Hamilton v. Behr Process Corporation et al

Filing 40

STATUS PRETRIAL SCHEDULING ORDER signed by Judge Kimberly J. Mueller on 4/10/2018 ORDERING that all discovery shall be completed by 1/25/2019; Designation of Expert Witnesses due by 3/1/2019 with any supplemental designations due by 3/22/2019; Expert discovery shall be completed by 4/26/2019; Dispositive Motions shall be heard no later than 5/31/2019; The court will set a Final Pretrial Conference date after the resolution of anydispositive motions, or passage of the dispositive motion cutoff, w ith a trial date being determined at the pretrial conference. Objections due within 14 calendar days. ORDER, ( Designation of Expert Witnesses due by 3/1/2019., Discovery due by 1/25/2019.) signed by District Judge Kimberly J. Mueller on 4/10/2018. (Fabillaran, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL HAMILTON, 12 Plaintiff, 13 14 No. 2:17-cv-1765 KJM EFB v. STATUS (PRETRIAL SCHEDULING) BEHR PROCESS CORPORATION, et al., 15 ORDER Defendants. 16 17 An initial scheduling conference was held in this case on March 23, 2018. 18 19 Michael McShane appeared for plaintiff; Kathleen Lally appeared for defendants Behr Process 20 Corporation, Behr Paint Corporation and Masco Corporation; Robert Alpert and Avalon 21 Fitzgerald appeared for defendant The Home Depot, Inc. and Home Depot U.S.A., Inc. Having reviewed the parties’ Joint Status Report filed on March 16, 2018, and 22 23 discussed a schedule for the case with counsel at the hearing, the court makes the following 24 orders: 25 I. SERVICE OF PROCESS All named defendants have been served and no further service is permitted without 26 27 leave of court, good cause having been shown. 28 ///// 1 1 II. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS 2 As contemplated at the scheduling conference, plaintiff filed an amended 3 complaint on April 9, 2018. No further joinder of parties or amendments to pleadings is 4 permitted without leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); 5 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). 6 III. 7 JURISDICTION/VENUE Plaintiff asserts that jurisdiction is predicated upon 28 U.S.C. § 1332(d)(2). Based 8 on its review of the original complaint, defendant believes the court may lack personal 9 jurisdiction, and reserves its right to address the question through motion practice. 10 IV. 11 DISCOVERY Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be 12 completed within thirty (30) days of the scheduling conference. In particular, within the thirty 13 day period set for initial disclosures, defendant shall produce to plaintiff a copy of the settlement 14 agreement it represents has been reached in two related actions filed in 2017 in the Central 15 District of California and the Northern District of Illinois. 16 All discovery shall be completed by January 25, 2019. In this context, 17 “completed” means that all discovery shall have been conducted so that all depositions have been 18 taken and any disputes relative to discovery shall have been resolved by appropriate order if 19 necessary and, where discovery has been ordered, the order has been obeyed. All motions to 20 compel discovery must be noticed on the magistrate judge’s calendar in accordance with the local 21 rules of this court. While the assigned magistrate judge reviews proposed discovery phase 22 protective orders, requests to seal or redact are decided by Judge Mueller as discussed in more 23 detail below. In addition, while the assigned magistrate judge handles discovery motions, the 24 magistrate judge cannot change the schedule set in this order, except that the magistrate judge 25 may modify a discovery cutoff to the extent such modification does not have the effect of 26 requiring a change to the balance of the schedule. 27 ///// 28 ///// 2 1 2 V. DISCLOSURE OF EXPERT WITNESSES All counsel are to designate in writing and serve upon all other parties the name, 3 address, and area of expertise of each expert that they propose to tender at trial not later than 4 March 1, 2019. The designation shall be accompanied by a written report prepared and signed 5 by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B). By March 22, 2019, 6 any party who previously disclosed expert witnesses may submit a supplemental list of expert 7 witnesses who will express an opinion on a subject covered by an expert designated by an adverse 8 party, if the party supplementing an expert witness designation has not previously retained an 9 expert to testify on that subject. The supplemental designation shall be accompanied by a written 10 report, which shall also comply with the conditions stated above. 11 Failure of a party to comply with the disclosure schedule as set forth above in all 12 likelihood will preclude that party from calling the expert witness at the time of trial. An expert 13 witness not appearing on the designation will not be permitted to testify unless the party offering 14 the witness demonstrates: (a) that the necessity for the witness could not have been reasonably 15 anticipated at the time the list was proffered; (b) that the court and opposing counsel were 16 promptly notified upon discovery of the witness; and (c) that the witness was promptly made 17 available for deposition. 18 For purposes of this scheduling order, an “expert” is any person who may be used 19 at trial to present evidence under Rules 702, 703 and 705 of the Federal Rules of Evidence, which 20 include both “percipient experts” (persons who, because of their expertise, have rendered expert 21 opinions in the normal course of their work duties or observations pertinent to the issues in the 22 case) and “retained experts” (persons specifically designated by a party to be a testifying expert 23 for the purposes of litigation). A party shall identify whether a disclosed expert is percipient, 24 retained, or both. It will be assumed that a party designating a retained expert has acquired the 25 express permission of the witness to be so listed. Parties designating percipient experts must state 26 in the designation who is responsible for arranging the deposition of such persons. 