Tapia v. Burlington Coat Factory of Texas, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIA LAURA FLORES TAPIA, Case No. 1:23-cv-01294-JLT-CDB 12 Plaintiff, SCHEDULING ORDER (Fed. R. Civ. P. 16) 13 v. Rule 26 Disclosures: January 9, 2024 Pleading Amendment: March 27, 2024 14 BURLINGTON COAT FACTORY OF Discovery Deadlines: TEXAS, INC. Non-Expert: July 22, 2024 15 Expert: September 6, 2024 16 Defendant. Mid-Discovery Status Conf.: May 22, 2024 17 Non-Dispositive Motion Deadlines: Filing: September 20, 2024 18 Hearing: October 23, 2024, 10:30 a.m. 19 Dispositive Motion Deadlines: Filing: October 28, 2024 20 Hearing: December 10, 2024, 8:30 a.m. 21 Pre-Trial Conference: February 3, 2025, 1:30 p.m. 2500 Tulare Street, Fresno, CA 22 Trial: April 8, 2025, 8:30 a.m. 23 2500 Tulare Street, Fresno, CA 7 days 24 25 26 Plaintiff Maria Laura Flores Tapia (“Plaintiff”) initiated this action against Defendant 27 Burlington Coat Factory of Texas, Inc. (“Defendant”) and other since-dismissed defendants in the 28 Superior Court of the State of California for the County of Kern on August 18, 2023. (Doc. 1). 1 Plaintiff asserts the following claims against Defendant: negligence, premises liability, and negligent 2 infliction of emotional distress. Id. The parties convened via Zoom videoconference for a scheduling 3 conference before Magistrate Judge Christopher D. Baker on December 28, 2023. Jonathan M. 4 Kashani appeared on behalf of Plaintiff and Nelson Xiang Dong Liu appeared on behalf of Defendant. 5 I. Magistrate Judge Consent 6 Currently there is no joint consent to Magistrate Judge jurisdiction. 7 Notice of Congested Docket and Court Policy of Trailing 8 Due to the District Judges’ heavy caseload, the adopted policy of the Fresno Division of the 9 Eastern District is to trail all civil cases. The parties are hereby notified that for a trial date set before a 10 District Judge, the parties will trail indefinitely behind any higher priority criminal or older civil case 11 set on the same date until a courtroom becomes available. The trial date will not be reset. 12 The Magistrate Judges’ availability is far more realistic and accommodating to parties than that 13 of the District Judges who carry the heaviest caseloads in the nation and who must prioritize criminal 14 and older civil cases over more recently filed civil cases. A Magistrate Judge may conduct trials, 15 including entry of final judgment, pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, 16 and Local Rule 305. Any appeal from a judgment entered by a Magistrate Judge is taken directly to 17 the United States Court of Appeal for the Ninth Circuit. 18 Therefore, the parties are directed to consider consenting to Magistrate Judge jurisdiction to 19 conduct all further proceedings, including trial, and to file a consent/decline form (provided by the 20 Court at the inception of this case) indicating whether they will consent to the jurisdiction of the 21 Magistrate Judge. 22 II. Pleading Amendment 23 Any motions to amend the pleadings, including to add parties and/or allegations and claims, 24 must be filed by March 27, 2024. Filing a motion and/or stipulation requesting leave to amend the 25 pleadings does not reflect on the propriety of the amendment or imply good cause to modify the 26 existing schedule, if necessary. All proposed amendments must (A) be supported by good cause 27 pursuant to Fed. R. Civ. P. 16(b) if the amendment requires any modification to the existing schedule, 28 see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992), and (B) establish, 1 under Fed. R. Civ. P. 15(a), that such an amendment is not (1) prejudicial to the opposing party, (2) 2 the product of undue delay, (3) proposed in bad faith, or (4) futile, see Foman v. Davis, 371 U.S. 178, 3 182 (1962). 4 III. Discovery Plan and Cut-Off Date 5 The parties shall exchange the initial disclosures required by Fed. R. Civ. P. 26(a)(1) by no 6 later than January 9, 2024. 7 The parties are ordered to complete all discovery pertaining to non-experts on or before July 8 22, 2024, and all discovery pertaining to experts on or before September 6, 2024. 9 The parties are directed to disclose all expert witnesses1, in writing, on or before July 29, 2024, 10 and to disclose all rebuttal experts on or before August 9, 2024. The written designation of retained 11 and non-retained experts shall be made pursuant to Fed. R. Civ. P. Rule 26(a)(2), (A), (B), and (C) and 12 shall include all information required thereunder. Failure to designate experts in compliance with this 13 order may result in the Court excluding the testimony or other evidence offered through such experts 14 that are not disclosed pursuant to this order. 15 The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to 16 experts and their opinions. Experts must be fully prepared to be examined on all subjects and opinions 17 included in the designation. Failure to comply will result in the imposition of sanctions, which may 18 include striking the expert designation and preclusion of expert testimony. 19 The provisions of Fed. R. Civ. P. 26(e) regarding a party’s duty to timely supplement 20 disclosures and responses to discovery requests will be strictly enforced. 21 A mid-discovery status conference is scheduled for May 22, 2024, at 9:30 a.m. before Judge 22 Baker. Counsel SHALL file a joint mid-discovery status conference report no later than one week 23 before the conference. Counsel also SHALL lodge the joint status report via e-mail to 24 CDBorders@caed.uscourts.gov. The joint status report SHALL outline the discovery counsel have 25 completed and that which needs to be completed as well as any impediments to completing the 26 27 1 In the event an expert will offer opinions related to an independent medical or mental health 28 evaluation, the examination SHALL occur sufficiently in advance of the disclosure deadline so the expert’s report fully details the expert’s opinions in this regard. 