Sexton v. Mitratech Holdings, Inc.

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA JOHN SEXTON, Case No.: 23-cv-00375-W-BGS 12 Plaintiff, SCHEDULING ORDER v. REGULATING DISCOVERY AND OTHER PRE-TRIAL MITRATECH, INC., PROCEEDINGS 15 Defendant.

17 Pursuant to Rule 16.1(d) of the Local Rules, a Case Management Conference was held on June 30, 2023. After consulting with the attorneys of record for the parties and being advised of the status of the case, and good cause appearing, IT IS HEREBY ORDERED: 21 1. Any motion to join other parties, to amend the pleadings, or to file additional 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 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 shall 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. If the parties reach an impasse on any discovery issue, counsel shall follow the procedures outlined in the assigned magistrate judge’s Chambers Rules to timely raise the dispute. 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.

8 Discovery limits in the Federal Rules of Civil Procedure and Civil Local Rules, including Federal Rule of Civil Procedure 33(a)(1), Civil Local Rules 33.1.a, and 36.1.a shall apply. Absent prior leave of Court to exceed these limits, the Court will not consider any discovery dispute arising from discovery requests in excess of these limits.

12 3. The parties shall designate their respective experts in writing by November 30, 2023. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), 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 shall be by December 14, 2023. The written designations shall 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 shall also include the normal rates the expert charges for deposition and trial testimony.

20 4. By January 16, 2024, each party shall comply with the disclosure provisions in Rule 26(a)(2)(A) and (B) 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 shall 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).

1 5. Any party shall supplement its disclosure regarding contradictory or rebuttal evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 26(e) by January 29, 2024.

4 6. All expert discovery shall be completed by all parties by February 29, 2024. The parties shall comply with the same procedures set forth in the paragraph governing fact discovery.

7 7. 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.

10 8. All other pretrial motions must be filed by March 29, 2024. Counsel for the moving party must obtain a motion hearing date from the law clerk of the judge who will hear the motion. 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.

14 Failure to make a timely request for a motion date may result in the motion not being heard. Motions in limine are to be filed as directed in the Local Rules, or as otherwise set by the district judge.

17 9. A Mandatory Settlement Conference shall be conducted on June 21, 2024 at 2:00 P.M. in the chambers of Magistrate Judge Bernard G. Skomal. Counsel or any party representing himself or herself shall lodge confidential settlement briefs directly to chambers by June 7, 2024. Counsel should include in their brief the names and titles of all participants, including attorneys and client representatives, expected to participate in the conference on behalf of their client(s). The briefs must address the legal and factual issues in the case and should focus on issues most pertinent to settling the matter. Briefs do not need to be filed or served on opposing counsel. The briefs must also include any prior settlement offer or demand, as well as the offer or demand the party will make at the MSC. The Court will keep this information confidential unless the party authorizes the Court to share the information with opposing counsel. MSC briefs must be emailed to [email protected].

1 10. All parties are ordered to read and to fully comply with the Chamber Rules of the assigned magistrate judge. The MSC is scheduled to be conducted by video conference pursuant to the instructions below. However, the parties may contact Judge Skomal’s chambers to request the MSC be held in-person. All parties, adjusters for insured defendants, and client representatives must be present and have full and complete authority to enter into a binding settlement at the MSC.1 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. Parties seeking permission to be excused from attending the MSC in person must follow the procedures outlined in Judge Skomal’s Chambers’ Rules. Failure of any of the above parties to appear at the MSC without the Court’s permission will be grounds for sanctions. The principal attorneys responsible for the litigation must also be present in person and prepared to discuss all of the legal and factual issues in the case.

14 11. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of a motion or other request for ruling by the court. Accordingly, all parties are ordered to abide by the terms of Local Rule 7.1(e)(2) or otherwise face the prospect of any pretrial motion being granted as an unopposed motion pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose to file or oppose a motion for summary judgment or partial summary judgment, no Separate Statement of Disputed or Undisputed Facts is required.

1 “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 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 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 1 12. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is required to file a Memorandum of Contentions of Fact and Law at any time. The parties shall instead focus their efforts on drafting and submitting a proposed pretrial order by the time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order shall comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases issued by the assigned district judge.

7 13. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. Civ. P. 26(a)(3) by July 1, 2024. Failure to comply with these disclosure requirements 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 July 8, 2024. At this meeting, counsel shall discuss and attempt to enter into stipulations and agreements resulting in simplification of the triable issues. Counsel shall exchange copies and/or display all exhibits other than those to be used for impeachment. The exhibits shall be prepared in accordance with Local Rule 16.1(f)(4)(c). Counsel shall 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 conference order.

18 15. Counsel for plaintiff will be responsible for preparing the pretrial order and arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By July 15, 2024, plaintiff’s counsel must provide opposing counsel with the proposed pretrial order for review and approval. Opposing counsel must communicate promptly with plaintiff’s attorney concerning any objections to form or content of the pretrial order, and both 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 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and lodged with the assigned district judge by July 15, 2024, and shall be in the form prescribed in and comply with Local Rule 16.1(f)(6).

28 17. In addition to submitting the proposed final pretrial conference order, the parties are further ordered to separately submit informal letter briefs, not exceeding two single spaced pages, served on opposing counsel and received in the chambers of Judge Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s Office) by 2:30 p.m. on July 22, 2024. The letter brief should be a relatively informal and straightforward document. The letter brief should outline a short, concise and objective factual summary of the party’s case in chief, the number of hours/days each party intends to expend at trial, the approximate number of witnesses, whether certain witnesses will be coming in from out of town, the number of testifying expert witnesses, whether any unique demonstrative exhibits may be presented, the number of proposed motions in limine that may be filed, precisely when the parties would be prepared to submit their in limine papers (and whether the parties have met and conferred with respect to in limine issues), the issue of proposed jury instructions and when the parties intend to submit them before trial, and voir dire issues, either party’s preference as to what date(s) the trial should begin and any other pertinent information that either party may deem useful to assist the Court in the execution of the pretrial conference and in setting the matter for trial.

17 18. The final Pretrial Conference is scheduled on the calendar of the Honorable 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 and magistrate judge.

21 20. A post trial settlement conference before a magistrate judge may be held within 30 days of verdict in the case.

23 21. The dates and times set forth herein will not be modified except for good 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 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 and a table of authorities cited.

2 23. Plaintiff’s counsel shall serve a copy of this order on all parties that enter this case hereafter.

4 Video Conference Instructions: 5 1. The Court will use its official Zoom 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.2 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.3 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 invitation to join a Zoom video conference that they must provide to participating client(s). The Court will send the invitation to the email addresses listed for counsel in the case docket. If counsel does not receive an invitation to join the Zoom video conference by the end of the day on June 18, 2024, please email chambers at [email protected]. Again, if possible, participants are encouraged to use laptops or desktop computers for 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.

26 2 If possible, participants are encouraged to use laptops or desktop computers for the video conference, rather than mobile devices.

3 For help getting started with Zoom, visit: https://support.zoom.us/hc/en-us/categories/200101697.

1 ||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 3. Each participant should plan to join the Zoom video conference at least five ||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 || ordinarily would conduct an in-person MSC. The Court may divide participants into || 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 ||confidence. Breakout Rooms will also allow parties and counsel to communicate || 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 ||1in person, i.e., cannot be driving while speaking to the Court. Because Zoom may quickly || deplete the battery of a participant’s device, each participant should ensure that their || device is plugged in or that a charging cable is readily available during the video || conference.

18 IT IS SO ORDERED.

19 Dated: July 6, 2023 7 2 p / / 20 on. Bernard G. Skomal 21 United States Magistrate Judge 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