Walker v. Auto-Owners Insurance Company

Opinion

1 WO 2 3 4 5

9 Gerald Walker, III, et al., No. CV-20-00449-TUC-CKJ

10 Plaintiffs, ORDER

11 v.

12 Auto-Owners Insurance Company,

13 Defendant. 14 15 The Court, having reviewed the parties' Joint Case Management Report and having 16 conducted a Scheduling Conference: 17 IT IS ORDERED that this case, alleging class action claims challenging 18 Defendant’s standard practice of depreciating both labor and materials for property loss 19 claims allegedly in violation of Arizona law, a complex case and assigns it to the complex 20 track for case management. LRCiv. 16.2(b)(4). 21 IT IS FURTHER ORDERED that the parties shall abide by the following schedule 22 and rules: 23 A. Initial disclosures, under Federal Rules of Civil Procedure ("Federal Rules") 24 26(a)(1) have been exchanged. The Court notifies the parties that to satisfy the requirement 25 of Rule 26, the parties shall file a Notice of Service of discovery papers with the Clerk of 26 the Court, rather than copies of actual disclosures. See Rules of Practice of the United 27 States District Court for the District of Arizona, Civil ("Local Rules") 5.2. 28 1 B. Mediation: The parties will exchange data and engage in mediation with a 2 mediator jointly selected to attempt settlement of this action by April 14, 2023. 3 C. Amended Pleadings shall be governed by Fed. R. Civ. P. 15. 4 D. Expert testimony (class certification): Notice of Plaintiff’s initial expert 5 testimony pursuant to Federal Rule 26(a)(2) shall take place on or before July 14, 2023; 6 Defendant’s initial expert testimony pursuant to Federal Rule 26(a)(2) shall take place on 7 or before September 1, 2023, with any rebuttal expert testimony shall be completed on or 8 before September 15, 2023; Expert testimony (class claims and damages): Notice of 9 Plaintiff’s initial expert testimony pursuant to Federal Rule 26(a)(2) shall be made 120 10 days after class certification; Defendant’s rebuttal reports due within 45 days. 11 E. Discovery (class certification and Plaintiff’s claim), including depositions 12 of parties and witnesses, shall be completed by May 12, 2023; Discovery (class claims 13 and damages), including depositions of parties and witnesses, shall be completed by 180 14 days after class certification. 1 15 1. Generally, the limits on discovery by as set forth in Federal Rules 30, 16 31, and 33 shall apply: twenty-five (25) single-part question interrogatories, depositions 17 of parties and respective experts, and not more than ten non-party fact witness depositions 18 per party. 19 2. Notwithstanding any provisions of the Federal Rules or any other 20 provisions of this Order, non-party witnesses shall not be allowed to attend, physically, 21 electronically or otherwise, the deposition of any other witness in this case without an 22 Order of the Court to the contrary. 23 3. The parties and counsel are reminded of their duty under Federal Rule 24 26(e) to supplement all Rule 26(a) disclosures and responses to discovery requests. 25 Pursuant to Rule 26(e)(1), any additions or other changes to information previously 26 disclosed must be made prior to the time that Rule 26(a)(3) Pretrial Disclosures are due.

