De Picciotto v. Seneca Healthcare District ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FRED DE PICCIOTTO, No. 2:19-CV-01297-TLN-DMC 10 Plaintiff, 11 v. AMENDED PRETRIAL SCHEDULING 12 ORDER SENECA HEALTHCARE DISTRICT, and 13 LINDA WAGNER, 14 Defendants. 15 After reviewing the parties’ Joint Status Report, the Court 16 hereby amends the Pretrial Scheduling Order. 17 I. SERVICE OF PROCESS 18 All named Defendants have been served and no further service 19 is permitted without leave of court, good cause having been 20 shown. 21 II. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS 22 No joinder of parties or amendments to pleadings is 23 permitted without leave of court, good cause having been shown. 24 III. JURISDICTION/VENUE 25 Jurisdiction is predicated upon 28 U.S.C. § 1331, 1441 and 26 1446. Venue is not disputed. 27 /// 28 1 IV. DISCOVERY 2 All discovery, with the exception of expert discovery, shall 3 be completed by May 18, 2022. In this context, “completed” means 4 that all discovery shall have been conducted so that all 5 depositions have been taken and any disputes relative to 6 discovery shall have been resolved by appropriate order if 7 necessary and, where discovery has been ordered, the order has 8 been obeyed. All motions to compel discovery must be noticed on 9 the magistrate judge’s calendar in accordance with the local 10 rules of this Court. 11 Any request to deviate from the Federal Rules of Civil 12 Procedure should be made to the assigned Magistrate Judge. 13 V. DISCLOSURE OF EXPERT WITNESSES 14 All counsel are to designate in writing, file with the 15 Court, and serve upon all other parties the name, address, and 16 area of expertise of each expert that they propose to tender at 17 trial not later than July 18, 2022.1 The designation shall be 18 accompanied by a written report prepared and signed by the 19 witness. The report shall comply with Fed. R. Civ. P. 20 26(a)(2)(B). 21 Within twenty (20) days after the designation of expert 22 witnesses, any party may designate a supplemental list of expert 23 witnesses who will express an opinion on a subject covered by an 24 expert designated by an adverse party. 25 The right to designate a supplemental expert for rebuttal 26 purposes only shall apply to a party who has not previously 27 1 The discovery of experts will include whether any motions based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and/or Kumho Tire 28 Co. v. Carmichael, 119 S. Ct. 1167 (1999) are anticipated. 1 disclosed an expert witness on the date set for expert witness 2 disclosure by this Pretrial Scheduling Order. 3 Failure of a party to comply with the disclosure schedule as 4 set forth above in all likelihood will preclude that party from 5 calling the expert witness at the time of trial. An expert 6 witness not appearing on the designation will not be permitted to 7 testify unless the party offering the witness demonstrates: (a) 8 that the necessity for the witness could not have been reasonably 9 anticipated at the time the list was proffered; (b) that the 10 Court and opposing counsel were promptly notified upon discovery 11 of the witness; and (c) that the witness was promptly made 12 available for deposition. 13 For purposes of this Pretrial Scheduling Order, an “expert” 14 is any person who may be used at trial to present evidence under 15 Rules 702, 703, and 705 of the Federal Rules of Evidence, which 16 include both “percipient experts” (persons who, because of their 17 expertise, have rendered expert opinions in the normal course of 18 their work duties or observations pertinent to the issues in the 19 case) and “retained experts” (persons specifically designated by 20 a party to be a testifying expert for the purposes of 21 litigation). 22 Each party shall identify whether a disclosed expert is 23 percipient, retained, or both. It will be assumed that a party 24 designating a retained expert has acquired the express permission 25 of the witness to be so listed. 26 Parties designating percipient experts must state in the 27 designation who is responsible for arranging the deposition of 28 such persons. 1 All experts designated are to be fully prepared at the time 2 of designation to render an informed opinion, and give their 3 bases for their opinion, so that they will be able to give full 4 and complete testimony at any deposition taken by the opposing 5 party. Experts will not be permitted to testify at the trial as 6 to any information gathered or evaluated, or opinion formed, 7 after deposition taken subsequent to designation. 8 Counsel are instructed to complete all discovery of expert 9 witnesses in a timely manner in order to comply with the Court’s 10 deadline for filing dispositive motions. 11 VI. SUPPLEMENTAL DISCOVERY 12 Pursuant to Federal Rule of Civil Procedure 26(e), the 13 parties shall exchange any supplemental disclosures and responses 14 (including expert supplemental materials) no later than thirty 15 (30) days prior to the dispositive motion hearing date. Any 16 supplemental disclosures and responses necessary after that date 17 will require leave of Court good cause having been shown. 18 VII. MOTION HEARING SCHEDULE 19 All dispositive motions, except motions for continuances, 20 temporary restraining orders or other emergency applications, 21 shall be heard no later than November 17, 2022. 22 All purely legal issues are to be resolved by timely 23 pretrial motions. Local Rule 230 governs the calendaring and 24 procedures of civil motions with the following additions: 25 (a) The opposition and reply must be filed by 4:00 p.m. on 26 the day due; and 27 (b) When the last day for filing an opposition brief falls 28 on a legal holiday, the opposition brief shall be filed 1 on the last court day immediately preceding the legal 2 holiday. 