1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN SEXTON, Case No.: 23-cv-00375-W-BGS
12 Plaintiff, SCHEDULING ORDER 13 v. REGULATING DISCOVERY AND OTHER PRE-TRIAL 14 MITRATECH, INC., PROCEEDINGS 15 Defendant. 16 17 Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was 18 held on June 30, 2023. After consulting with the attorneys 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 August 14, 2023. 23 2. All fact discovery shall be completed by all parties by October 30, 2023. 24 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 25 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period 26 of time in advance of the cut-off date, so that it may be completed by the cut-off date, 27 taking into account the times for service, notice and response as set forth in the Federal 28 Rules of Civil Procedure. Counsel shall promptly and in good faith meet and confer 1 with regard to all discovery disputes in compliance with Local Rule 26.1(a). The 2 Court expects counsel to make every effort to resolve all disputes without court 3 intervention through the meet and confer process. If the parties reach an impasse on any 4 discovery issue, counsel shall follow the procedures outlined in the assigned magistrate 5 judge’s Chambers Rules to timely raise the dispute. A failure to comply in this regard 6 will result in a waiver of a party’s discovery issue. Absent an order of the court, no 7 stipulation continuing or altering this requirement will be recognized by the court. 8 Discovery limits in the Federal Rules of Civil Procedure and Civil Local Rules, including 9 Federal Rule of Civil Procedure 33(a)(1), Civil Local Rules 33.1.a, and 36.1.a shall 10 apply. Absent prior leave of Court to exceed these limits, the Court will not consider any 11 discovery dispute arising from discovery requests in excess of these limits. 12 3. The parties shall designate their respective experts in writing by November 13 30, 2023. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any person 14 who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the 15 Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange 16 of rebuttal experts shall be by December 14, 2023. The written designations shall 17 include the name, address and telephone number of the expert and a reasonable summary 18 of the testimony the expert is expected to provide. The list shall also include the normal 19 rates the expert charges for deposition and trial testimony. 20 4. By January 16, 2024, each party shall comply with the disclosure 21 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 22 disclosure requirement applies to all persons retained or specially employed to provide 23 expert testimony, or whose duties as an employee of the party regularly involve the 24 giving of expert testimony. Except as provided in the paragraph below, any party 25 that fails to make these disclosures shall not, absent substantial justification, be 26 permitted to use evidence or testimony not disclosed at any hearing or at the time of 27 trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 28 37(c). 1 5. 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 January 29, 3 2024. 4 6. All expert discovery shall be completed by all parties by February 29, 5 2024. The parties shall comply with the same procedures set forth in the paragraph 6 governing fact discovery. 7 7. Failure to comply with this section or any other discovery order of the court 8 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 9 the introduction of experts or other designated matters in evidence. 10 8. All other pretrial motions must be filed by March 29, 2024. Counsel for the 11 moving party must obtain a motion hearing date from the law clerk of the judge who will 12 hear the motion. The period of time between the date you request a motion date and the 13 hearing date may vary from one district judge to another. Please plan accordingly. 14 Failure to make a timely request for a motion date may result in the motion not being 15 heard. Motions in limine are to be filed as directed in the Local Rules, or as otherwise set 16 by the district judge. 17 9. A Mandatory Settlement Conference shall be conducted on June 21, 2024 at 18 2:00 P.M. in the chambers of Magistrate Judge Bernard G. Skomal. Counsel or any 19 party representing himself or herself shall lodge confidential settlement briefs directly to 20 chambers by June 7, 2024. Counsel should include in their brief the names and titles of 21 all participants, including attorneys and client representatives, expected to participate in 22 the conference on behalf of their client(s). The briefs must address the legal and factual 23 issues in the case and should focus on issues most pertinent to settling the matter. Briefs 24 do not need to be filed or served on opposing counsel. The briefs must also include any 25 prior settlement offer or demand, as well as the offer or demand the party will make at the 26 MSC. The Court will keep this information confidential unless the party authorizes the 27 Court to share the information with opposing counsel. MSC briefs must be emailed to 28 efile_Skomal@casd.uscourts.gov. 1 10. All parties are ordered to read and to fully comply with the Chamber Rules 2 of the assigned magistrate judge. The MSC is scheduled to be conducted by video 3 conference pursuant to the instructions below. However, the parties may contact Judge 4 