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Tater-Alexander v. Amerjan


June 8, 2009


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

Discovery Cut-Off: 10/11/10 Non-Dispositive Motion Filing Deadline: 10/15/10 Dispositive Motion Filing in Deadline: 11/1/10 Settlement Conference Date: 10/20/10 10:00 Ctrm. 7 Pre-Trial Conference Date: 1/3/11 11:00 Ctrm. 3 Trial Date: 2/15/11 9:00 Ctrm. 3 (JT-15 days)


I. Date of Scheduling Conference

June 5, 2009.

II. Appearances Of Counsel

III. Summary of Pleadings

1. On or about March 17, 2007 at approximately 8:00 p.m., Mr. Alexander sought emergency medical examination and treatment at Community Regional for severe abdominal pain, a loss of appetite, and an inability to drink liquids.

2. Mr. Alexander was initially seen by Dr. Mansfield and Nurse Greene, who asked him to undress and put a hospital gown on for examination before treatment could commence.

3. At that time, Mr. Alexander told Dr. Mansfield and Nurse Greene that he suffered from a disorder that caused him to suffer severe pain when he is exposed to cold temperatures and asked that they allow him to keep his clothes on during the emergency room examination. Dr. Mansfield and Nurse Greene refused to perform an examination unless plaintiff submitted to their demands.

4. Plaintiff informed Dr. Mansfield and Nurse Greene of his disorder and the accommodating treatment he had been provided on several prior occasions. He further informed defendants that the previous treatment had been provided without the need to remove his clothes and expose him to severe pain from the cold. Despite giving a detailed history of his injuries and requesting specific medical treatment and care, plaintiff was denied adequate and competent medical treatment and care.

5. Notwithstanding the plaintiff's explanation or the information readily available in Community Regional records, Dr. Mansfield and Nurse Greene continued to refuse to perform an adequate and professional screening examination or treat Mr. Alexander, including but not limited to, taking vital signs, drawing blood, administering an IV and pain medication, and performing a CT scan. They stated that they would only perform such examination if he undressed and put on a hospital gown.

6. To protest the refusal of emergency medical examination and treatment, Mr. Alexander requested a patient's advocate. Defendants refused to honor his request.

7. Instead, Community Regional called the Clovis Police to confront Mr. Alexander in the emergency exam room. Said defendants knew that a delay in his treatment would cause prolonged pain and suffering and cause further medical damage. As such, defendants' attempt to have the police remove Mr. Alexander was done with conscious disregard for the known risks and prolonged discomfort.

8. Officer Stirling arrived sometime between approximately 9:00 p.m. and 10:30 p.m. Mr. Alexander was lying down on a hospital bed at the time. Upon her arrival, she inquired as to why plaintiff was not putting on a gown. Mr. Alexander told Officer Stirling that he had a "medical condition" (so as to maintain his privacy). He further stated that his medical condition caused him to suffer extreme pain to exposure to cold that prevented him from undressing and putting on a hospital gown.

9. Officer Stirling urged Mr. Alexander to disclose his condition and waive his right to privacy in the presence of Nurse Greene and Corporal Amerjan, who stepped from behind a curtain he was hiding behind during this conversation. Mr. Alexander specifically told them that he would not waive his right to physician-patient confidentiality or other privacy rights.

10. As Corporal Amerjan appeared from behind the curtain, he told Mr. Alexander, "We know who you are Mr. Alexander...Mr. Jacoby & Meyers [a well-known plaintiffs' law firm]," implying that Mr. Alexander was "notorious" for exercising his rights.

11. Mr. Alexander then asked the officers why they were in the emergency exam room area. Corporal Amerjan responded that they had received a report of an "uncooperative patient" from Community Regional.

12. Mr. Alexander was surprised at the characterization as he had never done anything more than refuse to undress and put on a hospital gown due to his disorder.

13. The officers and Nurse Greene left the room and talked in the hallway. When they came back in the room, Corporal Amerjan ordered Mr. Alexander to immediately leave because Community Regional did not want to treat him.

