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Applegate v. Moreno

United States District Court, E.D. California

August 1, 2016

BRIAN C. APPLEGATE, Plaintiff,
v.
LOUIS MORENO, JR., Defendant.

          PRELIMINARY DISCOVERY AND SCHEDULING ORDER

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         This case has been screened by the undersigned under 28 U.S.C. § 1915A(a) and found to state the following cognizable claims for damages against Defendant Moreno: Eighth Amendment failure to protect, First Amendment retaliation, Bane Act, ordinary negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. (ECF No. 8.) Defendant has filed his Answer to Plaintiff’s Complaint. (ECF No. 12.) It thus is appropriate at this time for the Court to issue an Order pursuant to Federal Rules of Civil Procedure 1, 16 and 26 through 36, inclusive, regulating the conduct and scheduling of discovery in the case.

         The nature of the claims presented in this case renders it particularly well-suited for a quick and simplified path to trial. The outcome of the case likely will turn on whose version of the facts - who said and did what, when, where and why - is believed by the trier of fact. Subject to some limited exceptions, it is not the type of case the judge will be able to resolve on a motion to dismiss or a motion for summary judgment. Since the case most certainly will proceed through trial, it is in the best interests of both parties and the Court to get to and through trial as expeditiously and economically as possible.

         This Court has procedures for enabling expeditious resolution of such cases. Our goal is to limit more traditional discovery and motion practice while providing simplified procedures for full mutual disclosure of all relevant information. Perhaps most importantly, these procedures are designed to enable a case to go to trial in as few as 180 days (six months) from the date of their adoption if all parties consent to Magistrate Judge jurisdiction for all purposes.

         The options for expedited litigation are described on Attachment A to this Order entitled “Expedited Litigation Options.” The Court ultimately will determine which of these options are best suited for this case. However, it seeks input from the parties and will consider their preferences before making any final determination. The parties should be prepared to discuss these options at the telephonic scheduling conference. In particular, Defendant should be prepared to discuss (1) whether they possess any documents relating to the events at issue in this case, including documents relating to medical care or disciplinary action against either party; and (2) whether they intend to pursue a motion for summary judgment, either on exhaustion grounds or on the merits.

         Accordingly, the Court HEREBY ORDERS as follows:

1. This matter is set for a telephonic scheduling conference before the Honorable Michael J. Seng on August 19, 2016 at 1:30 p.m., to discuss the possibility of expedited litigation procedures;
2. Counsel for Defendants is required to arrange for the participation of Plaintiff in the telephonic scheduling conference;
3. The parties shall join the conference by calling 1-888-204-5984 and entering access code 4446176#; and
4. The parties shall review Attachment A and be prepared to consider and discuss same in good faith at the telephonic scheduling conference.

         Following the conference, the Court will determine which, if any, of the expedited procedures will apply in this action and will issue a discovery and scheduling order setting a schedule for further litigation of this case.

         IT IS SO ORDERED.

         EXPEDITED LITIGATION PROCEDRUES

         ATTACHMENT A

         I. Availability of expedited procedures - Any case found after 28 U.S.C. § 1915A(a) screening by the Magistrate Judge to state a cognizable cause of action, where all parties 1) consent to the jurisdiction of a Magistrate Judge for all purposes in accordance with 28 U.S.C. § 636(b)(1)(B), 2) agree to participate in a procedure for expedited litigation, and 3) enter into an Expedited Litigation Agreement setting forth the terms of their said agreement, may be made subject to agreed expedited procedures. Nothing herein is intended to limit the Court from sua sponte imposing such expedited procedures as it deems appropriate in a given case, even if one or both of the parties oppose such procedures. Additionally, certain expedited procedures may be utilized even absent consent to Magistrate Judge jurisdiction.

         II. Timeframe for stipulation - The parties are encouraged to consider stipulating to expedited procedures immediately after screening by the Magistrate Judge. However, nothing forecloses the parties from moving the case to an expedited track at an earlier or later stage of the proceedings with Court approval (provided that the expedited procedures will in all events apply only prospectively).

         III. Method of stipulation - Unless the Court otherwise orders expedited procedures, all parties must agree in writing to mutually acceptable expedited procedures and file a completed and signed “Expedited Litigation Procedures Agreement” (hereinafter “ELP Agreement”). The ELP Agreement will not be implemented unless and until accepted, approved and made the Order of the Court. The parties need not accept all of the procedures and limits outlined here. With Court approval, they may omit some of the procedures described herein and/or adopt additional terms and limitations as appropriate to their particular case. However, once executed, the Agreement will not be revocable except on order of the Court for good cause shown.

         IV. Early trial date - If the Court approves the parties’ ELP Agreement, it will provide a firm trial date no more than one hundred eighty days from the date of filing of the fully executed ELP Agreement with the Court. No continuances of the trial date will be considered except in extraordinary circumstances.

         V. Discovery

         A. Initial exchanges - Within thirty days of the court’s approval of an ELP Agreement, the parties shall informally, and without further order of the Court, make available to one another the following information and documents which are not subject to a valid work product or attorney-client privilege:

         i. The names and last known whereabouts of any person believed to be a percipient witness to the event giving rise to the claim in the operable complaint (the ”event”) along with a brief (not to exceed ...


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