Deveroux v. County of Kern

Opinion

4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALAIN DEVEROUX AND JENNIFER Case No. 1:23-cv-00239-CDB VALLE, Individually, and as successors 12 in interest of JULIEN DEVEROUX, SCHEDULING ORDER (Fed. R. Civ. P. 16)

13 Plaintiffs,

14 v. Discovery Deadlines: Non-Expert: May 3, 2024 15 COUNTY OF KERN, et al., Expert: July 8, 2024 16 Defendants. Mid-Discovery Conf.: March 15, 2024 17 Non-Dispositive Motion Deadlines: Filing: July 22, 2024 18 Hearing: August 27, 2024

19 Dispositive Motion Deadlines: Filing: September 16, 2024 20 Hearing: October 21, 2024

21 Pre-Trial Conf.: December 10, 2024 (10:30am) 510 19th Street, Bakersfield 22 Trial: January 27, 2025 (8:30am) 23 510 19th Street, Bakersfield (4-5 days) 24 25 26 Plaintiffs are the parents and successors in interest of Julien Deveroux (the Decedent). 27 Plaintiffs bring claims under 42 U.S.C. § 1983 against Defendants County of Kern and Austin Roberts 28 for excessive force; failure to provide treatment for serious medical needs; deprivation of 1 constitutional rights (including the rights for freedom of association and substantive due process); as 2 well as municipal and supervisory liability. Plaintiffs also raise claims under California Civil Code § 3 52.1(b); California Government Code § 845.6 — failure to summon medical care; and negligence and 4 wrongful death. The Court convened a scheduling conference off the record1 on October 4, 2023. Jeff 5 Dominic Price appeared on behalf of Plaintiffs. Kathleen Rivera appeared on behalf of Defendants. 6 I. Fictitiously-Named Defendants 7 All claims as to “Doe” Defendants, including any counterclaims and cross-claims, are hereby 8 Dismissed. 9 II. Pleading Amendment 10 Any motions to amend the pleadings must be filed by March 11, 2024. The parties should not 11 construe a timely filing of a motion or stipulation requesting leave to amend the pleadings to 12 necessarily constitute good cause to modify the existing schedule, if necessary. All proposed 13 amendments must (A) be supported by good cause pursuant to Fed. R. Civ. P. 16(b) if the amendment 14 requires any modification to the existing schedule, see Johnson v. Mammoth Recreations, Inc., 975 15 F.2d 604, 609 (9th Cir. 1992), and (B) establish, under Fed. R. Civ. P. 15(a), that such an amendment 16 is not (1) prejudicial to the opposing party, (2) the product of undue delay, (3) proposed in bad faith, or 17 (4) futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). 18 III. Discovery Plan and Cut-Off Date 19 The parties have exchanged their initial disclosures required by Fed. R. Civ. P. 26(a)(1). 20 The parties are ordered to complete all discovery pertaining to non-experts on or before May 3, 21 2024, and all discovery pertaining to experts on or before July 8, 2024. 22 The parties are directed to disclose all expert witnesses, in writing, on or before May 17, 2024, 23 and to disclose all rebuttal experts on or before June 7, 2024. The written designation of retained and 24 non-retained experts shall be made pursuant to Fed. R. Civ. P. Rule 26(a)(2), (A), (B), and (C) and 25 shall include all information required thereunder. Failure to designate experts in compliance with this 26 27

