duties or observations pertinent to the issues in the 21 case) and “retained experts” (persons specifically designated by 22 a party to be a testifying expert for the purposes of 23 litigation). 24 Each party shall identify whether a disclosed expert is 25 percipient, retained, or both. It will be assumed that a party 26 designating a retained expert has acquired the express permission 27 of the witness to be so listed. 28 /// 3 1 Parties designating percipient experts must state in the 2 designation who is responsible for arranging the deposition of 3 such persons. 4 All experts designated are to be fully prepared at the time 5 of designation to render an informed opinion, and give their 6 bases for their opinion, so that they will be able to give full 7 and complete testimony at any deposition taken by the opposing 8 party. 9 to any information gathered or evaluated, or opinion formed, 10 11 Experts will not be permitted to testify at the trial as after deposition taken subsequent to designation. Counsel are instructed to complete all discovery of expert 12 witnesses in a timely manner in order to comply with the Court’s 13 deadline for filing dispositive motions. 14 VI. MOTION HEARING SCHEDULE 15 All dispositive motions, except motions for continuances, 16 temporary restraining orders or other emergency applications, 17 shall be heard no later than February 25, 2016. 18 All purely legal issues are to be resolved by timely 19 pretrial motions. 20 procedures of civil motions with the following additions: 21 22 23 Local Rule 230 governs the calendaring and (a) The opposition and reply must be filed by 4:00 p.m. on the day due; and (b) When the last day for filing an opposition brief falls 24 on a legal holiday, the opposition brief shall be filed 25 on the last court day immediately preceding the legal 26 holiday. 27 Failure to comply with Local Rule 230(c), as modified by 28 this order, may be deemed consent to the motion and the court may 4 1 dispose of the motion summarily. Further, failure to timely 2 oppose a summary judgment motion2 may result in the granting of 3 that motion if the movant shifts the burden to the nonmovant to 4 demonstrate that a genuine issue of material fact remains for 5 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 in the guise of motions in 20 limine. 21 The Court will look with disfavor upon 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 2 28 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. 2 The Final Pretrial Conference is set for June 2, 2016, at FINAL PRETRIAL CONFERENCE 3 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. 14 The parties shall file, not later than May 26, 2016, a Joint 15 Final Pretrial Conference Statement. 16 Rules 281 shall apply with respect to the matters to be included 17 in the Joint Final Pretrial Conference Statement. 18 those subjects listed in Local Rule 281(b), the parties are to 19 provide the Court with a plain, concise statement that identifies 20 every non-discovery motion tendered to the Court and its 21 resolution. 22 by this Pretrial Scheduling Order, may be grounds for sanctions. 23 The provisions of Local In addition to Failure to comply with Local Rule 281, as modified At the time of filing the Joint Final Pretrial Conference 24 Statement, counsel shall also electronically mail to the Court in 25 digital format compatible with Microsoft Word, the Joint Final 26 Pretrial Conference Statement in its entirety including the 27 witness and exhibit lists. 28 These documents shall be sent to: 6 1 The parties should identify first the core undisputed facts 2 relevant to all claims. 3 manner, identify those undisputed core facts that are relevant to 4 each claim. 5 manner. 6 disputed facts are properly before the Court for trial, they 7 should nevertheless list all disputed facts asserted by each 8 party. 9 separately numbered or lettered. 10 The parties should then, in a concise 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 11 evidentiary issue which will be the subject of a motion in 12 limine. 13 Each party shall identify the points of law which concisely 14 describe the legal issues of the trial which will be discussed in 15 the parties’ respective trial briefs. 16 reflect issues derived from the core undisputed and disputed 17 facts. 18 any point of law. 19 Points of law should Parties shall not include argument or authorities with The parties shall prepare a joint statement of the case in 20 plain concise language which will be read to the jury at the 21 beginning of the trial. 22 inform the jury what the case is about. 23 The purpose of the joint statement is to The parties are reminded that pursuant to Local Rule 281 24 they are required to list in the Joint Final Pretrial Conference 25 Statement all witnesses and exhibits they propose to offer at 26 trial. 27 a brief statement of the nature of the testimony to be proffered. 28 The parties may file a joint list or each party may file separate After the name of each witness, each party shall provide 7 1 lists. 2 Joint Final Pretrial Conference Statement itself, but shall be 3 attached as separate documents to be used as addenda to the Final 4 Pretrial Order. 5 These list(s) shall not be contained in the body of the Plaintiff's exhibits shall be listed numerically. 6 Defendants' exhibits shall be listed alphabetically. The parties 7 shall use the standard exhibit stickers provided by the Court 8 Clerk’s Office: pink for plaintiff and blue for defendants. 