1 discovery within the deadlines set forth in this order. Counsel SHALL discuss settlement and certify 2 in the joint status report (1) that they have met/conferred regarding settlement, and (2) proposed dates 3 for convening a settlement conference before a U.S. Magistrate Judge. 4 IV. Pre-Trial Motion Schedule / Informal Discovery Dispute Conferences 5 All non-dispositive pre-trial motions, including any discovery motions, shall be filed no later 6 than September 20, 2024,2 and heard on or before October 23, 2024. The Court hears non- 7 dispositive motions at 10:30 a.m. at the United States District Courthouse in Bakersfield, California 8 before Judge Baker. 9 No motion to amend or stipulation to amend the case schedule will be entertained unless it is 10 filed at least one week before the first deadline the parties wish to extend. Likewise, no written 11 discovery motions shall be filed without the prior approval of the Court. A party with a discovery 12 dispute must first confer with the opposing party in a good faith effort to resolve by agreement the 13 issues in dispute. If that good faith effort is unsuccessful, the moving party promptly shall seek a 14 hearing with all involved parties and Judge Baker. For these hearings and at the direction of the 15 Courtroom Deputy Clerk, the Court may direct counsel to appear remotely (via Zoom). For hearings 16 noticed to occur in-person, the Court may permit counsel to appear remotely (via Zoom) provided the 17 Courtroom Deputy Clerk receives a written notice of the request to appear remotely no later than five 18 court days before the noticed hearing date. 19 At least three days before the conference, counsel SHALL file informal letter briefs detailing 20 their positions. The briefs may not exceed 5 pages, excluding exhibits. Counsel must comply with 21 Local Rule 251 with respect to discovery disputes. 22 All dispositive pre-trial motions shall be filed no later than October 28, 2024, and heard on or 23 before December 10, 2024, at 8:30 a.m. In scheduling such motions, absent consent to Magistrate 24 Judge jurisdiction, counsel SHALL consult the assigned District Judge’s general information and 25 calendar accordingly and SHALL comply with Fed. R. Civ. P. 56 and Local Rules 230 and 260. 26 27 2 Non-dispositive motions related to non-expert discovery SHALL be filed within a 28 reasonable time of discovery of the dispute, but in no event later than 10 days after the expiration of the non-expert discovery deadline. 1 V. Motions for Summary Judgment or Summary Adjudication 2 At least 21 days before filing a motion for summary judgment or motion for summary 3 adjudication, the parties SHALL meet, in person or by telephone, to confer about the issues to be 4 raised in the motion. 5 The purpose of the meeting shall be to: 1) avoid filing motions for summary judgment where a 6 question of fact exists; 2) determine whether the respondent agrees that the motion has merit in whole 7 or in part; 3) discuss whether issues can be resolved without the necessity of briefing; 4) narrow the 8 issues for review by the court; 5) explore the possibility of settlement before the parties incur the 9 expense of briefing a motion; and 6) to develop a joint statement of undisputed facts. 10 The moving party SHALL initiate the meeting and SHALL provide a complete, proposed 11 statement of undisputed facts at least five days before the conference. The finalized joint statement 12 of undisputed facts SHALL include all facts that the parties agree, for purposes of the motion, may be 13 deemed true. In addition to the requirements of Local Rule 260, the moving party shall file the joint 14 statement of undisputed facts. 15 In the notice of motion, the moving party SHALL certify that the parties have met and 16 conferred as ordered above, or set forth a statement of good cause for the failure to meet and confer. 17 Failure to comply may result in the motion being stricken. 18 VI. Pre-Trial Conference 19 February 3, 2025, at 1:30 p.m., located at the United States District Courthouse, 2500 Tulare 20 Street, in Fresno, California, before District Judge Jennifer L. Thurston. 21 The parties are ordered to file a Joint Pretrial Statement pursuant to Local Rule 281(a)(2). The 22 parties are further directed to submit a digital copy of their pretrial statement in Word format, directly 23 to District Judge Thurston’s chambers, by email at JLTorders@caed.uscourts.gov. 24 Counsels’ attention is directed to Rules 281 and 282 of the Local Rules for the Eastern District 25 of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will 26 insist upon strict compliance with those rules. In addition to the matters set forth in the Local Rules, 27 the Joint Pretrial Statement shall include a Joint Statement of the case to be used by the Court to 28 explain the nature of the case to the jury during voir dire. 1 VII. Trial Date 2 April 8, 2025, at 8:30 a.m., located at the United States District Courthouse, 2500 Tulare 3 Street, in Fresno, California, before District Judge Jennifer L. Thurston. 4 A. This is a jury trial. 5 B. Counsels’ Estimate of Trial Time: 7 days. 6 C. Counsels’ attention is directed to Local Rules of Practice for the Eastern District of 7 California, Rule 285. 