City of San Diego v. Sea World, LLC ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CITY OF SAN DIEGO, Case No.: 23-cv-1919-W-DEB 12 Plaintiff, SCHEDULING ORDER 13 v. REGULATING DISCOVERY AND OTHER PRE-TRIAL 14 SEA WORLD, LLC, PROCEEDINGS 15 Defendant. 16 17 Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was 18 held on January 10, 2024. After consulting with the attorneys1 of record for the parties 19 and being advised of the status of the case, and good cause appearing, IT IS HEREBY 20 ORDERED: 21 1. Any motion to join other parties, to amend the pleadings, or to file additional 22 pleadings shall be filed by February 26, 2024. 23 2. A telephonic Status Conference will be held on March 15, 2024 at 9:30 a.m. 24 Counsel must call the Court’s teleconference line at 1-888-398-2342, enter access code 83- 25 89-272, and press * to bypass the prompt for a security code. 26 27 1 As used herein, references to “attorneys” and “counsel” include any party representing themselves. 28 1 3. All parties shall complete all fact discovery by August 16, 2024. 2 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 3 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of 4 time in advance of the cut-off date, so that it may be completed by the cut-off date, taking 5 into account the times for service, notice and response as set forth in the Federal Rules of 6 Civil Procedure. Counsel shall promptly and in good faith meet and confer with 7 regard to all discovery disputes in compliance with Local Rule 26.1(a). The Court 8 expects counsel to make every effort to resolve all disputes without court intervention 9 through the meet-and-confer process. If the parties reach an impasse on any discovery 10 issue, counsel shall file an appropriate motion within the time limit and procedures outlined 11 in the undersigned magistrate judge’s chambers rules. A failure to comply in this regard 12 will result in a waiver of a party’s discovery issue. Absent an order of the Court, no 13 stipulation continuing or altering this requirement will be recognized by the Court. 14 4. The parties shall designate their respective experts in writing by 15 August 16, 2024. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any 16 person who may be used at trial to present evidence pursuant to Rules 702, 703, or 705 of 17 the Federal Rules of Evidence. This requirement is not limited to retained experts. The 18 date for exchange of rebuttal experts shall be by August 30, 2024. The written designations 19 shall include the name, address, and telephone number of the expert and a reasonable 20 summary of the testimony the expert is expected to provide. The list shall also include the 21 normal rates the expert charges for deposition and trial testimony. 22 5. By September 13, 2024, each party shall comply with the disclosure 23 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 24 disclosure requirement applies to all persons retained or specially employed to provide 25 expert testimony, or whose duties as an employee of the party regularly involve the giving 26 of expert testimony. Except as provided in the paragraph below, any party that fails 27 to make these disclosures shall not, absent substantial justification, be permitted to 28 use evidence or testimony not disclosed at any hearing or at the time of trial. In 1 addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 2 6. Any party shall supplement its disclosure regarding contradictory or rebuttal 3 evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 26(e) by 4 October 11, 2024. 5 7. All parties shall complete all expert discovery by November 8, 2024. The 6 parties shall comply with the same procedures set forth in the paragraph governing fact 7 discovery. 8 8. Failure to comply with this section or any other discovery order of the Court 9 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 10 the introduction of experts or other designated matters in evidence. 11 9. All other pretrial motions must be filed by December 6, 2024. Counsel for 12 the moving party must obtain a motion hearing date from the law clerk of the judge who 13 will hear the motion. The period of time between the date you request a motion date and 14 the hearing date may vary from one district judge to another. Please plan accordingly. 15 Failure to make a timely request for a motion date may result in the motion not being heard. 16 Motions in limine are to be filed as directed in the Local Rules, or as otherwise set by the 17 district judge. 18 10. An in-person Mandatory Settlement Conference shall be conducted on 19 July 31, 2024 at 9:30 AM before Magistrate Judge Daniel E. Butcher. The purpose of 20 the MSC is to permit an informal discussion between the attorneys, parties, and magistrate 21 judge of every aspect of the lawsuit in an effort to achieve an early resolution of the case. 22 Counsel attending the MSC are expected to have a command of the facts and applicable 23 law. Counsel and the parties must be prepared to engage in a detailed discussion of the 24 merits of their respective cases and engage in good faith settlement discussions. All 25 discussions during the MSC are informal, off the record, privileged, and confidential. 26 Counsel for any non-English speaking party is responsible for arranging for the appearance 27 of an interpreter at the conference. 28 // 1 11. Pursuant to Local Rule 16.3.b., all parties, party representatives, including 2 claims adjusters for insured parties, and the principal attorney(s) responsible for the 3 litigation must participate in the MSC.2 This appearance must be made with full and 4 unlimited authority to negotiate and enter into a binding settlement.3 In the case of a 5 corporate entity, an authorized representative of the corporation who is not retained outside 6 counsel must be present and must have discretionary authority to commit the company to 7 pay an amount up to the amount of the plaintiff’s prayer (excluding punitive damage 8 prayers). The purpose of this requirement is to have representatives present who can settle 9 the case during the course of the conference without consulting a superior. 10 Counsel for a government entity may be excused from this requirement so long as 11 the government attorney who participates in the MSC (1) has primary responsibility for 12 handling the case; and (2) may negotiate settlement offers that the attorney is willing to 13 recommend to the government official having ultimate settlement authority. 14 // 15 // 16 // 17 // 18 // 19 20 2 The attendance requirement includes parties that are indemnified by others. Any 21 deviation from this Order requires prior Court approval. 22 3 Full authority to settle means that the individuals at the MSC are authorized to fully 23 explore settlement options and to agree at that time to any settlement terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 24 1989). The person needs to have “unfettered discretion and authority” to change the 25 settlement position of a party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). One of the purposes of requiring a person with unlimited settlement authority 26 to attend the conference is that the person’s view of the case may be altered during the 27 face-to-face conference. Pitman, 216 F.R.D. at 486. Limited or sum certain authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-597 (8th Cir. 2001). 