9 the event that the alphabet is exhausted, the exhibits shall be In 10 marked “AA-ZZ” and “AAA-ZZZ” etc. 11 number of letters in parenthesis (i.e., “AAAA(4)”) to reduce 12 confusion at trial. 13 otherwise fastened together and each page within the exhibit 14 shall be numbered. 15 The list of exhibits shall not include excerpts of depositions, 16 which may be used to impeach witnesses. 17 Plaintiff and Defendants offer the same exhibit during trial, 18 that exhibit shall be referred to by the designation the exhibit 19 is first identified. 20 attention to this detail so that all concerned, including the 21 jury, will not be confused by one exhibit being identified with 22 both a number and a letter. 23 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 24 for the offering at trial of witnesses and exhibits not listed in 25 the Final Pretrial Order, and the parties are cautioned that the 26 standard will be strictly applied. 27 listing of exhibits or witnesses that a party does not intend to 28 offer will be viewed as an abuse of the court’s processes. 8 On the other hand, the 1 The parties also are reminded that pursuant to Rule 16 of 2 the Federal Rules of Civil Procedure it will be their duty at the 3 Final Pretrial Conference to aid the Court in: (a) the 4 formulation and simplification of issues and the elimination of 5 frivolous claims or defenses; (b) the settling of facts that 6 should properly be admitted; and (c) the avoidance of unnecessary 7 proof and cumulative evidence. 8 prepare the Joint Final Pretrial Conference Statement and 9 participate in good faith at the Final Pretrial Conference with Counsel must cooperatively 10 these aims in mind. A failure to do so may result in the 11 imposition of sanctions which may include monetary sanctions, 12 orders precluding proof, elimination of claims or defenses, or 13 such other sanctions as the Court deems appropriate. 14 VIII. TRIAL BRIEFS 15 The parties shall file trial briefs not later than fourteen 16 (14) days before trial. Counsel are directed to Local Rule 285 17 regarding the content of trial briefs. 18 IX. EVIDENTIARY AND/OR PROCEDURAL MOTIONS 19 It is the Court’s practice to hear motions in limine on the 20 first day of trial. However, depending on the number and nature 21 of the parties’ motions, the need to special set a hearing date 22 to hear such motions shall be addressed at the Final Pretrial 23 Conference. 24 X. TRIAL SETTING 25 The trial is set for August 1, 2016, at 9:00 a.m. Trial 26 will be by jury. The panel will consist of eight (8) jurors. 27 The parties estimate a trial length of three to five (3-5) days. 28 /// 9 1 XI. 2 At the Final Pretrial Conference, the Court may set a SETTLEMENT CONFERENCE 3 settlement conference if the parties so request. 4 settlement conference is requested, the parties are free to 5 continue to mediate or attempt to settle the case with the 6 understanding that the trial date is a firm date. 7 In the event no In the event a settlement conference is set by the Court, 8 counsel are instructed to have a principal with full settlement 9 authority present at the Settlement Conference or to be fully 10 authorized to settle the matter on any terms. 11 calendar days before the settlement conference, counsel for each 12 party shall submit to the chambers of the settlement judge a 13 confidential Settlement Conference Statement. 14 are neither to be filed with the Clerk nor served on opposing 15 counsel. 16 parties that the statement has been submitted. 17 judge is not the trial judge, the Settlement Conference Statement 18 shall not be disclosed to the trial judge. 19 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 20 settlement conference prior to the Final Pretrial Conference if 21 they feel it would lead to the possible resolution of the case. 22 In the event an early settlement conference date is requested, 23 the parties shall file said request jointly, in writing. 24 request must state whether the parties waive disqualification, 25 pursuant to Local Rule 270(b), before a settlement judge can be 26 assigned to the case. 27 requesting that the assigned Judge or Magistrate Judge 28 participate in the settlement conference AND waiver, pursuant to The Absent the parties’ affirmatively 10 1 Local Rule 270(b), a settlement judge will be randomly assigned 2 to the case. 3 XII. VOLUNTARY DISPUTE RESOLUTION PROGRAM 4 Upon the stipulation of the parties in their October 29, 5 2014 Joint Status Report, this matter is hereby referred to the 6 Voluntary Dispute Resolution Program. 7 XIII. MODIFICATION OF PRETRIAL SCHEDULING ORDER 8 The parties are reminded that pursuant to Rule 16(b) of the 9 Federal Rules of Civil Procedure, the Pretrial Scheduling Order 10 shall not be modified except by leave of court upon a showing of 11 good cause. 12 alone to modify the Pretrial Scheduling Order does not constitute 13 good cause. 14 unavailability of witnesses or counsel will not constitute good 15 cause. Agreement by the parties pursuant to stipulation Except in extraordinary circumstances, 16 XIV. 17 This Pretrial Scheduling Order will become final without 18 further order of the Court unless objections are filed within 19 fourteen (14) days of service of this Order. 20 21 OBJECTIONS TO PRETRIAL SCHEDULING ORDER IT IS SO ORDERED. DATED: December 04, 2014 22 23 Troy L. Nunley United States District Judge 24 25 26 27 28 11

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