KYLE WALKER, Case No.: 22-cv-00264-MMA-JLB
Plaintiff, ORDER: v. (1) GRANTING EXTENSION OF TIME TO BRING DISCOVERY COMPANY, LLC, et al., DISPUTES; Defendants. (2) GRANTING JOINT MOTION TO ORDER; AND
(3) ISSUING AMENDED SCHEDULING ORDER
[ECF Nos. 30; 35] On July 28, 2022, the Court held an informal Discovery Conference before Magistrate Judge Jill L. Burkhardt, to address the issues set forth in the joint discovery statement submitted by the parties on July 13, 2022. (ECF Nos. 34; 36.) At the conclusion of the Conference, the parties requested an extension of 30 days in order to meet and confer further and then bring any remaining discovery disputes to the Court’s attention. (ECF No. 36.) As stated in the Conference, the parties’ request is GRANTED. Accordingly, the deadline to contact the Court with any remaining discovery disputes related to the July 13, 2022 joint discovery statement, and any dispute involving Defendant Howmedica Osteonics Corp.’s supplemental responses (see ECF No. 34), is extended to August 29, 2022. Also before the Court is the parties’ second Joint Motion to Amend the Scheduling Order. (ECF No. 35.) Good cause appearing, and for the reasons discussed in the Conference, the parties’ joint motion (ECF No. 35) is GRANTED, and the operative Scheduling Order (ECF No. 30) is amended as follows: 1. All fact and expert discovery must be completed by all parties by November 7, 2022. “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure. Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26.1(a). The Court expects counsel to make every effort to resolve all disputes without court intervention through the meet and confer process. Discovery disputes must be brought to the Court’s attention in the time and manner required by § V of Judge Burkhardt’s Civil Chambers Rules. All discovery disputes must be raised within 30 calendar days of the service of an objection, answer, or response that becomes the subject of dispute, or the passage of a discovery due date without response or production, and only after counsel (and any unrepresented parties) have met and conferred to resolve the dispute. See J. Burkhardt Civ. Chambers R. § V. A failure to comply in this regard will result in a waiver of a party’s discovery issue. Absent an order of the court, no stipulation continuing or altering this requirement will be recognized by the court. 2. The parties must designate their respective experts in writing by September 9, 2022. The parties must identify any person who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange of rebuttal experts must be by October 7, 2022. The written designations must include the name, address and telephone number of the expert and a reasonable summary of the testimony the expert is expected to provide. The list must also include the normal rates the expert charges for deposition and trial testimony. 3. By September 9, 2022, each party must comply with the disclosure provisions in Rule 26(a)(2)(B) and (C) of the Federal Rules of Civil Procedure. This disclosure requirement applies to all persons retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve the giving of expert testimony. Except as provided in the paragraph below, any party that fails to make these disclosures will not, absent substantial justification, be permitted to use evidence or testimony not disclosed at any hearing or at the time of trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 4. Any party must supplement its disclosure regarding contradictory or rebuttal evidence under Fed. R. Civ. P. 26(a)(2)(D) by October 7, 2022. 5. Failure to comply with this section or any other discovery order of the court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of experts or other designated matters in evidence. 6. All dispositive pretrial motions, including motions for summary judgment and motions addressing Daubert issues, must be filed by December 15, 2022.1 Counsel for the moving party must obtain a motion hearing date from Judge Anello’s law clerk. 1 This deadline is not applicable to pretrial motions in limine. For further information regarding motions in limine, please refer to Judge Anello’s Civil Chambers The period of time between the date you request a motion date and the hearing date may vary from one district judge to another. Please plan accordingly. Failure to make a timely request for a motion date may result in the motion not being heard. 7. If appropriate, following the filing of an order ruling on a motion for summary judgment or other dispositive pretrial motion, or in the event no such motion is filed, after the expiration of the deadline set forth in paragraph 8, supra, Judge Anello will issue a pretrial scheduling order setting a pretrial conference, trial date, and all related pretrial deadlines. The parties must review and be familiar with Judge Anello’s Civil Chambers Rules, which provide additional information regarding pretrial scheduling. 8. The Mandatory Settlement Conference (“MSC”) is hereby rescheduled to January 25, 2023 at 1:45 PM before Magistrate Judge Jill L. Burkhardt and will occur by video conference.2 Mandatory directions for participating in the MSC by video conference are attached hereto. The purpose of the MSC is to permit an informal, candid discussion between the attorneys, parties, and the settlement judge of every aspect of the lawsuit in an effort to achieve a mediated resolution of the case. All MSC discussions will be off the record, privileged, and confidential. See CivLR 16.3(h). Pursuant to Civil Local Rule 16.3, all party representatives and claims adjusters for insured defendants with full and unlimited authority3 to negotiate and enter into a binding
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KYLE WALKER, Case No.: 22-cv-00264-MMA-JLB
Plaintiff, ORDER: v. (1) GRANTING EXTENSION OF TIME TO BRING DISCOVERY COMPANY, LLC, et al., DISPUTES; Defendants. (2) GRANTING JOINT MOTION TO ORDER; AND
(3) ISSUING AMENDED SCHEDULING ORDER