14. Corporal Amerjan approached Mr. Alexander, reaching for his right arm and said "Let's go" at which point Mr. Alexander did not feel free to go about his business. Corporal Amerjan limited Mr. Alexander's freedom by saying he had to: (1) call a taxicab so that he could seek treatment at another medical facility; (2) be driven in a patrol car to another medical facility; (3) call someone to pick him up; or (4) be escorted to his personal vehicle. Further, Corporal Amerjan and Officer Stirling did not allow Mr. Alexander to walk around the emergency room despite his request to do so as a means of easing his pain.

15. Mr. Alexander, suffering from excruciating abdominal pain and dehydration during this entire ordeal which had by now lasted several hours, refused to leave and again asked to be examined and treated by Community Regional.

16. Plaintiff told the officers they were unlawfully interfering with his ability to secure emergency medical treatment. Mr. Alexander then told the officers to either arrest him formally or leave him alone to seek emergency medical treatment from Community Regional. Corporal Amerjan stated that he recognized that this was a civil matter between Community Regional and Mr. Alexander.

17. Mr. Alexander asked the officers to leave and requested medical treatment and a patient's advocate. They again refused. Plaintiff further requested that the officers take a report from him regarding Community Regional's conduct and refusal to treat him. But the officers refused to take a report or complaint from Mr. Alexander. The officers eventually left.

18. After the officers left, Community Regional, by and through Dr. Mansfield and Nurse Greene, continued to refuse treatment unless Mr. Alexander undressed and put on a hospital gown. The House Supervisor Katherine K. Eventually administered an IV and drew blood for testing.

19. However, it was not until approximately 6:00 a.m. the next day (March 18, 2007) when Dr. Gurchuran Singh arrived that Community Regional finally examined and treated Mr. Alexander. Dr. Singh provided pain medication through Mr. Alexander's left hand without requiring him to undress and put on a gown and eventually drained the pancreatic pseudocyst.

20. Approximately 12 hours after Mr. Alexander first arrived at Community Regional in severe pain, it was determined that he had an acute pancreatic pseudocyst and truly suffered from severe abdominal pain. 500cc (16 oz.) of fluid was drained from the pancreatic pseudocyst and Mr. Alexander was hospitalized for several days.

21. Unfortunately this treatment came too late. His pancreas went into complete failure and ultimately caused diabetes from fluid pressure on the pancreas due to the prolonged denial of treatment by Community Regional and Nurse Greene and the complete refusal of treatment by Dr. Mansfield.

Principal Legal Issues

22. Whether Community Regional violated the Emergency Medical Treatment and Active Labor Act ("EMTALA") by refusing examination and treatment to Mr. Alexander solely because his medical disability prevented him from putting on a hospital gown without enduring extreme pain and discomfort from the cold.

23. Whether Community Regional violated the Americans with Disabilities Act ("ADA") by refusing to accommodate Mr. Alexander's medical condition and providing medical examination and treatment while he remained in his own clothes, as it had done on prior occasions.

24. Whether Clovis and its police officers violated Mr. Alexander's First, Fourth, Eighth, and Fourteenth Amendment rights by committing the acts alleged above.

25. Whether each defendant violated Mr. Alexander's right to equal access to public accommodations under the California Unruh Civil Rights Act by refusing and interfering with his ability to seek medical examination and treatment.

26. Whether each defendant violated Mr. Alexander's right to seek medical treatment under the California Disabled Persons Act based on his medical disability and condition.

27. Whether Community Regional, Dr. Mansfield, and Nurse Greene committed medical malpractice by refusing medical examination and treatment to Mr. Alexander because his disability prevented him from wearing a hospital gown without enduring extreme pain and discomfort from the cold.

28. Whether Clovis and its police officers falsely arrested Mr. Alexander when they restricted his movement at Community Regional.

29. Whether Corporal Amerjan assaulted Mr. Alexander when they grasped his bed and told him "let's go" to get him to leave Community Regional.

30. Whether each defendant intentionally inflicted emotional distress on Mr. Alexander by refusing or interfering with his ability to seek medical examination and treatment despite knowing (or reasonably should have known) he could not wear a hospital gown without suffering extreme pain and discomfort from the cold due to his medical disability.

