Wm. Bolthouse Farms, Inc., et al. v. Ecolab, Inc.
Filing
40
SCHEDULING CONFERENCE ORDER, signed by Judge Oliver W. Wanger on 6/14/2011. ( Discovery Cut-Off: 8/1/2012, Non-Dispositive Motion Filing Deadline: 8/1/2012, Non-Dispositive Motion Hearing set 9/7/2012 at 9:00 AM in Courtroom 8 (SKO) before Magistr ate Judge Sheila K. Oberto, Dispositive Motion Filing Deadline: 8/31/2012, Dispositive Motion Hearing set for 10/1/2012 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Settlement Conference set for 8/7/2012 at 10:30 AM in Courtroom 8 (SKO) before Magistrate Judge Sheila K. Oberto, Pretrial Conference set for 10/29/2012 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Jury Trial set for 12/11/2012 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.) (Gaumnitz, R)
<![CDATA[
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
10
11
12
13
14
15
WM. BOLTHOUSE FARMS, INC.,
)
HOUSTON CASUALTY CO., and
)
LIBERTY SURPLUS INSURANCE CORP., )
)
Plaintiffs,
)
)
v.
)
)
ECOLAB, INC.,
)
)
Defendant.
)
)
)
1:10-cv-2322 OWW SKO
SCHEDULING CONFERENCE ORDER
Discovery Cut-Off: 8/1/12
Non-Dispositive Motion
Filing Deadline: 8/1/12
Non-Dispositive Motion
Hearing Date: 9/7/12 9:00
Ctrm. 8
16
Dispositive Motion Filing
Deadline: 8/31/12
17
Dispositive Motion Hearing
Date: 10/1/12 10:00 Ctrm. 3
18
19
Settlement Conference Date:
8/7/12 10:30 Ctrm. 8
20
Pre-Trial Conference Date:
10/29/12 11:00 Ctrm. 3
21
Trial Date: 12/11/12 9:00
Ctrm. 3 (JT-10 days)
22
23
24
I.
25
26
27
28
Date of Scheduling Conference.
June 10, 2011.
II.
Appearances Of Counsel.
Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, LLP
by Barry L. Goldner, Esq., and Jeffrey W. Noe, Esq., appeared on
1
1
behalf of Plaintiffs.
2
3
Kirkland & Ellis LLP by Andrew R. Running, Esq., also
appeared on behalf of Plaintiffs.
4
5
Bowman and Brooke LLP by Ryan Nilsen, Esq., and Gregory P.
Gilmer, Esq., appeared on behalf of Defendant Ecolab Inc.
6
7
Troutman Sanders LLP by William D. Burger, Jr., Esq.,
appeared on behalf of Plaintiff Houston Casualty Company.
8
9
10
Rimac & Martin by Matthew Hickey, Esq., appeared on behalf
of Plaintiff Liberty Surplus Insurance Corp.
III.
11
Summary of Pleadings.
1.
This case arises out of Plaintiff Bolthouse Farms’
12
purchase and use of Defendant Ecolab’s Tsunami 100 antimocrobial
13
process water treatment in the production of Bolthouse’s ready-
14
to-eat baby carrots.
15
caused “early spoilage” of carrots, resulting in over $50 million
16
of business losses.
17
contends Bolthouse’s own failure to adequately design, maintain,
18
clean, and sanitize its carrot production equipment created the
19
problems about which it now complains.
20
IV.
21
Bolthouse claims Ecolab’s Tsunami 100
Ecolab denies Bolthouse’s claims, and Ecolab
Orders Re Amendments To Pleadings.
1.
The parties do not anticipate amending the pleadings at
22
this time.
23
V.
Factual Summary.
24
A.
Admitted Facts Which Are Deemed Proven Without Further
25
Proceedings.
26
1.
Plaintiff Wm. Bolthouse Farms, Inc., is a
27
corporation incorporated under the laws of the State of Michigan
28
with its principal place of business in Bakersfield, California.
2
1
2.
Houston Casualty Company is a corporation
2
incorporated under the laws of the State of Texas and does a
3
general property and casualty business in the State of
4
California.
5
3.
Liberty Surplus Insurance Corp. is a corporation
6
incorporated under the laws of New Hampshire and doing business
7
as a surplus lines carrier in the State of California.