Skomal’s chambers to request the MSC be held in-person. All parties, adjusters for 5 insured defendants, and client representatives must be present and have full and complete 6 authority to enter into a binding settlement at the MSC.1 The purpose of this requirement 7 is to have representatives present who can settle the case during the course of the 8 conference without consulting a superior. Parties seeking permission to be excused from 9 attending the MSC in person must follow the procedures outlined in Judge Skomal’s 10 Chambers’ Rules. Failure of any of the above parties to appear at the MSC without the 11 Court’s permission will be grounds for sanctions. The principal attorneys responsible for 12 the litigation must also be present in person and prepared to discuss all of the legal and 13 factual issues in the case. 14 11. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 15 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 16 failure may constitute a consent to the granting of a motion or other request for ruling by 17 the court.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN SEXTON, Case No.: 23-cv-00375-W-BGS
12 Plaintiff, SCHEDULING ORDER 13 v. REGULATING DISCOVERY AND OTHER PRE-TRIAL 14 MITRATECH, INC., PROCEEDINGS 15 Defendant. 16 17 Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was 18 held on June 30, 2023. After consulting with the attorneys 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 August 14, 2023. 23 2. All fact discovery shall be completed by all parties by October 30, 2023. 24 “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil 25 Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period 26 of time in advance of the cut-off date, so that it may be completed by the cut-off date, 27 taking into account the times for service, notice and response as set forth in the Federal 28 Rules of Civil Procedure. Counsel shall promptly and in good faith meet and confer 1 with regard to all discovery disputes in compliance with Local Rule 26.1(a). The 2 Court expects counsel to make every effort to resolve all disputes without court 3 intervention through the meet and confer process. If the parties reach an impasse on any 4 discovery issue, counsel shall follow the procedures outlined in the assigned magistrate 5 judge’s Chambers Rules to timely raise the dispute. A failure to comply in this regard 6 will result in a waiver of a party’s discovery issue. Absent an order of the court, no 7 stipulation continuing or altering this requirement will be recognized by the court. 8 Discovery limits in the Federal Rules of Civil Procedure and Civil Local Rules, including 9 Federal Rule of Civil Procedure 33(a)(1), Civil Local Rules 33.1.a, and 36.1.a shall 10 apply. Absent prior leave of Court to exceed these limits, the Court will not consider any 11 discovery dispute arising from discovery requests in excess of these limits. 12 3. The parties shall designate their respective experts in writing by November 13 30, 2023. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any person 14 who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the 15 Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange 16 of rebuttal experts shall be by December 14, 2023. The written designations shall 17 include the name, address and telephone number of the expert and a reasonable summary 18 of the testimony the expert is expected to provide. The list shall also include the normal 19 rates the expert charges for deposition and trial testimony. 20 4. By January 16, 2024, each party shall comply with the disclosure 21 provisions in Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This 22 disclosure requirement applies to all persons retained or specially employed to provide 23 expert testimony, or whose duties as an employee of the party regularly involve the 24 giving of expert testimony. Except as provided in the paragraph below, any party 25 that fails to make these disclosures shall not, absent substantial justification, be 26 permitted to use evidence or testimony not disclosed at any hearing or at the time of 27 trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 28 37(c). 1 5. 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 January 29, 3 2024. 4 6. All expert discovery shall be completed by all parties by February 29, 5 2024. The parties shall comply with the same procedures set forth in the paragraph 6 governing fact discovery. 7 7. Failure to comply with this section or any other discovery order of the court 8 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 9 the introduction of experts or other designated matters in evidence. 10 8. All other pretrial motions must be filed by March 29, 2024. Counsel for the 11 moving party must obtain a motion hearing date from the law clerk of the judge who will 12 hear the motion. The period of time between the date you request a motion date and the 13 hearing date may vary from one district judge to another. Please plan accordingly. 14 Failure to make a timely request for a motion date may result in the motion not being 15 heard. Motions in limine are to be filed as directed in the Local Rules, or as otherwise set 16 by the district judge. 