Demarest v. The City of Vallejo California et al

Filing 35

ORDER signed by Magistrate Judge Kendall J. Newman on 12/19/2017 ORDERING: Initial Disclosures due by 1/3/2018; Designation of Expert Witnesses due by 6/7/2018; Any rebuttal expert disclosures due by 7/5/2018; Discovery due by 8/9/2018; All law and m otion, except as to discovery-related matters, shall be completed 12/6/2018; Final Pretrial Conference is set for 1/21/2019 at 01:30 PM in Courtroom 10 (GEB) before District Judge Garland E. Burrell Jr; and a Bench Trial is set for 3/5/2019 at 09:00 AM in Courtroom 10 (GEB) before District Judge Garland E. Burrell Jr. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID P. DEMAREST

No. 2:16-cv-02271-GEB-KJN PS

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Plaintiff,

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ORDER
v.
THE CITY OF VALLEJO CALIFORNIA,
et al.,
Defendants.

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READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES THAT

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THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND

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PARTIES, INCLUDING PRO SE PARTIES, MUST COMPLY. FAILURE TO COMPLY

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WITH THE TERMS OF THIS ORDER MAY RESULT IN THE IMPOSITION OF

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MONETARY AND ALL OTHER APPROPRIATE SANCTIONS, INCLUDING DISMISSAL

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OR AN ORDER OF JUDGMENT.

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On December 18, 2017, the court conducted a status (pretrial scheduling) conference in

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this matter. Plaintiff David P. Demarest, who proceeds without counsel, appeared telephonically

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representing himself, and attorney Kelly J. Trujillo appeared telephonically on behalf of

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defendants. After considering the parties’ joint status report (ECF No. 33) and the parties’

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representations at the status conference, the court issues the following pretrial scheduling order.1

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NATURE OF THE CASE

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Plaintiff filed the initial complaint in this matter on September 23, 2016. (ECF No. 1.)

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Defendants brought a motion to dismiss, which was denied in part and granted in part. (See ECF

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Nos. 6, 12, 17.) On March 9, 2017, plaintiff filed his first amended complaint. (ECF No. 13.)

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After a subsequent motion to dismiss, this matter proceeds on plaintiff’s first and ninth causes of

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action, as listed in his first amended complaint.2 (See ECF Nos. 16, 25, 26.) Plaintiff asserts

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claims pursuant to 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S.

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658 (1978). (See ECF No. 13.)

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Defendants deny any liability and assert various affirmative defenses. (See ECF No. 27.)
SERVICE OF PROCESS
Defendants have answered plaintiff’s complaint. (ECF No. 27.) Thus, no further service

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is permitted except with leave of court, good cause having been shown.

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JOINDER OF PARTIES/AMENDMENT OF PLEADINGS

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No further joinder of parties or amendments to pleadings will be permitted except with

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leave of court, good cause having been shown.

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JURISDICTION/VENUE

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Jurisdiction and venue are undisputed, and are hereby found to be proper.
INITIAL DISCLOSURES

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If the parties have not already done so, they shall make initial disclosures pursuant to

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Federal Rule of Civil Procedure 26(a)(1) no later than January 3, 2018.

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LAW AND MOTION

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All law and motion, except as to discovery-related matters, shall be completed by

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December 6, 2018. The word “completed” in this context means that all law and motion matters

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Based on the court’s own availability and case management practices, the court has modified
some of the case deadlines proposed by the parties.
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Plaintiff’s seventh and eighth causes of action in his first amended complaint were dismissed,
with leave to amend after discovery, subject to the limitations of Federal Rule of Civil Procedure
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must be heard by the above date. Counsel and/or parties proceeding without counsel3 are

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cautioned to refer to the Local Rules regarding the requirements for noticing such motions on the

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court’s regularly scheduled law and motion calendar, including, but not limited to, Local Rule

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230. Judge Newman generally hears civil motions on Thursdays at 10:00 a.m. This paragraph

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does not preclude motions for continuances, temporary restraining orders, or other emergency

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applications, for which the court may set a special briefing schedule, if necessary or appropriate.

