Leung v. UNUM Life Insurance Company of America

• Court: District Court, S.D. California
• Decided: February 21, 2023
• Docket: 3:22-cv-00767
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICHARD J. LEUNG, MD, Case No.: 22-cv-00767-W-JLB

12 Plaintiff, ORDER GRANTING JOINT 13 v. MOTION TO CONTINUE CASE MANAGEMENT DATES 14 UNUM LIFE INSURANCE COMPANY

OF AMERICA, 15 [ECF No. 28] Defendant. 16

17 Before the Court is a Joint Motion to Continue Case Management Dates. (ECF No. 18 28.) The parties jointly request to continue all case management dates by approximately 19 45 days. (Id. at 1–2.) Good cause appearing, the Joint Motion is GRANTED, and the 20 Scheduling Order (ECF No. 9) is modified as follows: 21 1. All fact discovery shall be completed by all parties by June 5, 2023. 22 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 23 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of 24 time in advance of the cut-off date, so that it may be completed by the cut-off date, taking 25 into account the times for service, notice and response as set forth in the Federal Rules of 26 Civil Procedure. Counsel shall promptly and in good faith meet and confer with 27 regard to all discovery disputes in compliance with Local Rule 26.1(a). The Court 28 1 expects counsel to make every effort to resolve all disputes without court intervention 2 through the meet and confer process. If the parties reach an impasse on any discovery 3 issue, counsel shall file an appropriate motion within the time limit and procedures outlined 4 in the undersigned magistrate judge’s chambers rules. A failure to comply in this regard 5 will result in a waiver of a party’s discovery issue. Absent an order of the court, no 6 stipulation continuing or altering this requirement will be recognized by the court. 7 Discovery disputes must be brought to the Court’s attention in the time and manner 8 required by § V of Judge Burkhardt’s Civil Chambers Rules. All discovery disputes must 9 be raised within 30 calendar days of the service of an objection, answer, or response 10 that becomes the subject of dispute, or the passage of a discovery due date without response 11 or production, and only after counsel (and any unrepresented parties) have met and 12 conferred to resolve the dispute. See J. Burkhardt Civ. Chambers R. § V. 13 2. The parties shall designate their respective experts in writing by 14 April 10, 2023. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any 15 person who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of 16 the Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange 17 of rebuttal experts shall be by May 8, 2023. The written designations shall include the 18 name, address and telephone number of the expert and a reasonable summary of the 19 testimony the expert is expected to provide. The list shall also include the normal rates the 20 expert charges for deposition and trial testimony. 21 3. By April 10, 2023, each party shall comply with the disclosure provisions in 22 Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This disclosure 23 requirement applies to all persons retained or specially employed to provide expert 24 testimony, or whose duties as an employee of the party regularly involve the giving of 25 expert testimony. Except as provided in the paragraph below, any party that fails to 26 make these disclosures shall not, absent substantial justification, be permitted to use 27 evidence or testimony not disclosed at any hearing or at the time of trial. In addition, 28 the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 1 4. Any party shall supplement its disclosure regarding contradictory or rebuttal 2 evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 26(e) by May 8, 2023. 3 5. All expert discovery shall be completed by all parties by June 5, 2023. The 4 parties shall comply with the same procedures set forth in the paragraph governing fact 5 discovery. 6 6. Failure to comply with the above paragraphs or any other discovery order of 7 the court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a 8 prohibition on the introduction of experts or other designated matters in evidence. 9 7. All other pretrial motions must be filed by July 3, 2023. Counsel for the 10 moving party must obtain a motion hearing date from the law clerk of the judge who will 11 hear the motion. The period of time between the date you request a motion date and the 12 hearing date may vary from one district judge to another. Please plan accordingly. Failure 13 to make a timely request for a motion date may result in the motion not being heard. 14 Motions in limine are to be filed as directed in the Local Rules, or as otherwise set by the 15 district judge. 16 8. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 17 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 18 failure may constitute a consent to the granting of a motion or other request for ruling by 19 the court. Accordingly, all parties are ordered to abide by the terms of Local Rule 7.1(e)(2) 20 or otherwise face the prospect of any pretrial motion being granted as an unopposed motion 21 pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose to file or oppose a 22 motion for summary judgment or partial summary judgment, no Separate Statement of 23 Disputed or Undisputed Facts is required. 24 9. A Mandatory Settlement Conference (“MSC”) will be held by video 25 conference1 on July 17, 2023 at 1:45 PM before Magistrate Judge Jill L. Burkhardt. 26