17 9. A Mandatory Settlement Conference shall be conducted on June 21, 2024 at 18 2:00 P.M. in the chambers of Magistrate Judge Bernard G. Skomal. Counsel or any 19 party representing himself or herself shall lodge confidential settlement briefs directly to 20 chambers by June 7, 2024. Counsel should include in their brief the names and titles of 21 all participants, including attorneys and client representatives, expected to participate in 22 the conference on behalf of their client(s). The briefs must address the legal and factual 23 issues in the case and should focus on issues most pertinent to settling the matter. Briefs 24 do not need to be filed or served on opposing counsel. The briefs must also include any 25 prior settlement offer or demand, as well as the offer or demand the party will make at the 26 MSC. The Court will keep this information confidential unless the party authorizes the 27 Court to share the information with opposing counsel. MSC briefs must be emailed to 28 efile_Skomal@casd.uscourts.gov. 1 10. All parties are ordered to read and to fully comply with the Chamber Rules 2 of the assigned magistrate judge. The MSC is scheduled to be conducted by video 3 conference pursuant to the instructions below. However, the parties may contact Judge 4 Skomal’s chambers to request the MSC be held in-person. All parties, adjusters for 5 insured defendants, and client representatives must be present and have full and complete 6 authority to enter into a binding settlement at the MSC.1 The purpose of this requirement 7 is to have representatives present who can settle the case during the course of the 8 conference without consulting a superior. Parties seeking permission to be excused from 9 attending the MSC in person must follow the procedures outlined in Judge Skomal’s 10 Chambers’ Rules. Failure of any of the above parties to appear at the MSC without the 11 Court’s permission will be grounds for sanctions. The principal attorneys responsible for 12 the litigation must also be present in person and prepared to discuss all of the legal and 13 factual issues in the case. 14 11. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 15 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 16 failure may constitute a consent to the granting of a motion or other request for ruling by 17 the court. Accordingly, all parties are ordered to abide by the terms of Local Rule 18 7.1(e)(2) or otherwise face the prospect of any pretrial motion being granted as an 19 unopposed motion pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose 20 to file or oppose a motion for summary judgment or partial summary judgment, no 21 Separate Statement of Disputed or Undisputed Facts is required. 22
23 1 “Full authority to settle” means that the individuals at the settlement conference must be authorized to 24 fully explore settlement options and to agree at that time to any settlement terms acceptable to the 25 parties. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a party. Pitman 26 v. Brinker Intl., Inc., 216 F.R.D. 481, 485-486 (D. Ariz. 2003). The person must be able to bind the party without the need to call others not present at the conference for authority or approval. The purpose 27 of requiring a person with unlimited settlement 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 28 1 12. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is 2 required to file a Memorandum of Contentions of Fact and Law at any time. The parties 3 shall instead focus their efforts on drafting and submitting a proposed pretrial order by 4 the time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order 5 shall comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases 6 issued by the assigned district judge. 7 13. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 8 Civ. P. 26(a)(3) by July 1, 2024. Failure to comply with these disclosure requirements 9 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 10 14. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 11 July 8, 2024. At this meeting, counsel shall discuss and attempt to enter into stipulations 12 and agreements resulting in simplification of the triable issues. Counsel shall exchange 13 copies and/or display all exhibits other than those to be used for impeachment. The 14 exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 15 note any objections they have to any other parties’ Pretrial Disclosures under Fed. R. Civ. 16 P. 26(a)(3). Counsel shall cooperate in the preparation of the proposed pretrial 17 conference order. 18 15. Counsel for plaintiff will be responsible for preparing the pretrial order and 19 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By July 15, 20 2024, plaintiff’s counsel must provide opposing counsel with the proposed pretrial order 21 for review and approval. Opposing counsel must communicate promptly with plaintiff’s 22 attorney concerning any objections to form or content of the pretrial order, and both 23 parties shall attempt promptly to resolve their differences, if any, concerning the order. 24 16. The Proposed Final Pretrial Conference Order, including objections to any 25 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 26 lodged with the assigned district judge by July 15, 2024, and shall be in the form 27 prescribed in and comply with Local Rule 16.1(f)(6). 