Huynh v. Costco Wholesale Membership, Inc. ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RITA HUYNH, Case No.: 24-cv-0073-W-DEB 12 Plaintiff, SCHEDULING ORDER 13 v. REGULATING DISCOVERY AND OTHER PRE-TRIAL 14 COSTCO WHOLESALE PROCEEDINGS MEMBERSHIP, INC., 15 Defendant. 16 17 Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was 18 held on May 1, 2024. After consulting with the attorneys1 of record for the parties and 19 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 June 17, 2024. 23 2. A telephonic Status Conference will be held on June 28, 2024 at 9:30 a.m. 24 Counsel must call the Court’s teleconference line at 1-888-398-2342, enter access code 25 26 27 1 As used herein, references to “attorneys” and “counsel” include any party representing himself or herself. 28 1 83-89-272, and press * to bypass the prompt for a security code. 2 3. All fact discovery shall be completed by all parties by October 4, 2024. 3 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 4 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period 5 of time in advance of the cut-off date, so that it may be completed by the cut-off date, 6 taking into account the times for service, notice and response as set forth in the Federal 7 Rules of Civil Procedure. Counsel shall promptly and in good faith meet and confer 8 with regard to all discovery disputes in compliance with Local Rule 26.1(a). The 9 Court expects counsel to make every effort to resolve all disputes without court 10 intervention through the meet and confer process. If the parties reach an impasse on any 11 discovery issue, counsel shall file an appropriate motion within the time limit and 12 procedures outlined in the undersigned magistrate judge’s chambers rules. A failure to 13 comply in this regard will result in a waiver of a party’s discovery issue. Absent an 14 order of the court, no stipulation continuing or altering this requirement will be 15 recognized by the court. 16 4. The parties shall designate their respective experts in writing by October 4, 17 2024. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any person who 18 may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. 19 Evid. This requirement is not limited to retained experts. The date for exchange of 20 rebuttal experts shall be by October 18, 2024. The written designations shall include the 21 name, address and telephone number of the expert and a reasonable summary of the 22 testimony the expert is expected to provide. The list shall also include the normal rates 23 the expert charges for deposition and trial testimony. 24 5. By November 1, 2024, each party shall comply with the disclosure 25 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 26 disclosure requirement applies to all persons retained or specially employed to provide 27 expert testimony, or whose duties as an employee of the party regularly involve the 28 giving of expert testimony. Except as provided in the paragraph below, any party 1 that fails to make these disclosures shall not, absent substantial justification, be 2 permitted to use evidence or testimony not disclosed at any hearing or at the time of 3 trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 4 37(c). 5 6. Any party shall supplement its disclosure regarding contradictory or rebuttal 6 evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 26(e) by December 6, 7 2024. 8 7. All expert discovery shall be completed by all parties by January 10, 2025. 9 The parties shall comply with the same procedures set forth in the paragraph governing 10 fact discovery. 11 8. Failure to comply with this section or any other discovery order of the court 12 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 13 the introduction of experts or other designated matters in evidence. 14 9. All other pretrial motions must be filed by February 10, 2025. Counsel for 15 the moving party must obtain a motion hearing date from the law clerk of the judge who 16 will hear the motion. The period of time between the date you request a motion date and 17 the hearing date may vary from one district judge to another. Please plan accordingly. 18 Failure to make a timely request for a motion date may result in the motion not being 19 heard. Motions in limine are to be filed as directed in the Local Rules, or as otherwise set 20 by the district judge. 21 10. A Mandatory Settlement Conference shall be conducted on September 25, 22 2024 at 9:30 a.m. in the chambers of Magistrate Judge Daniel E. Butcher. The purpose 23 of the MSC is to permit an informal discussion between the attorneys, parties, and the 24 Magistrate Judge of every aspect of the lawsuit in an effort to achieve an early resolution 25 of the case. Counsel attending the MSC are expected to have a command of the facts and 26 applicable law. Counsel and the parties must be prepared to engage in a detailed 27 discussion of the merits of their respective cases and engage in good faith settlement 28 discussions. All discussions during the MSC are informal, off the record, privileged, 1 and confidential. Counsel for any non-English speaking party is responsible for 2 arranging for the appearance of an interpreter at the conference. 