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Abdulla v. Gonzalez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 12, 2008

MOHAMED NEZAR ALI ABDULLA, PLAINTIFF,
v.
EMILIO T. GONZALEZ, IN HIS OFFICIAL CAPACITY AS DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; ROSEMARY MELVILLE, DISTRICT DIRECTOR, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, DEPARTMENT OF HOMELAND SECURITY; ROBIN BARRETT, UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, IN HER OFFICIAL CAPACITY AS SAN FRANCISCO FIELD OFFICE DIRECTOR, DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

SCHEDULING ORDER

The status (pretrial scheduling) conference scheduled for September 15, 2008, is vacated since the parties' proposed schedule, filed on August 29, 2008, is adopted and augmented as follows.*fn1

(1) Defendants shall file the administrative record on or before November 3, 2008;

(2) Cross-motions for summary judgment shall be filed on or before March 2, 2009;

(3) Opposition briefs shall be filed on or before March 23, 2009;

(4) Reply briefs shall be filed on or before April 20, 2009;

(5) Hearing on cross-motions for summary judgment is scheduled to commence at 9:00 a.m. for April 20, 2009.

FINAL PRETRIAL CONFERENCE

The final pretrial conference is set for July 13, 2009, at 2:30 p.m. The parties are cautioned that the lead attorney who WILL TRY THE CASE for each party shall attend the final pretrial conference. In addition, all persons representing themselves and appearing in propria persona must attend the pretrial conference.

The parties are warned that non-trial worthy issues could be eliminated sua sponte "[i]f 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." Portsmouth Square v. S'holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985).

The parties shall file a JOINT pretrial statement no later than seven (7) calendar days prior to the final pretrial conference.*fn2 The joint pretrial statement shall specify the issues for trial and shall estimate the length of the trial. The Court uses the parties' joint pretrial statement to prepare its final pretrial order and could issue the final pretrial order without holding the scheduled final pretrial conference. See Mizwicki v. Helwig, 196 F.3d 828, 833 (7th Cir. 1999) ("There is no requirement that the court hold a pretrial conference."). The final pretrial order supersedes the pleadings and controls the facts and issues which may be presented at trial. Issues asserted in pleadings which are not preserved for trial in the final pretrial order cannot be raised at trial. Hotel Emp., et al. Health Tr. v. Elks Lodge 1450, 827 F.2d 1324, 1329 (9th Cir. 1987) ("Issues not preserved in the pretrial order are eliminated from the action."); Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550, 554 (5th Cir. 1992) (indicating that an issue omitted from the pretrial order is waived, even if it appeared in the pleading); cf. Raney v. Dist. of Columbia, 892 F. Supp. 283 (D.D.C. 1995) (refusing to modify the pretrial order to allow assertion of a previously-pled statute of limitations defense); Olympia Co. v. Celotex Corp., 597 F. Supp. 285, 289 (E.D. La. 1984) (indicating that "[a]ny factual contention, legal contention, any claim for relief or defense in whole or in part, or affirmative matter not set forth in [the pretrial statement] shall be deemed . . . withdrawn, notwithstanding the contentions of any pleadings or other papers previously filed [in the action]").

If possible, at the time of filing the joint pretrial statement counsel shall also email it in a format compatible with WordPerfect to: geborders@caed.uscourts.gov.

TRIAL SETTING A bench trial is set for October 6, 2009, commencing at 9:00 a.m.

IT IS SO ORDERED.


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