Gottesman v. Santana et al

Filing 196

ORDER: (1) Granting in Part and Denying in Part 189 Joint Motion; and (2) Issuing Amended Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings. It is ordered that the Final Pretrial Conference is set for 6/28/2018 at 1:30 p.m . before Judge Janis L. Sammartino, the Mandatory Settlement Conference is set for 11/13/2017 at 9:00 a.m. before Magistrate Judge Jill L. Burkhardt, the Memorandum of Contentions of Fact and Law is due by 5/31/2018, and the Proposed Pretrial Order is due by 6/21/2018. Signed by Magistrate Judge Jill L. Burkhardt on 9/13/2017. (mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERIC GOTTESMAN,

Case No.: 16-cv-2902 JLS (JLB)
Plaintiff,

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v.

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ORDER: (1) GRANTING IN PART
AND DENYING IN PART JOINT
MOTION; AND (2) ISSUING
AMENDED SCHEDULING ORDER
REGULATING DISCOVERY
AND OTHER PRE-TRIAL
PROCEEDINGS

CARLOS SANTANA et al.,
Defendants.

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[ECF Nos. 162 & 189]

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Before the Court is the parties’ Joint Motion for Modification of the Scheduling
Order and Continuance of the Pre-Trial and Trial Dates. (ECF No. 189.) Good cause
appearing in support of a limited modification of the schedule, IT IS HEREBY
ORDERED that the motion is GRANTED IN PART AND DENIED IN PART 1 as
follows:

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1.

Any motion to join other parties, to amend the pleadings, or to file additional

pleadings was due by July 31, 2017.

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The Joint Motion is denied to the extent that the Joint Motion requests extensions of deadlines that are
not hereby ordered by the Court.
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2.

All discovery, including expert discovery, shall be completed by all parties by

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February 2, 2018. “Completed” means that all discovery under Rules 30–36 of the

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Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated

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a sufficient period of time in advance of the cut-off date, so that it may be completed by

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the cut-off date, taking into account the times for service, notice and response as set forth

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in the Federal Rules of Civil Procedure. Counsel shall promptly and in good faith meet

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and confer with regard to all discovery disputes in compliance with Local Rule

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26.1(a). The Court expects counsel to make every effort to resolve all disputes without

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court intervention through the meet and confer process. If the parties reach an impasse on

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any discovery issue, counsel shall file an appropriate motion within the time limit and

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procedures outlined in the undersigned magistrate judge’s chambers rules. A failure to

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comply in this regard will result in a waiver of a party’s discovery issue. Absent an

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order of the court, no stipulation continuing or altering this requirement will be

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recognized by the court.

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Discovery motions must be filed in the time and manner directed by Magistrate

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Judge Burkhardt (see Judge Burkhardt’s Civil Chambers Rules on Discovery Disputes

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available on the Court’s website). All discovery motions must be filed within 30 days of

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the service of an objection, answer, or response which becomes the subject of dispute, or

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the passage of a discovery due date without response or production, and only after counsel

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(and any unrepresented parties) have met and conferred to resolve the dispute and

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complied with Section IV.B. of Judge Burkhardt’s Civil Chambers Rules.

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3.

The parties shall designate their respective experts in writing by November

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22, 2017. The parties must identify any person who may be used at trial to present evidence

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pursuant to Rules 702, 703 or 705 of the Fed. R. Evid. This requirement is not limited to

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retained experts. The date for exchange of rebuttal experts shall be by December 15, 2017.

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The written designations shall include the name, address and telephone number of the

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expert and a reasonable summary of the testimony the expert is expected to provide. The

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list shall also include the normal rates the expert charges for deposition and trial testimony.
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4.

By November 22, 2017, each party shall comply with the disclosure

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provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This

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disclosure requirement applies to all persons retained or specially employed to provide

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expert testimony, or whose duties as an employee of the party regularly involve the giving

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of expert testimony. Except as provided in the paragraph below, any party that fails

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to make these disclosures shall not, absent substantial justification, be permitted to

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use evidence or testimony not disclosed at any hearing or at the time of trial. In

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addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c).

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5.

Any party shall supplement its disclosure regarding contradictory or rebuttal

evidence under Fed. R. Civ. P. 26(a)(2)(D) by December 15, 2017.
6.

Failure to comply with this section or any other discovery order of the court

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may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on

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the introduction of experts or other designated matters in evidence.

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7.

All other pretrial motions must be filed by February 23, 2018. Counsel for

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the moving party must obtain a motion hearing date from the law clerk of the judge who

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will hear the motion. The period of time between the date you request a motion date and

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the hearing date may vary from one district judge to another. Please plan accordingly.