27 28 All experts designated are to be fully prepared at the time of designation to render an informed opinion, and give the bases for their opinion, so that they will be able to give full and 3 1 complete testimony at any deposition taken by the opposing party. Experts will not be permitted 2 to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition 3 taken subsequent to designation. All expert discovery shall be completed by April 26, 2019. 4 VI. 5 MOTION HEARING SCHEDULE All dispositive motions, except motions for continuances, temporary restraining 6 orders or other emergency applications, shall be heard no later than May 31, 2019.1 The parties 7 may obtain available hearing dates by checking Judge Mueller’s page on the court’s website. 8 9 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: 10 (a) The opposition and reply must be filed by 4:00 p.m. on the day due; and 11 (b) When the last day for filing an opposition brief falls on a legal holiday, the 12 opposition brief shall be filed on the last court day immediately preceding the legal holiday. 13 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to 14 the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651, 15 652-53 (9th Cir. 1994). 16 The court values the importance of training young attorneys. The parties are 17 encouraged to consider assigning oral argument to a young attorney. If a written request for oral 18 argument is filed before a hearing, stating an attorney of four or fewer years out of law school 19 will argue the oral argument, then the court will ordinarily hold the hearing, although the court’s 20 schedule and calendar may require the hearing to be reset. Otherwise, the court may find it 21 appropriate in some actions to submit a motion without oral argument. 22 The court places a page limit of twenty (20) pages on all moving papers, twenty 23 (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases 24 must be made in writing at least fourteen (14) days prior to the filing of the motion. 25 26 Prior to filing a motion in a case in which the parties are represented by counsel, counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the 27 28 1 Note that this date may not correspond to a law and motion calendar date. 4 1 contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate 2 the defendant’s contentions as to deficiencies in the complaint and in many instances the party 3 considering a motion should agree to any amendment that would cure a curable defect. Counsel 4 should discuss the issues sufficiently so that if a motion of any kind is filed, including for 5 summary judgment, the briefing is directed only to those substantive issues requiring resolution 6 by the court. Counsel should resolve minor procedural or other non-substantive matters during 7 the meet and confer. A notice of motion shall contain a certification by counsel filing the 8 motion that meet and confer efforts have been exhausted, with a brief summary of meet and 9 confer efforts. 10 The parties are cautioned that failure to raise a dispositive legal issue that could 11 have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off 12 date may constitute waiver of such issue. 13 VII. 14 SEALING No document will be sealed, nor shall a redacted document be filed, without the 15 prior approval of the court. If a document for which sealing or redaction is sought relates to the 16 record on a motion to be decided by Judge Mueller, the request to seal or redact should be 17 directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be 18 governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the 19 discovery phase of litigation shall not govern the filing of sealed or redacted documents on the 20 public docket. The court will only consider requests to seal or redact filed by the proponent of 21 sealing or redaction. If a party plans to make a filing that includes material an opposing party has 22 identified as confidential and potentially subject to sealing, the filing party shall provide the 23 opposing party with sufficient notice in advance of filing to allow for the seeking of an order of 24 sealing or redaction from the court. 25 VIII. 26 FURTHER SCHEDULING The court will set a Final Pretrial Conference date after the resolution of any 27 dispositive motions, or passage of the dispositive motion cutoff, with a trial date being 28 determined at the pretrial conference. The parties should be prepared to confirm a trial date 5 1 within 60 to 120 days from the date of the final pretrial conference, and should be available for 2 trial accordingly. 3 IX. SETTLEMENT CONFERENCE 4 No settlement conference is currently scheduled. A settlement conference may be 5 set at the time of the Final Pretrial Conference or at an earlier time at the parties’ request. In the 6 event that an earlier court settlement conference date or referral to the Voluntary Dispute 7 Resolution Program (VDRP) is requested, the parties shall file said request jointly, in writing. 8 Because the case will be tried to a jury, all parties should be prepared to advise the court whether 9 they will stipulate to the trial judge acting as settlement judge and waive disqualification by virtue 10 thereof. 11 Counsel are instructed to have a principal with full settlement authority present at 12 any Settlement Conference or to be fully authorized to settle the matter on any terms. Each judge 13 has different requirements for the submission of settlement conference statements; the appropriate 14 instructions will be sent to you after the settlement judge is assigned. 15 X. 16 MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil 17 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court 18 upon a showing of good cause. Agreement of the parties by stipulation alone does not constitute 19 good cause. Except in extraordinary circumstances, unavailability of witnesses or counsel does 20 not constitute good cause. 21 As noted, the assigned magistrate judge is authorized to modify only the discovery 22 dates shown above to the extent any such modification does not impact the balance of the 23 schedule of the case. 24 XI. 25 26 27 28 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: April 10, 2018. 6 UNITED STATES DISTRICT JUDGE

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