8
9
10
4.
the laws of Delaware with its principal place of business in St.
Paul, Minnesota.
11
12
Ecolabs, Inc. is a corporation incorporated under
5.
Plaintiff Wm. Bolthouse Farms, Inc. processes and
sells fresh food products, including fresh bagged baby carrots.
13
6.
Defendant Ecolab Inc. manufactures and sells
14
cleaning and sanitizing products, including certain products used
15
in the production of food.
16
7.
During the relevant time period, Bolthouse had two
17
processing plants in the Bakersfield area: the “West Plant” and
18
the “East Plant.”
19
8.
Beginning in or around 2007, Ecolab marketed to
20
Bolthouse Tsunami 100 as an alternative to chlorine dioxide, the
21
process water treatment Bolthouse had been using.
22
B.
23
Bolthouse
24
Contested Facts.
1.
Ecolab offered Bolthouse certain technical support
25
in connection with the purchase of Tsunami 100, including support
26
from its “SEALS Team,” which Ecolab describes as “an elite group
27
of highly trained and experienced specialists....”
28
2.
According to Ecolab, Tsunami 100 controls surface
3
1
microbial activity so product spoilage is minimized and shelf
2
life is enhanced.
3
avoid the higher costs for refrigerated truck shipments during
4
the summer season.
5
3.
A longer shelf life would enable Bolthouse to
In May 2009, Bolthouse informed Ecolab that it
6
wanted to replace chlorine dioxide with Tsunami 100 on one of its
7
production lines at the East Plant, which produced baby carrots
8
exclusively (the “North Short-Cut line” or NSC line).
9
4.
Because Tsunami 100 is approximately ten times
10
more expensive than chlorine dioxide, to induce Bolthouse to
11
purchase Tsunami 100, Ecolab told Bolthouse that the higher cost
12
of its product was justified by improved shelf life for baby
13
carrots.
14
5.
Ecolab never warned Bolthouse that there was any
15
risk that Tsunami 100 would actually decrease the shelf life of
16
the carrots being processed, even though studies, including those
17
by Ecolab’s own researchers, showed Tsunami 100 was ineffective
18
at controlling the growth of yeast in treated produce and it
19
would decrease the shelf life of carrots.
20
6.
Ecolab also sought to induce Bolthouse to purchase
21
and use Tsunami 100 by representing that Ecolab would provide
22
valuable technical services to Bolthouse related to testing and
23
converting to Tsunami 100.
24
7.
On May 26, 2009, Timm Miller and David Walker
25
(Ecolab’s sales and technical representatives) instructed
26
Bolthouse’s personnel on the protocol that would be followed in
27
converting the NSC line from chlorine dioxide to Tsunami 100.
28
8.
From June 7 to 15, 2009, Mr. Walker personally
4
1
supervised and directed the conversion of the NSC line from
2
chlorine dioxide to Tsunami 100.
3
Bolthouse personnel that Bolthouse was properly implementing
4
Ecolab’s advice and instructions.
5
9.
Mr. Walker repeatedly assured
On or around June 23, 2009, Bolthouse received its
6
first customer complaints of abnormal decomposition.
7
determined that all of the abnormally-decomposed carrots had been
8
processed on the NSC line using Tsunami 100.
9
10.
It quickly
Bolthouse promptly checked its “retain samples”
10
from the NSC line, and discovered that carrots treated with
11
Tsunami 100 had a peculiar odor and were failing at an
12
unprecedented 12 days after processing.
13
11.
Subsequent testing determined that the
14
fermentation odor and the accelerated spoilage were associated
15
with significantly accelerated yeast growth (including the yeast
16
Candida sake) on the carrots treated with Tsunami 100, as well as
17
the growth of other microorganisms.
18
12.
The “Food Service line” is the NSC’s sister
19
production line.
20
simultaneously processes carrots from the same agricultural
21
fields and the same inbound trucks as those that supply the NSC
22
line, using the same processing methods and types of equipment.
23
13.
Also located in the East Plant, it
During the June 2009 time period at issue, the
24
only difference between the carrots processed on the Food Service
25
line and the NSC line was that the Food Service line continued to
26
use chlorine dioxide to sanitize its hydro-cooler chill water,
27
while the NSC line switched to Tsunami 100.
