Highlander Holdings, Inc. v. Fellner ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HIGHLANDER HOLDINGS, INC., Case No.: 3:18-cv-1506-AHG-LL 12 Plaintiff, AMENDED SCHEDULING ORDER 13 v. REGULATING DISCOVERY AND OTHER PRE-TRIAL 14 ANDREW FELLNER, et al., PROCEEDINGS 15 Defendants. 16 17 Following a Case Management Conference (“CMC”), the Court issued the initial 18 Scheduling Order in this case on December 5, 2019. ECF No. 53. Since that time, the 19 parties consented to the undersigned Magistrate Judge to act as the presiding judge in this 20 matter. ECF No. 55. Therefore, the Court must amend the Schedule Order to reset the 21 pretrial deadlines, pretrial conference, and trial before the undersigned. The Court held a 22 second CMC on August 7, 2020 for that purpose. ECF No. 74. 23 Additionally, as outlined in the Court’s order on Plaintiff’s Motion to Compel and 24 for Sanctions, both sides failed to timely raise certain disputes with the Court regarding 25 written discovery requests, resulting in minimal discovery in the case. See ECF No. 71. 26 Defendant Andrew Fellner’s deposition has also been significantly delayed due to his 27 refusal to complete his deposition in February 2020, the parties’ delay in bringing the issue 28 to the Court’s attention, and ongoing disagreements between the parties with regard to 1 rescheduling the deposition. See id.; see also ECF No. 73. 2 The Court previously determined that the parties’ failure to timely raise their 3 discovery disputes with the Court resulted in a waiver of their ability to compel further 4 discovery from one another. See ECF No. 71. However, as discussed during the second 5 CMC, the Court now finds it in the best interests of the Court and the parties to permit 6 limited additional discovery to assist the parties in preparing and/or responding to 7 dispositive pretrial motions notwithstanding the parties’ previous lack of diligence in 8 pursuing discovery. In particular, the Court is mindful that Defendant Fellner was 9 previously proceeding pro se, but has now obtained counsel who is new to the case. 10 Accordingly, after consulting with the attorneys of record for the parties and being 11 advised of the status of the case, IT IS HEREBY ORDERED: 12 1. All fact discovery shall be completed by all parties by November 16, 2020. 13 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 14 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of 15 time in advance of the cut-off date, so that it may be completed by the cut-off date, taking 16 into account the times for service, notice and response as set forth in the Federal Rules of 17 Civil Procedure. During this extended fact discovery period, each side shall be limited to 18 one deposition and shall be permitted to serve no more than five Interrogatories and five 19 Requests for Production on the other side. No additional expert discovery will be 20 permitted. 21 2. Counsel shall promptly and in good faith meet and confer with regard to 22 all discovery disputes in compliance with Local Rule 26.1(a). The Court expects counsel 23 to make every effort to resolve all disputes without court intervention through the meet and 24 confer process. If the parties reach an impasse on any discovery issue, counsel shall file an 25 appropriate motion within the time limit and procedures outlined in the undersigned 26 magistrate judge’s chambers rules. A failure to comply in this regard will result in a 27 waiver of a party’s discovery issue. Absent an order of the court, no stipulation 28 continuing or altering this requirement will be recognized by the court. A failure to 1 comply in this regard will result in a waiver of a party’s discovery issue. Absent an 2 order of the court, no stipulation continuing or altering this requirement will be 3 recognized by the court. The Court expects counsel to make every effort to resolve all 4 disputes without court intervention through the meet and confer process. If the parties 5 reach an impasse on any discovery issue, the movant must e-mail chambers at 6 efile_goddard@casd.uscourts.gov no later than 45 days after the date of service of the 7 written discovery response that is in dispute, seeking a telephonic conference with the 8 Court to discuss the discovery dispute. The email must include: (1) at least three proposed 9 times mutually agreed upon by the parties for the telephonic conference; (2) a neutral 10 statement of the dispute; and (3) one sentence describing (not arguing) each parties’ 11 position. The movant must copy opposing counsel on the email. No discovery motion may 12 be filed until the Court has conducted its pre-motion telephonic conference, unless the 13 movant has obtained leave of Court. All parties are ordered to read and to fully comply 14 with the Chambers Rules of Magistrate Judge Allison H. Goddard. 