Presba v. Home Depot U.S.A., Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH PRESBA et al., No. 2:22–cv–1241–KJN PS 12 Plaintiffs, PRETRIAL SCHEDULING ORDER 13 v. 14 THE HOME DEPOT U.S.A., INC.; et al., 15 Defendants. 16 17 READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES THAT 18 THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND 19 PARTIES MUST COMPLY. FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER 20 MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER APPROPRIATE 21 SANCTIONS, INCLUDING DISMISSAL OR AN ORDER OF JUDGMENT. 22 On August 12, 2022, plaintiffs, Kenneth Presba and Kris Presba, and defendants, the 23 Home Depot U.S.A., Inc., et al, submitted a joint status report (ECF No. 8) to the court. After 24 considering the parties’ joint status report, the court issues the following pretrial scheduling 25 order.1 26 /// 27 1 The court has made some modifications to the parties’ proposed scheduling deadlines based on 28 the court’s own availability and case management needs. 1 NATURE OF THE CASE 2 Plaintiffs commenced this action in the Superior Court of the State of California for the 3 County of El Dorado on April 22, 2022, alleging claims of premises liability, negligent infliction 4 of emotional distress, and loss of consortium. Defendants removed this action from state court 5 under diversity jurisdiction on July 14, 2022. Defendants deny any liability and assert various 6 affirmative defenses. 7 SERVICE OF PROCESS 8 All named defendants have been served and have appeared. No further service is 9 permitted except with leave of court, good cause having been shown. 10 JOINDER OF PARTIES/AMENDMENT OF PLEADINGS 11 All named defendants have answered plaintiffs’ complaint. No further joinder of parties 12 or amendments to pleadings are permitted except with leave of court, good cause having been 13 shown. 14 JURISDICTION/VENUE 15 Federal jurisdiction and venue are undisputed, and are hereby found to be proper. 16 Further, all parties consented to the jurisdiction of a magistrate judge for all purposes under 28 17 U.S.C. § 636(c), and this action was reassigned to the undersigned for all purposes. (See ECF 18 Nos. 4, 6, and 7.) 19 INITIAL DISCLOSURES 20 To the extent that the parties have not already done so, the parties shall exchange initial 21 disclosures, as per Rule 26(a)(1)(A) no later than September 12, 2022. 22 SETTLEMENT CONFERENCE 23 The parties have stated they are interested in the court’s VDRP or a settlement conference 24 before another magistrate judge. When the parties are ready for one or the other, they are to 25 contact the undersigned’s courtroom deputy clerk to inquire as to the procedures for a VDRP 26 referral or the availability of another magistrate judge for a settlement conference. 27 /// 28 /// 1 DISCOVERY DEADLINES, PROCEDURES FOR DISCOVERY DISPUTES 2 All non-expert discovery shall be completed2 by February 10, 2023. Any discovery- 3 related motions must conform to the requirements of the Federal Rules of Civil Procedure and 4 this court’s Local Rules, including Local Rule 251. Judge Newman generally hears civil motions 5 on Tuesdays at 9:00 a.m. 6 Prior to filing any discovery–related motions, the parties are required to meet and confer 7 in good faith in an attempt to resolve their discovery disputes informally and without court 8 intervention. Such meet and confer shall take place in person, or at a minimum, via a telephonic 9 conference. The mere exchange of letters or e-mails alone is not sufficient. As part of their joint 10 statement related to a discovery motion submitted pursuant to Local Rule 251, the parties shall 11 also specifically outline: (a) what meet-and-confer efforts were undertaken; (b) when and where 12 such discussions took place; (c) who was present; and (d) how the parties’ disputes were 13 narrowed as a result of such discussions. Failure to comply with these requirements may result in 14 summary denial of any discovery motion. 15 The court strongly encourages the use of informal telephonic discovery conferences with 16 the court in lieu of formal discovery motion practice. The procedures and conditions for 17 requesting and conducting such an informal telephonic discovery conference are outlined in 18 Judge Newman’s “Order re Informal Telephonic Conferences re Discovery Disputes,” posted on 19 the court’s website at http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5046/. 20 Additionally, subject to the court’s availability, the court will also rule on disputes encountered at 21 oral depositions, so as to avoid such depositions from breaking down. In the course of the 22 deposition, the parties may contact Judge Newman’s courtroom deputy clerk at (916) 930-4187 to 23 inquire regarding Judge Newman’s availability. However, the parties are cautioned that these 24 informal procedures are not to be abused, and the court may impose appropriate sanctions on an 25 offending party or parties, even in the course of informal discovery conferences. 