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Failure to make a timely request for a motion date may result in the motion not being heard.

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Motions in limine are to be filed as directed in the Local Rules, or as otherwise set by the

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district judge.

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8.

A Mandatory Settlement Conference shall be conducted on November 13,

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2017, at 9:00 AM in the chambers of Magistrate Judge Jill L. Burkhardt. Counsel or

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any party representing himself or herself shall submit confidential settlement briefs directly

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to chambers by November 3, 2017. All parties are ordered to read and to fully comply

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with the Chamber Rules of the assigned magistrate judge.

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The confidential settlement statements should be lodged by e-mail to

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[e-mail]. Each party’s settlement statement shall concisely set

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forth the following: (1) the party’s statement of the case; (2) the controlling legal issues;
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(3) issues of liability and damages; (4) the party’s settlement position, including the last

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offer or demand made by that party; (5) a separate statement of the offer or demand the

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party is prepared to make at the settlement conference; and (6) a list of all attorney and

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non-attorney conference attendees for that side, including the name(s) and

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title(s)/position(s) of the party/party representative(s) who will attend and have settlement

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authority at the conference. If exhibits are attached and the total submission amounts to

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more than 20 pages, a hard copy must also be delivered directly to Magistrate Judge

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Burkhardt’s chambers. Settlement conference statements shall not be filed with the

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Clerk of the Court.

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Settlement conference statements may be exchanged

confidentially with opposing counsel within the parties’ discretion.

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Pursuant to Civil Local Rule 16.3, all party representatives and claims adjusters for

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insured defendants with full and unlimited authority1 to negotiate and enter into a binding

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settlement, as well as the principal attorney(s) responsible for the litigation, must be present

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and legally and factually prepared to discuss and resolve the case at the mandatory

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settlement conference. In the case of an entity, an authorized representative of the entity

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who is not retained outside counsel must be present and must have discretionary authority

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to commit the entity to pay an amount up to the amount of the Plaintiff’s prayer (excluding

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punitive damages prayers). The purpose of this requirement is to have representatives

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present who can settle the case during the course of the conference without consulting a

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superior.

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Failure to attend the conference or obtain proper excuse will be considered grounds
for sanctions.

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“Full authority to settle” means that the individuals at the settlement conference must be
authorized to fully explore settlement options and to agree at that time to any settlement terms acceptable
to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person
needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman
v. Brinker Int’l., Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with
unlimited settlement authority to attend the conference includes that the person’s view of the case may be
altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not
adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-97 (8th Cir. 2001).
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9.

Counsel shall file their Memoranda of Contentions of Fact and Law and take

any other action required by Local Rule 16.1(f)(2) by May 31, 2018.

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10.

Counsel shall comply with the pre-trial disclosure requirements of Fed. R.

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Civ. P. 26(a)(3) by May 31, 2018. Failure to comply with these disclosure requirements

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could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37.

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Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by

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June 7, 2018. At this meeting, counsel shall discuss and attempt to enter into stipulations

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and agreements resulting in simplification of the triable issues. Counsel shall exchange

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copies and/or display all exhibits other than those to be used for impeachment. The exhibits

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shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall note any

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objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. P.

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26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial conference

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order.

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12.

Counsel for plaintiff will be responsible for preparing the pretrial order and

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arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By June 14, 2018,

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plaintiff’s counsel must provide opposing counsel with the proposed pretrial order for

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review and approval. Opposing counsel must communicate promptly with plaintiff’s

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attorney concerning any objections to form or content of the pretrial order, and both parties

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shall attempt promptly to resolve their differences, if any, concerning the order.

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13.

The Proposed Final Pretrial Conference Order, including objections to any

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other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and

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lodged with the assigned district judge by June 21, 2018, and shall be in the form

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prescribed in and comply with Local Rule 16.1(f)(6).

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14.

The final Pretrial Conference is scheduled on the calendar of the Honorable

Janis L. Sammartino on June 28, 2018, at 1:30 PM.
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The parties must review the chambers’ rules for the assigned district judge

and magistrate judge.
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A post trial settlement conference before a magistrate judge may be held
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within 30 days of verdict in the case.
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The dates and times set forth herein will not be modified except for good cause

shown.
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Briefs or memoranda in support of or in opposition to any pending motion

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shall not exceed twenty-five (25) pages in length without leave of a district court judge.

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No reply memorandum shall exceed ten (10) pages without leave of a district court judge.

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Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents

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and a table of authorities cited.

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19.

Plaintiff’s counsel shall serve a copy of this order on all parties that enter this

case hereafter.
IT IS SO ORDERED.
Dated: September 13, 2017

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