15 3. Failure to comply with this section or any other discovery order of the court 16 may result in the sanctions provided for in Fed. R. Civ. P. 37. 17 4. All dispositive pretrial motions must be filed by January 22, 2021. Counsel 18 for the moving party must obtain a motion hearing date from the law clerk of the judge 19 who will hear the motion. Failure to make a timely request for a motion date may result in 20 the motion not being heard. 21 5. A Mandatory Settlement Conference shall be conducted on January 13, 2021 22 at 10:00 AM in the chambers of Magistrate Judge Linda Lopez located at 221 West 23 Broadway, Suite 2140, San Diego, CA 92101. All discussions at the Mandatory 24 Settlement Conference will be informal, off the record, privileged, and confidential. 25 Counsel for any non-English speaking party is responsible for arranging for the appearance 26 of an interpreter at the conference. 27 a. Personal Appearance of Parties Required: All parties, adjusters for insured 28 defendants, and other representatives of a party having full and complete authority to enter 1 into a binding settlement, as well as the principal attorneys responsible for the litigation, 2 must be present in person and legally and factually prepared to discuss settlement of the 3 case. Counsel appearing without their clients (whether or not counsel has been given 4 settlement authority) will be cause for immediate imposition of sanctions and may also 5 result in the immediate termination of the conference. 6 Unless there is good cause, persons required to attend the conference pursuant to this 7 Order shall not be excused from personal attendance. Requests for excuse from attendance 8 for good cause shall be made in writing at least three (3) court days prior to the conference. 9 Failure to appear in person at the Mandatory Settlement Conference will be grounds for 10 sanctions. 11 b. Full Settlement Authority Required: In addition to counsel who will try the 12 case, a party or party representative with full settlement authority1 must be present for the 13 conference. In the case of a corporate entity, an authorized representative of the 14 corporation who is not retained outside counsel must be present and must have 15 discretionary authority to commit the company to pay an amount up to the amount of 16 Plaintiff’s prayer (excluding punitive damages prayers). The purpose of this requirement 17 is to have representatives present who can settle the case during the course of the 18 conference without consulting a superior. Counsel for a government entity may be excused 19 from this requirement so long as the government attorney who attends the Mandatory 20 Settlement Conference (1) has primary responsibility for handling the case, and (2) may 21 22 1 “Full settlement authority” means that the individuals at the settlement conference must 23 be authorized to explore settlement options fully and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 24 653 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to 25 change the settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement 26 authority to attend the conference contemplates that the person’s view of the case may be 27 altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is not adequate. See Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-97 (8th 28 1 negotiate settlement offers which the attorney is willing to recommend to the government 2 official having ultimate settlement authority. 3 c. Confidential Settlement Statements Required: No later than 4 January 5, 2021, the parties shall submit directly to Magistrate Judge Lopez’s chambers 5 (via email or hand delivery c/o the Office of the Clerk) confidential settlement statements 6 no more than ten (10) pages in length. These confidential statements shall not be filed 7 or served on opposing counsel. Each party’s confidential statement must set forth the 8 party’s statement of the case, identify controlling legal issues, concisely set out issues of 9 liability and damages, and shall set forth the party’s settlement position, including any 10 previous settlement negotiations, mediation sessions, or mediation efforts, the last offer or 11 demand made by that party, and a separate statement of the offer or demand the party is 12 prepared to make at the settlement conference. If a specific demand or offer for settlement 13 cannot be made at the time the brief is submitted, then the reasons therefore must be stated 14 along with a statement as to when the party will be in a position to state a demand or make 15 an offer. General statements that a party will “negotiate in good faith” is not a specific 16 demand or offer contemplated by this Order. It is assumed that all parties will negotiate in 17 good faith. 