IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 20, 2011
SCOTT N. JOHNSON, PLAINTIFF,
SHADI RAM, INDIVIDUALLY AND D/B/A ONE STOP MART; AVTAR CHAMBER, INDIVIDUALLY AND D/B/A ONE STOP MART; RAM MARKETS, INC., A CALIFORNIA CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and 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 October 20, 2011, this case was before the undersigned for a status (pretrial scheduling) conference. Plaintiff Scott N. Johnson, an attorney, appeared at the conference and represented himself. Defendants Shadi Ram and Avtar Chamber appeared at the conference, along with non-defendant and non-attorney Sunil Chamber, who is Mr. Ram's son and Avtar Chamber's brother. No appearance was entered on behalf of defendant Ram Markets, Inc. Although Shadi Ram, Avtar Chamber, and Sunil Chamber represented that they are the officers of Ram Markets, Inc., a corporation may only appear in federal court through a licensed attorney. See E. Dist. Local Rule 183(a) ("A corporation or other entity may appear only by an attorney."); accord United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curiam) (stating that "[a] corporation may appear in federal court only through licensed counsel").
Based on the parties' respective status reports and representations at the scheduling conference, the undersigned enters the following order:
NATURE OF CASE
Plaintiff's complaint, filed on May 16, 2011, seeks preliminary and permanent injunctive relief, declaratory relief, retention of jurisdiction, statutory damages, costs, and reasonable attorney's fees. (See Dkt. No. 1.) Plaintiff alleges that defendants violated his civil rights by denial of full and equal access to a public accommodation to physically disabled persons.*fn2 He alleges violations of Title III of the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq.
SERVICE OF PROCESS AND FILING OF ANSWERS
Proper service of process appears to be undisputed. However, not all defendants have appeared in the action.
On July 1, 2011, defendant Shadi Ram filed a letter with the court that appears to have been an attempt to file an answer (Dkt. No. 7). However, that letter does not conform to the requirements of Federal Rule of Civil Procedure 8(b). On or before November 10, 2011, Mr. Ram shall file an amended answer with the court that conforms with Rule 8(b), and also indicates whether Mr. Ram wishes to have a jury trial or bench trial in this case.
Until the day of the scheduling conference, defendant Avtar Chamber had not appeared in this action. Plaintiff previously requested that the Clerk of Court enter Mr. Chamber's default, and on October 13, 2011, the Clerk of Court entered Mr. Chamber's default (Dkt. Nos. 11-12). However, at the scheduling conference, and in light of Mr. Chamber's appearance, plaintiff stipulated to the setting aside of the Clerk's entry of default against Mr. Chamber. Accordingly, the Clerk's Certificate of Entry of Default against Mr. Chamber is set aside. On or before November 10, 2011, Mr. Chamber shall file an answer with the court that conforms with Rule 8(b), and also indicates whether Mr. Chamber wishes to have a jury trial or bench trial in this case.
No appearance has been made in this action on behalf of defendant Ram Markets, Inc. At the scheduling conference, plaintiff noted the possibility that the letter filed by Mr. Ram on July 1, 2011, was filed on behalf of both Mr. Ram and Ram Markets, Inc. To the extent that the letter filed by Mr. Ram on July 1, 2011, was filed on behalf of Ram Markets, Inc., it is stricken pursuant to Federal Rule of Civil Procedure 12(f)(1) because a corporation may appear in federal court only through a licensed attorney. See E. Dist. Local Rule 183(a); accord High Country Broad. Co., 3 F.3d at 1245.
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. However, as noted above, Mr. Ram shall file an amended answer no later than November 10, 2011.
Jurisdiction and venue are undisputed and are hereby found to be proper. See 28 U.S.C. § 1331; 28 U.S.C. § 1391(b).
MOTION HEARING SCHEDULES
All law and motion, except as to discovery-related matters, shall be completed by January 17, 2013. 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)*fn3 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 who have appeared in the action 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 December 16, 2011.
All discovery shall be completed by November 21, 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 November 1, 2012. The parties are reminded that discovery-related motions must conform to the requirements of the Federal Rules of Civil Procedure and this court's Local Rules, including Local Rule 251.