28 1 Counsel for Plaintiffs initially objected to proceeding off the record, but after a brief exchange with the Court, withdrew his objection and consented to proceeding off the record. 1 order may result in the Court excluding the testimony or other evidence offered through such experts 2 that are not disclosed pursuant to this order. 3 The provisions of Fed. R. Civ. P. 26(b)(4) and (5) shall apply to all discovery relating to 4 experts and their opinions. Experts must be fully prepared to be examined on all subjects and opinions 5 included in the designation. Failure to comply may result in the imposition of sanctions, which may 6 include striking the expert designation and preclusion of expert testimony. 7 The provisions of Fed. R. Civ. P. 26(e) regarding a party’s duty to timely supplement 8 disclosures and responses to discovery requests will be strictly enforced. 9 A mid-discovery status conference is scheduled for March 15, 2024, at 9:30 a.m. before 10 Magistrate Judge Christopher D. Baker. Counsel SHALL file a joint mid-discovery status conference 11 report no later than one week before the conference. Counsel also SHALL lodge the status report via 12 e-mail to CDBorders@caed.uscourts.gov. The joint status report SHALL outline the discovery 13 counsel have completed and that which needs to be completed as well as any impediments to 14 completing the discovery within the deadlines set forth in this order. Counsel SHALL discuss 15 settlement and certify in the joint status report (1) that they have met/conferred regarding settlement, 16 and (2) proposed dates for convening a settlement conference with an unassigned magistrate judge. 17 IV. Pre-Trial Motion Schedule / Informal Discovery Dispute Conferences 18 All non-dispositive pre-trial motions, including any discovery motions, shall be filed by July 19 22, 20242 and heard on or before August 27, 2024. For these hearings and at the direction of the 20 Courtroom Deputy Clerk, the Court may direct counsel to appear remotely (via Zoom). For hearings 21 noticed to occur in-person, the Court may permit counsel to appear remotely (via Zoom) provided the 22 Courtroom Deputy Clerk receives a written notice of the request to appear remotely no later than five 23 court days before the noticed hearing date. 24 No motion to amend or stipulation to amend the case schedule will be entertained unless it is 25 filed at least three days before the first deadline the parties wish to extend. 26 27 2 Non-dispositive motions related to non-expert discovery SHALL be filed within a reasonable 28 time of discovery of the dispute, but in no event later than 30 days after the expiration of the non-expert discovery deadline. 1 No written discovery motions shall be filed without the prior approval of Magistrate Judge 2 Baker. A party with a discovery dispute must first confer with the opposing party in a good faith 3 effort to resolve by agreement the issues in dispute. If that good faith effort is unsuccessful, the 4 requesting party promptly shall seek a conference with all involved parties and Magistrate Judge 5 Baker. To schedule this conference, the parties should contact the Courtroom Deputy Clerk, Susan 6 Hall, at (661) 326-6620 or via email at SHall@caed.uscourts.gov. At least two days before the 7 conference, counsel SHALL file a joint, informal letter brief detailing each party’s position. Each 8 party’s narrative shall not exceed three pages, excluding exhibits. At the commencement of the 9 conference, if the parties jointly agree to Magistrate Judge Baker’s consideration and resolution of the 10 discovery disputes outside the formal Local Rule 251 procedures, the Court will entertain arguments 11 by the parties and issue a ruling. If the parties do not jointly agree to the informal discovery dispute 12 resolution procedures set forth herein, the requesting party may then seek relief through motion to 13 compel. Counsel must comply with Local Rule 251 with respect to discovery disputes or the motion 14 will be denied without prejudice and dropped from the Court’s calendar. 15 All dispositive pre-trial motions shall be filed no later than September 16, 2024, and heard on 16 or before October 21, 2024. Motions are heard before Magistrate Judge Baker at 10:30 a.m., at the 17 United States District Courthouse, 510 19th Street, Bakersfield, CA. 18 V. Motions for Summary Judgment or Summary Adjudication 19 At least 21 days before filing a motion for summary judgment or motion for summary 20 adjudication, the parties SHALL meet, in person or by telephone, to confer about the issues to be 21 raised in the motion. 22 The purpose of the meeting shall be to: 1) avoid filing motions for summary judgment where a 23 question of fact exists; 2) determine whether the respondent agrees that the motion has merit in whole 24 or in part; 3) discuss whether issues can be resolved without the necessity of briefing; 4) narrow the 25 issues for review by the court; 5) explore the possibility of settlement before the parties incur the 26 expense of briefing a motion; and 6) to develop a joint statement of undisputed facts. 27 The moving party SHALL initiate the meeting and SHALL provide a complete, proposed 28 statement of undisputed facts at least five days before the conference. The finalized joint statement 1 of undisputed facts SHALL include all facts that the parties agree, for purposes of the motion, may be 2 deemed true. In addition to the requirements of Local Rule 260, the moving party shall file the joint 3 statement of undisputed facts. 4 In the notice of motion, the moving party SHALL certify that the parties have met and 5 conferred as ordered above, or set forth a statement of good cause for the failure to meet and confer. 6 Failure to comply may result in the motion being stricken. 7 VI. Pre-Trial Conference 8 December 10, 2024, at 10:30 a.m., located at the United States District Courthouse, 510 19th 9 Street, Bakersfield, CA, before Magistrate Judge Baker. 10 The parties are ordered to file a Joint Pretrial Statement pursuant to Local Rule 281(a)(2). The 11 parties are further directed to submit a digital copy of their pretrial statement in Word format, directly 12 to Magistrate Judge Baker’s chambers, by email at CDBorders@caed.uscourts.gov. 13 Counsels’ attention is directed to Rules 281 and 282 of the Local Rules for the Eastern District 14 of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will 15 insist upon strict compliance with those rules. In addition to the matters set forth in the Local Rules, 16 the Joint Pretrial Statement shall include a Joint Statement of the case to be used by the Court to 17 explain the nature of the case to the jury during voir dire. 18 VII. Trial Date 19 January 27, 2025, at 8:30 a.m., located at the United States District Courthouse, 510 19th 20 Street, Bakersfield, CA, before Magistrate Judge Baker. 21 A. This is a jury trial 22 B. Counsels' Estimate of Trial Time: 4-5 days 23 C. Counsels' attention is directed to Local Rules of Practice for the Eastern District of 24 California, Rule 285. 25 VIII. Settlement Conference 26 The parties SHALL meet and confer and notify the Court prior to the Pre-Trial Conference 27 whether they wish to convene a Settlement Conference. In the event the parties request a Settlement 28 Conference, unless otherwise permitted in advance by the Court, the attorneys who will try the case 1 shall appear at the settlement conference with the parties and the person or persons having full 2 authority to negotiate and settle the case on any terms3 at the conference. Consideration of settlement 3 is a serious matter that requires preparation prior to the settlement conference. Set forth below are the 4 procedures the Court will employ, absent good cause, in conducting the conference. 5 At least twenty-one days before the settlement conference, Plaintiff SHALL submit to 6 Defendant via fax or e-mail, a written itemization of damages and a meaningful4 settlement demand 7 which includes a brief explanation of why such a settlement is appropriate. Thereafter, no later than 8 fourteen days before the settlement conference, Defendant SHALL respond, via fax or e-mail, with an 9 acceptance of the offer or with a meaningful counteroffer which includes a brief explanation of why 10 such a settlement is appropriate. 11 If settlement is not achieved, each party SHALL attach copies of their settlement offers to their 12 Confidential Settlement Conference Statement, as described below. Copies of these documents shall 13 not be filed on the court docket. 14 CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT 15 At least five court days prior to the settlement conference, the parties shall submit a 16 Confidential Settlement Conference Statement via email directly to the chambers of the unassigned 17 magistrate judge referred to the settlement conference. The statement should not be filed with the 18 Clerk of the Court nor served on any other party, although the parties may file a Notice of Lodging of 19 Settlement Conference Statement. Each statement shall be clearly marked "confidential" with the date 20 and time of the settlement conference indicated prominently thereon. 21 The Confidential Settlement Conference Statement shall include the following: 22 23 3 Insurance carriers, business organizations, and governmental bodies or agencies whose settlement 24 agreements are subject to approval by legislative bodies, executive committees, boards of directors or the like shall be represented by a person or persons who occupy high executive positions in the party organization and 25 who will be directly involved in the process of approval of any settlement offers or agreements. To the extent possible, the representative shall have authority, if he or she deems it appropriate, to settle the action on terms consistent with the opposing party's most recent demand. 26

