Hatton v. Costco Wholesale Corporation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIANE HATTON, Case No.: 20cv1606-MMA-LL 12 Plaintiff, SCHEDULING ORDER 13 v. REGULATING DISCOVERY AND OTHER PRE-TRIAL 14 COSTCO WHOLESALE PROCEEDINGS CORPORATION, et al., 15 Defendants. 16 17 On September 22, 2020, the Court held an Early Neutral Evaluation Conference 18 (“ENE”) in the above-entitled action. Settlement of the case could not be reached during 19 the ENE and the Court therefore conducted a Case Management Conference pursuant to 20 Rule 16.1(d) of the Local Rules. After consulting with the attorneys of record for the 21 parties and being advised of the status of the case, and good cause appearing, IT IS 22 HEREBY ORDERED: 23 1. On November 4, 2020 at 9:30 a.m., the magistrate judge will hold a 24 telephonic, attorneys-only settlement conference to discuss the status of settlement 25 negotiations and discovery. The Court will host the conference call. Counsel shall use the 26 dial-in information that will be filed by the Court as a separate notice on the docket. The 27 notice will be restricted to case participants only. 28 1 2. Any motion to join other parties, to amend the pleadings, or to file additional 2 pleadings must be filed by November 20, 2020. 3 3. All fact discovery shall be completed by all parties on or before March 22, 4 2021. “Completed” means that all discovery under Rules 30-36 of the Federal Rules of 5 Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient 6 period of time in advance of the cut-off date, so that it may be completed by the cut-off 7 date, taking into account the times for service, notice, and response as set forth in the 8 Federal Rules of Civil Procedure. 9 Counsel shall promptly and in good faith meet and confer with regard to all 10 discovery disputes in compliance with Federal Rule of Civil Procedure 37(a)(1) and Civil 11 Local Rule 26.1(a). The Court expects counsel to make every effort to resolve all disputes 12 without court intervention through the meet and confer process. All discovery motions 13 must be filed within thirty days of the service of an objection, answer or response which 14 becomes the subject of dispute or the passage of a discovery due date without response or 15 production, and only after counsel have met and conferred and have reached impasse with 16 regard to the particular issue. The Court’s procedures for resolving discovery disputes are 17 set forth in Magistrate Judge Linda Lopez’s Civil Chambers Rules, which are posted on 18 the Court’s website. A failure to comply in this regard will result in a waiver of a 19 party’s discovery issue. Absent an order of the court, no stipulation continuing or 20 altering this requirement will be recognized by the court. 21 4. The parties must designate their respective experts in writing by April 22, 22 2021. The parties must identify any person who may be used at trial to present evidence 23 pursuant to Rules 702, 703 or 705 of the Fed. R. Evid. This requirement is not limited to 24 retained experts. The date for exchange of rebuttal experts must be by May 6, 2021. The 25 written designations must include the name, address and telephone number of the expert 26 and a reasonable summary of the testimony the expert is expected to provide. The list must 27 also include the normal rates the expert charges for deposition and trial testimony. 28 /// 1 5. By June 7, 2021, each party must comply with the disclosure provisions in 2 Rule 26(a)(2)(B) and (C) of the Federal Rules of Civil Procedure. This disclosure 3 requirement applies to all persons retained or specially employed to provide expert 4 testimony, or whose duties as an employee of the party regularly involve the giving of 5 expert testimony. Except as provided in the paragraph below, any party that fails to 6 make these disclosures will not, absent substantial justification, be permitted to use 7 evidence or testimony not disclosed at any hearing or at the time of trial. In addition, 8 the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 9 6. Any party must supplement its disclosure regarding contradictory or rebuttal 10 evidence under Fed. R. Civ. P. 26(a)(2)(D) by June 21, 2021. 11 7. All expert discovery must be completed by all parties by July 21, 2021. The 12 parties must comply with the same procedures set forth in the paragraph governing fact 13 discovery. 14 8. Failure to comply with this section or any other discovery order of the court 15 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 16 the introduction of experts or other designated matters in evidence. 17 9. All dispositive pretrial motions, including motions for summary judgment and 18 motions addressing Daubert issues, must be filed by August 20, 2021.1 Counsel for the 19 moving party must obtain a motion hearing date from Judge Anello’s law clerk. The period 20 of time between the date you request a motion date and the hearing date may vary from 21 one district judge to another. Please plan accordingly. Failure to make a timely request 22 for a motion date may result in the motion not being heard. 23 10. If appropriate, following the filing of an order ruling on a motion for summary 24 judgment or other dispositive pretrial motion, or in the event no such motion is filed, after 25 the expiration of the deadline set forth in paragraph 8, supra, Judge Anello will issue a 26 27 1 This deadline is not applicable to pretrial motions in limine. For further information regarding motions 28 1 pretrial scheduling order setting a pretrial conference, trial date, and all related pretrial 2 deadlines. The parties must review and be familiar with Judge Anello’s Civil Chambers 3 Rules, which provide additional information regarding pretrial scheduling. 