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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 1 of 9















UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

No. 2:12-CV-03056-KJM-CKD



STATUS (PRETRIAL SCHEDULING)

ORDER

CALIFORNIA FOUNDATION FOR
INDEPENDENT LIVING CENTERS, on
behalf of itself and others similarly
situated, and RUTHEE GOLDKORN, on
behalf of herself and others similarly
situated,

Plaintiffs,

v.

COUNTY OF SACRAMENTO,

Defendant.






An initial scheduling conference was held in this case on September 5, 2013.

Stuart Seaborn and Christine Chuang appeared for plaintiffs; Kelley Kern appeared for defendant.

Having reviewed the parties’ Joint Status Report filed on August 29, 2013, and discussed a

schedule for the case with counsel at the hearing, the court makes the following orders:

I.



SERVICE OF PROCESS



All named defendants have been served and no further service is permitted without

leave of court, good cause having been shown.

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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 2 of 9

II.



ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS



No further joinder of parties or amendments to pleadings is permitted without

leave of court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).

III.

JURISDICTION/VENUE





Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1343, and 1367. Jurisdiction

and venue are not disputed.

IV.

DISCOVERY





Initial disclosures as required by Federal Rule of Civil Procedure 26(a) shall be

completed by September 30, 2013. All discovery shall be completed by November 28, 2014. In

this context, “completed” means that all discovery shall have been conducted so that all

depositions have been taken and any disputes relative to discovery shall have been resolved by

appropriate order if necessary and, where discovery has been ordered, the order has been obeyed.

All motions to compel discovery must be noticed on the magistrate judge’s calendar in

accordance with the local rules of this court. While the assigned magistrate judge reviews

proposed discovery phase protective orders, requests to seal or redact are decided by Judge

Mueller as discussed in more detail below.

V.



DISCLOSURE OF EXPERT WITNESSES



All counsel are to designate in writing, file with the court, and serve upon all other

parties the name, address, and area of expertise of each expert that they propose to tender at trial

not later than December 19, 2014. The designation shall be accompanied by a written report

prepared and signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B).

By January 9, 2015, any party who previously disclosed expert witnesses may submit a

supplemental list of expert witnesses who will express an opinion on a subject covered by an

expert designated by an adverse party, if the party supplementing an expert witness designation

has not previously retained an expert to testify on that subject. The supplemental designation

shall be accompanied by a written report, which shall also comply with the conditions stated

above.






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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 3 of 9





Failure of a party to comply with the disclosure schedule as set forth above in all

likelihood will preclude that party from calling the expert witness at the time of trial. An expert

witness not appearing on the designation will not be permitted to testify unless the party offering

the witness demonstrates: (a) that the necessity for the witness could not have been reasonably

anticipated at the time the list was proffered; (b) that the court and opposing counsel were

promptly notified upon discovery of the witness; and (c) that the witness was promptly made

available for deposition.





For purposes of this scheduling order, an “expert” is any person who may be used

at trial to present evidence under Rules 702, 703 and 705 of the Federal Rules of Evidence, which

include both “percipient experts” (persons who, because of their expertise, have rendered expert

opinions in the normal course of their work duties or observations pertinent to the issues in the

case) and “retained experts” (persons specifically designated by a party to be a testifying expert

for the purposes of litigation). A party shall identify whether a disclosed expert is percipient,

retained, or both. It will be assumed that a party designating a retained expert has acquired the

express permission of the witness to be so listed. Parties designating percipient experts must state

in the designation who is responsible for arranging the deposition of such persons.





All experts designated are to be fully prepared at the time of designation to render

an informed opinion, and give the bases for their opinion, so that they will be able to give full and

complete testimony at any deposition taken by the opposing party. Experts will not be permitted

to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition

taken subsequent to designation. All expert discovery shall be completed by February 20, 2015.

VI. MOTION FOR CLASS CERTIFICATION





A class certification motion, if any, shall be filed on or before June 20, 2014. The

parties may obtain available hearing dates by calling Casey Schultz, the Courtroom Deputy, at

(916) 930-4193.

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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 4 of 9

VII. MOTION HEARING SCHEDULE





All dispositive motions, except motions for continuances, temporary restraining

orders or other emergency applications, shall be heard no later than March 27, 2015. The parties

may obtain available hearing dates by calling Casey Schultz, the Courtroom Deputy, at (916)

930-4193.





All purely legal issues are to be resolved by timely pretrial motions. Local Rule

230 governs the calendaring and procedures of civil motions; the following provisions also apply:









(a)

The opposition and reply must be filed by 4:00 p.m. on the day due; and

(b) When the last day for filing an opposition brief falls on a legal holiday, the

opposition brief shall be filed on the last court day immediately preceding the legal holiday.

Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to

the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d 651,

652-53 (9th Cir. 1994).





The court places a page limit of twenty (20) pages on all moving papers, twenty

(20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases

must be made through the courtroom deputy clerk at least fourteen (14) days prior to the filing of

the motion.





Prior to filing a motion in a case in which the parties are represented by counsel,

counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the

contemplated motion and any potential resolution. Plaintiffs’ counsel should carefully evaluate

the defendant’s contentions as to deficiencies in the complaint and in many instances the party

considering a motion should agree to any amendment that would cure a curable defect. Counsel

should discuss the issues sufficiently so that if a motion of any kind is filed, including for

summary judgment, the briefing is directed only to those substantive issues requiring resolution

by the court. Counsel should resolve minor procedural or other non-substantive matters during

the meet and confer. A notice of motion shall contain a certification by counsel filing the

motion that meet and confer efforts have been exhausted, with a brief summary of meet and

confer efforts.






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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 5 of 9





The parties are reminded that a motion in limine is a pretrial procedural device

designed to address the admissibility of evidence. The court looks with disfavor upon

dispositional motions presented at the Final Pretrial Conference or at trial in the guise of motions

in limine. Although all motions in limine must be filed in conjunction with the joint pretrial

statement, the court will hear only those motions it has identified to counsel before the hearing

date.





The parties are cautioned that failure to raise a dispositive legal issue that could

have been tendered to the court by proper pretrial motion prior to the dispositive motion cut-off

date may constitute waiver of such issue.

VIII. SEALING





No document will be sealed, nor shall a redacted document be filed, without the

prior approval of the court. If a document for which sealing or redaction is sought relates to the

record on a motion to be decided by Judge Mueller, the request to seal or redact should be

directed to her and not the assigned Magistrate Judge. All requests to seal or redact shall be

governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the

discovery phase of litigation shall not govern the filing of sealed or redacted documents on the

public docket. The court will only consider requests to seal or redact filed by the proponent of

sealing or redaction. If a party plans to make a filing that includes material an opposing party has

identified as confidential and potentially subject to sealing, the filing party shall provide the

opposing party with sufficient notice in advance of filing to allow for the seeking of an order of

sealing or redaction from the court.

IX.

FINAL PRETRIAL CONFERENCE





The Final Pretrial Conference is set for June 11, 2015, at 3:30 p.m. At least one of

the attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial

Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable to

attend, the attorney who attends in place of the trial attorney shall have equal familiarity with the

case and equal authorization to make commitments on behalf of the client.

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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 6 of 9

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Counsel for all parties are to be fully prepared for trial at the time of the Final

Pretrial Conference, with no matters remaining to be accomplished except production of

witnesses for oral testimony. The parties shall confer and file a joint pretrial conference

statement by May 21, 2015. The provisions of Local Rule 281 shall apply with respect to the

matters to be included in the joint pretrial statement. In addition to those subjects listed in Local

Rule 281(b), the parties are to provide the court with the following:





- A plain, concise statement that identifies every non-discovery motion previously

tendered to the court and its resolution.





- A concise, joint list of undisputed core facts that are relevant to each claim.

Disputed core facts should then be identified in the same manner. The parties are reminded not to

identify every fact in dispute but only those disputed facts that are essential to the formulation of

each claim. Each disputed fact and undisputed fact should be separately numbered or lettered.

Where the parties are unable to agree on the core disputed facts, they should nevertheless list core

disputed facts in the above manner.





- Concise lists of disputed evidentiary issues that will be the subject of a party’s

motion in limine.







- Each party’s points of law, which concisely describe the legal issues of the trial

which will be discussed in the parties’ respective trial briefs. Points of law should reflect issues

derived from the core undisputed and disputed facts. Parties shall not include argument or

authorities with any point of law.





- A joint statement of the case in plain concise language, which will be read to the

jury during voir dire and at the beginning of the trial. The purpose of the joint statement is to

inform the jury what the case is about.





Discovery documents to be listed in the pretrial statement shall not include

documents to be used only for impeachment and in rebuttal.





The parties are reminded that pursuant to Local Rule 281 they are required to

attach to the Final Pretrial Conference Statement an exhibit listing witnesses and exhibits they

propose to offer at trial. After the name of each witness, each party shall provide a brief






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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 7 of 9

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statement of the nature of the testimony to be proffered. The parties may file a joint list or each

party may file separate lists. These list(s) shall not be contained in the body of the Final Pretrial

Conference Statement itself, but shall be attached as separate documents to be used as addenda to

the Final Pretrial Order.





