Ellering v. Reliastar Life Insurance Company

Filing 17

STATUS (PRETRIAL SCHEDULING) ORDER signed by District Judge Kimberly J. Mueller on 6/22/17, ORDERING that all discovery shall be completed by 2/23/2018. Designation of Expert Witnesses due by 3/9/2018 with rebuttal disclosures due by 3/23/2018. Al l expert discovery shall be completed by 4/20/2018. All dispositive motions, except motions for continuances, temporary restraining orders or other emergency applications, shall be heard no later than 5/4/2018. The Final Pretrial Conference is SET f or 9/21/2018 at 10:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller, with joint pretrial statement due by 8/31/2018. The Jury Trial is SET for 11/5/2018 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller, with trial briefs due by 10/22/2018. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CYNTHIA ELLERING,

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Plaintiff,

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No. 2:17-cv-0416 KJM GGH

v.

STATUS (PRETRIAL SCHEDULING)

RELIASTAR LIFE INSURANCE CO.,

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ORDER

Defendant.

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An initial scheduling conference was held in this case on June 8, 2017. Robert

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Rosati appeared for plaintiff; Sevana Babooian appeared for defendant.

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Having reviewed the parties’ Joint Status Report filed on May 15, 2017, and

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discussed a schedule for the case with counsel at the hearing, the court makes the following

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orders:

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I.

SERVICE OF PROCESS
All named defendants have been served and no further service is permitted without

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leave of court, good cause having been shown.

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II.

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ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS
No further joinder of parties or amendments to pleadings is permitted without

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leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth

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Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).
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III.

JURISDICTION/VENUE

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Jurisdiction is predicated upon 28 U.S.C. § 1332. Jurisdiction and venue are not

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disputed.

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IV.

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DISCOVERY
Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be

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have been completed by June 16, 2017. All discovery shall be completed by February 23, 2018.

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In this context, “completed” means that all discovery shall have been conducted so that all

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depositions have been taken and any disputes relative to discovery shall have been resolved by

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appropriate order if necessary and, where discovery has been ordered, the order has been obeyed.

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All motions to compel discovery must be noticed on the magistrate judge’s calendar in

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accordance with the local rules of this court. While the assigned magistrate judge reviews

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proposed discovery phase protective orders, requests to seal or redact are decided by Judge

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Mueller as discussed in more detail below. In addition, while the assigned magistrate judge

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handles discovery motions, the magistrate judge cannot change the schedule set in this order,

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except that the magistrate judge may modify a discovery cutoff to the extent such modification

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does not have the effect of requiring a change to the balance of the schedule.

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The parties anticipate the need for a discovery phase protective order, and shall file

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a stipulation and proposed protective order with the court within fourteen (14) days of the

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scheduling conference.

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V.

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DISCLOSURE OF EXPERT WITNESSES
All counsel are to designate in writing, file with the court, and serve upon all other

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parties the name, address, and area of expertise of each expert that they propose to tender at trial

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not later than March 9, 2018. The designation shall be accompanied by a written report prepared

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and signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B). By March

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23, 2018, any party who previously disclosed expert witnesses may submit a supplemental list of

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expert witnesses who will express an opinion on a subject covered by an expert designated by an

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adverse party, if the party supplementing an expert witness designation has not previously

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retained an expert to testify on that subject. The supplemental designation shall be accompanied

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by a written report, which shall also comply with the conditions stated above.

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Failure of a party to comply with the disclosure schedule as set forth above in all

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likelihood will preclude that party from calling the expert witness at the time of trial. An expert

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witness not appearing on the designation will not be permitted to testify unless the party offering

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the witness demonstrates: (a) 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 court and opposing counsel were

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promptly notified upon discovery 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 scheduling order, an “expert” is any person who may be used

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at trial to present evidence under 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 expertise, have rendered expert

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opinions in the normal course of their work duties or observations pertinent to the issues in the

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case) and “retained experts” (persons specifically designated by a party to be a testifying expert

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for the purposes of litigation). A party shall identify whether a disclosed expert is percipient,

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retained, or both. It will be assumed that a party designating a retained expert has acquired the

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express permission of the witness to be so listed. Parties designating percipient experts must state

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in the designation who is responsible for arranging the deposition of such persons.

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All experts designated are to be fully prepared at the time of designation to render

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an informed opinion, and give the bases for their opinion, so that they will be able to give full and

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complete testimony at any deposition taken by the opposing party. Experts will not be permitted

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to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition

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taken subsequent to designation. All expert discovery shall be completed by April 20, 2018.

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VI.

MOTION HEARING SCHEDULE

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All dispositive motions, except motions for continuances, temporary restraining

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orders or other emergency applications, shall be heard no later than May 4, 2018.1 The parties

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may obtain available hearing dates by checking Judge Mueller’s page on the court’s website.