31. Whether Clovis and its police officers violated the California Ban Act by preventing Mr. Alexander from seeking medical treatment, and committing other civil rights violations, under threat of force or coercion.

Clovis Parties' Statement

32. Defendants City of Clovis, Lonnie Amerjan, and Tina Stirling deny they violated any of Plaintiff's rights protected by state or federal law. These Defendants contend that at approximately 10:33 p.m. on March 17, 2007, Corporal Amerjan and Officer Stirling responded to Clovis Community Hospital after receiving a call for service. The officers spoke with Mr. Alexander and left the hospital at approximately 11:23 p.m.

33. Defendants City of Clovis, Lonnie Amerjan, and Tina Stirling contend they did not cause any violation of plaintiff's rights under federal or state law and their conduct was objectively reasonable. Defendants contend that there is no basis for liability against the City of Clovis. Further, the individual defendants are entitled to qualified immunity.

Fresno Community Hospital's Statement

34. Defendants Fresno Community Hospital and Medical Center, dba Community Regional Medical Center, and Marilyn Jo Greene, R.N., deny they violated any of plaintiff's rights protected by Federal or State law. These defendants contend that the evening of March 17, 2007, the plaintiff came to Clovis Community Hospital, a facility operated by Defendant Fresno Community Hospital and Medical Center, complaining of abdominal pain. He refused to remove his clothing and put on a hospital gown so he could be properly examined, and became angry, started raising his voice, and causing a disturbance. When he would not discontinue that conduct, the Clovis Police were called.

35. Defendants contend they did not violate any of plaintiff's rights under Federal or State law and that their conduct was appropriate under the circumstances. In addition to denying any wrongdoing, defendants allege the following defenses:

a. Contributory negligence.

b. Defendants are entitled to the limitations contained in California Civil Code §§ 3333.1 and 3333.2, and California Code of Civil Procedure § 667.7.

c. Assumption of risk.

d. Failure to mitigate damages.

e. Comparative negligence.

f. The liability of these defendants may be limited by reason of California Civil Code § 1431.2.

g. Defendants' conduct may be privileged pursuant to California Civil Code §§ 56.10 and 56.1007, and damages may be limited pursuant to California Civil Code § 56.35.

h. Disclosures regarding plaintiff's medical condition, if there were any, are privileged under California Civil Code § 47 and the litigation privilege.

i. Plaintiff's complaint fails to state a cause of action for false imprisonment as to these answering defendants.

j. Plaintiff's claim for violation of EMTALA is barred against Ms. Greene as EMTALA does not provide for a cause of action against an individual.

Dr. Mansfield's Summary

36. Dr. Mansfield denies each and every allegation of the Third Amended Complaint and further disputes the "facts" as described by Plaintiff above.

37. Dr. Mansfield, through California Emergency Medical Associates, was an independent contractor providing Emergency Medical care to the patients that arrived at the Emergency Department of Clovis Community Hospital.

38. Plaintiff was initially triaged by the nurses at the hospital at approximately 7:02 p.m. with complaints of diffused upper abdominal pain for the past week with occasional episodes of nausea and vomiting and black, tarry stools for the past three days. He was describing very significant abdominal pain with a past history of pancreatitis.

39. Dr. Mansfield's records indicate that he first saw plaintiff on March 17, 2007, at approximately 9:55 p.m. At that time, the notes of Nurse Greene indicated that Plaintiff refused to change into a hospital gown and refused a physical assessment. During Dr. Mansfield's physical examination of Plaintiff, it was noted that he was in no acute distress but with reports of pain. Dr. Mansfield also noted that Plaintiff refused to have treatment, refused to take off his t-shirt for the IV, was argumentative, was litigious, had a prior history of similar behavior at the hospital, and a history of leaving against medical advice. Plaintiff made no mention to Dr. Mansfield of any "disorder" that would have limited his functioning or ability to change into a gown.