Plaintiffs’ exhibits shall be listed numerically. Defendant’s exhibits shall be listed

alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink for

plaintiffs and blue for defendant. In the event that the alphabet is exhausted, the exhibits shall be

marked “AA-ZZ”. However, if the amount of defendant’s exhibits exceeds "ZZ" exhibits shall

be then listed as A-3, A-4, A-5 etc. All multi page exhibits shall be stapled or otherwise fastened

together and each page within the exhibit shall be numbered. The list of exhibits shall not include

excerpts of depositions, which may be used to impeach witnesses. In the event that plaintiffs and

defendant offer the same exhibit during trial, that exhibit shall be referred to by the designation

the exhibit is first identified. The court cautions the parties to pay attention to this detail so that

all concerned, including the jury, will not be confused by one exhibit being identified with both a

number and a letter. The parties are encouraged to consult concerning exhibits and, to the extent

possible, provide joint exhibits, which shall be designated as JX and listed numerically, e.g., JX-

1, JX-2.





The Final Pretrial Order will contain a stringent standard for the offering at trial of

witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the

standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a

party does not intend to offer will be viewed as an abuse of the court’s processes.





Counsel shall produce all trial exhibits to Casey Schultz, the Courtroom Deputy,

no later than 3:00 p.m. on the Friday before trial.





Failure to comply with Local Rule 281, as modified by this order, may be grounds

for sanctions.





The parties also are reminded that pursuant to Rule 16 of the Federal Rules of

Civil Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the

formulation and simplification of issues and the elimination of frivolous claims or defenses; (b)






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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 8 of 9

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the settling of facts that should properly be admitted; and (c) the avoidance of unnecessary proof

and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial Conference
Statement and participate in good faith at the Final Pretrial Conference with these aims in mind.1
A failure to do so may result in the imposition of sanctions which may include monetary

sanctions, orders precluding proof, elimination of claims or defenses, or such other sanctions as

the court deems appropriate.





Concurrently with the filing of the Joint Final Pretrial Conference Statement,

counsel shall submit to chambers the word processable version of the Statement, in its entirety

(including the witness and exhibit lists) to: [email protected]

X.



TRIAL SETTING



The jury trial2 is set for August 10, 2015, at 9:00 a.m. The parties estimate a trial

length of approximately five (5) to seven (7) days. Trial briefs are due by July 27, 2015.

XI.

SETTLEMENT CONFERENCE





No settlement conference is currently scheduled. The parties anticipate exhausting

private mediation on a parallel track. A court-convened settlement conference may be set at the

time of the Final Pretrial Conference or at an earlier time at the parties’ request. In the event that

an earlier settlement conference date or referral to the Voluntary Dispute Resolution Program

(VDRP) is requested, the parties shall file said request jointly, in writing. Because the case will

be tried to a jury, all parties should be prepared to advise the court whether they will stipulate to

the trial judge acting as settlement judge and waive disqualification by virtue thereof.





Counsel are instructed to have a principal with full settlement authority present at

any Settlement Conference or to be fully authorized to settle the matter on any terms. At least


1 “If the pretrial conference discloses that no material facts are in dispute and that the undisputed
facts entitle one of the parties to judgment as a matter of law,” the court may summarily dispose
of the case or claims. Portsmouth Square v. Shareholders Protective Comm., 770 F.2d 866, 868-
69 (9th Cir. 1985).

2 While at the hearing on September 5, 2013, the parties indicated they requested a bench trial,
later in the day, defense counsel, Kelley Kern, notified the court that she misspoke and confirmed
defendant’s jury trial demand.






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Case 2:12-cv-03056-KJM-CKD Document 25 Filed 09/11/13 Page 9 of 9

seven (7) calendar days before the Settlement Conference, counsel for each party shall submit to

the chambers of the settlement judge a confidential Settlement Conference Statement. Such

statements are neither to be filed with the Clerk nor served on opposing counsel. Each party,

however, shall serve notice on all other parties that the statement has been submitted. If the

settlement judge is not the trial judge, the Settlement Conference Statement shall not be disclosed

to the trial judge.





The parties have agreed to select a mediator familiar with the issues in the case by

November of 2013.

XII. MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER





The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil

Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court

upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not

constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or

counsel does not constitute good cause.

XIII. OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER





This Status Order will become final without further order of the court unless

objections are filed within fourteen (14) calendar days of service of this Order.





IT IS SO ORDERED.

DATED: September 10, 2013.




































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