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Tony L. Burns v. Ofcr Kevin Barreto Ofcr Mark Simonson of the Benicia Police Dept

August 1, 2011

TONY L. BURNS, PLAINTIFF,
v.
OFCR KEVIN BARRETO OFCR MARK SIMONSON OF THE BENICIA POLICE DEPT, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

STATUS (PRETRIAL SCHEDULING) ORDER READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES THAT THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND PARTIES MUST COMPLY.*fn1 FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN ORDER OF JUDGMENT.

On July 28, 2011, this case was before the undersigned for a status (pretrial scheduling) conference. Plaintiff, who is proceeding without counsel, appeared on his own behalf. Attorney Gregg A. Thornton appeared behalf of defendants. The parties filed a joint status report in advance of the scheduling conference. Defendant, who is proceeding without counsel, appeared on his own behalf. Following the conference, and in consideration of the parties' Joint Status Conference Statement filed July 21, 2011, the court enters the following scheduling order: NATURE OF CASE

Plaintiff's Second Amended Complaint alleges claims pursuant to 42 U.S.C. § 1983, which are premised on alleged violations of plaintiff's Fourth Amendment rights, against officers Kevin Barreto and Mark Simonson of the Benicia Police Department. (See Second Am. Compl., Dkt. No. 37.) In essence, plaintiff alleges that on June 28, 2008, officers of the Benicia Police Department unlawfully searched plaintiff during a traffic stop and unlawfully used a Taser on plaintiff, all of which violated plaintiff's constitutional rights. (See id. ¶¶ 2(1)-(2).) Although plaintiff had alleged a Section 1983 claim against the Benicia Police Department in his prior complaints, plaintiff's Second Amended Complaint and representations at the scheduling conference confirm that plaintiff is no longer pursuing such a municipal liability claim. SERVICE OF PROCESS

The parties do not dispute that service of process was proper, and defendants filed an answer to plaintiff's Second Amended Complaint on June 15, 2011. (Answer, Dkt. No. 38.) JOINDER OF PARTIES/AMENDMENTS

No further joinder of parties or amendments to pleadings will be permitted except with leave of court and upon a showing of good cause.

JURISDICTION/VENUE

Jurisdiction and venue are undisputed and are hereby found to be proper. See 28 U.S.C. §§ 1331, 1343, and 1391(b).

MOTION HEARING SCHEDULES

All law and motion, except as to discovery-related matters, shall be completed by June 14, 2012. The word "completed" in this context means that all law and motion matters must be heard by the above date. Counsel (and/or pro se parties)*fn2 are cautioned to refer to the Local Rules regarding the requirements for noticing such motions on the court's regularly scheduled law and motion calendar. This paragraph does not preclude motions for continuances, temporary restraining orders or other emergency applications, and is subject to any special scheduling set forth in the "MISCELLANEOUS PROVISIONS" paragraph below.

The parties should keep in mind that the purpose of law and motion is to narrow and refine the legal issues raised by the case and to dispose of by pretrial motion those issues that are susceptible to resolution without trial. To accomplish that purpose, the parties need to identify and fully research the issues presented by the case, and then examine those issues in light of the evidence obtained through discovery. If it appears to counsel after examining the legal issues and facts that an issue can be resolved by pretrial motion, counsel are to file the appropriate motion consistent with the law and motion cutoff set forth above.

ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL MOTION. Counsel are reminded that motions in limine are procedural devices designed to address the admissibility of evidence. COUNSEL ARE CAUTIONED THAT THE COURT WILL LOOK WITH DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED UNDER THE GUISE OF MOTIONS IN LIMINE AT THE TIME OF TRIAL. DISCOVERY

To the extent that the parties have not already exchanged initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1), they shall exchange such initial disclosures on or before August 5, 2011. The parties had previously agreed upon an exchange date of July 21, 2011. Defendants' counsel represented at the scheduling conference that defendants already provided their disclosures to plaintiff. Plaintiff represented that his disclosures are forthcoming.

In their joint status report, the parties jointly requested that the number of depositions permitted in this case be increased to ten per side, and that the number of interrogatories permitted in this case be increased to fifty per side. The parties' joint request is granted.

All discovery shall be completed by April 20, 2012. The word "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 complied with. Motions to compel discovery must be noticed on the undersigned's law and motion calendar in accordance with the Local Rules and must be heard not later than April 5, 2012. The parties are reminded that ...


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