4 11. A Mandatory Settlement Conference shall be conducted on December 2, 5 2021 at 1:30 p.m. in the chambers of Magistrate Judge Linda Lopez located at 221 West 6 Broadway, Suite 2140, San Diego, CA 92101. All discussions at the Mandatory 7 Settlement Conference will be informal, off the record, privileged, and confidential. 8 Counsel for any non-English speaking party is responsible for arranging for the appearance 9 of an interpreter at the conference. 10 a. Personal Appearance of Parties Required: All parties, adjusters for insured 11 defendants, and other representatives of a party having full and complete authority to enter 12 into a binding settlement, as well as the principal attorneys responsible for the litigation, 13 must be present in person and legally and factually prepared to discuss settlement of the 14 case. Counsel appearing without their clients (whether or not counsel has been given 15 settlement authority) will be cause for immediate imposition of sanctions and may also 16 result in the immediate termination of the conference. 17 Unless there is good cause, persons required to attend the conference pursuant to this 18 Order shall not be excused from personal attendance. Requests for excuse from attendance 19 for good cause shall be made in writing at least three (3) court days prior to the conference. 20 Failure to appear in person at the Mandatory Settlement Conference will be grounds for 21 sanctions. 22 b. Full Settlement Authority Required: In addition to counsel who will try the 23 case, a party or party representative with full settlement authority2 must be present for the 24 25 2 “Full settlement authority” means that the individuals at the settlement conference must 26 be authorized to explore settlement options fully and to agree at that time to any settlement 27 terms acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to 28 1 conference. In the case of a corporate entity, an authorized representative of the 2 corporation who is not retained outside counsel must be present and must have 3 discretionary authority to commit the company to pay an amount up to the amount of 4 Plaintiff’s prayer (excluding punitive damages prayers). The purpose of this requirement 5 is to have representatives present who can settle the case during the course of the 6 conference without consulting a superior. Counsel for a government entity may be excused 7 from this requirement so long as the government attorney who attends the Mandatory 8 Settlement Conference (1) has primary responsibility for handling the case, and (2) may 9 negotiate settlement offers which the attorney is willing to recommend to the government 10 official having ultimate settlement authority. 11 c. Confidential Settlement Statements Required: No later than November 12 22, 2021, the parties shall submit directly to Magistrate Judge Lopez’s chambers (via email 13 or hand delivery c/o the Office of the Clerk) confidential settlement statements no more 14 than ten (10) pages in length. These confidential statements shall not be filed or served 15 on opposing counsel. Each party’s confidential statement must set forth the party’s 16 statement of the case, identify controlling legal issues, concisely set out issues of liability 17 and damages, and shall set forth the party’s settlement position, including any previous 18 settlement negotiations, mediation sessions, or mediation efforts, the last offer or demand 19 made by that party, and a separate statement of the offer or demand the party is prepared 20 to make at the settlement conference. If a specific demand or offer for settlement cannot 21 be made at the time the brief is submitted, then the reasons therefore must be stated along 22 with a statement as to when the party will be in a position to state a demand or make an 23 offer. General statements that a party will “negotiate in good faith” is not a specific demand 24 25 485-86 (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 or offer contemplated by this Order. It is assumed that all parties will negotiate in good 2 faith. 3 d. Requests to Continue a Mandatory Settlement Conference: Any request 4 to continue the Mandatory Settlement Conference or request for relief from any of the 5 provisions or requirements of this Order must be sought by a written joint motion or ex 6 parte application. The application must (1) be supported by a declaration of counsel 7 setting forth the reasons and justifications for the relief requested, (2) confirm compliance 8 with Civil Local Rule 83.3(h), and (3) report the position of opposing counsel or any 9 unrepresented parties subject to the Order. Absent good cause, requests for continuances 10 will not be considered unless submitted in writing no fewer than (7) days prior to the 11 scheduled conference. 12 If the case is settled in its entirety before the scheduled date of the conference, 13 counsel and any unrepresented parties must still appear in person, unless a written 14 joint notice confirming the complete settlement of the case is filed no fewer than 15 twenty-four (24) hours before the scheduled conference. 16 12. A post trial settlement conference before a magistrate judge may be held 17 within 30 days of verdict in the case. 18 13. The dates and times set forth herein will not be modified except for good cause 19 shown. 20 14. Briefs or memoranda in support of or in opposition to any pending motion 21 must not exceed twenty-five (25) pages in length without leave of a district court judge. 22 No reply memorandum will exceed ten (10) pages without leave of a district court judge. 23 Briefs and memoranda exceeding ten (10) pages in length must have a table of contents 24 and a table of authorities cited. 25 15. Plaintiff’s counsel must serve a copy of this order on all parties that enter this 26 case hereafter. 27 IT IS SO ORDERED. 28 1 Dated: September 22, 2020 = 3 Honorable Linda Lopez 4 United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28