8 VIII. Settlement Conference 9 The parties SHALL meet and confer and notify the Court prior to the Pre-Trial Conference 10 whether they wish to convene a Settlement Conference. In the event the parties request a Settlement 11 Conference, unless otherwise permitted in advance by the Court, the attorneys who will try the case 12 shall appear at the settlement conference with the parties and the person or persons having full 13 authority to negotiate and settle the case on any terms3 at the conference. 14 Consideration of settlement is a serious matter that requires preparation prior to the settlement 15 conference. Set forth below are the procedures the Court will employ, absent good cause, in 16 conducting the conference. 17 At least twenty-one days before the settlement conference, Plaintiff SHALL submit to 18 Defendant via fax or e-mail, a written itemization of damages and a meaningful4 settlement demand 19 which includes a brief explanation of why such a settlement is appropriate. Thereafter, no later than 20 fourteen days before the settlement conference, Defendant SHALL respond, via fax or e-mail, with an 21 22 3 Insurance carriers, business organizations, and governmental bodies or agencies whose 23 settlement agreements are subject to approval by legislative bodies, executive committees, boards of directors or the like shall be represented by a person or persons who occupy high executive positions in 24 the party organization and who will be directly involved in the process of approval of any settlement offers or agreements. To the extent possible, the representative shall have authority, if he or she deems 25 it appropriate, to settle the action on terms consistent with the opposing party's most recent demand. 26 4 “Meaningful” means the offer is reasonably calculated to settle the case on terms acceptable to the offering party. “Meaningful” does not include an offer which the offering party knows will not be 27 acceptable to the other party. If, however, the offering party is only willing to offer a settlement which it knows the other party will not accept, this should trigger a recognition the case is not in a settlement 28 posture and the parties should confer about continuing or vacating the settlement conference via stipulation. 1 acceptance of the offer or with a meaningful counteroffer which includes a brief explanation of why 2 such a settlement is appropriate. 3 If settlement is not achieved, each party SHALL attach copies of their settlement offers to their 4 Confidential Settlement Conference Statement, as described below. Copies of these documents shall 5 not be filed on the court docket. 6 CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT 7 At least five court days prior to the settlement conference, the parties shall submit, directly to 8 Judge Baker’s chambers by e-mail to CDBOrders@caed.uscourts.gov, a Confidential Settlement 9 Conference Statement. The statement should not be filed with the Clerk of the Court nor served on 10 any other party, although the parties may file a Notice of Lodging of Settlement Conference 11 Statement. Each statement shall be clearly marked "confidential" with the date and time of the 12 settlement conference indicated prominently thereon. 13 The Confidential Settlement Conference Statement shall include the following: 14 A. A brief statement of the facts of the case. 15 B. A brief statement of the claims and defenses, i.e., statutory or other grounds upon 16 which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the 17 claims and defenses; and a description of the major issues in dispute. 18 C. A summary of the proceedings to date. 19 D. An estimate of the cost and time to be expended for further discovery, pretrial and trial. 20 E. The relief sought. 21 F. The party’s position on settlement, including present demands and offers and a history 22 of past settlement discussions, offers and demands. 23 IX. Request for Bifurcation, Appointment of Special Master, or other Techniques to Shorten 24 Trial 25 None at this time. 26 27 28 1 X. Related Matters Pending 2 There are no pending related matters. 3 □□□ Compliance with Federal Procedure 4 All counsel are expected to familiarize themselves with the Federal Rules of Civil Procedure 5 and the Local Rules of the Eastern District of California, and to keep abreast of any amendments 6 || thereto. The Court requires compliance with these Rules to efficiently handle its increasing case load 7 ||XII. Effect of this Order 8 The foregoing order represents the best estimate of the court and counsel as to the agenda mo: 9 || suitable to dispose of this case. The trial date reserved is specifically reserved for this case. If the 10 || parties determine at any time that the schedule outlined in this order cannot be met, counsel are 11 || ordered to notify the court immediately of that fact so that adjustments may be made, either by 12 || stipulation or by subsequent status conference. 13 The dates set in this Order are considered to be firm and will not be modified absent a 14 || showing of good cause even if the request to modify is made by stipulation. Stipulations 15 || extending the deadlines contained herein will not be considered unless they are accompanied by 16 || affidavits or declarations, and where appropriate attached exhibits, which establish good cause 17 || for granting the relief requested. 18 Failure to comply with this order may result in the imposition of sanctions. 19 Il rr Is SO ORDERED. 20 Dated: _ December 29, 2023 | Ww ML D Ry 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28