IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 23, 2009
ROGER ARDEN ELSETH; PATRICIA ANN ELSETH; AND, ALLEN ELSETH BY HIS GUARDIAN AD LITEM ROGER ARDEN ELSETH AND PATRICIA ANN STATUS (PRETRIAL SCHEDULING) ELSETH, PLAINTIFFS,
VERNON SPEIRS, CHIEF PROBATION OFFICER OF THE COUNTY OF SACRAMENTO; SHERIFF OF THE COUNTY OF SACRAMENTO; DAVID GORDON, SUPERINTENDENT, SACRAMENTO COUNTY DEPARTMENT OF EDUCATION; DEPUTY SHERIFF TAM; DEPUTY SHERIFF ALLENGUIRY; DR. SAXTON, M.D.;*FN1 DEFENDANTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
The status (pretrial scheduling) conference scheduled for March 30, 2009, is vacated since the parties' Joint Status Report ("JSR") indicates that the following Order should issue.
DISMISSAL OF DOE DEFENDANTS
Since Plaintiffs have not justified Doe defendants remaining in this action, Does J1 to J20, Does E1 to E20, and Does M1 to M5 are dismissed. See Order Setting Status (Pretrial Scheduling) Conference filed December 1, 2008, at 2 n.2 (indicating that if Plaintiff or Plaintiffs fail to set forth in the JSR a date and specific information by when the identities of any "Doe" defendants are expected to be discovered, any claim against such Doe defendants would be deemed abandoned and a dismissal order would follow).
SERVICE, JOINDER OF ADDITIONAL PARTIES, AMENDMENT
No further service, joinder of parties or amendments to pleadings is permitted, except with leave of Court, good cause having been shown.
All discovery shall be completed by January 22, 2010. 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 orders, if necessary, and, where discovery has been ordered, the order has been complied with or, alternatively, the time allowed for such compliance shall have expired.*fn2
Each party shall comply with Federal Rule of Civil Procedure 26(a)(2)'s expert witness disclosure requirements on or before August 21, 2009, and with any rebuttal expert disclosure authorized under the Rule on or before September 21, 2009.
MOTION HEARING SCHEDULE
The last hearing date for motions shall be March 22, 2010, at 9:00 a.m.*fn3
Motions shall be filed in accordance with Local Rule 78-230(b). Opposition papers shall be filed in accordance with Local Rule 78-230(c). Failure to comply with this local rule 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). Further, failure to timely oppose a summary judgment motion may result in the granting of that motion if the movant shifts the burden to the non-movant to demonstrate a genuine issue of material fact remains for trial. Cf. Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995).
Absent highly unusual circumstances, reconsideration of a motion is appropriate only where:
(1) The Court is presented with newly discovered evidence that could not reasonably have been discovered prior to the filing of the party's motion or opposition papers;
(2) The Court committed clear error or the initial decision was manifestly unjust; or
(3) There is an intervening change in controlling law.
A motion for reconsideration based on newly discovered evidence shall set forth, in detail, the reason why said evidence could not reasonably have been discovered prior to the filing of the party's motion or opposition papers. Motions for reconsideration shall comply with Local Rule 78-230(k) in all other respects.
The parties are cautioned that an untimely motion characterized as a motion in limine may be summarily denied. A motion in limine addresses the admissibility of evidence.
FINAL PRETRIAL CONFERENCE
The final pretrial conference is set for May 17, 2010, at 1:00 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.*fn4
The joint pretrial statement shall specify the issues for trial and shall estimate the length of the trial.*fn5 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: firstname.lastname@example.org.
Trial is set for August 31, 2010, commencing at 9:00 a.m.
The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b), the Status (Pretrial Scheduling) Order shall not be modified except by leave of Court upon a showing of good cause. Counsel are cautioned that a mere stipulation by itself to change dates does not constitute good cause.
IT IS SO ORDERED.