4 “Meaningful” means the offer is reasonably calculated to settle the case on terms acceptable to the 27 offering party. “Meaningful” does not include an offer which the offering party knows will not be acceptable to the other party. If, however, the offering party is only willing to offer a settlement which it knows the other party 28 will not accept, this should trigger a recognition the case is not in a settlement posture and the parties should confer about continuing or vacating the settlement conference via stipulation. 1 A. A brief statement of the facts of the case. 2 B. A brief statement of the claims and defenses, i.e., statutory or other grounds upon 3 which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the 4 claims and defenses; and a description of the major issues in dispute. 5 C. A summary of the proceedings to date. 6 D. An estimate of the cost and time to be expended for further discovery, pretrial and trial. 7 E. The relief sought. 8 F. The party’s position on settlement, including present demands and offers and a history 9 of past settlement discussions, offers and demands. 10 11 IX. Request for Bifurcation, Appointment of Special Master, or other Techniques to Shorten 12 Trial 13 The parties request bifurcation on the issue of punitive damages. 14 X. Related Matters Pending 15 There are no pending related matters. 16 XI. Compliance with Federal Procedure 17 All counsel are expected to familiarize themselves with the Federal Rules of Civil Procedure 18 and the Local Rules of the Eastern District of California, and to keep abreast of any amendments 19 thereto. The Court requires compliance with these Rules to efficiently handle its increasing case load. 20 XII. Effect of this Order 21 The foregoing order represents the best estimate of the court and counsel as to the agenda most 22 suitable to dispose of this case. The trial date reserved is specifically reserved for this case. If the 23 parties determine at any time that the schedule outlined in this order cannot be met, counsel are 24 ordered to notify the court immediately of that fact so that adjustments may be made, either by 25 stipulation or by subsequent status conference. 26 The dates set in this Order are considered to be firm and will not be modified absent a 27 showing of good cause even if the request to modify is made by stipulation. Stipulations 28 extending the deadlines contained herein will not be considered unless they are accompanied by 1 || affidavits or declarations, and where appropriate attached exhibits, which establish good cause 2 || for granting the relief requested. 3 IT IS SO ORDERED. ‘ Dated: _ October 4, 2023 | Ww Vv ED 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28