28 1 12. No later than July 24, 2024, counsel for each party must send an e-mail to the 2 Court at efile_butcher@casd.uscourts.gov containing the following: 3 a. The name and title(s)/position(s) of each participant, including counsel, all 4 parties and party representatives, and claims adjusters; 5 b. A Confidential MSC Conference Statement.4 All confidential MSC 6 Statements must include: 7 i. the party’s position on liability and damages supported by relevant facts, a discussion of the significant facts established during discovery, 8 and legal analysis with citations to controlling legal authority. The 9 parties are also encouraged to attach a chronology setting forth a timeline of the events at issue. If submitted, the chronology should be 10 in a chart or column format with the column headings “DATE” and 11 “EVENT.” The chronology is not counted against the page limits; 12 ii. for plaintiff(s), a specific and current settlement demand addressing all 13 relief sought and an itemization of the damages sought, and, for defendant(s), a specific and current offer and the bases for that offer. 14 (Note: a general statement that a party will “negotiate in good faith,” 15 “offer a nominal cash sum,” or “be prepared to make a demand or offer at the conference” is not a specific demand or offer. If a specific offer 16 or demand cannot be made at the MSC, state the reasons why and 17 explain what additional information is required to make a settlement demand or offer.); 18 19 iii. a brief description of any previous settlement negotiations or mediations; and 20 21 iv. the names of attorney(s) and non-attorney(s) who will attend the conference, including the name(s) and title(s)/position(s) of the 22 party/party representative(s). 23 24 // 25 // 26 27 4 The Court does not require MSC Statements to be served on other parties; however, the parties may elect to share statements at their discretion. These statements are not to be 28 1 13. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 2 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 3 failure may constitute a consent to the granting of a motion or other request for ruling by 4 the Court. Accordingly, all parties are ordered to abide by the terms of Local Rule 5 7.1(e)(2), or otherwise face the prospect of any pretrial motion being granted as an 6 unopposed motion pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose to 7 file or oppose a motion for summary judgment or partial summary judgment, no Separate 8 Statement of Disputed or Undisputed Facts is required. 9 14. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is 10 required to file a Memorandum of Contentions of Fact and Law at any time. The parties 11 shall instead focus their efforts on drafting and submitting a proposed pretrial order by the 12 time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order shall 13 comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases issued by 14 the assigned district judge. 15 15. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 16 Civ. P. 26(a)(3) by March 3, 2025. Failure to comply with these disclosure requirements 17 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 18 16. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 19 March 10, 2025. At this meeting, counsel shall discuss and attempt to enter into 20 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 21 exchange copies and/or display all exhibits other than those to be used for impeachment. 22 The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 23 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 24 P. 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial conference 25 order. 26 17. Counsel for plaintiff will be responsible for preparing the pretrial order and 27 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 28 March 17, 2025, plaintiff’s counsel must provide opposing counsel with the proposed 1 pretrial order for review and approval. Opposing counsel must communicate promptly 2 with plaintiff’s attorney concerning any objections to form or content of the pretrial order, 3 and both parties shall attempt promptly to resolve their differences, if any, concerning the 4 order. 5 18. The Proposed Final Pretrial Conference Order, including objections to any 6 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures, shall be prepared, served, and 7 lodged with the assigned district judge by March 24, 2025, and shall be in the form 8 prescribed in and comply with Local Rule 16.1(f)(6). 9 19. In addition to submitting the Proposed Final Pretrial Conference Order, the 10 parties are further ordered to separately submit informal letter briefs, not exceeding two 11 single spaced pages, served on opposing counsel and received in the chambers of Judge 12 Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s Office) by 13 2:30 p.m. on April 2, 2025. 14 The letter brief should be a relatively informal and straightforward document. The 15 letter brief should outline a short, concise, and objective factual summary of the party’s 16 case in chief, the number of hours/days each party intends to expend at trial, the 17 approximate number of witnesses, whether certain witnesses will be coming in from out of 18 town, the number of testifying expert witnesses, whether any unique demonstrative exhibits 19 may be presented, the number of proposed motions in limine that may be filed, precisely 20 when the parties would be prepared to submit their in limine papers (and whether the parties 21 have met and conferred with respect to in limine issues), the issue of proposed jury 22 instructions and when the parties intend to submit them before trial, and voir dire issues, 23 either party’s preference as to what date(s) the trial should begin and any other pertinent 24 information that either party may deem useful to assist the Court in the execution of the 25 pretrial conference and in setting the matter for trial. 26 20. The final Pretrial Conference is scheduled on the calendar of the Honorable 27 Thomas J. Whelan on April 7, 2025 at 10:30 a.m. 28 // l 21. The parties must review the chambers’ rules for the assigned district judge 2 magistrate judge. 3 22. A post-trial settlement conference before a magistrate judge may be held 4 || within 30 days of verdict in the case. 5 23. The dates and times set forth herein will not be modified except for good cause 6 || shown. 7 24. Briefs or memoranda in support of or in opposition to any pending motion 8 ||shall not exceed twenty-five (25) pages in length without leave of a district court judge. 9 || No reply memorandum shall exceed ten (10) pages without leave of a district court judge. 10 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 11 |/and a table of authorities cited. 12 25. Plaintiff's counsel shall serve a copy of this order on all parties that enter this 13 || case hereafter. 14 IT IS SO ORDERED. 15 Dated: January 11, 2024 — 6 Dando oa 7 Honorable Daniel E. Butcher United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28