United States District Court, E.D. California
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 ...