18 d. Requests to Continue a Mandatory Settlement Conference: Any request 19 to continue the Mandatory Settlement Conference or request for relief from any of the 20 provisions or requirements of this Order must be sought by a written joint motion or ex 21 parte application. The application must (1) be supported by a declaration of counsel 22 setting forth the reasons and justifications for the relief requested, (2) confirm compliance 23 with Civil Local Rule 83.3(h), and (3) report the position of opposing counsel or any 24 unrepresented parties subject to the Order. Absent good cause, requests for continuances 25 will not be considered unless submitted in writing no fewer than (7) days prior to the 26 scheduled conference. 27 If the case is settled in its entirety before the scheduled date of the conference, 28 counsel and any unrepresented parties must still appear in person, unless a written 1 joint notice confirming the complete settlement of the case is filed no fewer than 2 twenty-four (24) hours before the scheduled conference. 3 6. Neither party is required to file Memoranda of Contentions of Fact and Law 4 pursuant to Civil Local Rule 16.1.f.2. 5 7. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 6 Civ. P. 26(a)(3) by April 2, 2021. Failure to comply with these disclosure requirements 7 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 8 8. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 9 April 9, 2021. At this meeting, counsel shall discuss and attempt to enter into stipulations 10 and agreements resulting in simplification of the triable issues. Counsel shall exchange 11 copies and/or display all exhibits other than those to be used for impeachment. The exhibits 12 shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall note any 13 objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. P. 14 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial conference 15 order. 16 9. Counsel for plaintiff will be responsible for preparing the pretrial order and 17 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By April 16, 2021, 18 plaintiff’s counsel must provide opposing counsel with the proposed pretrial order for 19 review and approval. Opposing counsel must communicate promptly with plaintiff’s 20 attorney concerning any objections to form or content of the pretrial order, and both parties 21 shall attempt promptly to resolve their differences, if any, concerning the order. 22 10. The Proposed Final Pretrial Conference Order, including objections to any 23 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 24 lodged with the assigned district judge by April 23, 2021, and shall be in the form 25 prescribed in and comply with Local Rule 16.1(f)(6). 26 11. All motions in limine are due no later than April 12, 2020. 27 12. All responses to the motions in limine are due no later than April 26, 2020. 28 The Court will hear the motions in limine during the Pretrial Conference. 1 13. The final Pretrial Conference is scheduled on the calendar of the Honorable 2 || Allison H. Goddard on May 7, 2021 at 9:30 AM. 3 14. The parties shall submit the following no later than May 14, 2021: (1) joint 4 || proposed jury instructions; (2) proposed verdict form; (3) voir dire questions; and (4) 5 statement of the case. 6 15. The parties shall exchange final exhibit and witness lists no later than 7 31, 2021. 8 16. Trial briefs are due from each side by June 2, 2021. 9 17. The jury trial? in this matter shall commence on Monday, June_7, 2021 at 10 AM. 11 18. The parties must review the chambers rules for both assigned judges. 12 19. A post-trial settlement conference before a magistrate judge may be held 13 || within 30 days of verdict in the case. 14 20. Briefs or memoranda in support of or in opposition to any pending motion 15 || shall not exceed twenty-five (25) pages in length without leave of the presiding judge. No 16 ||reply memorandum shall exceed ten (10) pages without leave of the presiding judge. Briefs 17 ||and memoranda exceeding ten (10) pages in length shall have a table of contents and a 18 of authorities cited. 19 21. The dates and times set forth herein will not be modified except for good cause 20 || shown. 21 IT IS SO ORDERED. 22 |! Dated: August 10, 2020 23 _ArwiorwH. Xyolard Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28 Both Plaintiff and Defendant Fellner timely demanded a trial by jury. ECF Nos. 1, 24.