Ussery v. Mercedes-Benz USA LLC ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY USSERY, an individual and No. 2:23-cv-0952 DAD DB ALPHA ZETA LOGISTIX, a California 12 Corporation, 13 Plaintiffs, ORDER 14 v. 15 MERCEDES-BENZ USA, LLC, a Delaware Limited Liability Corporation, 16 17 Defendant 18 19 This court conducted a scheduling conference on November 17, 2023. Attorney Sepehr 20 Daghighian appeared by Zoom video on behalf of plaintiffs. Attorney Mehgan Gallagher 21 appeared by Zoom video on behalf of defendant. Pursuant to Rule 16(b) of the Federal Rules of 22 Civil Procedure, the court issues this scheduling order. 23 I. SERVICE OF PROCESS 24 The named defendant has been served as required by Federal Rule of Civil Procedure 5. 25 No further service is permitted without leave of court, good cause having been shown under 26 Federal Rule of Civil Procedure 16(b). 27 //// 28 //// 1 II. JOINDER OF ADDITIONAL PARTIES / AMENDMENT OF PLEADINGS 2 Plaintiff does not anticipate joining any additional parties or amending the pleading. 3 Defendant has moved to dismiss arguing, in part, that plaintiff has failed to join an indispensable 4 party. (ECF No. 27 at 2.) No further joinder of parties or amendments to pleadings is permitted 5 without leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. 6 Mammoth Recreations, Inc., 975 F.2d 27 604 (9th Cir. 1992). The parties are advised that the 7 filing of motions and/or stipulations requesting leave to amend the pleadings does not imply good 8 cause to modify the existing schedule. Fed. R. Civ. P. 16 (b)(4); see also Johnson, 975 F. 2d at 9 609. Moreover, any amendment requested under Federal Rule of Civil Procedure 15(a) must not 10 be: (1) prejudicial to the opposing party; (2) the product of undue delay; (3) proposed in bad faith; 11 or (4) futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). 12 III. DISCOVERY PROCEDURES 13 Discovery matters that do not implicate the schedule of the case or that do not relate to 14 sealing or redaction of documents related to dispositive motions are referred to the assigned 15 United States Magistrate Judge, who will hear all discovery disputes subject to his or her 16 procedures. (The assigned magistrate judge’s initials follow the district judge’s initials next to the 17 case number.) All discovery documents must include the words “DISCOVERY MATTER” in 18 the caption to ensure proper routing. Do not direct delivery of courtesy copies of these 19 documents to the district judge. Counsel are directed to contact the magistrate judge’s courtroom 20 deputy clerk to schedule discovery matters for hearing. 21 All motions to compel discovery must be noticed on the assigned magistrate judge’s 22 calendar in accordance with the local rules of this court and the magistrate judge’s own 23 procedures. The written ruling of the assigned magistrate judge shall be final, subject to 24 modification by the district court only where it has been shown that the magistrate judge’s order 25 is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A). Pursuant to Local Rule 26 303, any party may file and serve a “Request for Reconsideration by the District Court of 27 Magistrate Judge’s Ruling.” See L.R. 303(c). The requesting party must file and serve any such 28 request within fourteen (14) days of service of a written ruling. L.R. 303(b). The request must 1 specify which portions of the ruling are clearly erroneous or contrary to law and the basis for that 2 contention with supporting points and authorities. L.R. 303(c). 3 In addition, the assigned magistrate judge reviews proposed discovery phase protective 4 orders sought by the parties pursuant to Local Rule 141.1. However, requests to seal or redact in 5 connection with dispositive motions or trial are decided by Judge Drozd and any such requests 6 must comply with Judge Drozd’s Standing Order and Local Rules 140 and 141. 7 IV. DISCOVERY DEADLINES 8 A. Rule 26(a) Initial Disclosures 9 The parties shall serve their initial disclosures pursuant to Federal Rule of Civil Procedure 10 Rule 26(a)(1) no later than 14 days after the date of entry of this scheduling order. Fed. R. Civ. P. 11 26(a)(1)(C). Any parties served or joined after the issuance of this scheduling order shall “make 12 the initial disclosures within 30 days after being served or joined,” as provided by Rule 13 26(a)(1)(D). 