BBC Chartering Carriers GmbH & Co. KG v. Fluence Energy LLC ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BBC CHARTERING CARRIERS Case No.: 21-cv-02014-BEN-JLB GMBH & CO. KG, 12 SCHEDULING ORDER Plaintiff, 13 REGULATING DISCOVERY v. AND OTHER PRE-TRIAL 14 PROCEEDINGS FLUENCE ENERGY, LLC, et al., 15 Defendants. 16 17 Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was 18 held on January 14, 2022. After consulting with the attorneys 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. No later than February 11, 2022, the parties shall file a detailed discovery 22 timeline which includes the parties’ specific plan and timeline for completing discovery. 23 Every sixty (60) days thereafter, the parties shall file a Joint Status Report indicating their 24 progress and compliance with the discovery timeline. 25 2. The Court understands that parties to litigation often enter into stipulations 26 that a trade secret or other confidential research, development, or commercial information 27 not be revealed or be revealed only in specified way. Any motion for a protective order 28 1 entering such stipulation(s) in this case shall be filed as a joint motion no later than 2 February 15, 2022, and comply with § VI of Magistrate Judge Jill L. Burkhardt’s Civil 3 Chambers Rules. The parties may use Judge Burkhardt’s model protective order, which is 4 available on the Court’s website under her Chambers Rules.1 5 If the need for a protective order is not initially apparent to the parties and only 6 becomes apparent due to a later development in the case, the parties must seek leave to file 7 a late motion for protective order. Any such motion shall be supported by good cause, 8 which includes an explanation as to why the parties could not have anticipated the need for 9 a protective order. 10 3. Any motion to join other parties, to amend the pleadings, or to file additional 11 pleadings shall be filed by February 28, 2022. 12 4. All fact discovery shall be completed by all parties by August 5, 2022. 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. Counsel shall promptly and in good faith meet and confer with 18 regard to all discovery disputes in compliance with Civil Local Rule 26.1(a). The Court 19 expects counsel to make every effort to resolve all disputes without court intervention 20 through the meet and confer process. If the parties reach an impasse on any discovery 21 issue, counsel shall file an appropriate motion within the time limit and procedures outlined 22 in the undersigned magistrate judge’s chambers rules. A failure to comply in this regard 23 will result in a waiver of a party’s discovery issue. Absent an order of the court, no 24 stipulation continuing or altering this requirement will be recognized by the court. 25 Discovery disputes must be brought to the Court’s attention in the time and manner 26 27 1 https://www.casd.uscourts.gov/Judges/burkhardt/docs/Burkhardt%20Model 28 1 required by § V of Judge Burkhardt’s Civil Chambers Rules. All discovery disputes must 2 be raised within 30 calendar days of the service of an objection, answer, or response 3 that becomes the subject of dispute, or the passage of a discovery due date without response 4 or production, and only after counsel (and any unrepresented parties) have met and 5 conferred to resolve the dispute. See J. Burkhardt Civ. Chambers R. § V. 6 5. The parties shall designate their respective experts in writing by June 3, 2022. 7 Pursuant to Federal Rule of Civil Procedure 26(a)(2)(A), the parties must identify any 8 person who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of 9 the Federal Rules of Evidence. This requirement is not limited to retained experts. The 10 date for exchange of rebuttal experts shall be by July 6, 2022. The written designations 11 shall include the name, address and telephone number of the expert and a reasonable 12 summary of the testimony the expert is expected to provide. The list shall also include the 13 normal rates the expert charges for deposition and trial testimony. 14 6. By June 3, 2022, each party shall comply with the disclosure provisions in 15 Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This disclosure 16 requirement applies to all persons retained or specially employed to provide expert 17 testimony, or whose duties as an employee of the party regularly involve the giving of 18 expert testimony. Except as provided in the paragraph below, any party that fails to 19 make these disclosures shall not, absent substantial justification, be permitted to use 20 evidence or testimony not disclosed at any hearing or at the time of trial. In addition, 21 the Court may impose sanctions as permitted by Federal Rule of Civil Procedure 22 37(c). 23 7. Any party shall supplement its disclosure regarding contradictory or rebuttal 24 evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 26(e) by July 6, 2022. 25 8. All expert discovery shall be completed by all parties by August 5, 2022. The 26 parties shall comply with the same procedures set forth in the paragraph governing fact 27 discovery. 28 /// 1 9. Failure to comply with the above paragraphs or any other discovery order of 2 the court may result in the sanctions provided for in Federal Rule of Civil Procedure 37, 3 including a prohibition on the introduction of experts or other designated matters in 4 evidence. 5 10. All other pretrial motions must be filed by September 2, 2022. Counsel for 6 the moving party must obtain a motion hearing date from the law clerk of the judge who 7 will hear the motion. The period of time between the date you request a motion date and 8 the hearing date may vary from one district judge to another. Please plan accordingly. 9 Failure to make a timely request for a motion date may result in the motion not being heard. 10 Deadlines for filing motions in limine will be set by the district judge at the final Pretrial 11 Conference. 