27 1 If any party believes the MSC is more likely to be successful if conducted in-person, 28 1 Mandatory directions for participating in the MSC by video conference are attached 2 hereto. The purpose of the MSC is to permit an informal, candid discussion between the 3 attorneys, parties, and the settlement judge of every aspect of the lawsuit in an effort to 4 achieve a mediated resolution of the case. All MSC discussions will be off the record, 5 privileged, and confidential. See CivLR 16.3(h). No later than July 7, 2023, counsel (and 6 any unrepresented parties) shall lodge confidential MSC statements with Judge 7 Burkhardt’s chambers via e-mail at efile_Burkhardt@casd.uscourts.gov. The parties’ 8 MSC statements shall comply with § III.C. of Judge Burkhardt’s Civil Chambers Rules. 9 Pursuant to Civil Local Rule 16.3, all party representatives and claims adjusters for 10 insured defendants with full and unlimited authority2 to negotiate and enter into a binding 11 settlement, as well as the principal attorney(s) responsible for the litigation, must be present 12 and legally and factually prepared to discuss and resolve the case at the MSC. In the case 13 of an entity, an authorized representative of the entity who is not retained outside counsel 14 must be present and must have discretionary authority to commit the entity to pay an 15 amount up to the amount of the Plaintiff’s prayer (excluding punitive damages prayers). 16 The purpose of this requirement is to have representatives present who can settle the case 17 during the course of the conference without consulting a superior. 18

19 conferring, and no later than 60 days before the MSC, the parties shall leave a joint 20 voicemail with chambers at (619) 557-6624 indicating which of the parties requests an in- 21 person MSC. In the voicemail, the parties shall leave three mutually available dates for a telephonic status conference to discuss whether the MSC should be held in-person. The 22 final decision will be made by the Court. 23 2 “Full authority to settle” means that the individuals at the settlement conference must be authorized to fully explore settlement options and to agree at that time to any settlement 24 terms acceptable to the parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 25 648 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman v. Brinker Int’l., Inc., 216 F.R.D. 481, 26 485–86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement 27 authority to attend the conference includes that the person’s view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum certain of authority is 28 1 Counsel for a United States government entity may be excused from this 2 requirement so long as the government attorney who attends the MSC conference (1) has 3 primary responsibility for handling the case, and (2) may negotiate settlement offers which 4 the attorney is willing to recommend to the government official having ultimate settlement 5 authority. 6 Failure to attend the MSC or obtain proper excuse will be considered grounds 7 for sanctions. 8 10. No later than 21 days before the MSC, the parties shall exchange formal 9 settlement proposals, as required by § III.A. of Judge Burkhardt’s Civil Chambers Rules. 10 No later than 14 days before the MSC, the parties shall meet and confer in person or 11 telephonically, as required by § III.B. of Judge Burkhardt’s Civil Chambers Rules. 12 11. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is 13 required to file a Memorandum of Contentions of Fact and Law at any time. The parties 14 shall instead focus their efforts on drafting and submitting a proposed pretrial order by the 15 time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order shall 16 comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases issued by 17 the assigned district judge. 18 12. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 19 Civ. P. 26(a)(3) by November 6, 2023. Failure to comply with these disclosure 20 requirements could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 21 37. 22 13. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 23 November 13, 2023. At this meeting, counsel shall discuss and attempt to enter into 24 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 25 exchange copies and/or display all exhibits other than those to be used for impeachment. 26 The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 27 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 28 P. 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial conference 1 order. 2 14. Counsel for plaintiff will be responsible for preparing the pretrial order and 3 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By 4 November 20, 2023, plaintiff’s counsel must provide opposing counsel with the proposed 5 pretrial order for review and approval. Opposing counsel must communicate promptly 6 with plaintiff’s attorney concerning any objections to form or content of the pretrial order, 7 and both parties shall attempt promptly to resolve their differences, if any, concerning the 8 order. 9 15. The Proposed Final Pretrial Conference Order, including objections to any 10 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 11 lodged with the assigned district judge by November 27, 2023, and shall be in the form 12 prescribed in and comply with Local Rule 16.1(f)(6). 13 16. In addition to submitting the proposed final pretrial conference order, the 14 parties are further ordered to separately submit informal letter briefs, not exceeding two 15 single spaced pages, served on opposing counsel and received in the chambers of Judge 16 Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s Office) by 17 2:30 PM on December 6, 2023. 18 The letter brief should be a relatively informal and straightforward document. The 19 letter brief should outline a short, concise and objective factual summary of the party’s case 20 in chief, the number of hours/days each party intends to expend at trial, the approximate 21 number of witnesses, whether certain witnesses will be coming in from out of town, the 22 number of testifying expert witnesses, whether any unique demonstrative exhibits may be 23 presented, the number of proposed motions in limine that may be filed, precisely when the 24 parties would be prepared to submit their in limine papers (and whether the parties have 25 met and conferred with respect to in limine issues), the issue of proposed jury instructions 26 and when the parties intend to submit them before trial, and voir dire issues, either party’s 27 preference as to what date(s) the trial should begin and any other pertinent information that 28 either party may deem useful to assist the Court in the execution of the pretrial conference | |} and in setting the matter for trial. 2 17. The final Pretrial Conference is scheduled on the calendar of the Honorable 3 || Thomas J. Whelan on December 11, 2023 at 10:30 AM 4 18. The parties must review the chambers’ rules for the assigned district judge 5 ||and magistrate judge. 6 19. A post trial setthement conference before a magistrate judge may be held 7 || within 30 days of verdict in the case. 8 20. The dates and times set forth herein will not be modified except for good cause 9 || shown. 10 21. Briefs or memoranda in support of or in opposition to any pending motion 11 not exceed twenty-five (25) pages in length without leave of a district court judge. 12 reply memorandum shall exceed ten (10) pages without leave of a district court judge. 13 Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 14 || and a table of authorities cited. 15 22. Plaintiff’s counsel shall serve a copy of this order on all parties that enter this 16 || case hereafter. 17 IT IS SO ORDERED. 18 Dated: February 21, 2023 -