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The parties should keep in mind that the purpose of law and motion is to narrow and

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refine the legal issues raised by the case and to dispose of by pretrial motion those issues that are

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susceptible to resolution without trial. To accomplish that purpose, the parties need to identify

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and fully research the issues presented by the case, and then examine those issues in light of the

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evidence obtained through discovery. If it appears to counsel after examining the legal issues and

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facts that an issue can be resolved by pretrial motion, counsel are to file the appropriate motion

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consistent with the law and motion cutoff set forth above.

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ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL

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MOTION. Counsel are reminded that motions in limine are procedural devices designed to

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address the admissibility of evidence. COUNSEL ARE CAUTIONED THAT THE COURT

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WILL LOOK WITH DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED UNDER

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THE GUISE OF MOTIONS IN LIMINE AT THE TIME OF TRIAL.

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DISCOVERY

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All discovery shall be completed by August 9, 2018. The word “completed” means that

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all discovery shall have been conducted so that all depositions have been taken and any disputes

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related to discovery shall have been resolved by appropriate order if necessary and, where

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discovery has been ordered, the order has been complied with. Discovery motions must be

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noticed on the undersigned’s law and motion calendar in accordance with the Local Rules. Judge

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Newman generally hears civil motions on Thursdays at 10:00 a.m.

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The parties are reminded that discovery-related motions must conform to the requirements
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Any reference to “counsel” in this order includes parties appearing without counsel, otherwise
referred to as appearing in propria persona or pro se.
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of the Federal Rules of Civil Procedure and this court’s Local Rules, including Local Rule 251.

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Additionally, the parties are required to meet and confer in good faith in an attempt to resolve

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their discovery disputes informally and without court intervention prior to filing a discovery

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motion. Such meet and confer shall take place in person, or at a minimum, via a telephonic

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conference. The mere exchange of letters or e-mails alone is not sufficient. As part of their joint

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statement related to a discovery motion submitted pursuant to Local Rule 251, the parties shall

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also specifically outline: (a) what meet-and-confer efforts were undertaken; (b) when and where

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such discussions took place; (c) who was present; and (d) how the parties’ disputes were

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narrowed as a result of such discussions. Failure to comply with these requirements may result in

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summary denial of a discovery motion.
Additionally, the court strongly encourages the use of informal telephonic discovery

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conferences with the court in lieu of formal discovery motion practice. The procedures and

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conditions for requesting and conducting such an informal telephonic discovery conference are

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outlined in Judge Newman’s “Order re Informal Telephonic Conferences re Discovery Disputes,”

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posted on the court’s website at http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-

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judges/5046/. Additionally, subject to the court’s availability, the court will also rule on disputes

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encountered at oral depositions, so as to avoid such depositions from breaking down. In the

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course of the deposition, the parties may contact Judge Newman’s courtroom deputy clerk at

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[phone] to inquire regarding Judge Newman’s availability. However, the parties are

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cautioned that these informal procedures are not to be abused, and the court may impose

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appropriate sanctions on an offending party or parties, even in the course of informal discovery

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conferences.

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EXPERT DISCLOSURES

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The parties shall disclose any expert witnesses in accordance with the specifications of

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Federal Rule of Civil Procedure 26(a)(2) no later than June 7, 2018. Any rebuttal expert

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disclosures shall be made in accordance with the specifications of Federal Rule of Civil

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Procedure 26(a)(2) no later than July 5, 2018. Expert disclosures shall be filed with the court and

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served upon all other parties.
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An expert witness not timely disclosed will not be permitted to testify unless the party

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offering the witness demonstrates that: (a) the necessity of the witness could not have been

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reasonably anticipated at the time that the expert disclosures were due; (b) the court and opposing

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counsel were promptly notified upon discovery of the witness; and (c) the witness was promptly

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proffered for deposition. Failure to provide the information required by Federal Rule of Civil

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Procedure 26(a)(2) along with the expert disclosures may lead to preclusion of the expert’s

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testimony or other appropriate sanctions.

