Dougherty et al v. Bank of America, N.A. et al
Filing
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PRETRIAL SCHEDULING ORDER signed by District Judge Troy L. Nunley on 9/12/18, ORDERING that all discovery, with the exception of expert discovery, shall be completed by 12/28/2018. Designation of Expert Witnesses due by 2/28/2019. All dispositive motions, except motions for continuances, temporary restraining orders or other emergency applications, shall be heard no later than 6/27/2019. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PENNY DOUGHERTY, et al.,
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No.
2:15-cv-01226-TLN-DB
Plaintiffs,
v.
PRETRIAL SCHEDULING ORDER
BANK OF AMERICA, N.A.,
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Defendant.
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After reviewing the parties’ Joint Status Report, the Court
makes the following Pretrial Scheduling Order.
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I.
SERVICE OF PROCESS
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All named Defendants have been served and no further service
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is permitted without leave of court, good cause having been
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shown.
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II.
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No joinder of parties or amendments to pleadings is
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ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS
permitted without leave of court, good cause having been shown.
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III.
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Jurisdiction is predicated upon 28 U.S.C.
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JURISDICTION/VENUE
Jurisdiction and venue are not contested.
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§§ 1331 & 1332.
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IV.
DISCOVERY
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All discovery, with the exception of expert discovery, shall
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be completed by December 28, 2018.
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means that all discovery shall have been conducted so that all
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depositions have been taken and any disputes relative to
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discovery shall have been resolved by appropriate order if
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necessary and, where discovery has been ordered, the order has
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been obeyed.
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the magistrate judge’s calendar in accordance with the local
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All motions to compel discovery must be noticed on
rules of this Court.
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In this context, “completed”
Any request to deviate from the Federal Rules of Civil
Procedure should be made to the assigned Magistrate Judge.
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V.
DISCLOSURE OF EXPERT WITNESSES
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All counsel are to designate in writing, file with the
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Court, and serve upon all other parties the name, address, and
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area of expertise of each expert that they propose to tender at
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trial not later than February 28, 2019.1
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be accompanied by a written report prepared and signed by the
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witness.
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26(a)(2)(B).
The designation shall
The report shall comply with Fed. R. Civ. P.
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Within twenty (20) days after the designation of expert
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witnesses, any party may designate a supplemental list of expert
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witnesses who will express an opinion on a subject covered by an
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expert designated by an adverse party.
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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.
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The right to designate a supplemental expert for rebuttal
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purposes only shall apply to a party who has not previously
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disclosed an expert witness on the date set for expert witness
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disclosure by this Pretrial Scheduling Order.
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Failure of a party to comply with the disclosure schedule as
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set forth above in all likelihood will preclude that party from
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calling the expert witness at the time of trial.
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witness not appearing on the designation will not be permitted to
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testify unless the party offering the witness demonstrates: (a)
An expert
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that the necessity for the witness could not have been reasonably
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anticipated at the time the list was proffered; (b) that the
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Court and opposing counsel were promptly notified upon discovery
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of the witness; and (c) that the witness was promptly made
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available for deposition.
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For purposes of this Pretrial Scheduling Order, an “expert”
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is any person who may be used at trial to present evidence under
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Rules 702, 703, and 705 of the Federal Rules of Evidence, which
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include both “percipient experts” (persons who, because of their
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expertise, have rendered expert opinions in the normal course of
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their work duties or observations pertinent to the issues in the
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case) and “retained experts” (persons specifically designated by
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a party to be a testifying expert for the purposes of
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litigation).
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Each party shall identify whether a disclosed expert is
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percipient, retained, or both.
It will be assumed that a party
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designating a retained expert has acquired the express permission
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of the witness to be so listed.
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Parties designating percipient experts must state in the
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designation who is responsible for arranging the deposition of
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such persons.
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All experts designated are to be fully prepared at the time
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of designation to render an informed opinion, and give their
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bases for their opinion, so that they will be able to give full
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and complete testimony at any deposition taken by the opposing
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party.
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to any information gathered or evaluated, or opinion formed,
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Experts will not be permitted to testify at the trial as
after deposition taken subsequent to designation.
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Counsel are instructed to complete all discovery of expert
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witnesses in a timely manner in order to comply with the Court’s
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deadline for filing dispositive motions.
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VI.
SUPPLEMENTAL DISCOVERY
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Pursuant to Federal Rule of Civil Procedure 26(e), the
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parties shall exchange any supplemental disclosures and responses
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(including expert supplemental materials) no later than thirty
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(30) days prior to the dispositive motion hearing date.
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supplemental disclosures and responses necessary after that date
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will require leave of Court good cause having been shown.
Any
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VII.
MOTION HEARING SCHEDULE
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All dispositive motions, except motions for continuances,
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temporary restraining orders or other emergency applications,
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shall be heard no later than June 27, 2019.
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All purely legal issues are to be resolved by timely
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pretrial motions.