28
14.
The carrots processed on the Food Service line had
5
1
normal 28-day shelf lives and experienced no unusual spoilage or
2
microbial growth.
3
Tsunami 100 were spoiled after 12 days and exhibited accelerated
4
levels of Candida sake yeast growth as well as other
5
microorganisms.
6
decomposition of its carrots at any other time on any of its
7
production lines.
8
9
15.
Most of the carrots processed on the NSC using
Bolthouse has never experienced such abnormal
Bolthouse promptly notified its customers of the
need to remove the contaminated carrots from the market.
10
Bolthouse sent replacement carrots and otherwise compensated its
11
customers for the contaminated carrots.
12
16.
Bolthouse’s long-developed and hard-earned
13
reputation was severely damaged.
14
largest food retailer, completely stopped making any purchases
15
from Bolthouse, even though Bolthouse had, up to that time, been
16
Loblaw’s exclusive supplier of carrots.
17
17.
For example, Loblaw, Canada’s
Bolthouse’s lost profits and other damages to date
18
far exceed $20 million, and the discounted present value of
19
future lost profits exceeds $30 million.
20
exceed $50 million.
21
18.
Thus, total damages
In this action, Bolthouse asserts claims for
22
breach of warranty, fraud/misrepresentation, negligent
23
performance of services, and product liability.
24
25
Insurance Plaintiffs
1.
Plaintiffs Houston Casualty Co. and Liberty
26
Surplus Insurance Corp. paid $5 and $4 million, respectively, to
27
Bolthouse under policies issued to Bolthouse.
28
2.
Those insurers assert in this action subrogation
6
1
2
claims against Ecolab.
Ecolab
3
1.
To manufacture “ready-to-eat” baby carrots,
4
Bolthouse uses water to wash and move carrots throughout its
5
production line.
6
“process water,” and is recycled and reused throughout a
7
production shift.
8
contaminate carrots with bacterial or fungal cells.
9
avoid contamination, Bolthouse adds antimicrobial agents to the
10
recycled process water to inactivate bacterial and fungal cells
11
in the water.
This production water is referred to as
Left untreated, recycled process water can
To help
12
2.
13
to treat process water.
14
antimicrobial process water treatment known as “Tsunami 100.”
15
3.
There are a variety of antimicrobial agents used
Ecolab manufactures and sells an
Before selecting Tsunami 100, Bolthouse had
16
previously used chlorine dioxide as a process water treatment.
17
But, because of poor finished-product quality and shelf life
18
using chlorine dioxide, Bolthouse switched to Ecolab’s Tsunami
19
100 antimicrobial treatment on its entire ready-to-eat baby
20
carrot production line at the West Plant, and portions of its
21
ready-to-eat baby carrot production line at the East Plant.
22
Bolthouse’s decision to purchase Tsunami 100 was based on results
23
of two Tsunami 100 test applications.
24
25
4.
In March 2007 and October 2008, Bolthouse tested
Ecolab’s Tsunami 100 on its West Plant carrot production line.
26
5.
Based on those test results, Bolthouse decided to
27
use Tsunami 100 on its West Plant carrot production line in May
28
2009.
Using Tsunami 100 at the West Plant, Bolthouse produced
7
1
high-quality carrots with prolonged shelf life compared to those
2
carrots previously produced using chlorine dioxide.
3
6.
Based on its West Plant results, Bolthouse
4
converted portions of the East Plant from chlorine dioxide to
5
Tsunami 100 in June 2009.
6
Tsunami 100 at the East Plant before switching to it in June
7
2009.
8
9
7.
Bolthouse did not, however, test
After Bolthouse received customer complaints on
June 23, 2009 about carrots produced on the East Plant production
10
line, Bolthouse’s Tracy Parnell (quality Assurance Manager) and
11
Joe Purcell (Maintenance Manager), and Ecolab’s David Walker
12
(Technical Service Representative) inspected the East Plant
13
production line to search for the cause of the complaints.
14
Parnell, Purcell and Walker located significant deposits of
15
organic filth and debris throughout the production line
16
equipment.
17
8.
