Henry v. Norcold, Inc.

Filing 15

STATUS (PRETRIAL SCHEDULING) ORDER signed by District Judge Kimberly J. Mueller on 5/15/17. The parties agree that 1/5/2018 is the last day by which a party may seek to amend the pleadings or join parties as a general matter. Initial disclosures shall be completed by 5/8/2017. All discovery shall be completed by 4/20/2018. Designation of Expert Witnesses due by 5/18/2018 and expert rebuttal disclosures due by 6/8/2018. All expert discovery shall be completed by 6/29/2018. All dispositive motions, except motions for continuances, temporary restraining orders or other emergency applications, shall be heard no later than 6/29/2018. The Final Pretrial Conference is SET for 10/19/2018 at 10:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller, with a joint pretrial conference statement to be filed by 9/28/2018. The Jury Trial is SET for 12/3/2018 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller, with trial briefs due by 11/19/2018. Private settlement mediation shall be completed by 3/23/2018, and the parties shall inform the court of the status of their settlement efforts by 4/6/2018. (Kastilahn, A)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES HENRY, et al., 10 Plaintiffs, 11 12 No. 2:17-cv-00067 KJM CMK v. STATUS (PRETRIAL SCHEDULING) NORCOLD, INC., 13 ORDER Defendant. 14 15 An initial scheduling conference was held in this case on April 13, 2017. C. 16 17 Joseph Ou appeared for plaintiffs; Gary Montgomery appeared for defendant. 18 Having reviewed the parties’ Joint Status Report filed on April 6, 2017, and 19 discussed a schedule for the case with counsel at the hearing, the court makes the following 20 orders: 21 I. SERVICE OF PROCESS All named defendants have been served and no further service is permitted without 22 23 leave of court, good cause having been shown. 24 II. 25 ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS The parties agree that January 5, 2018 is the last day by which a party may seek 26 to amend the pleadings or join parties as a general matter. No joinder of parties or amendments to 27 pleadings will be permitted without leave of court, good cause having been shown. See Fed. R. 28 Civ. P. 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). 1 1 III. JURISDICTION/VENUE 2 Jurisdiction is predicated upon 28 U.S.C. § 1332. Jurisdiction and venue are not 3 disputed. 4 IV. DISCOVERY 5 Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be 6 completed by May 8, 2017. All discovery shall be completed by April 20, 2018. In this context, 7 “completed” means that all discovery shall have been conducted so that all depositions have been 8 taken and any disputes relative to discovery shall have been resolved by appropriate order if 9 necessary and, where discovery has been ordered, the order has been obeyed. All motions to 10 compel discovery must be noticed on the magistrate judge’s calendar in accordance with the local 11 rules of this court. While the assigned magistrate judge reviews proposed discovery phase 12 protective orders, requests to seal or redact are decided by Judge Mueller as discussed in more 13 detail below. In addition, while the assigned magistrate judge handles discovery motions, the 14 magistrate judge cannot change the schedule set in this order, except that the magistrate judge 15 may modify a discovery cutoff to the extent such modification does not have the effect of 16 requiring a change to the balance of the schedule. 17 A. Rule 26(f)(3)(C) Compliance 18 The parties will make reasonable efforts to preserve electronically stored 19 information within their custody, possession, and control. The parties agree that they will produce 20 electronically stored information in electronic format as .pdf files, with each page individually 21 bates stamped and notated for confidentiality (if applicable), with certain metadata preserved, and 22 in a means that is searchable. If producing electronically stored information in .pdf format is not 23 reasonable or possible given the program used to create the information, the parties will meet and 24 confer and agree to the appropriate electronic format in which to produce the electronically stored 25 information. 26 27 28 B. Rule 26(f)(3)(D) Compliance The parties agree to a “clawback” arrangement whereby all trade secret, privilege, work product, and trial preparation objections are preserved and reserved in the event that such 2 1 documents are inadvertently produced. In the event of inadvertent disclosure of such 2 documentation, the parties shall follow the procedure set forth in Rule 26(b)(5)(B) to resolve 3 issues pertaining to such documentation. 