Booth v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENEE BOOTH, BRADLEY No. 2:19-cv-01612-KJM-CKD CONVERSE, K.C., 12 Plaintiff, 13 STATUS (PRETRIAL SCHEDULING) v. 14 ORDER UNITED STATES OF AMERICA, 15 16 Defendant. 17 18 19 An initial scheduling conference was held in this case on January 16, 2020. David 20 Smith appeared for plaintiff; Victoria Boesch appeared for defendant. 21 Having reviewed the parties’ Joint Status Report filed on December 17, 2019, and 22 discussed a schedule for the case with counsel at the hearing, the court makes the following 23 orders: 24 I. SERVICE OF PROCESS 25 All named defendants have been served and no further service is permitted without 26 leave of court, good cause having been shown. 27 ///// 28 ///// 1 II. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS 2 No further joinder of parties or amendments to pleadings is permitted without 3 leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth 4 Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). 5 III. JURISDICTION/VENUE 6 Jurisdiction is predicated upon 28 U.S.C. §§ 1346(b), 2671-80. Jurisdiction and 7 venue are not disputed. 8 IV. DISCOVERY 9 Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be 10 completed by January 24, 2020. All discovery shall be completed by September 18, 2020. In 11 this context, “completed” means that all discovery shall have been conducted so that all 12 depositions have been taken and any disputes relative to discovery shall have been resolved by 13 appropriate order if necessary and, where discovery has been ordered, the order has been obeyed. 14 All motions to compel discovery must be noticed on the magistrate judge’s calendar in 15 accordance with the local rules of this court. While the assigned magistrate judge reviews 16 proposed discovery phase protective orders, requests to seal or redact are decided by Judge 17 Mueller as discussed in more detail below. In addition, while the assigned magistrate judge 18 handles discovery motions, the magistrate judge cannot change the schedule set in this order, 19 except that the magistrate judge may modify a discovery cutoff to the extent such modification 20 does not have the effect of requiring a change to the balance of the schedule. 21 The court approves the parties’ agreement that the scope of discovery shall not 22 include documents prepared by counsel on or after of March 15, 2018, or confidential attorney- 23 client communications occurring on or after March 15, 2018, and that such documents or 24 information shall be deemed non-responsive and may be withheld without the need to assert or 25 interpose an objection or seek a protective order, except as provided in Federal Rule of Civil 26 Procedure 26(b)(4)(C) for certain communications with or documents provided to testifying 27 experts. The court also approves the agreement that privilege logs need not be produced unless 28 and until requested by counsel in connection with specific objections that have been asserted. 1 V. DISCLOSURE OF EXPERT WITNESSES 2 Plaintiff counsel is to designate in writing and serve upon all other parties the 3 name, address, and area of expertise of each expert that they propose to tender at trial not later 4 than September 25, 2020. Defense counsel is to designate in writing and serve upon all other 5 parties the name, address, and area of expertise of each expert that they propose to tender at trial 6 not later than October 30, 2020. The designations shall be accompanied by a written report 7 prepared and signed by the witness. The reports shall comply with Fed. R. Civ. P. 26(a)(2)(B). 8 By November 13, 2020, any party who previously disclosed expert witnesses may submit a 9 rebuttal list of expert witnesses who will express an opinion on a subject covered by an expert 10 designated by an adverse party, if the party rebutting an expert witness designation has not 11 previously retained an expert to testify on that subject. The rebuttal designation shall be 12 accompanied by a written report, which shall also comply with the conditions stated above. 13 Failure of a party to comply with the disclosure schedule as set forth above in all 14 likelihood will preclude that party from calling the expert witness at the time of trial. An expert 15 witness not appearing on the designation will not be permitted to testify unless the party offering 16 the witness demonstrates: (a) that the necessity for the witness could not have been reasonably 17 anticipated at the time the list was proffered; (b) that the court and opposing counsel were 18 promptly notified upon discovery of the witness; and (c) that the witness was promptly made 19 available for deposition. 20 For purposes of this scheduling order, an “expert” is any person who may be used 21 at trial to present evidence under Rules 702, 703 and 705 of the Federal Rules of Evidence, which 22 include both “percipient experts” (persons who, because of their expertise, have rendered expert 23 opinions in the normal course of their work duties or observations pertinent to the issues in the 24 case) and “retained experts” (persons specifically designated by a party to be a testifying expert 25 for the purposes of litigation). A party shall identify whether a disclosed expert is percipient, 26 retained, or both. It will be assumed that a party designating a retained expert has acquired the 27 express permission of the witness to be so listed. Parties designating percipient experts must state 28 in the designation who is responsible for arranging the deposition of such persons. 1 All experts designated are to be fully prepared at the time of designation to render 2 an informed opinion, and give the bases for their opinion, so that they will be able to give full and 3 complete testimony at any deposition taken by the opposing party. Experts will not be permitted 4 to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition 5 taken subsequent to designation. All expert discovery shall be completed by February 5, 2021. 