14 B. Fact Discovery 15 All fact discovery shall be completed1 no later than May 10, 2024. The parties do not 16 propose any limitations or changes to the governing provisions of the Federal Rules of Civil 17 Procedure. 18 C. Expert Discovery 19 Disclosures of expert witnesses, if any, must be made pursuant to Federal Rule of Civil 20 Procedure 26(a)(2)(A), (B) and (C), and shall include all information required thereunder. Each 21 expert witness must be fully prepared to be examined on all subjects and opinions included in the 22 disclosures. Failure to comply with these requirements may result in the imposition of 23 //// 24 1 As used herein, the word “completed” means that all discovery shall have been conducted so 25 that all depositions have been taken and any disputes relevant to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has 26 been obeyed. The parties are advised that motions to compel must be filed in advance of the 27 discovery completion deadlines so that the court may grant effective relief within the allotted discovery time. A party’s failure to have a discovery dispute heard sufficiently in advance of the 28 discovery cutoff may result in denial of the motion as untimely. 1 appropriate sanctions, including the preclusion of the expert’s testimony, or of other evidence 2 offered through the expert. 3 The parties shall disclose initial experts and produce reports in accordance with Federal 4 Rule of Civil Procedure 26(a)(2) by no later than May 17, 2024. With regard to expert testimony 5 intended solely for rebuttal, those experts shall be disclosed and reports produced in accordance 6 with Federal Rule of Civil Procedure 26(a)(2) on or before June 17, 2024. 7 All expert discovery shall be completed no later than July 17, 2024. 8 V. MOTIONS 9 All motions, except motions for continuances, temporary restraining orders, or other 10 emergency applications, shall be filed on or before August 23, 2024, and shall be noticed for 11 hearing before Judge Drozd on a date not more than 60 days from the date the motion is filed and 12 on a date that is consistent with Judge Drozd’s Standing Order. Counsel are directed to refer to 13 the local rules regarding the requirements for noticing and opposing such motions on the court’s 14 regularly scheduled law and motion calendar. 15 Prior to filing a motion for summary judgment or motion for partial summary judgment 16 (summary adjudication), the parties are ordered to meet and confer, in person or by telephone, to 17 discuss the issues to be raised in the motion. In addition to complying with the requirements 18 of Local Rule 260, the parties must prepare a Joint Statement of Undisputed Facts, which 19 identifies all relevant facts subject to agreement by all parties. The moving party is 20 responsible for filing the joint statement concurrently with the motion. In the notice of motion, 21 the moving party shall certify that the parties have met and conferred as ordered above or provide 22 a statement of good cause for the failure to do so. 23 VI. SETTLEMENT CONFERENCE 24 District Judge Dale A. Drozd requires parties to participate in a court-supervised 25 settlement conference with a settlement judge before the action may proceed to trial. A 26 settlement conference has not been set at this time. At any time before the final pretrial 27 conference, the parties may file a joint request that this action be referred to a settlement judge for 28 the setting of a settlement conference. If the parties have not participated in a court-supervised 1 settlement conference by the time of the final pretrial conference, the court will refer the action at 2 that time to the assigned magistrate judge for the setting of a settlement conference. The parties 3 shall contact the designated settlement conference judge’s chambers to ascertain that judge’s 4 settlement conference procedures, including the procedure for submitting confidential settlement 5 statements, which shall not be filed and will not otherwise be disclosed to the trial judge. 6 Unless otherwise permitted in advance by the court, the attorneys who will try the case 7 shall appear at the settlement conference. Pertinent evidence to be offered at trial, documents or 8 otherwise, should be brought to the settlement conference for presentation to the settlement judge. 