4 V. 5 DISCLOSURE OF EXPERT WITNESSES All counsel are to designate in writing, file with the court, and serve upon all other 6 parties the name, address, and area of expertise of each expert that they propose to tender at trial 7 not later than May 18, 2018. The designation shall be accompanied by a written report prepared 8 and signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B). By June 8, 9 2018, any party who previously disclosed expert witnesses may submit a supplemental list of 10 expert witnesses who will express an opinion on a subject covered by an expert designated by an 11 adverse party, if the party supplementing an expert witness designation has not previously 12 retained an expert to testify on that subject. The supplemental designation shall be accompanied 13 by a written report, which shall also comply with the conditions stated above. 14 Failure of a party to comply with the disclosure schedule as set forth above in all 15 likelihood will preclude that party from calling the expert witness at the time of trial. An expert 16 witness not appearing on the designation will not be permitted to testify unless the party offering 17 the witness demonstrates: (a) that the necessity for the witness could not have been reasonably 18 anticipated at the time the list was proffered; (b) that the court and opposing counsel were 19 promptly notified upon discovery of the witness; and (c) that the witness was promptly made 20 available for deposition. 21 For purposes of this scheduling order, an “expert” is any person who may be used 22 at trial to present evidence under Rules 702, 703 and 705 of the Federal Rules of Evidence, which 23 include both “percipient experts” (persons who, because of their expertise, have rendered expert 24 opinions in the normal course of their work duties or observations pertinent to the issues in the 25 case) and “retained experts” (persons specifically designated by a party to be a testifying expert 26 for the purposes of litigation). A party shall identify whether a disclosed expert is percipient, 27 retained, or both. It will be assumed that a party designating a retained expert has acquired the 28 ///// 3 1 express permission of the witness to be so listed. Parties designating percipient experts must state 2 in the designation who is responsible for arranging the deposition of such persons. 3 All experts designated are to be fully prepared at the time of designation to render 4 an informed opinion, and give the bases for their opinion, so that they will be able to give full and 5 complete testimony at any deposition taken by the opposing party. Experts will not be permitted 6 to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition 7 taken subsequent to designation. All expert discovery shall be completed by June 29, 2018. 8 VI. 9 MOTION HEARING SCHEDULE All dispositive motions, except motions for continuances, temporary restraining 10 orders or other emergency applications, shall be heard no later than June 29, 2018.1 The parties 11 may obtain available hearing dates by checking Judge Mueller’s page on the court’s website. 12 13 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: 14 (a) The opposition and reply must be filed by 4:00 p.m. on the day due; and 15 (b) When the last day for filing an opposition brief falls on a legal holiday, the 16 opposition brief shall be filed on the last court day immediately preceding the legal holiday. 17 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to 18 the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651, 19 652-53 (9th Cir. 1994). 20 The court values the importance of training young attorneys. The parties are 21 encouraged to consider assigning oral argument to a young attorney. If a written request for oral 22 argument is filed before a hearing, stating an attorney of four or fewer years out of law school 23 will argue the oral argument, then the court will ordinarily hold the hearing, although the court’s 24 schedule and calendar may require the hearing to be reset. Otherwise, the court may find it 25 appropriate in some actions to submit a motion without oral argument. 26 ///// 27 28 1 Note that this date may not correspond to a law and motion calendar date. 4 1 The court places a page limit of twenty (20) pages on all moving papers, twenty 2 (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases 3 must be made in writing at least fourteen (14) days prior to the filing of the motion. 4 Prior to filing a motion in a case in which the parties are represented by counsel, 5 counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the 6 contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate 7 the defendant’s contentions as to deficiencies in the complaint and in many instances the party 8 considering a motion should agree to any amendment that would cure a curable defect. Counsel 9 should discuss the issues sufficiently so that if a motion of any kind is filed, including for 10 summary judgment, the briefing is directed only to those substantive issues requiring resolution 11 by the court. Counsel should resolve minor procedural or other non-substantive matters during 12 the meet and confer. A notice of motion shall contain a certification by counsel filing the 13 motion that meet and confer efforts have been exhausted, with a brief summary of meet and 14 confer efforts. 