n. Jill L. Burkhardt 20 ited States Magistrate Judge 21 22 23 24 25 26 27 28

1 Mandatory Directions for Zoom Video Conference Participation 2 1. The Court will use its official ZoomGov video conferencing account to hold 3 the MSC. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on 4 computers through a download on the Zoom website (https://zoom.us/meetings) or on 5 mobile devices through the installation of a free app.3 Joining a Zoom conference does not 6 require creating a Zoom account, but it does require downloading the .exe file (if using a 7 computer) or the app (if using a mobile device). Participants are encouraged to create an 8 account, install Zoom and familiarize themselves with Zoom in advance of the MSC.4 9 There is a cost-free option for creating a Zoom account. 10 2. Prior to the start of the MSC, the Court will e-mail each MSC participant an 11 invitation to join a Zoom video conference. Again, if possible, participants are encouraged 12 to use laptops or desktop computers for the video conference, as mobile devices often offer 13 inferior performance. Because Zoom may quickly deplete the battery of a participant’s 14 device, each participant should ensure that her or his device is plugged in or that a charging 15 cable is readily available during the video conference. Participants shall join the video 16 conference by following the ZoomGov Meeting hyperlink in the invitation. Participants 17 who do not have Zoom already installed on their device when they click on the 18 ZoomGov Meeting hyperlink will be prompted to download and install Zoom before 19 proceeding. Zoom may then prompt participants to enter the password included in the 20 invitation. All participants will be placed in a waiting room until the MSC begins. 21 3. Each participant should plan to join the Zoom video conference at least 22 5 minutes before the start of the MSC to ensure that the MSC begins on time. 23 4. Zoom’s functionalities will allow the Court to conduct the MSC as it 24 ordinarily would conduct an in-person MSC. That is, the Court will begin the MSC with 25

26 3 If possible, participants are encouraged to use laptops or desktop computers for the 27 video conference, as mobile devices often offer inferior performance. 4 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- 28 1 all participants joined together in a main session. After an initial discussion in the main 2 session, the Court will divide participants into separate, confidential sessions, which Zoom 3 calls Breakout Rooms.5 In a Breakout Room, the Court will be able to communicate with 4 participants from a single party in confidence. Breakout Rooms will also allow parties and 5 counsel to communicate confidentially without the Court. 6 5. As previously stated, MSCs are confidential court proceedings. All attendees 7 must participate from a private and stable location where no individual who is not a party, 8 a party representative, or an attorney for a party can overhear the proceedings. All 9 attendees must be prepared to devote their full attention to the MSC as if they were 10 attending in person. This means that attendees must clear their schedules of all conflicts 11 for the entire period of the MSC.6 Attendees may not participate from a moving car or a 12 public space. 13 6. All participants are expected to display the same level of professionalism and 14 civility as they would at an in-person court proceeding. See CivLR 2.1; J. Burkhardt’s Civ. 15 Chambers R. § I. 16 /// 17 18

19 20 21 22 23 24 25 26 27 5 For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646 28