Rezner v. Bayerische Hypo-Und Vereinsbank AG et al

Filing 498

PRELIMINARY PRETRIAL CONFERENCE SCHEDULING ORDER; VACATING CMC Motions in Limine and Joint Pretrial Conference Statement due by 1/30/2012. Bench Trial set for 3/20/2012 09:00 AM before Hon. James Ware. Final Pretrial Conference set for 2/27/2012 11 :00 AM in Courtroom 9, 19th Floor, San Francisco. Bench Trial set for 3/21/2012 09:00 AM before Hon. James Ware. Bench Trial set for 3/22/2012 09:00 AM before Hon. James Ware. Bench Trial set for 3/23/2012 09:00 AM before Hon. James Ware. Bench Trial set for 3/27/2012 09:00 AM before Hon. James Ware. Bench Trial set for 3/28/2012 09:00 AM before Hon. James Ware. Signed by Judge James Ware on 12/6/11. (sis, COURT STAFF) (Filed on 12/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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John Rezner,
Plaintiff,

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NO. C-06-02064 JW
PRELIMINARY PRETRIAL
CONFERENCE SCHEDULING ORDER (BENCH TRIAL)

v.
Bayerische Hypo-Und Vereinsbank AG, et al.,
Defendants.

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This case is scheduled for a Case Management Conference on December 12, 2011. Pursuant

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to the Federal Rules of Civil Procedure and Local Rules of this Court, the parties conferred and duly

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submitted a Joint Case Management Statement. (See Docket Item No. 497.) In the Joint Statement,

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Plaintiff requests that a trial be scheduled at the earliest available time and that no additional

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discovery be permitted. (Id. at 2.) Defendants contend that discovery should be reopened because

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Plaintiff’s Third Amended Complaint asserts a different theory of recovery than the Second

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Amended Complaint, and also request that the Court hear additional dispositive motions before trial.

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(Id. at 15-17.)

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Upon review, and in light of the age of this case, the Court finds that the case is ripe for trial

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setting at the present time. In addition, the Court does not find good cause to reopen discovery or

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hear any additional dispositive motions. The sole remaining cause of action in this case, Plaintiff’s

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claim under California’s Unfair Competition Law (“UCL”), was asserted in Plaintiff’s original

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Complaint in 2006. (See Docket Item No. 1 ¶¶ 87-91.) The Court has already heard dispositive

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motions on Plaintiff’s claims. (See Docket Item No. 384.) Further, the parties have already

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conducted extensive discovery on all of the claims asserted in Plaintiff’s Second Amended

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Complaint, including the UCL claim, concluding in 2009. (See Docket Item No. 163.) Thus, absent

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a more specific description of the additional discovery sought by Defendants, the Court does not

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find good cause to reopen discovery.1

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Based on the parties’ proposal and the Court’s availability, the Court finds that the case can

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be set for trial without the necessity of an appearance by the parties at this time. Accordingly, the

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December 12 Conference is VACATED and the parties are ORDERED to comply with the

United States District Court
For the Northern District of California

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following schedule:

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TRIAL SCHEDULE
Final Pretrial Conference (¶4 )
(.14 days before the Trial)

February 27, 2012 at 11 a.m.

Joint Final Pretrial Conference Statement and
In Limine Motions Due
(.30 days before Final Pretrial Conference)

January 30, 2012

Once the in limine binders are lodged with the Court
(¶3(b)), the Court will determine whether a hearing is
necessary for the motions in advance of the Final
Pretrial Conference and set the hearing accordingly.

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Bench Trial Date and Sessions2
Sessions 1-4
Session 5

March 20-23, 2012, 9 a.m. - 12 p.m.
March 27, 2012, 9 a.m. - 12 p.m.

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Argue & Submit

March 28, 2012 at 9 a.m.

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Any party seeking additional discovery shall file the appropriate motion to reopen discovery
for that limited purpose. Any such motion shall detail the specifics of the discovery requested.
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At the Final Pretrial Conference, the Court reserves the right to fold the afternoon
sessions into morning sessions (9:00 a.m. - 12:00 p.m.) thus creating full days for trial. The final
trial schedule will be confirmed at the Final Pretrial Conference.

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Meet and Confer Requirement
1.

No later than 30 days prior to the Final Pretrial Conference, the parties shall meet and

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confer with respect to the Joint Pretrial Conference Statement, submission of a joint list of witnesses,

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a joint list of trial exhibits and a joint list of discovery material which each party intends to offer in

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evidence as a part of its case-in-chief. Unless objections are made in accord with this Order, all

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witnesses, exhibits and discovery material contained on the joint submission shall be deemed

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admissible into evidence by stipulation.

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Objections and Lodging Disputed Material with the Court
2.

If a party objects to receipt into evidence of a witness, exhibits or discovery response,

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For the Northern District of California

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the party shall advise all opposing parties during the conference described in paragraph 1, and

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attempt to resolve the dispute. If the parties are unsuccessful in resolving the dispute, any party

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wishing to object to receipt of the testimony of any witness, any exhibit or discovery response into

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evidence shall lodge with Chambers a copy of the disputed material at the commencement of trial.