9 Of course, neither the settlement conference statements nor communications during the settlement 10 conference with the settlement judge can be used by either party in the trial of this case. 11 Absent permission from the court, in addition to counsel who will try the case being 12 present, the individual parties shall also be present, and in the case of corporate parties, 13 associations or other entities, and insurance carriers, a representative executive with unrestricted 14 authority to discuss, consider, propose and agree, or disagree, to any settlement proposal or offer 15 shall also be present. If for any reason the representative with unlimited authority cannot attend, 16 such a person must be available by phone or video throughout the conference. In other words, 17 having settlement authority “up to a certain amount” is not acceptable. 18 VII. FINAL PRETRIAL CONFERENCE 19 The final pretrial conference is set for January 14, 2025, at 1:30 p.m. before District 20 Court Judge Dale A. Drozd by Zoom. Parties will receive a Zoom ID number and password for 21 the final pretrial conference by email from Judge Drozd’s Courtroom Deputy Pete Buzo 22 (PBuzo@caed.uscourts.gov). Any other interested parties or members of the public may access 23 the conference telephonically by dialing 888−557−8511 and using access code 9683466, at the 24 time of the conference. Because several matters may be set for the same afternoon, the parties 25 will be notified in advance of the conference at what specific time the court anticipates calling 26 their case so they can join the Zoom at that time. 27 The parties are directed to file a joint pretrial statement, carefully prepared and executed 28 by all counsel, that complies with the requirements of this Local Rule 281 and Judge Drozd’s 1 Standing Order. Counsel shall also email a copy of the joint pretrial statement in Word format to 2 Judge Drozd’s chambers at dadorders@caed.uscourts.gov. 3 The parties’ attention is directed to Local Rules 281 and 282. This court will insist upon 4 strict compliance with these rules. At the pretrial conference, the court will set deadlines to file 5 trial documents, including motions in limine, trial briefs, and proposed jury voir dire, instructions, 6 and verdict forms (where applicable). 7 VIII. JURY TRIAL 8 A jury trial is set for March 17, 2025, at 9:00 a.m. in Courtroom 4 before District Court 9 Judge Dale A. Drozd. The parties have not provided an estimate of the number of court days 10 anticipated for the trial of this case. 11 IX. REQUEST FOR BIFURCATION, APPOINTMENT OF SPECIAL MASTER, OR 12 OTHER TECHNIQUES TO SHORTEN TRIAL 13 The parties have not made any such requests at this time and do not anticipate any such 14 requests. 15 X. RELATED MATTERS PENDING 16 There is no related litigation. 17 XI. OBJECTIONS AND MODIFICATIONS TO THE SCHEDULING ORDER 18 This case schedule will become final without further order of the court unless 19 objections are filed within fourteen (14) days of the entry of this order. The schedule, once 20 final, shall not be modified except by leave of court upon showing of good cause. The assigned 21 magistrate judge is authorized to modify only the discovery dates to the extent any such 22 modification does not impact the balance of the schedule of the case. 23 The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil 24 Procedure, no stipulations extending scheduling requirements or modifying applicable rules are 25 effective until and unless the court approves them. Agreement of the parties by stipulation alone 26 does not constitute good cause. Any request or stipulation to modify this scheduling order must 27 set forth: 28 //// 1 (1) the existing due date or hearing date as well as the discovery cutoff date, the last 2 date for hearing motions, the final pretrial conference date, and the trial date; 3 (2) whether there have been prior requests for extensions, and whether these were 4 granted or denied by the court; and 5 (3) specific, concrete reasons supporting good cause for granting of the extension. For 6 example, if the reason for the requested extension is that it “will promote 7 settlement,” the requesting party or parties must indicate the status of ongoing 8 negotiations, 1.e., have written proposals been exchanged; is counsel in the process 9 of reviewing a draft settlement agreement; has a mediator been selected. 10 | ITISSO ORDERED. 11 | Dated: November 21, 2023 12 13 14 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 | DLB:6 DB/orders/orders.civil/ussery0952.sched.ord 28