15 The parties are cautioned that failure to raise a dispositive legal issue that could 16 have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off 17 date may constitute waiver of such issue. 18 VII. 19 SEALING No document will be sealed, nor shall a redacted document be filed, without the 20 prior approval of the court. If a document for which sealing or redaction is sought relates to the 21 record on a motion to be decided by Judge Mueller, the request to seal or redact should be 22 directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be 23 governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the 24 discovery phase of litigation shall not govern the filing of sealed or redacted documents on the 25 public docket. The court will only consider requests to seal or redact filed by the proponent of 26 sealing or redaction. If a party plans to make a filing that includes material an opposing party has 27 identified as confidential and potentially subject to sealing, the filing party shall provide the 28 ///// 5 1 opposing party with sufficient notice in advance of filing to allow for the seeking of an order of 2 sealing or redaction from the court. 3 VIII. 4 FINAL PRETRIAL CONFERENCE The Final Pretrial Conference is set for October 19, 2018, at 10:00 a.m. At least 5 one of the attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial 6 Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable to 7 attend, the attorney who attends in place of the trial attorney shall have equal familiarity with the 8 case and equal authorization to make commitments on behalf of the client. 9 Counsel for all parties are to be fully prepared for trial at the time of the Final 10 Pretrial Conference, with no matters remaining to be accomplished except production of 11 witnesses for oral testimony. The parties shall confer and file a joint pretrial conference 12 statement by September 28, 2018. The provisions of Local Rule 281 shall apply with respect to 13 the matters to be included in the joint pretrial statement. In addition to those subjects listed in 14 Local Rule 281(b), the parties are to provide the court with the following: 15 16 - A plain, concise statement that identifies every non-discovery motion previously tendered to the court and its resolution. 17 - A concise, joint list of undisputed core facts that are relevant to each claim. 18 Disputed core facts should then be identified in the same manner. The parties are reminded not to 19 identify every fact in dispute but only those disputed facts that are essential to the formulation of 20 each claim. Each disputed fact and undisputed fact should be separately numbered or lettered. 21 Where the parties are unable to agree on the core disputed facts, they should nevertheless list core 22 disputed facts in the above manner. 23 - Concise lists of disputed evidentiary issues that will be the subject of a party’s 24 motion in limine, and whether the parties believe resolution of any of these motions will be 25 necessary before the first day of trial. 26 - Each party’s points of law, which concisely describe the legal basis or theory 27 underlying their claims and defenses. Points of law should reflect issues derived from the core 28 ///// 6 1 undisputed and disputed facts. Parties shall not include argument with any point of law; the 2 parties may include concise arguments in their trial briefs. 3 - A joint statement of the case in plain concise language, which will be read to the 4 jury during voir dire and at the beginning of the trial. The purpose of the joint statement is to 5 inform the jury what the case is about. 6 - The parties’ position on the number of jurors to be impaneled to try the case. 7 Discovery documents to be listed in the pretrial statement shall not include 8 documents to be used only for impeachment and in rebuttal. 9 The parties are reminded that pursuant to Local Rule 281 they are required to 10 attach to the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they 11 propose to offer at trial. After the name of each witness, each party shall provide a brief 12 statement of the nature of the testimony to be proffered. The parties may file a joint list or each 13 party may file separate lists. These list(s) shall not be contained in the body of the Final Pretrial 14 Conference Statement itself, but shall be attached as separate documents to be used as addenda to 15 the Final Pretrial Order. 16 Plaintiff’s exhibits shall be listed numerically. Defendant’s exhibits shall be listed 17 alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for 18 plaintiff and blue for defendant. In the event that the alphabet is exhausted, the exhibits shall be 19 marked “AA-ZZ”. However, if the amount of defendant exhibits exceeds “ZZ” exhibits shall be 20 then listed as AAA, BBB, CCC etc. All multi-page exhibits shall be stapled or otherwise fastened 21 together and each page within the exhibit shall be numbered. The list of exhibits shall not include 22 excerpts of depositions to be used only for impeachment. In the event that plaintiff(s) and 23 defendant(s) offer the same exhibit during trial, that exhibit shall be referred to by the designation 24 the exhibit is first identified. The court cautions the parties to pay attention to this detail so that 25 all concerned, including the jury, will not be confused by one exhibit being identified with both a 26 number and a letter. The parties are encouraged to consult concerning exhibits and, to the extent 27 possible, provide joint exhibits, which shall be designated as JX and listed numerically, e.g., JX- 28 1, JX-2. 