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Attached to the submission shall be a brief statement of the objection and any response by the

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proffering party. The Court will indicate on the submitted copy whether the objection is overruled

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or sustained and return the material to counsel.

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Lodging Joint Pretrial Conference Statement and in Limine Motions
3.

Pursuant to the date set forth in the Case Schedule, the parties shall file and lodge

with Chambers the following:
Joint Pretrial Conference Statement: The parties shall file a joint pretrial

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a.

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statement which shall contain the following information: (1) a brief description of

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the substance of claims and defenses which remain to be decided; (2) a detailed

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statement of all the relief claimed, particularly itemizing all elements of damages

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claimed as well as witnesses, documents or other evidentiary material to be presented

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concerning the amount of those damages; (3) a plain and concise statement of all

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relevant facts not reasonably disputable, as well as which facts the parties will

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stipulate for incorporation into the trial record without the necessity of supporting

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testimony or exhibits; (4) a plain and concise statement of all disputed factual issues

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which remain to be decided; (5) a statement assessing whether all or part of the action

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may be presented upon an agreed statement of facts; (6) a statement of stipulations

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requested or proposed for pretrial or trial purposes; (7) without extended legal

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argument, a concise statement of each disputed point of law concerning liability or

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relief, citing supporting statutes and decisions; (8) a list of all witnesses likely to be

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called at trial; (9) a list of evidence the parties intend to present at trial through use of

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excerpts from depositions, from interrogatory answers, or from responses to requests

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for admission; and (10) any other subjects relevant to the trial of the action, or

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For the Northern District of California

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material to its just, speedy and inexpensive determination. Counsel are directed to

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meet and confer in advance of the date for submission of pretrial material with

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respect to the pretrial conference statement.

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b.

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submitted along with the Joint Final Pretrial Conference Statement. Any opposition

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shall be filed in writing and served no later than ten (10) days after the opening briefs

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have been filed and served. Fifteen (15) days before the date of the Final Pretrial

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Conference, the parties shall organize their in limine motions as follows:

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(1)

Each side shall be responsible for producing a combined folder with all of
their in limine motions, oppositions to their motions (if any), and replies (if
any), respectively. The motion papers shall be clearly marked and separated
in one single binder. The binder shall contain a table of contents, listing each
motion with a short sentence regarding the grounds for in limine and a short
sentence regarding the opposition; all statements must be supported by proper
citations to the motions. The table of contents shall also be saved a CD in
MS Word or WordPerfect format to be attached inside the binder.

(2)

Please note that this binder is not a substitute for filing the motions and
related papers via ECF; it is designed for the Court to evaluate the motions.
Two copies of the binder shall be delivered to the Court (by way of the
Clerk’s Office) no later than fifteen (15) days before the date of the Final
Pretrial Conference by 4 PM. The parties must also bring the binder to the
Final Pretrial Conference for their own references.

(3)

These motions will be deemed submitted without oral argument, unless the
Court orders otherwise.

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In Limine Motions: Any in limine motions shall be filed in writing and

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Final Pretrial Conference
4.

The Court will conduct a Final Pretrial Conference on the date set forth in the Case

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Schedule. The trial attorneys must attend the conference. At the final pretrial conference the Court

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will consider issues raised in the Final Pretrial Conference Statement, motions in limine and discuss

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the procedures for trial of the case.
Lodging Witness Lists, Exhibit Lists

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5.

At the Final Pretrial Conference, the parties shall lodge with Chambers the joint list

of witnesses, and a joint list of exhibits. Unless otherwise ordered, all exhibits shall be in a format

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compatible with either the video or digital evidence presentation system utilized by the Court. The

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United States District Court
For the Northern District of California

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proffering party shall retain custody of all exhibits, schedules, summaries, diagrams or charts to be

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used at the trial.

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6.

Upon request, in noncomplex cases the court will excuse the parties from using

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electronic formatted documents. In that event on the first day of trial, the parties shall submit

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exhibits as follows:

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a.

A copy for the trial judge;

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b.

A copy for the witness stand.

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c.

No duplicates of a document shall be submitted, unless the duplicate copy has

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independent evidentiary value to prove some disputed issue of material fact

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(e.g., date stamp to prove receipt on a particular date, where date of receipt is

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a disputed issue of a material fact).
Proposed Findings (Nonjury Trials)

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findings of fact and conclusions of law.
Bench Trial Schedule

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In nonjury trials, on the first day of trial, each party shall submit its proposed

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The time allowed for trial shall be divided equally between the plaintiff’s side and the

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defendant’s side. Co-parties are ordered to meet, confer and agree to an allocation among

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themselves. A party may spend its allocated time presenting its own case or on cross-examination of

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witnesses called by other parties or for presentation of a counterclaim. When a party's allocated time

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period has expired, unless otherwise ordered for good cause shown, no further time will be allowed

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to that party if it would interfere with the ability of the opposing party to present its case.