28 17. In addition to submitting the proposed final pretrial conference order, the 1 parties are further ordered to separately submit informal letter briefs, not exceeding two 2 single spaced pages, served on opposing counsel and received in the chambers of Judge 3 Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s Office) by 4 2:30 p.m. on July 22, 2024. The letter brief should be a relatively informal and 5 straightforward document. The letter brief should outline a short, concise and objective 6 factual summary of the party’s case in chief, the number of hours/days each party intends 7 to expend at trial, the approximate number of witnesses, whether certain witnesses will be 8 coming in from out of town, the number of testifying expert witnesses, whether any 9 unique demonstrative exhibits may be presented, the number of proposed motions in 10 limine that may be filed, precisely when the parties would be prepared to submit their in 11 limine papers (and whether the parties have met and conferred with respect to in limine 12 issues), the issue of proposed jury instructions and when the parties intend to submit them 13 before trial, and voir dire issues, either party’s preference as to what date(s) the trial 14 should begin and any other pertinent information that either party may deem useful to 15 assist the Court in the execution of the pretrial conference and in setting the matter for 16 trial. 17 18. The final Pretrial Conference is scheduled on the calendar of the Honorable 18 Thomas J. Whelan on July 29, 2024 at 10:30 A.M. 19 19. The parties must review the chambers’ rules for the assigned district judge 20 and magistrate judge. 21 20. A post trial settlement conference before a magistrate judge may be held 22 within 30 days of verdict in the case. 23 21. The dates and times set forth herein will not be modified except for good 24 cause shown or on a showing of excusable neglect. Fed. R. Civ. P. 6(b)(1). 25 22. Briefs or memoranda in support of or in opposition to any pending motion 26 shall not exceed twenty-five (25) pages in length without leave of a district court judge. 27 No reply memorandum shall exceed ten (10) pages without leave of a district court judge. 28 Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents 1 and a table of authorities cited. 2 23. Plaintiff’s counsel shall serve a copy of this order on all parties that enter 3 this case hereafter. 4 Video Conference Instructions: 5 1. The Court will use its official Zoom video conferencing account to hold the 6 MSC. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers 7 through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices 8 through the installation of a free app.2 Joining a Zoom conference does not require 9 creating a Zoom account, but it does require downloading the .exe file (if using a 10 computer) or the app (if using a mobile device). Participants are encouraged to create an 11 account, install Zoom and familiarize themselves with Zoom in advance of the MSC.3 12 There is a cost-free option for creating a Zoom account. 13 2. Prior to the start of the MSC, the Court will email counsel for each party an 14 invitation to join a Zoom video conference that they must provide to participating 15 client(s). The Court will send the invitation to the email addresses listed for counsel in the 16 case docket. If counsel does not receive an invitation to join the Zoom video conference 17 by the end of the day on June 18, 2024, please email chambers at 18 efile_skomal@casd.uscourts.gov. Again, if possible, participants are encouraged to use 19 laptops or desktop computers for the video conference. Participants shall join the video 20 conference by following the ZoomGov Meeting hyperlink in the invitation. Participants 21 who do not have Zoom already installed on their device when they click on the ZoomGov 22 Meeting hyperlink will be prompted to download and install Zoom before proceeding. 23 24 25 26 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices. 27 3 For help getting started with Zoom, visit: https://support.zoom.us/hc/en-us/categories/200101697. 28 1 ||Zoom may then prompt participants to enter the password included in the invitation.* All 2 || participants will be placed in a waiting room until the MSC begins. 3 3. Each participant should plan to join the Zoom video conference at least five 4 ||minutes before the start of the MSC to ensure that the MSC begins promptly at 2:00 PM. 5 4. Zoom’s functionalities will allow the Court to conduct the MSC as it 6 || ordinarily would conduct an in-person MSC. The Court may divide participants into 7 || separate, confidential sessions, which Zoom calls Breakout Rooms.° In a Breakout Room, 8 Court will be able to communicate with participants from a single party in 9 ||confidence. Breakout Rooms will also allow parties and counsel to communicate 10 || confidentially without the Court. 11 5. All participants shall display the same level of professionalism during the 12 □□□ and be prepared to devote their full attention to the MSC as if they were attending 13 ||1in person, i.e., cannot be driving while speaking to the Court. Because Zoom may quickly 14 || deplete the battery of a participant’s device, each participant should ensure that their 15 || device is plugged in or that a charging cable is readily available during the video 16 || conference. 17 18 IT IS SO ORDERED. 19 Dated: July 6, 2023 7 2 p / / 20 on. Bernard G. Skomal 21 United States Magistrate Judge 22 23 24 25
4 A Meeting ID will also be included and may be used along with the password to access the conference 27 necessary. 28 > For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/1 15005769646