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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:

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(a)

The opposition and reply must be filed by 4:00 p.m. on the day due; and

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(b)

When the last day for filing an opposition brief falls on a legal holiday, the

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opposition brief shall be filed on the last court day immediately preceding the legal holiday.

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Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to

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the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651,

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652-53 (9th Cir. 1994).

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The court values the importance of training young attorneys. The parties are

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encouraged to consider assigning oral argument to a young attorney. If a written request for oral

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argument is filed before a hearing, stating an attorney of four or fewer years out of law school

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will argue the oral argument, then the court will ordinarily hold the hearing, although the court’s

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schedule and calendar may require the hearing to be reset. Otherwise, the court may find it

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appropriate in some actions to submit a motion without oral argument.

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The court places a page limit of twenty (20) pages on all moving papers, twenty

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(20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases

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must be made in writing at least fourteen (14) days prior to the filing of the motion.

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Prior to filing a motion in a case in which the parties are represented by counsel,

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counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the

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contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate

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the defendant’s contentions as to deficiencies in the complaint and in many instances the party

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considering a motion should agree to any amendment that would cure a curable defect. Counsel

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Note that this date may not correspond to a law and motion calendar date.
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should discuss the issues sufficiently so that if a motion of any kind is filed, including for

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summary judgment, the briefing is directed only to those substantive issues requiring resolution

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by the court. Counsel should resolve minor procedural or other non-substantive matters during

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the meet and confer. A notice of motion shall contain a certification by counsel filing the

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motion that meet and confer efforts have been exhausted, with a brief summary of meet and

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confer efforts.

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The parties are cautioned that failure to raise a dispositive legal issue that could

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have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off

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date may constitute waiver of such issue.

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VII.

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SEALING
No document will be sealed, nor shall a redacted document be filed, without the

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prior approval of the court. If a document for which sealing or redaction is sought relates to the

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record on a motion to be decided by Judge Mueller, the request to seal or redact should be

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directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be

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governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the

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discovery phase of litigation shall not govern the filing of sealed or redacted documents on the

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public docket. The court will only consider requests to seal or redact filed by the proponent of

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sealing or redaction. If a party plans to make a filing that includes material an opposing party has

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identified as confidential and potentially subject to sealing, the filing party shall provide the

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opposing party with sufficient notice in advance of filing to allow for the seeking of an order of

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sealing or redaction from the court.

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VIII.

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FINAL PRETRIAL CONFERENCE
The Final Pretrial Conference is set for September 21, 2018, at 10:00 a.m. At

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least one of the attorneys who will conduct the trial for each of the parties shall attend the Final

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Pretrial Conference. If by reason of illness or other unavoidable circumstance a trial attorney is

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unable to attend, the attorney who attends in place of the trial attorney shall have equal familiarity

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with the case and equal authorization to make commitments on behalf of the client.

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Counsel for all parties are to be fully prepared for trial at the time of the Final

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Pretrial Conference, with no matters remaining to be accomplished except production of

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witnesses for oral testimony. The parties shall confer and file a joint pretrial conference

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statement by August 31, 2018. The provisions of Local Rule 281 shall apply with respect to the

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matters to be included in the joint pretrial statement. In addition to those subjects listed in Local

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Rule 281(b), the parties are to provide the court with the following:

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- A plain, concise statement that identifies every non-discovery motion previously
tendered to the court and its resolution.

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- A concise, joint list of undisputed core facts that are relevant to each claim.

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Disputed core facts should then be identified in the same manner. The parties are reminded not to

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identify every fact in dispute but only those disputed facts that are essential to the formulation of

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each claim. Each disputed fact and undisputed fact should be separately numbered or lettered.

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Where the parties are unable to agree on the core disputed facts, they should nevertheless list core

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disputed facts in the above manner.

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- Concise lists of disputed evidentiary issues that will be the subject of a party’s

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motion in limine, and whether the parties believe resolution of any of these motions will be

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necessary before the first day of trial.

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- Each party’s points of law, which concisely describe the legal basis or theory

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underlying their claims and defenses. Points of law should reflect issues derived from the core

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undisputed and disputed facts. Parties shall not include argument with any point of law; the

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parties may include concise arguments in their trial briefs.

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- A joint statement of the case in plain concise language, which will be read to the

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jury during voir dire and at the beginning of the trial. The purpose of the joint statement is to

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inform the jury what the case is about.

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- The parties’ position on the number of jurors to be impaneled to try the case.

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Discovery documents to be listed in the pretrial statement shall not include

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documents to be used only for impeachment and in rebuttal.