3 11. Pursuant to Local Rule 16.3.b., all parties, party representatives, including 4 claims adjusters for insured parties, and the principal attorney(s) responsible for the 5 litigation must participate in the MSC.2 This appearance must be made with full and 6 unlimited authority to negotiate and enter into a binding settlement.3 In the case of a 7 corporate entity, an authorized representative of the corporation who is not retained 8 outside counsel must be present and must have discretionary authority to commit the 9 company to pay an amount up to the amount of the plaintiff’s prayer (excluding punitive 10 damage prayers). The purpose of this requirement is to have representatives present who 11 can settle the case during the course of the conference without consulting a superior. 12 Counsel for a government entity may be excused from this requirement so long as 13 the government attorney who participates in the MSC (1) has primary responsibility for 14 handling the case; and (2) may negotiate settlement offers that the attorney is willing to 15 recommend to the government official having ultimate settlement authority. 16 17 18 19 20 2 The attendance requirement includes parties that are indemnified by others. Any deviation 21 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, 485-86 (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, 595-97 (8th Cir. 2001). 28 1 12. The Court will use its Zoom video conferencing account to hold the MSC. 2 Prior to the start of the MSC, the Court will email counsel an invitation with the Zoom 3 meeting hyperlink and password to participate in the MSC.6 4 Each participant should plan to join the Zoom video conference at least five minutes 5 before the start of the MSC to ensure that the conference begins on time. Zoom’s 6 functionalities will allow the Court to conduct the MSC as it ordinarily would conduct an 7 in-person one. The Court will divide participants into separate, confidential sessions, which 8 Zoom calls Breakout Rooms.7 In a Breakout Room, the Court will be able to confidentially 9 and individually communicate with participants. Breakout Rooms will also allow parties 10 and counsel to communicate confidentially outside the presence of the Court. 11 Counsel are responsible for ensuring their clients are able to participate in the MSC. 12 All participants must display the same level of professionalism and attention during the 13 MSC as if they were attending in person (e.g., not be driving while speaking to the Court, 14 or otherwise distracted). Participants are encouraged to use laptops or desktop computers 15 16 4 If you are unfamiliar with Zoom: Zoom is available on computers through a download on 17 the Zoom website (https://zoom.us/meetings) or on mobile devices through the installation of a free app. Joining a Zoom conference does not require creating a Zoom account, but it 18 does require downloading the .exe file (if using a computer) or the app (if using a mobile 19 device). Participants are encouraged to create an account, install Zoom and familiarize themselves with Zoom in advance of the MSC. There is a cost-free option for creating a 20 Zoom account. For help getting started with Zoom, visit: https://support.zoom.us/hc/en- 21 us/categories/200101697-Getting-Started. 22 5 Counsel may request the MSC be converted to an in-person appearance informally 23 through a joint call or email to the Court’s chambers (efile_butcher@casd.uscourts.gov). Counsel must meet and confer prior to making such a request. 24 25 6 Participants who do not have Zoom already installed on their device when they click on the Zoom meeting hyperlink will be prompted to download and install Zoom before 26 proceeding. 27 7 For more information on what to expect when participating in a Zoom Breakout Room, 28 1 for the video conference, if possible, as mobile devices often offer inferior performance. 2 Because Zoom may quickly deplete the battery of a participant’s device, each participant 3 should ensure that their device is plugged in or that a charging cable is readily available 4 during the video conference. 5 13. No later than September 18, 2024, counsel for each party must send an e- 6 mail to the Court at efile_butcher@casd.uscourts.gov containing the following: 7 a. The name and title(s)/position(s) of each participant, including counsel, all 8 parties and party representatives, and claims adjusters; 9 b. An e-mail address for each attorney participant to receive the Zoom video 10 conference invitation; 11 c. A telephone number where each attorney participant may be reached so that, 12 if technical difficulties arise, the Court will be in a position to proceed 13 telephonically instead of by video conference; and 14 d. A Confidential MSC Conference Statement.8 All confidential MSC 15 Statements must include: 16 i. the party’s position on liability and damages supported by relevant facts, a discussion of the significant facts established during discovery, 17 and legal analysis with citations to controlling legal authority. The 18 parties are also encouraged to attach a chronology setting forth a timeline of the events at issue. If submitted, the chronology should be 19 in a chart or column format with the column headings “DATE” and 20 “EVENT.” The chronology is not counted against the page limits; 21 ii. for plaintiff(s), a specific and current settlement demand addressing all 22 relief sought and an itemization of the damages sought, and, for defendant(s), a specific and current offer and the bases for that offer. 