[ECF Nos. 30; 35] On July 28, 2022, the Court held an informal Discovery Conference before Magistrate Judge Jill L. Burkhardt, to address the issues set forth in the joint discovery statement submitted by the parties on July 13, 2022. (ECF Nos. 34; 36.) At the conclusion of the Conference, the parties requested an extension of 30 days in order to meet and confer further and then bring any remaining discovery disputes to the Court’s attention. (ECF No. 36.) As stated in the Conference, the parties’ request is GRANTED. Accordingly, the deadline to contact the Court with any remaining discovery disputes related to the July 13, 2022 joint discovery statement, and any dispute involving Defendant Howmedica Osteonics Corp.’s supplemental responses (see ECF No. 34), is extended to August 29, 2022. Also before the Court is the parties’ second Joint Motion to Amend the Scheduling Order. (ECF No. 35.) Good cause appearing, and for the reasons discussed in the Conference, the parties’ joint motion (ECF No. 35) is GRANTED, and the operative Scheduling Order (ECF No. 30) is amended as follows: 1. All fact and expert discovery must be completed by all parties by November 7, 2022. “Completed” means that all discovery under Rules 30-36 of the Federal Rules of Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient period of time in advance of the cut-off date, so that it may be completed by the cut-off date, taking into account the times for service, notice and response as set forth in the Federal Rules of Civil Procedure. Counsel must promptly and in good faith meet and confer with regard to all discovery disputes in compliance with Local Rule 26.1(a). The Court expects counsel to make every effort to resolve all disputes without court intervention through the meet and confer process. Discovery disputes must be brought to the Court’s attention in the time and manner required by § V of Judge Burkhardt’s Civil Chambers Rules. All discovery disputes must be raised within 30 calendar days of the service of an objection, answer, or response that becomes the subject of dispute, or the passage of a discovery due date without response or production, and only after counsel (and any unrepresented parties) have met and conferred to resolve the dispute. See J. Burkhardt Civ. Chambers R. § V. A failure to comply in this regard will result in a waiver of a party’s discovery issue. Absent an order of the court, no stipulation continuing or altering this requirement will be recognized by the court. 2. The parties must designate their respective experts in writing by September 9, 2022. The parties must identify any person who may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. Evid. This requirement is not limited to retained experts. The date for exchange of rebuttal experts must be by October 7, 2022. The written designations must include the name, address and telephone number of the expert and a reasonable summary of the testimony the expert is expected to provide. The list must also include the normal rates the expert charges for deposition and trial testimony. 3. By September 9, 2022, each party must comply with the disclosure provisions in Rule 26(a)(2)(B) and (C) of the Federal Rules of Civil Procedure. This disclosure requirement applies to all persons retained or specially employed to provide expert testimony, or whose duties as an employee of the party regularly involve the giving of expert testimony. Except as provided in the paragraph below, any party that fails to make these disclosures will not, absent substantial justification, be permitted to use evidence or testimony not disclosed at any hearing or at the time of trial. In addition, the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 4. Any party must supplement its disclosure regarding contradictory or rebuttal evidence under Fed. R. Civ. P. 26(a)(2)(D) by October 7, 2022. 5. Failure to comply with this section or any other discovery order of the court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of experts or other designated matters in evidence. 6. All dispositive pretrial motions, including motions for summary judgment and motions addressing Daubert issues, must be filed by December 15, 2022.1 Counsel for the moving party must obtain a motion hearing date from Judge Anello’s law clerk. 1 This deadline is not applicable to pretrial motions in limine. For further information regarding motions in limine, please refer to Judge Anello’s Civil Chambers The period of time between the date you request a motion date and the hearing date may vary from one district judge to another. Please plan accordingly. Failure to make a timely request for a motion date may result in the motion not being heard. 7. If appropriate, following the filing of an order ruling on a motion for summary judgment or other dispositive pretrial motion, or in the event no such motion is filed, after the expiration of the deadline set forth in paragraph 8, supra, Judge Anello will issue a pretrial scheduling order setting a pretrial conference, trial date, and all related pretrial deadlines. The parties must review and be familiar with Judge Anello’s Civil Chambers Rules, which provide additional information regarding pretrial scheduling. 8. The Mandatory Settlement Conference (“MSC”) is hereby rescheduled to January 25, 2023 at 1:45 PM before Magistrate Judge Jill L. Burkhardt and will occur by video conference.2 Mandatory directions for participating in the MSC by video conference are attached hereto. The purpose of the MSC is to permit an informal, candid discussion between the attorneys, parties, and the settlement judge of every aspect of the lawsuit in an effort to achieve a mediated resolution of the case. All MSC discussions will be off the record, privileged, and confidential. See CivLR 16.3(h). Pursuant to Civil Local Rule 16.3, all party representatives and claims adjusters for insured defendants with full and unlimited authority3 to negotiate and enter into a binding