Local Rule 230 governs the calendaring and
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procedures of civil motions with the following additions:
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(a) The opposition and reply must be filed by 4:00 p.m. on
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the day due; and
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(b) When the last day for filing an opposition brief falls
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on a legal holiday, the opposition brief shall be filed
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on the last court day immediately preceding the legal
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holiday.
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Failure to comply with Local Rule 230(c), as modified by
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this order, may be deemed consent to the motion and the court may
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dispose of the motion summarily. Further, failure to timely
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oppose a summary judgment motion2 may result in the granting of
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that motion if the movant shifts the burden to the nonmovant to
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demonstrate that a genuine issue of material fact remains for
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trial.
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The Court places a page limit for points and authorities
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(exclusive of exhibits and other supporting documentation) of
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twenty (20) pages on all initial moving papers, twenty (20) pages
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on oppositions, and ten (10) pages for replies.
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page limit increases must be made in writing to the Court setting
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forth any and all reasons for any increase in page limit at least
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fourteen (14) days prior to the filing of the motion.
All requests for
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For the Court’s convenience, citations to Supreme Court
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cases should include parallel citations to the Supreme Court
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Reporter.
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The parties are reminded that a motion in limine is a
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pretrial procedural device designed to address the admissibility
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of evidence.
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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.
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dispositional motions presented in the guise of motions in
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limine.
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The parties are cautioned that failure to raise a
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dispositive legal issue that could have been tendered to the
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court by proper pretrial motion prior to the dispositive motion
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cut-off date may constitute waiver of such issue.
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VIII. TRIAL SETTING
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The parties are ordered to file a Joint Notice of Trial
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Readiness not later than thirty (30) days after receiving this
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Court’s ruling(s) on the last filed dispositive motion(s).
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the parties do not intend to file dispositive motions, the
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parties are ordered to file a Joint Notice of Trial Readiness not
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later than one hundred twenty (120) days after the close of
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discovery and the notice must include statements of intent to
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forgo the filing of dispositive motions.
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If
The parties are to set forth in their Notice of Trial
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Readiness, the appropriateness of special procedures, their
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estimated trial length, any request for a jury, their
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availability for trial, and if the parties are willing to attend
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a settlement conference.
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Statement shall also estimate how many court days each party will
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require to present its case, including opening statements and
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closing arguments.
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necessary for jury selection, time necessary to finalize jury
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instructions and instruct the jury.
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The parties’ Notice of Trial Readiness
The parties’ estimate shall include time
After review of the parties’ Joint Notice of Trial
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Readiness, the Court will issue an order that sets forth dates
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for a Final Pretrial Conference and Trial.
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IX.
SETTLEMENT CONFERENCE
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The parties may request a settlement conference prior to the
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Final Pretrial Conference if they feel it would lead to the
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possible resolution of the case.
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conference date is requested, the parties shall file said request
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jointly, in writing.
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waive disqualification, pursuant to Local Rule 270(b), before a
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settlement judgment can be assigned to the case.
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parties’ affirmatively requesting that the assigned Judge or
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Magistrate Judge participate in the settlement conference AND
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waiver, pursuant to Local Rule 270(b), a settlement judge will be
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randomly assigned to the case.
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In the event a settlement
The request must state whether the parties
Absent the
In the event a settlement conference is set by the Court,
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counsel are instructed to have a principal with full settlement
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authority present at the Settlement Conference or to be fully
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authorized to settle the matter on any terms.
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calendar days before the settlement conference, counsel for each
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party shall submit to the chambers of the settlement judge a
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confidential Settlement Conference Statement.
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are neither to be filed with the Clerk nor served on opposing
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counsel.
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parties that the statement has been submitted.
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judge is not the trial judge, the Settlement Conference Statement
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shall not be disclosed to the trial judge.
At least seven (7)
Such statements
Each party, however, shall serve notice on all other
If the settlement
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X.
COURTESY COPIES
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No party shall submit paper courtesy copies of pleadings or
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exhibits to the Court unless expressly ordered to do so.
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XI.
VOLUNTARY DISPUTE RESOLUTION PROGRAM
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Pursuant to Local Rule 271, parties may stipulate at any
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stage in the proceedings to refer the action, in whole or in
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part, to the Voluntary Dispute Resolution Program.
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XII.
MODIFICATION OF PRETRIAL SCHEDULING ORDER
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The parties are reminded that pursuant to Rule 16(b) of the
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Federal Rules of Civil Procedure, the Pretrial Scheduling Order
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shall not be modified except by leave of court upon a showing of
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good cause.
Agreement by the parties pursuant to stipulation
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alone to modify the Pretrial Scheduling Order does not constitute
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good cause.
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unavailability of witnesses or counsel will not constitute good
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cause.
Except in extraordinary circumstances,
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XIII. OBJECTIONS TO PRETRIAL SCHEDULING ORDER
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This Pretrial Scheduling Order will become final without
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further order of the Court unless objections are filed within
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fourteen (14) days of service of this Order.
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IT IS SO ORDERED.
DATED:
September 12, 2018
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Troy L. Nunley
United States District Judge
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