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Trial Procedure
9.

In opening statements, counsel shall not express personal knowledge or opinion

concerning any matter in issue.
10.

Counsel must question witnesses from the podium, using the microphone. Without

requesting permission, counsel may approach witnesses for any proper purposes.
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Address all remarks to the Court, not to opposing counsel.

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United States District Court
For the Northern District of California

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12.

Refer to all persons, including witnesses, other counsel and the parties by their

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surnames and not by their first or given names.
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In examining a witness, counsel shall not repeat or echo the answer given by the

witness.

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14.

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15.

Counsel must stand when making an objection.
Conferences at the bench or sidebar are not favored by the Court. Any sidebar

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conferences which are allowed will be off the record. If any counsel wishes to place matters on the

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record, he or she may so request, and the Court will make a responsive order.

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16.

Counsel have full responsibility to arrange for the appearance of witnesses during

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the presentation of their case so as to eliminate delay caused by waiting for witnesses who have been

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placed on call by counsel.

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17.

Unless an agreement to the contrary is entered into by opposing counsel, all

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nonparty or nonexpert witnesses will be excluded from the courtroom when not testifying. When a

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witness has completed his or her testimony, the witness is excused unless counsel indicates that he

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or she wishes the witness to remain subject to being recalled. Any witness who has been excused

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from further testimony may remain as a spectator. It will be the responsibility of counsel to make an

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announcement at the time the witness steps down that he or she should remain in the environs of the

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Court for a reasonable time to permit such counsel an opportunity to secure and serve a subpoena

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upon the witness and assume responsibility for his or her per diem and other expenses as provided

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by governing rule or statute.

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18.

Counsel shall admonish all persons at counsel table that gestures, facial expressions,

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audible comments, or the like, as manifestations of approval or disapproval during the testimony of

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witnesses, or at any other time, are prohibited.

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19.

Witness examination shall consist of direct examination, cross-examination and re-

direct examination. No recross-examination will be allowed without prior approval of the Court

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specifically indicating the area for recross-examination. When there are multiple defense counsel,

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they are directed to confer and designate to the Court the sequence in which they wish to be

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United States District Court
For the Northern District of California

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recognized during trial for purposes of presenting opening statements and conducting cross-

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examination of witnesses. If one counsel conducts the direct examination of a witness, that same

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counsel must make objections when the witness is cross-examined. Counsel who will conduct the

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cross-examination should object while the witness is on direct.

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20.

After the commencement of trial testimony, upon request of co-parties, any

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objection, motion or other application for relief made by any co-party, orally or in writing, shall be

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deemed to be adopted and joined in by every other co-party, without announcement by counsel to

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that effect, and the rulings of the Court shall be deemed applicable to each party unless otherwise

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stated at the time the ruling is made. Accordingly, it shall be regarded as unnecessary and improper

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for counsel to rise to "join in" an objection or motion. Rather, counsel should rise to be heard only

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for the purpose of expressly opting out of an objection or motion if that is his or her position.

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21.

Counsel are directed to deliver to opposing counsel at the end of each trial day (if

not earlier) a list of witnesses counsel anticipates calling the next trial day.
22.

Counsel calling a non-client witness to testify should have no further discussions

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with that witness concerning the case or any aspect of his or her testimony after the witness has been

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tendered for cross-examination and until such time as the witness has been tendered back for redirect

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examination. At all other times, within the bounds of governing ethics and the law, counsel may

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engage in discussions with witnesses during trial.

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23.

Any time taken away from presentation of evidence to the trier of fact due to, for

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example, lengthy legal motions made during the time allocated to the presentation of evidence, or

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delays in the commencement of proceedings due to circumstances within the control of counsel, will

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be deducted from the time allocated for the presentation of evidence. Upon timely application based

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upon good cause, the Court may relieve a party of its stipulation to the agreed schedule.

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It is the practice of the Court periodically to inform counsel of the Court's record of

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how much time each side has remaining for the presentation of evidence based upon the stipulated

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trial schedule.

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United States District Court
For the Northern District of California

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Daily Trial Transcript
25.

Any counsel desiring daily or expedited transcripts during trial should make

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immediate arrangements with the court reporter and should inform the Court and other counsel of

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such intentions.

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Dated: December 6, 2011
JAMES WARE
United States District Chief Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

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Allyson Stacy Taketa [e-mail]
Christopher Casey John McNamara [e-mail]
Jennifer Lee Jonak [e-mail]
Joseph Hanho Park [e-mail]
Mark P. Ressler [e-mail]
Melissa Mac Pherson [e-mail]
Michelle Lee Landry [e-mail]
Paul B. Meltzer [e-mail]
Ronald R. Rossi [e-mail]
Steven J. Brady [e-mail]
Tarifa B Laddon [e-mail]
William M. Goodman [e-mail]

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Dated: December 6, 2011

Richard W. Wieking, Clerk

United States District Court
For the Northern District of California

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By:
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/s/ JW Chambers
Susan Imbriani
Courtroom Deputy