40. Because Dr. Mansfield was not able to complete his physical examination of Plaintiff and properly work him up, it was suggested that he be sent home because of his unwillingness to cooperate with the nurses and doctor's instructions and his ultimate refusal of medical treatment. At approximately 10:15 p.m., Dr. Mansfield wrote some provisional orders for Plaintiff's care indicating that if he would remove his shirt and pants, then put on a hospital gown, that they could start an IV with normal saline and medications. If not, then he was to be discharged from the hospital with a prescription for Protonix to treat his complained of condition.

41. Dr. Mansfield noted at 10:24 p.m. that Plaintiff was becoming more belligerent and that hospital security was with the patient. Plaintiff continued to refuse to comply with the removal of his shirt for the IV and CT scan.

42. One or more officers from the Clovis Police Department arrived at the scene. An officer did talk to Plaintiff and tried to assist in resolving this problem. Apparently after talking to the hospital's house supervisor and individuals from the Clovis Police Department (at around 10:30 p.m.), Plaintiff decided to undergo the recommended treatment. Thus, Dr. Mansfield, at 11:48 p.m., cancelled the earlier provisional orders and rewrote orders because Plaintiff was now going to cooperate with the suggested treatment plan. These orders included normal saline, Protonix, and a urine drug screen. Dr. Mansfield also ordered a CT scan of Plaintiff's abdomen.

43. At 12:10 a.m. (now on March 18), Nurse Greene noted that Plaintiff was refusing to drink the CT contrast because of his nausea. In addition, later entries reflect that Plaintiff was refusing to cooperate with the CT technician.

44. Nonetheless, by 5:26 a.m. on March 18, Plaintiff underwent a CT scan of his abdomen/pelvis due to his abdominal pain. The findings showed a 3 cm lesion in the left hepatic lobe, possible hemangioma, 9 x 13 cm cystic lesion inferior to the stomach and pancreas, pseudocyst versus other pancreatic lesion.

45. Because of the pseudocyst, Dr. Mansfield thought that Plaintiff needed to be admitted into the hospital so he could undergo appropriate treatment which would likely be a CT guided pseudocyst drainage. At approximately 6:00 a.m., Dr. Gurcharan Sidhu (who is not a party to this litigation) was paged by Dr. Mansfield, called into the Emergency Department, and ultimately agreed to admit the patient to the medical floor. This effectively ended the involvement Dr. Mansfield had with Plaintiff.

46. Dr. Sidhu noted that Plaintiff was found to have acute pancreatic with pseudocysts by the Emergency Room physician, thereby necessitating a hospitalization. Dr. Sidhu felt that Plaintiff needed IV fluids, pain control with medication, and to have a pseudocyst drainage. While in the hospital, an interventional radiologist put a catheter into the psuedocyst for drainage. Ultimately, on March 20, 2007, plaintiff was discharged from the hospital.

47. The professional services and treatment provided to Plaintiff by Dr. Mansfield at all times met the applicable standard of care and was not a cause of harm or damage to Plaintiff.

48. Dr. Mansfield will defer to the various other Defendants to provide the Court with their respective versions/ positions of the factual scenario involved in this case.

49. In addition, did the conduct of Dr. Mansfield cause Plaintiff to sustain any damage or harm?

IV. Orders Re Amendments To Pleadings

1. Plaintiffs anticipate amending the complaint to identify Doe Defendants as their true names and capacities are ascertained through discovery.

2. If the Plaintiff seeks to identify Does as individuals, rather than entities, a Rule 15 motion may be made.

3. The Clovis Parties do not anticipate amending pleadings, except as may be required by any amendment by Plaintiff.

4. Dr. Mansfield does not anticipate amendments except in response to any amendments by Plaintiff.

5. Fresno Community does not anticipate amendments except in response to any amendments by Plaintiff.

V. Factual Summary

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings

1. Plaintiff is a resident of the Eastern District of California, Fresno Division, and a citizen of the United States.

2. Plaintiff has been treated as a patient at one or more hospitals owned and/or operated by Fresno Community Hospital and Medical Center. The specifics will be disclosed at the time that medical records for Plaintiff are produced as part of Rule 26 disclosures by the Hospital.

3. The circumstances underlying the complaint commenced when Plaintiff presented at the Clovis Community Hospital Emergency Room on March 17, 2007.