The parties are to designate in writing and file with the court, and serve upon all other parties, the names of all experts they propose to tender at trial, pursuant to the following schedule: initial expert disclosures shall be made on or before August 3, 2012; rebuttal expert disclosures shall be made on or before September 7, 2012.
An expert witness not appearing on such lists will not be permitted to testify unless the party offering the witness demonstrates: (a) that the necessity of the witness could not have been reasonably anticipated at the time the lists were exchanged; (b) the court and opposing counsel were promptly notified upon discovery of the witness; and (c) that the witness was promptly proffered for deposition. Failure to provide the information required along with the expert designation may lead to preclusion of the expert's testimony or other appropriate sanctions.
For the purposes of this scheduling order, experts are defined as "percipient" and "Rule 26" experts. Both types of experts shall be listed. Percipient experts are persons who, because of their expertise, have rendered expert opinions in the normal course of their work duties or observations pertinent to the issues in the case. Another term for their opinions are "historical opinions." Percipient experts are experts who, unless also designated as Rule 26 experts, are limited to testifying to their historical opinions and the reasons for them. That is, they may be asked to testify about their opinions given in the past and the whys and wherefores concerning the development of those opinions. However, they may not be asked to render a current opinion for the purposes of the litigation.
Rule 26 experts, who may also be percipient experts, shall be specifically designated by a party to be a testifying expert for the purposes of the litigation. A Rule 26 expert may express opinions formed for the purposes of the litigation. A party designating a Rule 26 expert will be assumed to have acquired the express permission of the witness to be so listed.
The parties shall comply with the information disclosure provisions of Federal Rule of Civil Procedure 26(a)(2) for any expert, who is in whole or in part designated as a Rule 26 expert. This information is due at the time of designation. Failure to supply the required information may result in the Rule 26 expert being stricken. All Rule 26 experts are to be fully prepared to render an informed opinion at the time of designation so that they may fully participate in any deposition taken by the opposing party. Rule 26 experts will not be permitted to testify at trial as to any information gathered or evaluated, or opinion formed, which should have been reasonably available at the time of designation. The court will closely scrutinize for discovery abuse opinions offered at deposition that differ markedly in nature and/or in bases from those expressed in the mandatory information disclosure.
FINAL PRETRIAL CONFERENCE
At present, a final pretrial conference will take place before United States District Judge Kimberly J. Mueller in Courtroom No. 3. The precise date and time of the final pretrial conference will be set by the court at a future date.
Counsel are cautioned that counsel appearing at the pretrial conference will in fact try the matter. Counsel for all parties are to be fully prepared for trial at the time of the pretrial conference, with no matters remaining to be accomplished except production of witnesses for oral testimony. Counsel are referred to Local Rules 281 and 282 relating to pretrial statements and conferences. A FAILURE TO COMPLY WITH LOCAL RULES 281 AND 282 WILL BE GROUNDS FOR SANCTIONS.
Notwithstanding Local Rule 281, the parties shall submit a joint pretrial statement not later than fourteen (14) days prior to the pretrial conference. The joint pretrial statement shall conform with the requirements of Local Rule 281(b). The undisputed facts and disputed factual issues shall be set forth in two separate sections. The parties should identify those facts which are relevant to each separate cause of action. In this regard, the parties are to number each individual fact or factual issues. Where the parties are unable to agree as to what factual issues are properly before the court for trial, they should nevertheless list in the section on "DISPUTED FACTUAL ISSUES" all issues asserted by any of the parties and explain by parenthetical the controversy concerning each issue. The parties should keep in mind that, in general, each fact should relate or correspond to an element of the relevant cause of action. The parties should also keep in mind that the purpose of listing the disputed factual issues is to apprise the court and all parties about the precise issues that will be litigated at trial. The court is not interested in a listing of all evidentiary facts underlying the issues that are in dispute.*fn4 The joint statement of undisputed facts and disputed factual issues is to be filed with the court concurrently with the filing of the joint pretrial statement.