3 Failure to comply with Local Rule 230(c), as modified by 4 this order, may be deemed consent to the motion and the court may 5 dispose of the motion summarily. Further, failure to timely 6 oppose a summary judgment motion2 may result in the granting of 7 that motion if the movant shifts the burden to the nonmovant to 8 demonstrate that a genuine issue of material fact remains for 9 trial. 10 The Court places a page limit for points and authorities 11 (exclusive of exhibits and other supporting documentation) of 12 twenty (20) pages on all initial moving papers, twenty (20) pages 13 on oppositions, and ten (10) pages for replies. All requests for 14 page limit increases must be made in writing to the Court setting 15 forth any and all reasons for any increase in page limit at least 16 fourteen (14) days prior to the filing of the motion. 17 For the Court’s convenience, citations to Supreme Court 18 cases should include parallel citations to the Supreme Court 19 Reporter. 20 The parties are reminded that a motion in limine is a 21 pretrial procedural device designed to address the admissibility 22 of evidence. The Court will look with disfavor upon 23 dispositional motions presented in the guise of motions in 24 limine. 25 The parties are cautioned that failure to raise a 26 dispositive legal issue that could have been tendered to the 27 2 The Court urges any party that contemplates bringing a motion for summary judgment or who must oppose a motion for summary judgment to review Local Rule 28 260. 1 court by proper pretrial motion prior to the dispositive motion 2 cut-off date may constitute waiver of such issue. 3 VIII. TRIAL SETTING 4 The parties are ordered to file a Joint Notice of Trial 5 Readiness not later than thirty (30) days after receiving this 6 Court’s ruling(s) on the last filed dispositive motion(s). If 7 the parties do not intend to file dispositive motions, the 8 parties are ordered to file a Joint Notice of Trial Readiness not 9 later than one hundred twenty (120) days after the close of 10 discovery and the notice must include statements of intent to 11 forgo the filing of dispositive motions. 12 The parties are to set forth in their Notice of Trial 13 Readiness, the appropriateness of special procedures, their 14 estimated trial length, any request for a jury, their 15 availability for trial, and if the parties are willing to attend 16 a settlement conference. The parties’ Notice of Trial Readiness 17 Statement shall also estimate how many court days each party will 18 require to present its case, including opening statements and 19 closing arguments. The parties’ estimate shall include time 20 necessary for jury selection, time necessary to finalize jury 21 instructions and instruct the jury. 22 After review of the parties’ Joint Notice of Trial 23 Readiness, the Court will issue an order that sets forth dates 24 for a Final Pretrial Conference and Trial. 25 IX. SETTLEMENT CONFERENCE 26 The parties may request a settlement conference prior to the 27 Final Pretrial Conference if they feel it would lead to the 28 possible resolution of the case. In the event a settlement 1 conference date is requested, the parties shall file said request 2 jointly, in writing. The request must state whether the parties 3 waive disqualification, pursuant to Local Rule 270(b), before a 4 settlement judgment can be assigned to the case. Absent the 5 parties’ affirmatively requesting that the assigned Judge or 6 Magistrate Judge participate in the settlement conference AND 7 waiver, pursuant to Local Rule 270(b), a settlement judge will be 8 randomly assigned to the case. 9 In the event a settlement conference is set by the Court, 10 counsel are instructed to have a principal with full settlement 11 authority present at the Settlement Conference or to be fully 12 authorized to settle the matter on any terms. At least seven (7) 13 calendar days before the settlement conference, counsel for each 14 party shall submit to the chambers of the settlement judge a 15 confidential Settlement Conference Statement. Such statements 16 are neither to be filed with the Clerk nor served on opposing 17 counsel. Each party, however, shall serve notice on all other 18 parties that the statement has been submitted. If the settlement 19 judge is not the trial judge, the Settlement Conference Statement 20 shall not be disclosed to the trial judge. 21 X. COURTESY COPIES 22 No party shall submit paper courtesy copies of pleadings or 23 exhibits to the Court unless expressly ordered to do so. 24 XI. VOLUNTARY DISPUTE RESOLUTION PROGRAM 25 Pursuant to Local Rule 271, parties may stipulate at any 26 stage in the proceedings to refer the action, in whole or in 27 part, to the Voluntary Dispute Resolution Program. 28 /// eee eee I II IE IE OS II OO OE 1 XII. MODIFICATION OF PRETRIAL SCHEDULING ORDER 2 The parties are reminded that pursuant to Rule 16(b) of the 3 Federal Rules of Civil Procedure, the Pretrial Scheduling Order 4 shall not be modified except by leave of court upon a showing of 5 | good cause. Agreement by the parties pursuant to stipulation 6 || alone to modify the Pretrial Scheduling Order does not constitute 7 good cause. Except in extraordinary circumstances, 8 | unavailability of witnesses or counsel will not constitute good 9 cause. 10 XIII. OBJECTIONS TO PRETRIAL SCHEDULING ORDER 11 This Pretrial Scheduling Order will become final without 12 further order of the Court unless objections are filed within 13 fourteen (14) days of service of this Order. 14 IT IS SO ORDERED. 15 | DATED: October 4, 2021 () } 16 □ / Vihuy 17 Troy L. Nuhlep ] 18 United States District Judge 19 20 21 22 23 24 25 26 27 28