4. Fresno Community Hospital and Medical Center is a non-profit corporation incorporated under the laws of the State of California and licensed to do business in the State of California with all licenses required to operate as a hospital.

5. Corporal Lonnie R. Amerjan was at all times a duly acting and authorized police officer for the City of Clovis.

6. Tina Stirling was at all times a duly acting and authorized Police Officer for the City of Clovis.

7. Defendant Lonnie Amerjan was at all times acting within the course and scope of his employment as a police officer of the City of Clovis, and under color of law.

8. Tina Stirling was at all times acting within the course and scope of her employment as a police officer for the City of Clovis and under color of law.

9. On or about March 17 and 18, 2007, at the time Plaintiff presented for treatment at Clovis Community Hospital, Marilyn Jo Greene, R.N., was acting in the capacity of a nurse.

B. Contested Facts

1. Whether Plaintiff is disabled within the meaning of the Americans With Disabilities Act.

2. The nature and extent of any disability Plaintiff presented with at Community Hospital at the time of the incident.

3. The nature of the conditions when Plaintiff presented at the emergency room on March 17, 2007.

4. Whether Plaintiff was indigent at the time of any events applicable to this case.

VI. Legal Issues

A. Uncontested

1. Jurisdiction exists under 28 U.S.C. §§ 1331 and 1367 as the supplemental jurisdiction of the Court is invoked.

2. Venue is proper under 28 U.S.C. §§ 1391 et seq.

3. The parties agree that the substantive law of the State of California provides the rule of decision.

4. Plaintiff reserves the right, once the agreement concerning Plaintiff's treatment and care have been reviewed, to amend the choice of law designation.

B. Contested

1. All remaining legal issues are contested.

VII. Consent to Magistrate Judge Jurisdiction.

1. The parties have not consented to transfer the case to the Magistrate Judge for all purposes, including trial.

VIII. Corporate Identification Statement

1. Any non-governmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.

IX. Discovery Plan and Cut-Off Date

1. The parties agree that for percipient witnesses, the time limits for hours of depositions shall be extended without a limit as to time.

2. Each party shall be entitled to propound up to 75 interrogatories. Each party shall be entitled to propound up to 50 requests for admissions.

3. The parties agree to suspend discovery limitations provided by the Federal Rules of Civil Procedure and shall proceed to conduct discovery in good faith. The parties are invited to contact the Court to request a discovery conference in the event differences over discovery ensue.

4. The parties have not undertaken any discovery to date. The scope of anticipated discovery is to be framed by the allegations in the pleadings. At this time, there are no proposed revisions or modifications to the rules of discovery. The parties jointly propose the following discovery plan pursuant to Fed. R. Civ. P. 26(f):

Discovery will be needed on the following subjects:

5. Medical basis for refusing to examine and treat Mr. Alexander.

6. Why police were contacted.

7. Communications between police and medical personnel.

8. Factual basis for police action against Mr. Alexander.

9. Medical and police reports related to this and/or prior similar incidents at Community Regional.

10. Opinions of experts concerning the failure and loss of use of Mr. Alexander's pancreas and resulting onset of diabetes.

Electronically stored information should be produced as follows:

12. All electronically stored information relevant to this action and the events giving rise to this action must be preserved by the parties and disclosed. Further, the parties should advise each other of any negative consequences associated with the destruction of such evidence, including but not limited to the overwriting or deleting of electronic files. Thompson Co. v. General Nutrition Corp., 593 F.Supp. 1443, 1455 (C.D. Cal. 1984); Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. March 1, 2005); In re Texlon Corp. Sec. Litig., 2004 WL 3192792 (ND Ohio, July 2, 2004).