2 If any party believes the MSC is more likely to be successful if conducted in- person, that party shall meet and confer on the issue with the other parties. After meeting and conferring, and no later than 60 days before the MSC, the parties shall leave a joint voicemail with chambers at (619) 557-6624 indicating which of the parties requests an in-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 final decision will be made by the Court. 3 “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 terms acceptable to the 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 v. Brinker Int’l., Inc., 216 settlement, as well as the principal attorney(s) responsible for the litigation, must be present and legally and factually prepared to discuss and resolve the case at the MSC. In the case of an entity, an authorized representative of the entity who is not retained outside counsel must be present and must have discretionary authority to commit the entity to pay an amount up to the amount of the Plaintiff’s prayer (excluding punitive damages prayers). The purpose of this requirement is to have representatives present who can settle the case during the course of the conference without consulting a superior. Failure to attend the MSC or obtain proper excuse will be considered grounds for sanctions. No later than 21 days before the MSC, the parties shall exchange formal settlement proposals, as required by § III.A. of Judge Burkhardt’s Civil Chambers Rules. No later than 14 days before the MSC, the parties shall meet and confer in person or telephonically, as required by § III.B. of Judge Burkhardt’s Civil Chambers Rules. 9. No later than January 13, 2023, counsel (and any unrepresented parties) shall lodge confidential MSC statements with Judge Burkhardt’s chambers via e-mail at efile_Burkhardt@casd.uscourts.gov. The parties’ MSC statements shall comply with § III.C. of Judge Burkhardt’s Civil Chambers Rules 10. A post trial settlement conference before a magistrate judge may be held within 30 days of verdict in the case. 11. The dates and times set forth herein will not be modified except for good cause shown. 12. Briefs or memoranda in support of or in opposition to any pending motion must not exceed twenty-five (25) pages in length without leave of a district court judge. No reply memorandum will exceed ten (10) pages without leave of a district court judge.
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 sum certain of authority is not adequate. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595–97 (8th Briefs and memoranda exceeding ten (10) pages in length must have a table of contents and a table of authorities cited. 13. Plaintiff's counsel must serve a copy of this order on all parties that enter this case hereafter. Dated: July 29, 2022 -
n. Jill L. Burkhardt ited States Magistrate Judge
Mandatory Directions for Zoom Video Conference Participation 1. The Court will use its official ZoomGov video conferencing account to hold the MSC. IF YOU ARE UNFAMILIAR WITH ZOOM: Zoom is available on computers through a download on the Zoom website (https://zoom.us/meetings) or on mobile devices through the installation of a free app.4 Joining a Zoom conference does not require creating a Zoom account, but it does require downloading the .exe file (if using a computer) or the app (if using a mobile device). Participants are encouraged to create an account, install Zoom and familiarize themselves with Zoom in advance of the MSC.5 There is a cost-free option for creating a Zoom account. 2. Prior to the start of the MSC, the Court will e-mail each MSC participant an invitation to join a Zoom video conference. Again, if possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. Because Zoom may quickly deplete the battery of a participant’s device, each participant should ensure that her or his device is plugged in or that a charging cable is readily available during the video conference. Participants shall join the video conference by following the ZoomGov Meeting hyperlink in the invitation. Participants who do not have Zoom already installed on their device when they click on the ZoomGov Meeting hyperlink will be prompted to download and install Zoom before proceeding. Zoom may then prompt participants to enter the password included in the invitation. All participants will be placed in a waiting room until the MSC begins. 3. Each participant should plan to join the Zoom video conference at least 5 minutes before the start of the MSC to ensure that the MSC begins on time. 4. Zoom’s functionalities will allow the Court to conduct the MSC as it
4 If possible, participants are encouraged to use laptops or desktop computers for the video conference, as mobile devices often offer inferior performance. 5 For help getting started with Zoom, visit: https://support.zoom.us/hc/en- ordinarily would conduct an in-person MSC. That is, the Court will begin the MSC with all participants joined together in a main session. After an initial discussion in the main session, the Court will divide participants into separate, confidential sessions, which Zoom calls Breakout Rooms.6 In a Breakout Room, the Court will be able to communicate with participants from a single party in confidence. Breakout Rooms will also allow parties and counsel to communicate confidentially without the Court. 5. As previously stated, MSCs are confidential court proceedings. All attendees must participate from a private and stable location where no individual who is not a party, a party representative, or an attorney for a party can overhear the proceedings. All attendees must be prepared to devote their full attention to the MSC as if they were attending in person. This means that attendees must clear their schedules of all conflicts for the entire period of the MSC.7 Attendees may not participate from a moving car or a public space. 6. All participants are expected to display the same level of professionalism and civility as they would at an in-person court proceeding. See CivLR 2.1; J. Burkhardt’s Civ. Chambers R. § I.
6 For more information on what to expect when participating in a Zoom Breakout Room, visit: https://support.zoom.us/hc/en-us/articles/115005769646