26 27 2 “Completed” means (1) all discovery shall have been conducted so that all depositions have been taken and (2) any disputes related to discovery shall have been resolved by appropriate order 28 if necessary and, where discovery has been ordered, the order has been complied with. 1 EXPERT DISCLOSURES AND DISCOVERY 2 The parties shall disclose any expert witnesses in accordance with the specifications of 3 Federal Rule of Civil Procedure 26(a)(2) no later than February 24, 2023, for plaintiffs’ expert 4 disclosures and March 24, 2023, for defendants’ disclosures. Any rebuttal expert disclosures 5 shall be made in accordance with the specifications of Federal Rule of Civil Procedure 26(a)(2) 6 no later than April 21, 2023. Expert disclosures shall be filed with the court and served upon all 7 other parties. All expert discovery shall be completed (see fn. 2) by July 28, 2023. The same 8 procedures for fact–discovery disputes applies to expert-discovery disputes. 9 An expert witness not timely disclosed will not be permitted to testify unless the party 10 offering the witness demonstrates that: (a) the necessity of the witness could not have been 11 reasonably anticipated at the time that the expert disclosures were due; (b) the court and opposing 12 counsel were promptly notified upon discovery of the witness; and (c) the witness was promptly 13 proffered for deposition. Failure to provide the information required by Federal Rule of Civil 14 Procedure 26(a)(2) along with the expert disclosures may lead to preclusion of the expert’s 15 testimony or other appropriate sanctions. 16 LAW AND MOTION 17 All law and motion, except as to discovery-related matters, shall be completed (i.e. heard) 18 by September 26, 2023. Counsel and/or parties proceeding without counsel are cautioned to refer 19 to the Local Rules regarding the requirements for noticing such motions on the court’s regularly 20 scheduled law and motion calendar, including, but not limited to, Local Rule 230. Judge 21 Newman generally hears civil motions on Tuesdays at 9:00 a.m. This paragraph does not 22 preclude motions for continuances, motions in limine related to trial, temporary restraining 23 orders, or other emergency applications, for which the court may set a special briefing schedule, 24 if necessary or appropriate. 25 ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL 26 MOTION. The purpose of law and motion is to narrow and refine the legal issues raised by the 27 case, as well as to dispose of those issues that are susceptible to resolution without trial by pretrial 28 motion. To accomplish that purpose, the parties need to identify and fully research the issues 1 | presented by the case, then examine those issues in light of the evidence obtained through 2 || discovery. □□ □□ appears to counsel after examining the legal issues and facts that an issue can be 3 || resolved by pretrial motion, counsel are to file the appropriate motion consistent with the law and 4 | motion cutoff set forth above. Conversely, motions in limine are procedural devices designed to 5 || address the admissibility of evidence. THE COURT WILL LOOK WITH DISFAVOR UPON 6 | SUBSTANTIVE MOTIONS PRESENTED UNDER THE GUISE OF MOTIONS IN LIMINE 7 | AT THE TIME OF TRIAL. 8 FINAL PRETRIAL CONFERENCE/TRIAL SETTING 9 The final pretrial conference and jury trial will take place before the undersigned on 10 | Tuesday, October 24, 2023, at 9:00 a.m. As this date approaches, the court will issue additional 11 || orders concerning the required pretrial procedures. 12 The jury trial 1s tentatively scheduled to commence before the undersigned on 13 || Wednesday, November 22, 2023, at 9:00 a.m., in Courtroom No. 25. The first day of trial will be 14 | limited to addressing motions in limine, jury instructions, and other preliminary trial matters. 15 || Jury selection will commence on Monday, November 27, 2023, at 9:00 a.m. 16 OBJECTIONS 17 Any objections to this pretrial scheduling order shall be filed within seven (7) days. 18 MODIFICATION OF THIS SCHEDULING ORDER 19 The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b)(4), this 20 | order shall not be modified except by leave of court upon a showing of “good cause.” See 21 | Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). Mere agreement by the 22 || parties pursuant to a stipulation does not constitute good cause. Nor does the unavailability of 23 || witnesses or counsel, except in extraordinary circumstances, constitute good cause. 24 | Dated: August 24, 2022 Foci) Aharon 2% KENDALL J. NE /bh, pres.1241 UNITED STATES MAGISTRATE JUDGE 27 28