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The parties are reminded that pursuant to Local Rule 281 they are required to

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attach to the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they

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propose to offer at trial. After the name of each witness, each party shall provide a brief

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statement of the nature of the testimony to be proffered. The parties may file a joint list or each

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party may file separate lists. These list(s) shall not be contained in the body of the Final Pretrial

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Conference Statement itself, but shall be attached as separate documents to be used as addenda to

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the Final Pretrial Order.

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Plaintiff’s exhibits shall be listed numerically. Defendant’s exhibits shall be listed

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alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for

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plaintiff and blue for defendant. In the event that the alphabet is exhausted, the exhibits shall be

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marked “AA-ZZ”. However, if the amount of defendant exhibits exceeds “ZZ” exhibits shall be

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then listed as AAA, BBB, CCC etc. All multi-page exhibits shall be stapled or otherwise fastened

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together and each page within the exhibit shall be numbered. The list of exhibits shall not include

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excerpts of depositions to be used only for impeachment. In the event that plaintiff(s) and

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defendant(s) offer the same exhibit during trial, that exhibit shall be referred to by the designation

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the exhibit is first identified. The court cautions the parties to pay attention to this detail so that

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all concerned, including the jury, will not be confused by one exhibit being identified with both a

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number and a letter. The parties are encouraged to consult concerning exhibits and, to the extent

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possible, provide joint exhibits, which shall be designated as JX and listed numerically, e.g., JX-

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1, JX-2.

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The Final Pretrial Order will contain a stringent standard for the offering at trial of

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witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the

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standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a

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party does not intend to offer will be viewed as an abuse of the court’s processes.

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Counsel shall produce all trial exhibits to Casey Schultz, the Courtroom Deputy,
no later than 3:00 p.m. on the Friday before trial.

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Failure to comply with Local Rule 281, as modified by this order, may be grounds
for sanctions.
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The parties also are reminded that pursuant to Rule 16 of the Federal Rules of

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Civil Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the

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formulation and simplification of issues and the elimination of frivolous claims or defenses; (b)

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

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and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial Conference

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Statement and participate in good faith at the Final Pretrial Conference with these aims in mind.2

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A failure to do so may result in the imposition of sanctions which may include monetary

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sanctions, orders precluding proof, elimination of claims or defenses, or such other sanctions as

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the court deems appropriate.

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Concurrently with the filing of the Joint Final Pretrial Conference Statement,

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counsel shall submit to chambers the word processable version of the Statement, in its entirety

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(including the witness and exhibit lists) to: [e-mail].

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IX.

MOTIONS IN LIMINE

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All motions in limine must be filed in conjunction with the joint pretrial statement.

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In most cases, motions in limine are addressed and resolved on the morning of the first day of

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trial. As noted above, the parties may alert the court at the final pretrial conference and in their

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final pretrial statement that a particular motion or motions should be resolved earlier. At the final

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pretrial conference, the court will then set a briefing and hearing schedule on these motions in

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limine as necessary.

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The parties are reminded that a motion in limine is a pretrial procedural device

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designed to address the admissibility of evidence. The court looks with disfavor upon

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dispositional motions presented at the Final Pretrial Conference or at trial in the guise of motions

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in limine.

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“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).
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X.

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TRIAL SETTING
The jury trial is set for November 5, 2018 at 9:00 a.m. The parties estimate a trial

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length of approximately eight (8) to ten (10) days. Trial briefs are due by October 22, 2018.

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XI.

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SETTLEMENT CONFERENCE
The parties anticipate participating in private mediation. A court settlement

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conference may be set at the time of the Final Pretrial Conference or at an earlier time at the

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parties’ request. In the event that court settlement conference date or referral to the Voluntary

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Dispute Resolution Program (VDRP) is requested, the parties shall file said request jointly, in

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writing. Because the case will be tried to a jury, all parties should be prepared to advise the court

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whether they will stipulate to the trial judge acting as settlement judge and waive disqualification

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by virtue thereof.

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Counsel are instructed to have a principal with full settlement authority present at

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any Settlement Conference or to be fully authorized to settle the matter on any terms. Each judge

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has different requirements for the submission of settlement conference statements; the appropriate

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instructions will be sent to you after the settlement judge is assigned.

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XII.

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MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER
The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil

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Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court

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upon a showing of good cause. Agreement of the parties by stipulation alone does not constitute

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good cause. Except in extraordinary circumstances, unavailability of witnesses or counsel does

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not constitute good cause.

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As noted, the assigned magistrate judge is authorized to modify only the discovery

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dates shown above to the extent any such modification does not impact the balance of the

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schedule of the case.

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XIII.

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OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER
This Status Order will become final without further order of the court unless

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objections are filed within fourteen (14) calendar days of service of this Order.

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IT IS SO ORDERED.
DATED: June 22, 2017.

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UNITED STATES DISTRICT JUDGE

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