13. For purposes of this statement, "electronically stored information" includes, but is not limited to, the following:

a. Text files (including word processing files and file fragments);

b. Spreadsheets;

c. Electronic mail (including message contents, attachments, header information, logs of e-mail system usage, and "deleted" files);

d. Data in the information management system, containing the indexes of all databases;

e. The databases themselves, including all records and instructional information in them;

f. Logs of activity on any computer system that may have process or stored electronic data containing litigation information;

g. Data created by financial accounting, billing and spreadsheet programs;

h. Files and file fragments from electronic calendars and scheduling programs;

i. Internet history files and preferences;

j. Graphical files in .gif, .jpg, or .tif format;

k. All file fragments and backup files containing electronic data;

l. Telephone logs; and

m. All other electronic data containing information about or relevant to the litigation.

14. Any pertinent information stored online - whether stored in direct access storage devices attached to a mainframe or microcomputer hard drive, personal computers or laptops - must be preserved. If any files must be altered for any reason, a true and correct copy of each data file pertinent to the litigation must be made, and the copy should be preserved and made accessible.

15. Any activity that could result in the loss of the relevant "offline" data or removal data storage - such as backups and archives or other disaster recovery systems, servers, floppy disks, zip drives and zip files, optical discs, tapes, compact discs or diskettes, laptops, handheld devices, disconnected hard drives, and other removal electronic media - must be halted. This includes rotation, destruction, over-writing, or erasure of such media, including the disposal of any electronic data storage devices or media that has failed or had to be replaced for other reasons.

16. Relevant information contained on any fixed hard drives of stand alone personal computers and network work stations must not be altered or erased. Procedure such as data compression, disc de-fragmentation, or optimization routines must not be performed without first creating and preserving true and correct copies of active files. Also, true and correct copies of completely restored versions of deleted electronic files and file fragments, as well as directory and subsidiary lists, including hidden files, must be created and maintained.

17. Copies of all applications and utilities that process pertinent information must be preserved and retained.

18. Passwords, decryption procedures, including accompanying software, network access codes, i.e., names, manuals, tutorials, written instructions and decompression or reconstruction software must be preserved.

19. Any modifications made by employees or third parties to any electronic data processing systems that may affect the system's capacity to process data relevant to the instant litigation should be logged and made available.

20. All relevant hardware must be preserved and not disposed of unless a true and correct copy of all files, i.e. "a mirror image," is first created and preserved.

21. With regard to any electronic data created after receipt of this letter that might be relevant to this litigation, proper steps must be taken to avoid destroying or altering such potentially relevant evidence, including following the above procedures.

22. A copy of this statement should be provided to all individuals or organizations that are responsible for any of the procedures described above.

23. Initial disclosures shall be made on or before July 6, 2009. Fresno Community Hospital & Medical Center and all related hospitals are ordered to produce such records as it can locate for the treatment of the Plaintiff on the incident in dispute and prior treatments of the Plaintiff.

24. The parties are ordered to complete all discovery on or before October 11, 2010.

25. The parties are directed to disclose all expert witnesses, in writing, on or before July 1, 2010. Any rebuttal or supplemental expert disclosures will be made on or before August 10, 2010. The parties will comply with the provisions of Federal Rule of Civil Procedure 26(a)(2) regarding their expert designations. Local Rule 16-240(a) notwithstanding, the written designation of experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all information required thereunder. Failure to designate experts in compliance with this order may result in the Court excluding the testimony or other evidence offered through such experts that are not disclosed pursuant to this order.

26. The provisions of F. R. Civ. P. 26(b)(4) shall apply to all discovery relating to experts and their opinions. Experts may be fully prepared to be examined on all subjects and opinions included in the designation. Failure to comply will result in the imposition of sanctions.

X. Pre-Trial Motion Schedule

1. All Non-Dispositive Pre-Trial Motions, including any discovery motions, will be filed on or before October 15, 2010, and heard on November 19, 2010, at 9:00 a.m. before Magistrate Judge Sandra M. Snyder in Courtroom 7.

2. In scheduling such motions, the Magistrate Judge may grant applications for an order shortening time pursuant to Local Rule 142(d). However, if counsel does not obtain an order shortening time, the notice of motion must comply with Local Rule 251.

3. All Dispositive Pre-Trial Motions are to be filed no later than November 1, 2010, and will be heard on December 6, 2010, at 10:00 a.m. before the Honorable Oliver W. Wanger, United States District Judge, in Courtroom 3, 7th Floor. In scheduling such motions, counsel shall comply with Local Rule 230.