23 (Note: a general statement that a party will “negotiate in good faith,” 24 “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 25 or demand cannot be made at the MSC, state the reasons why and 26 27 8 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 explain what additional information is required to make a settlement demand or offer.); 2 3 iii. a brief description of any previous settlement negotiations or mediations; and 4 5 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 6 party/party representative(s). 7 14. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 8 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 9 failure may constitute a consent to the granting of a motion or other request for ruling by 10 the court. Accordingly, all parties are ordered to abide by the terms of Local Rule 11 7.1(e)(2) or otherwise face the prospect of any pretrial motion being granted as an 12 unopposed motion pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose 13 to file or oppose a motion for summary judgment or partial summary judgment, no 14 Separate Statement of Disputed or Undisputed Facts is required. 15 15. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is 16 required to file a Memorandum of Contentions of Fact and Law at any time. The parties 17 shall instead focus their efforts on drafting and submitting a proposed pretrial order by 18 the time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order 19 shall comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases 20 issued by the assigned district judge. 21 16. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 22 Civ. P. 26(a)(3) by May 5, 2025. Failure to comply with these disclosure requirements 23 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 24 17. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 25 May 12, 2025. At this meeting, counsel shall discuss and attempt to enter into 26 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 27 exchange copies and/or display all exhibits other than those to be used for impeachment. 28 1 The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 2 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 3 P. 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial 4 conference order. 5 18. Counsel for plaintiff will be responsible for preparing the pretrial order and 6 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By May 19, 7 2025, plaintiff’s counsel must provide opposing counsel with the proposed pretrial order 8 for review and approval. Opposing counsel must communicate promptly with plaintiff’s 9 attorney concerning any objections to form or content of the pretrial order, and both 10 parties shall attempt promptly to resolve their differences, if any, concerning the order. 11 19. The Proposed Final Pretrial Conference Order, including objections to any 12 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served, and 13 lodged with the assigned district judge by May 27, 2025, and shall be in the form 14 prescribed in and comply with Local Rule 16.1(f)(6). 15 20. In addition to submitting the proposed final pretrial conference order, the 16 parties are further ordered to separately submit informal letter briefs, not exceeding two 17 single spaced pages, served on opposing counsel and received in the chambers of Judge 18 Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s Office) by 19 2:30 p.m. on May 28, 2025. 20 The letter brief should be a relatively informal and straightforward document. The 21 letter brief should outline a short, concise, and objective factual summary of the party’s 22 case in chief, the number of hours/days each party intends to expend at trial, the 23 approximate number of witnesses, whether certain witnesses will be coming in from out 24 of town, the number of testifying expert witnesses, whether any unique demonstrative 25 exhibits may be presented, the number of proposed motions in limine that may be filed, 26 precisely when the parties would be prepared to submit their in limine papers (and 27 whether the parties have met and conferred with respect to in limine issues), the issue of 28 proposed jury instructions and when the parties intend to submit them before trial, and 1 || voir dire issues, either party’s preference as to what date(s) the trial should begin and any 2 || other pertinent information that either party may deem useful to assist the Court in the 3 || execution of the pretrial conference and in setting the matter for trial. 4 21. The final Pretrial Conference is scheduled on the calendar of the Honorable 5 || Thomas J. Whelan on June 9, 2025 at 10:30 a.m. 6 22. The parties must review the chambers’ rules for the assigned district judge 7 ||and magistrate judge. 8 23. A post trial settlement conference before a magistrate judge may be held 9 || within 30 days of verdict in the case. 10 24. The dates and times set forth herein will not be modified except for good 11 cause shown. 12 25. Briefs or memoranda in support of or in opposition to any pending motion 13 not exceed twenty-five (25) pages in length without leave of a district court judge. 14 reply memorandum shall exceed ten (10) pages without leave of a district court judge. 15 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 16 |/and a table of authorities cited. 17 26. Plaintiff's counsel shall serve a copy of this order on all parties that enter 18 || this case hereafter. 19 IT IS SO ORDERED. 20 || Dated: May 1, 2024 ™ Dando Honorable Daniel E. Butcher United States Magistrate Judge 23 24 25 26 27 28