27 1 In the event the class is not certified and Plaintiff proceeds to trial, individually, the parties agree that a more expedited schedule would be appropriate than that proposed here for the 28 class action. The Plaintiff should propose such a schedule within 14 days of the Court’s disposition of the September 28, 2023, motions. 1 This Order contemplates that all exhibits and witnesses that may be offered at trial will 2 have been disclosed before the close of discovery. This Order, therefore, supersedes the 3 "30 days before trial" disclosure deadline contained in Rule 26(a)(3). Therefore, (1) failure 4 to timely supplement Rule 26(a) disclosure, including but not limited to witnesses and 5 exhibits, or (2) failure to timely supplement responses to any valid discovery requests, or 6 (3) attempting to include any witnesses or exhibits in the Proposed Final Pretrial Order that 7 were not previously disclosed in a timely manner as to allow for meaningful discovery 8 prior to the discovery cutoff date, may result in the exclusion of such evidence at trial or 9 the imposition of sanctions. 10 4. Pursuant to Local Rule 7.2(j), parties must personally consult and 11 make a sincere effort to resolve a discovery dispute before seeking the Court's assistance. 12 If the parties are unable to resolve a discovery dispute, the parties shall notify the Court by 13 telephone at (520) 205-4550, and the Court will schedule a telephonic conference. Written 14 briefs shall be filed only at the direction of the Court. 15 F. Pursuant to Federal Rule of Evidence 502: 16 1. The production of privileged or work-product protected documents, 17 electronically stored information (ESI) or information, whether inadvertent or otherwise, 18 is not a waiver of the privilege or protection from discovery in this case or in any other 19 federal or state proceeding. This order shall be interpreted to provide the maximum 20 protection allowed by Federal Rule of Evidence 502(d). 21 2. Nothing contained herein is intended to or shall serve to limit a party's 22 right to conduct a review of documents, ESI, or information (including metadata) for 23 relevance, responsiveness and/or segregation of privileged and/or protected information 24 before production. 25 G. Class Certification motion: due September 29, 2023. 26 H. Dispositive motions (Plaintiff’s individual claim and affirmative 27 defenses) shall be filed on or before September 29, 2023; Dispositive motions (class 28 claims and damages) due by 200 days after class certification. 1 1. If a party seeks oral argument on a motion, he shall request it at the 2 time the motion or response is filed, pursuant to Local Rule 7.2(f). 3 2. Pursuant to Local Rule 7.2, parties may file a motion, response and 4 reply. No additional briefing on a motion is allowed unless leave of Court is granted. 5 Failure to file a response may be deemed a consent to a granting of the motion. A response 6 must be served and filed within fourteen (14) days of service of the motion; the moving 7 party has seven (7) days from service to serve and file a reply. Federal Rule 56 motions 8 for summary judgment and Federal Rule 12(b)(1) motions to dismiss for lack of subject 9 matter jurisdiction provide an exception to the above time limits – time for response is 10 thirty (30) days and for reply fifteen (15) days. See L.R. 56.1(d). Unless otherwise 11 permitted by the Court, a motion or response, inclusive of supporting memorandum but 12 exclusive of attachments and statement of facts, shall not exceed seventeen (17) pages; a 13 reply shall not exceed eleven (11) pages. 14 3. The Court advises the parties that the Local Rule requirement that 15 “[a]ny party opposing a motion for summary judgment shall file a statement, separate from 16 that party’s memorandum of law, setting forth . . . for each paragraph of the moving party’s 17 separate statement of facts, a correspondingly numbered paragraph indicating whether the 18 party disputes the statement of fact set forth in that paragraph and a reference to the specific 19 admissible portion of the record supporting the party’s position if the fact is disputed . . . 20 [,]” L.R.Civ. 56.1, shall only apply to material facts that establish or dispute a genuine issue 21 in dispute. 22 4. Any pleading which is submitted with more than one exhibit must be 23 accompanied by a Table of Contents. The exhibits must be indexed with tabs that 24 correspond to the Table of Contents. 25 5. Absent exigent circumstances, the Court will not consider pleadings 26 which do not conform to these requirements. 27 I. Plaintiff and counsel shall file a brief Joint Settlement Status Report 28 (containing no specific settlement terms or offers) on or before April 21, 2023, and every 1 three (3) months thereafter. Should this action be resolved through settlement, the parties 2 shall advise the Court within ten (10) days of settlement. 3 J. The Joint Proposed Pretrial Order (Pretrial Statement) shall be filed 4 within thirty (30) days after resolution of the dispositive motions filed after the end of all 5 discovery, which shall be determined by whether the class is certified or not. If no such 6 motions are filed, a Joint Proposed Pretrial Order will be due 30 days after the close of all 7 discovery, which shall be determined by whether the class is certified or not. The content 8 of the proposed pretrial order shall include, but not be limited to, that prescribed in the 9 Form of Pretrial Order attached hereto. 10 1. Pursuant to Federal Rule 37(c), the Court will not allow the parties to 11 offer any exhibits, witnesses or other information that were not previously disclosed in 12 accordance with the provisions of this Order and the Federal Rules of Civil Procedure, or 13 not listed in the Proposed Pretrial Order, except for good cause. 14 2. The attorneys for each party who will be responsible for trial of the 15 lawsuit shall appear and participate in a Pretrial Conference to be scheduled by the Court 16 after receipt of the pretrial order. Because Pretrial Conferences are held for the parties' 17 benefit, and because the parties' presence will facilitate frank discussion of the pertinent 18 issues in the lawsuit, each party or a representative with binding settlement authority shall 19 attend the Pretrial Conference. 