XI. Pre-Trial Conference Date

1. January 3, 2011, at 11:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.

2. The parties are ordered to file a Joint Pre-Trial Statement pursuant to Local Rule 281(a)(2).

3. Counsel's attention is directed to Rules 281 and 282 of the Local Rules of Practice for the Eastern District of California, as to the obligations of counsel in preparing for the pre-trial conference. The Court will insist upon strict compliance with those rules.

XII. Motions - Hard Copy

1. The parties shall submit one (1) courtesy paper copy to the Court of any motions filed that exceed ten pages and any motions that have exhibits attached. Exhibits shall be marked with protruding numbered or lettered tabs so that the Court can easily identify such exhibits.

XIII. Trial Date

1. February 15, 2011, at the hour of 9:00 a.m. in Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger, United States District Judge.

2. This is a jury trial.

3. Counsels' Estimate Of Trial Time:

a. 15 days.

4. Counsels' attention is directed to Local Rules of Practice for the Eastern District of California, Rule 285.

XIV. Settlement Conference

1. A Settlement Conference is scheduled for October 20, 2010, at 10:00 a.m. in Courtroom 7 before the Honorable Sandra M. Snyder , United States Magistrate Judge.

2. Unless otherwise permitted in advance by the Court, the attorneys who will try the case shall appear at the Settlement Conference with the parties and the person or persons having full authority to negotiate and settle the case on any terms at the conference.

3. Permission for a party [not attorney] to attend by telephone may be granted upon request, by letter, with a copy to the other parties, if the party [not attorney] lives and works outside the Eastern District of California, and attendance in person would constitute a hardship. If telephone attendance is allowed, the party must be immediately available throughout the conference until excused regardless of time zone differences. Any other special arrangements desired in cases where settlement authority rests with a governing body, shall also be proposed in advance by letter copied to all other parties.

4. Confidential Settlement Conference Statement.

At least five (5) days prior to the Settlement Conference the parties shall submit, directly to the Magistrate Judge's chambers, a confidential settlement conference statement. The statement should not be filed with the Clerk of the Court nor served on any other party. Each statement shall be clearly marked "confidential" with the date and time of the Settlement Conference indicated prominently thereon. Counsel are urged to request the return of their statements if settlement is not achieved and if such a request is not made the Court will dispose of the statement.

5. The Confidential Settlement Conference Statement shall include the following:

a. A brief statement of the facts of the case.

b. A brief statement of the claims and defenses, i.e., statutory or other grounds upon which the claims are founded; a forthright evaluation of the parties' likelihood of prevailing on the claims and defenses; and a description of the major issues in dispute.

c. A summary of the proceedings to date.

d. An estimate of the cost and time to be expended for further discovery, pre-trial and trial.

e. The relief sought.

f. The parties' position on settlement, including present demands and offers and a history of past settlement discussions, offers and demands.

XV. Request For Bifurcation, Appointment Of Special Master, Or Other Techniques To Shorten Trial

1. None.

XVI. Related Matters Pending

1. There are no related matters.

XVII. Compliance With Federal Procedure

1. The Court requires compliance with the Federal Rules of Civil Procedure and the Local Rules of Practice for the Eastern District of California. To aid the court in the efficient administration of this case, all counsel are directed to familiarize themselves with the Federal Rules of Civil Procedure and the Local Rules of Practice of the Eastern District of California, and keep abreast of any amendments thereto.

XVIII. Effect Of This Order

1. The foregoing order represents the best estimate of the court and counsel as to the agenda most suitable to bring this case to resolution. The trial date reserved is specifically reserved for this case. If the parties determine at any time that the schedule outlined in this order cannot be met, counsel are ordered to notify the court immediately of that fact so that adjustments may be made, either by stipulation or by subsequent scheduling conference.

2. Stipulations extending the deadlines contained herein will not be considered unless they are accompanied by affidavits or declarations, and where appropriate attached exhibits, which establish good cause for granting the relief requested.

3. Failure to comply with this order may result in the imposition of sanctions.



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