12 11. When filing a Motion for Summary Judgment and/or Adjudication, the parties 13 need not file a separate statement of material facts absent prior leave of court. 14 12. A Mandatory Settlement Conference (“MSC”) shall be conducted on 15 August 17, 2022 at 1:45 PM in the chambers of Magistrate Judge Jill L. Burkhardt, 16 Edward J. Schwartz U.S. Courthouse, 221 West Broadway, Suite 5140, San Diego, 17 California 92101. No later than August 8, 2022, counsel (and any unrepresented parties) 18 shall lodge confidential MSC statements with Judge Burkhardt’s chambers via e-mail at 19 efile_Burkhardt@casd.uscourts.gov. The parties’ MSC statements shall comply with § 20 III.C. of Judge Burkhardt’s Civil Chambers Rules. 21 Pursuant to Civil Local Rule 16.3, all party representatives and claims adjusters for 22 insured defendants with full and unlimited authority2 to negotiate and enter into a binding 23 24 2 “Full authority to settle” means that the individuals at the settlement conference must 25 be authorized to fully 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 26 648 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to 27 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 28 1 settlement, as well as the principal attorney(s) responsible for the litigation, must be present 2 and legally and factually prepared to discuss and resolve the case at the MSC. In the case 3 of an entity, an authorized representative of the entity who is not retained outside counsel 4 must be present and must have discretionary authority to commit the entity to pay an 5 amount up to the amount of the Plaintiff’s prayer (excluding punitive damages prayers). 6 The purpose of this requirement is to have representatives present who can settle the case 7 during the course of the conference without consulting a superior. 8 Counsel for a United States government entity may be excused from this 9 requirement so long as the government attorney who attends the MSC conference (1) has 10 primary responsibility for handling the case, and (2) may negotiate settlement offers which 11 the attorney is willing to recommend to the government official having ultimate settlement 12 authority. 13 Failure to attend the MSC or obtain proper excuse will be considered grounds 14 for sanctions. 15 13. No later than 21 days before the MSC, the parties shall exchange formal 16 settlement proposals, as required by § III.A. of Judge Burkhardt’s Civil Chambers Rules. 17 No later than 14 days before the MSC, the parties shall meet and confer in person or 18 telephonically, as required by § III.B. of Judge Burkhardt’s Civil Chambers Rules. 19 14. For bench trials before the Honorable Roger T. Benitez, counsel shall file their 20 Memoranda of Contentions of Fact and Law and take any other action required by Civil 21 Local Rule 16.1(f)(2) by December 2, 2022. 22 15. Counsel shall comply with the pre-trial disclosure requirements of Federal 23 Rule of Civil Procedure 26(a)(3) by December 2, 2022. Failure to comply with these 24 disclosure requirements could result in evidence preclusion or other sanctions under 25 Federal Rule of Civil Procedure 37. 26 27 during the face to face conference. Id. at 486. A limited or a sum certain of authority is 28 1 16. Counsel shall meet and take the action required by Civil Local Rule 16.1(f)(4) 2 by December 9, 2022. At this meeting, counsel shall discuss and attempt to enter into 3 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 4 exchange copies and/or display all exhibits other than those to be used for impeachment. 5 The exhibits shall be prepared in accordance with Civil Local Rule 16.1(f)(4)(c). Counsel 6 shall note any objections they have to any other parties’ Pretrial Disclosures under Federal 7 Rule of Civil Procedure 26(a)(3). Counsel shall cooperate in the preparation of the 8 proposed pretrial conference order. 9 17. Counsel for plaintiff will be responsible for preparing the pretrial order and 10 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 11 December 16, 2022, plaintiff’s counsel must provide opposing counsel with the proposed 12 pretrial order for review and approval. Opposing counsel must communicate promptly 13 with plaintiff’s attorney concerning any objections to form or content of the pretrial order, 14 and both parties shall attempt promptly to resolve their differences, if any, concerning the 15 order. 16 18. The Proposed Final Pretrial Conference Order, including objections to any 17 other parties’ Federal Rule of Civil Procedure 26(a)(3) Pretrial Disclosures shall be 18 prepared, served and lodged with the assigned district judge by December 23, 2022, and 19 shall be in the form prescribed in and comply with Civil Local Rule 16.1(f)(6). 20 19. The final Pretrial Conference is scheduled on the calendar of the Honorable 21 Roger T. Benitez on January 9, 2023 at 10:30 AM. 22 20. The parties must review the chambers’ rules for the assigned district judge 23 and magistrate judge. 24 21. A post trial settlement conference before a magistrate judge may be held 25 within 30 days of verdict in the case. 26 22. The dates and times set forth herein will not be modified except for good cause 27 shown. 28 /// 1 23. Briefs or memoranda in support of or in opposition to any pending motion 2 ||shall not exceed twenty-five (25) pages in length without leave of a district court judge. 3 || No reply memorandum shall exceed ten (10) pages without leave of a district court judge. 4 || Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 5 a table of authorities cited. 6 24. Plaintiff's counsel shall serve a copy of this order on all parties that enter this 7 || case hereafter. 8 IT IS SO ORDERED. 9 || Dated: January 18, 2022 10 i U handtr 11 n. Jill L. Burkhardt 2 ited States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28