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FINAL PRETRIAL CONFERENCE

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The final pretrial conference is set before United States District Judge Garland E. Burrell,

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Jr. on January 21, 2019, at 1:30 pm., in Courtroom No. 10. Counsel are cautioned that counsel

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appearing at the pretrial conference will in fact try the matter. Counsel for all parties are to be

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fully prepared for trial at the time of the pretrial conference, with no matters remaining to be

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accomplished except production of witnesses for oral testimony. Counsel are referred to Local

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Rules 281 and 282 relating to pretrial statements and conferences. A FAILURE TO COMPLY

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WITH LOCAL RULES 281 AND 282 WILL BE GROUNDS FOR SANCTIONS.

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Notwithstanding Local Rule 281, the parties shall submit a joint pretrial statement not

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later than fourteen (14) days prior to the pretrial conference. The joint pretrial statement shall

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conform with the requirements of Local Rule 281(b). The undisputed facts and disputed factual

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issues shall be set forth in two separate sections. The parties should identify those facts which are

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relevant to each separate cause of action. In this regard, the parties are to number each individual

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fact or factual issue. Where the parties are unable to agree as to what factual issues are properly

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before the court for trial, they should nevertheless list in the section on “DISPUTED FACTUAL

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ISSUES” all issues asserted by any of the parties and explain by parenthetical the controversy

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concerning each issue. The parties should keep in mind that, in general, each fact should relate or

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correspond to an element of the relevant cause of action. The parties should also keep in mind

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that the purpose of listing the disputed factual issues is to apprise the court and all parties about

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the precise issues that will be litigated at trial. The court is not interested in a listing of all

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evidentiary facts underlying the issues that are in dispute. However, with respect to the listing of
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undisputed facts, the court will accept agreements as to evidentiary facts. The joint statement of

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undisputed facts and disputed factual issues is to be filed with the court concurrently with the

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filing of the joint pretrial statement.

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Pursuant to Local Rule 281(b), the parties are required to provide with their pretrial

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statement a list of witnesses and exhibits that they propose to proffer at trial, no matter for what

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purpose. These lists shall not be contained in the pretrial statement itself, but shall be attached as

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separate documents to be used as addenda to the final pretrial order. Plaintiff’s exhibits shall be

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listed numerically; defendant’s exhibits shall be listed alphabetically. The pretrial order will

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contain a stringent standard for the proffering of witnesses and exhibits at trial not listed in the

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pretrial order. Counsel are cautioned that the standard will be strictly applied. On the other hand,

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the listing of exhibits or witnesses which counsel do not intend to use will be viewed as an abuse

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of the court’s processes.

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Counsel (and pro se parties) are reminded that, pursuant to Federal Rule of Civil

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Procedure 16, it will be their duty at the pretrial conference to aid the court in: (a) formulation

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and simplification of issues and the elimination of meritless claims or defenses; (b) settling of

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facts that should be properly admitted; and (c) avoidance of unnecessary proof and cumulative

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evidence. The parties must prepare their joint pretrial statement and participate in good faith at

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the pretrial conference with these aims in mind. A FAILURE TO DO SO MAY RESULT IN

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THE IMPOSITION OF SANCTIONS, which may include monetary sanctions, orders precluding

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proof, elimination of claims or defenses, or such other sanctions as the court deems appropriate.

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TRIAL SETTING

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A bench trial shall commence before Judge Burrell on March 5, 2019, at 9:00 a.m., in

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Courtroom No. 10. The court presently anticipates that the trial will take approximately three to

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five (3 to 5) days.

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SETTLEMENT CONFERENCE

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The parties do not presently believe that a settlement conference would be beneficial. A

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settlement conference may be ordered at a later juncture. Additionally, should the parties’ views

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change, the parties may request a settlement conference by filing an appropriate stipulation and
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proposed order for the court’s consideration. A settlement conference may be conducted before

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the undersigned (with an appropriate waiver of disqualification by all parties) or before another

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magistrate judge.

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MISCELLANEOUS PROVISIONS

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The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b)(4), this

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order shall not be modified except by leave of court upon a showing of “good cause.” See

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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). Mere agreement by the

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parties pursuant to a stipulation does not constitute good cause. Nor does the unavailability of

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witnesses or counsel, except in extraordinary circumstances, constitute good cause.

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IT IS SO ORDERED.
Dated: December 19, 2017

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14/16-2271. Demarest v. City of Vallejo. Pretrial Scheduling ORDER

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