7 1 The Final Pretrial Order will contain a stringent standard for the offering at trial of 2 witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the 3 standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a 4 party does not intend to offer will be viewed as an abuse of the court’s processes. 5 6 Counsel shall produce all trial exhibits to Casey Schultz, the Courtroom Deputy, no later than 3:00 p.m. on the Friday before trial. 7 8 Failure to comply with Local Rule 281, as modified by this order, may be grounds for sanctions. 9 The parties also are reminded that pursuant to Rule 16 of the Federal Rules of 10 Civil Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the 11 formulation and simplification of issues and the elimination of frivolous claims or defenses; (b) 12 the settling of facts that should properly be admitted; and (c) the avoidance of unnecessary proof 13 and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial Conference 14 Statement and participate in good faith at the Final Pretrial Conference with these aims in mind.2 15 A failure to do so may result in the imposition of sanctions which may include monetary 16 sanctions, orders precluding proof, elimination of claims or defenses, or such other sanctions as 17 the court deems appropriate. 18 Concurrently with the filing of the Joint Final Pretrial Conference Statement, 19 counsel shall submit to chambers the word processable version of the Statement, in its entirety 20 (including the witness and exhibit lists) to: kjmorders@caed.uscourts.gov. 21 IX. 22 MOTIONS IN LIMINE All motions in limine must be filed in conjunction with the joint pretrial statement. 23 In most cases, motions in limine are addressed and resolved on the morning of the first day of 24 trial. As noted above, the parties may alert the court at the final pretrial conference and in their 25 final pretrial statement that a particular motion or motions should be resolved earlier. At the final 26 2 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. Shareholders Protective Comm., 770 F.2d 866, 86869 (9th Cir. 1985). 8 1 pretrial conference, the court will then set a briefing and hearing schedule on these motions in 2 limine as necessary. 3 The parties are reminded that a motion in limine is a pretrial procedural device 4 designed to address the admissibility of evidence. The court looks with disfavor upon 5 dispositional motions presented at the Final Pretrial Conference or at trial in the guise of motions 6 in limine. 7 X. 8 9 10 TRIAL SETTING The jury trial is set for December 3, 2018 at 9:00 a.m. The parties estimate a trial length of approximately five (5) to seven (7) days. Trial briefs are due by November 19, 2018. XI. 11 SETTLEMENT CONFERENCE The parties wish to pursue settlement via private mediation at this time. 12 No settlement conference is currently scheduled. Private settlement mediation shall be completed 13 by March 23, 2018, and the parties shall inform the court of the status of their settlement efforts 14 by April 6, 2018. 15 In the event that a court settlement conference date or referral to the Voluntary 16 Dispute Resolution Program (VDRP) is requested, the parties shall file said request jointly, in 17 writing. Because the case will be tried to a jury, all parties should be prepared to advise the court 18 whether they will stipulate to the trial judge acting as settlement judge and waive disqualification 19 by virtue thereof. 20 Counsel are instructed to have a principal with full settlement authority present at 21 any Settlement Conference or to be fully authorized to settle the matter on any terms. Each judge 22 has different requirements for the submission of settlement conference statements; the appropriate 23 instructions will be sent to you after the settlement judge is assigned. 24 XII. 25 MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil 26 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court 27 upon a showing of good cause. Agreement of the parties by stipulation alone does not constitute 28 ///// 9 1 good cause. Except in extraordinary circumstances, unavailability of witnesses or counsel does 2 not constitute good cause. 3 As noted, the assigned magistrate judge is authorized to modify only the discovery 4 dates shown above to the extent any such modification does not impact the balance of the 5 schedule of the case. 6 XIII. 7 8 9 10 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: May 15, 2017. 11 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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