6 VI. MOTION HEARING SCHEDULE 7 All dispositive motions, except motions for continuances, temporary restraining 8 orders or other emergency applications, shall be heard no later than April 16, 2021.1 The parties 9 may obtain available hearing dates by checking Judge Mueller’s page on the court’s website. 10 All purely legal issues are to be resolved by timely pretrial motions. Local Rule 11 230 governs the calendaring and procedures of civil motions; the following provisions also apply: 12 (a) The opposition and reply must be filed by 4:00 p.m. on the day due; and 13 (b) When the last day for filing an opposition brief falls on a legal holiday, the 14 opposition brief shall be filed on the last court day immediately preceding the legal holiday. 15 Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to 16 the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651, 17 652-53 (9th Cir. 1994). 18 The court values the importance of training young attorneys. The parties are 19 encouraged to consider assigning oral argument to a young attorney. If a written request for oral 20 argument is filed before a hearing, stating an attorney of four or fewer years out of law school 21 will argue the oral argument, then the court will ordinarily hold the hearing, although the court’s 22 schedule and calendar may require the hearing to be reset. Otherwise, the court may find it 23 appropriate in some actions to submit a motion without oral argument. 24 The court places a page limit of twenty (20) pages on all moving papers, twenty 25 (20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases 26 must be made in writing at least fourteen (14) days prior to the filing of the motion. 27 28 1 Note that this date may not correspond to a law and motion calendar date. 1 Prior to filing a motion in a case in which the parties are represented by counsel, 2 counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the 3 contemplated motion and any potential resolution. Plaintiff’s counsel should carefully evaluate 4 the defendant’s contentions as to deficiencies in the complaint and in many instances the party 5 considering a motion should agree to any amendment that would cure a curable defect. Counsel 6 should discuss the issues sufficiently so that if a motion of any kind is filed, including for 7 summary judgment, the briefing is directed only to those substantive issues requiring resolution 8 by the court. Counsel should resolve minor procedural or other non-substantive matters during 9 the meet and confer. A notice of motion shall contain a certification by counsel filing the 10 motion that meet and confer efforts have been exhausted, with a brief summary of meet and 11 confer efforts. 12 The parties are cautioned that failure to raise a dispositive legal issue that could 13 have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off 14 date may constitute waiver of such issue. 15 VII. SEALING 16 No document will be sealed, nor shall a redacted document be filed, without the 17 prior approval of the court. If a document for which sealing or redaction is sought relates to the 18 record on a motion to be decided by Judge Mueller, the request to seal or redact should be 19 directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be 20 governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the 21 discovery phase of litigation shall not govern the filing of sealed or redacted documents on the 22 public docket. The court will only consider requests to seal or redact filed by the proponent of 23 sealing or redaction. If a party plans to make a filing that includes material an opposing party has 24 identified as confidential and potentially subject to sealing, the filing party shall provide the 25 opposing party with sufficient notice in advance of filing to allow for the seeking of an order of 26 sealing or redaction from the court. 27 ///// 28 ///// 1 VIII. FURTHER SCHEDULING 2 The court will set a Final Pretrial Conference date after the resolution of any 3 dispositive motions, or passage of the dispositive motion cutoff, with a trial date being 4 determined at the pretrial conference. The parties should be prepared to confirm a trial date 5 within 60 to 120 days from the date of the final pretrial conference, and should be available for 6 trial accordingly. 7 IX. SETTLEMENT CONFERENCE 8 No settlement conference is currently scheduled. The parties will notify the court 9 whether a court settlement conference date or referral to the Voluntary Dispute Resolution 10 Program (VDRP) is reasonable. The parties shall file said notification or request for referral 11 jointly, in writing. 12 Counsel are instructed to have a principal with full settlement authority present at 13 any Settlement Conference or to be fully authorized to settle the matter on any terms. Each judge 14 has different requirements for the submission of settlement conference statements; the appropriate 15 instructions will be sent to you after the settlement judge is assigned. 16 X. MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER 17 The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil 18 Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court 19 upon a showing of good cause. Agreement of the parties by stipulation alone does not constitute 20 good cause. Except in extraordinary circumstances, unavailability of witnesses or counsel does 21 not constitute good cause. 22 As noted, the assigned magistrate judge is authorized to modify only the discovery 23 dates shown above to the extent any such modification does not impact the balance of the 24 schedule of the case. 25 ///// 26 ///// 27 ///// 28 ///// 1 XI. OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER 2 This Status Order will become final without further order of the court unless 3 objections are filed within fourteen (14) calendar days of service of this Order. 4 IT IS SO ORDERED. 5 DATED: January 21, 2020. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28