Pursuant to Local Rule 281(b), the parties are required to provide with their pretrial statement a list of witnesses and exhibits that they propose to proffer at trial, no matter for what purpose. These lists shall not be contained in the pretrial statement itself, but shall be attached as separate documents to be used as addenda to the final pretrial order. Plaintiff's exhibits shall be listed numerically; defendants' exhibits shall be listed alphabetically. The pretrial order will contain a stringent standard for the proffering of witnesses and exhibits at trial not listed in the pretrial order. Counsel are cautioned that the standard will be strictly applied. On the other hand, the listing of exhibits or witnesses which counsel do not intend or use will be viewed as an abuse of the court's processes.
Counsel (and pro se parties) are reminded that, pursuant to Federal Rule of Civil Procedure 16, it will be their duty at the pretrial conference to aid the court in: (a) formulation and simplification of issues and the elimination of meritless claims or defenses; (b) settling of facts that should be properly admitted; and (c) avoidance of unnecessary proof and cumulative evidence. The parties must prepare their joint pretrial statement and participate in good faith at the pretrial conference with these aims in mind. A FAILURE TO DO SO MAY RESULT IN THE IMPOSITION OF SANCTIONS, which may include monetary sanctions, orders precluding proof, eliminations of claims or defenses, or such other sanctions as the court deems appropriate. TRIAL SETTING
At present, the trial in this case shall take place before District Judge Mueller in Courtroom No. 3. The court anticipates that the trial will take approximately four trial days. The precise date and time of the trial, as well as whether the case will be tried before the court or a jury, will be set by the court at a future date.
SETTLEMENT CONFERENCE & VOLUNTARY DISPUTE RESOLUTION PROGRAM
From the representations in the joint status report and at the scheduling conference, it appears that the parties might be presently amenable to settlement discussions. Once the parties believe that a settlement conference would be beneficial, they shall file with the court a written stipulation to participate in a proposed settlement conference. The parties shall conduct any settlement conference before a magistrate judge other than the undersigned unless the parties stipulate to the undersigned acting as the settlement judge and also file written waivers of any disqualification by virtue thereof. The parties shall file settlement conference statements drafted in conformity with Local Rule 270 no later than fourteen days before any settlement conference.
The court's Voluntary Dispute Resolution Program ("VDRP") is unavailable unless all parties are represented by an attorney. See E. Dist. Local Rule 271(a)(2). As the defendants who have appeared in the action are proceeding pro se, no referral to VDRP may be made at this time.
The parties are reminded that pursuant to Federal Rule of Civil Procedure 16(b)(4), this order shall not be modified except by leave of court upon a showing of "good cause." See, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). The parties and counsel are cautioned that changes to any of the scheduled dates might result in changes to all other dates. Thus, even where good cause has been shown, the court will not grant a request to change the discovery cutoff date without modifying the pretrial and trial dates.
Mere agreement by the parties pursuant to a stipulation does not constitute good cause. Similarly, the unavailability of witnesses or counsel, except in extraordinary circumstances, does not constitute good cause.
FILING OF CONSENT FORMS
The parties have not yet filed the form indicating whether they consent to or decline the jurisdiction of the magistrate judge.*fn5 On or before November 10, 2011, all parties shall file a notice with the court, preferably on the form that accompanied the Order Setting Status Conference in this case (see Dkt. No. 4, Doc. No. 4-2), whether they consent to or decline the jurisdiction of the magistrate judge.
SUMMARY OF ORDER
In light of the foregoing, IT IS HEREBY ORDERED that:
1. This case shall proceed along the schedule detailed above except as amended by a future order of the court.
2. On or before November 10, 2011, defendant Shadi Ram shall file an amended answer with the court.
3. The Clerk's entry of default as to defendant Avtar Chamber (Dkt. No. 12) is set aside.
4. On or before November 10, 2011, defendant Avtar Chamber shall file an answer with the court.
5. On or before November 10, 2011, all parties shall file a notice with the court, preferably on the form that accompanied the Order Setting Status Conference in this case (see Dkt. No. 4, Doc. No. 4-2), whether they consent to or decline the jurisdiction of the magistrate judge.
IT IS SO ORDERED.