20 3. Parties are directed to the District of Arizona website located at 21 www.azd.uscourts.gov for instructions on marking and submitting exhibits including 22 exhibit lists and witness lists for trial or evidentiary hearings. Parties are responsible for 23 providing their own exhibit tags. Plaintiff must use yellow tags which are marked 24 commencing with number 1. Defendant must use blue tags which are numbered 25 sequentially following the last number used by Plaintiff. Counsel shall submit the witness 26 and exhibit lists to the Deputy Clerk no later than the morning of trial. Copies of exhibits 27 for the Judge shall be in a tabbed binder. 28 1 K. If the case will be tried to the Court, rather than to a jury, the parties shall 2 submit with their Proposed Pretrial Order, Proposed Findings of Fact and Conclusions 3 of Law. They shall be submitted in both written format and emailed to the chambers email 4 address, see infra, in a format compatible with Corel WordPerfect or Microsoft Word. 5 L. Motions in limine shall be filed along with the Proposed Pretrial Order. 6 Responses to motions in limine are due fourteen (14) days after the motion is filed. No 7 replies are permitted. Each motion in limine shall include the legal basis supporting it. 8 Any hearing on motions in limine will be set at the Pretrial Conference. 9 M. All non-dispositive motions shall be accompanied by a form of order for the 10 Court's signature. Pursuant to Local Rule 7.1(b)(2), the form of order shall be prepared on 11 a separate document containing the case caption. The form of order shall not contain the 12 parties' letterhead. The proposed form of order shall be emailed to the chambers email 13 address: jorgenson_chambers@azd.uscourts.gov. ECF Administrative Policies and 14 Procedures Manual, § II.G.1.c. 15 N. Motions for extensions of any of the deadlines set forth above shall be 16 governed by Federal Rule 16 and Local Rule 7.3. A motion for continuance shall be filed 17 prior to the expiration of the deadline. See Local Rule 7.3. The schedule set forth in this 18 Order may only be modified with leave of Court and upon a showing of good cause. See 19 Federal Rule 16(b); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-10 (9th Cir. 20 1992) (requiring a showing of good cause under Rule 16 to amend complaint beyond the 21 scheduling order deadline). Additionally, any motion for continuance of a discovery 22 deadline, including a stipulation, shall set forth specifically what discovery has been 23 conducted to date, the discovery to be completed, and the reasons why discovery has not 24 been completed within the deadline. 25 This order contemplates that each party will conduct discovery in such a manner as 26 to complete, within the deadline, any and all discovery. "Last minute or eleventh hour" 27 discovery which results in insufficient time to undertake additional discovery and which 28 1 || requires an extension of the discovery deadline will be met with disfavor, and could result 2|| in denial of an extension, exclusion of evidence, or the imposition of other sanctions. 3 Dated this 22nd day of February, 2023. 4 Ce LE Aaegamses 6 Honorable Cin . J6fgenson , United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 2 3 4 5 8 , ) ) 9 Plaintiff, ) ) No. CIV -TUC-CKJ 10 vs. ) ) PROPOSED JOINT PRETRIAL ORDER 11 , ) ) 12 Defendant. ) ) 13 14 Pursuant to the Scheduling Order entered , 20__, following 15 is the Joint Proposed Final Pretrial Order to be considered at the pretrial conference. 17 Plaintiff(s): 18 Defendant(s): 20 Cite the statute(s) that gives the Court jurisdiction, and whether jurisdiction is 21 disputed. 22 (E.g.: Jurisdiction in this case is based on diversity of citizenship under Title 28 23 U.S.C. § 1332. Jurisdiction is (not) disputed.) 25 Provide a concise statement of the type of case, the cause of the action, and the 26 relief sought. 27 (E.g.: This is a products liability case wherein the plaintiff seeks damages for 28 personal injuries sustained when he fell from the driver's seat of a forklift. The 1 plaintiff contends that the forklift was defectively designed and manufactured by 2 the defendant and that the defects were a producing cause of his injuries and 3 damages.) 5 With respect to each count of the complaint, counterclaim or cross-claim, and to 6 any defense, affirmative defense, or the rebuttal of a presumption where the burden 7 of proof has shifted, the party having the burden of proof shall list the elements or 8 standards that must be proved in order for the party to prevail on that claim or 9 defense. 10 (E.g.: In order to prevail on this products liability case, the plaintiff must prove the 11 following elements . . . ) 12 (E.g.: In order to defeat this products liability claim based on the statute of repose, 13 the defendant must prove the following elements . . . ) 17 A jointly prepared list of witnesses, identifying each as either plaintiff's or 18 defendant's and indicating whether a fact or expert witness, must accompany this 19 proposed order. 20 A brief statement as to the testimony of each expert witness must be included. 22 Each party must submit with this proposed order a list of numbered exhibits, with a 23 description of each containing sufficient information to identify the exhibit, and 24 indicating whether an objection to its admission is anticipated. 25 Exhibits should be marked according to instructions received from the court. 27 Motions in limine shall be filed and served upon each party with this proposed 28 order. Any opposition shall be filed and served within fourteen (14) days. 4 Proposed findings of fact and conclusions of law shall be served and filed on each 5 party with this proposed order. 7 Stipulated jury instructions shall be filed thirty (30) days before trial. Instructions 8 which are not agreed upon, and a concise argument in support of the instruction, 9 shall be filed and served upon each party thirty (30) days before trial. Objections 10 to the non-agreed upon instructions shall be filed and served upon each party 11 within fourteen (14) days. 13 The undersigned counsel for each of the parties in this action do hereby certify and 14 acknowledge the following: 15 1. All discovery has been completed. 16 2. The identity of each witness has been disclosed to opposing counsel. 17 3. Each exhibit listed herein: (a) is in existence; (b) is numbered, and: (c) has 18 been disclosed and shown to opposing counsel. 20 The Court may adopt this proposed Joint Pretrial Order at the Pre-Trial Conference 21 or subsequent hearing. 22 DATED this day of , 20___. 24 25 Attorney for Plaintiff Attorney for Defendant 26 27 28