The June 28, 2009 joint inspection demonstrated
18
that, based on production line design defects and sanitation and
19
maintenance failures, Bolthouse had been manufacturing carrots
20
under unsanitary conditions at the East Plant.
21
identified several design modifications and repairs necessary for
22
the East Plant production line.
23
recognized the need to make certain improvements to its
24
sanitation and maintenance policies and practices.
25
9.
Bolthouse
In addition, Bolthouse
Nevertheless, Bolthouse discontinued using Tsunami
26
100 at both the East and West Plants, despite the fact that
27
Bolthouse continued producing high-quality carrots with prolonged
28
shelf life at the West Plant.
8
1
10.
Ecolab recently learned that, not long before the
2
introduction of Tsunami 100 on the East Plant ready-to-eat baby
3
carrot production line, Bolthouse laid off many sanitation
4
workers.
5
Department which was directly responsible for cleaning and
6
sanitizing the East Plant production line.
7
As a result, Bolthouse understaffed its Sanitation
11.
In November 2008, several months before Bolthouse
8
decided to implement Tsunami 100, Ecolab performed a Plant
9
Sanitation Review at Bolthouse’s West Plant and made several
10
recommendations to improve Bolthouse’s sanitary operations.
11
12.
Based on the 2007 and 2008 Tsunami 100 test
12
results and Ecolab’s October 2008 Plant Sanitation Review,
13
Bolthouse knew that it risked finished-product quality and shelf
14
life if Bolthouse failed to properly clean and sanitize its
15
carrot production lines.
16
13.
At no time did Bolthouse hire Ecolab to design,
17
clean or sanitize Bolthouse’s ready-to-eat baby carrot production
18
lines.
19
14.
Under the Good Manufacturing Practices Act (“the
20
Act”), Bolthouse is responsible for the “[o]verall sanitation of
21
the plant” and has a non-delegable duty to maintain its plant in
22
a “sanitary condition” and “in repair sufficient to prevent food
23
from becoming adulterated.”
24
the methods, equipment, facilities, and controls for producing
25
processed food.
26
Bolthouse, and sets out minimum sanitary and processing
27
requirements for producing safe and wholesome food.
28
15.
Id. at § 110.80.
The Act describes
The Act applies to food producers, including
Bolthouse failed, under the Act, to sanitize all
9
1
food-contact surfaces as “frequently as necessary to protect
2
against contamination of food,” 21 CFR § 110.35(d), and further
3
failed to maintain its East Plant in minimum sanitary condition
4
for producing safe and wholesome food, as required under the Act.
5
Bolthouse’s failures to adequately maintain, clean and sanitize
6
its carrot production equipment created a filthy environment
7
unfit for the production of food, contaminating the carrots, and
8
causing poor finished-goods quality and reduced shelf-life.
9
16.
In addition, Bolthouse failed to design its plant
10
equipment “to be adequately cleanable.”
21 CFR § 110.40(a).
11
Bolthouse knew or should have known about design flaws,
12
preventing it from ever properly sanitizing its ready-to-eat baby
13
carrot production line.
14
17.
In July 2009, after Bolthouse stopped using
15
Tsunami 100, Bolthouse made several repairs and modifications to
16
its East Plant ready-to-eat baby carrot production line, and
17
updated its sanitation policies and procedures.
18
18.
Whether any failure by Bolthouse to sanitize and
19
otherwise observe clean processing practices, contributed to its
20
entirety, caused any failure of the product in dispute.
21
E.
22
Relief Sought by Plaintiffs.
Damages for costs incurred and lost profits to date of
23
well over $20 million; future lost profits of at least $30
24
million; punitive damages; prejudgment interest; and attorney’s
25
fees and costs.
26
VI.
27
28
Legal Issues.
A.
Uncontested.
1.
Jurisdiction exists under 28 U.S.C. § 1332.
10
1
2.
Venue is proper under 28 U.S.C. § 1392.
2
3.
The parties agree that the substantive law of the
3
State of California provides the rule of decision in this
4
diversity action (Ecolab contends that federal law preempts state
5
law in certain instances as to EPA-required product labels on
6
Ecolab products).
7
B.
Contested.
8
Plaintiffs
9
1.
Breach of contract.
10
2.
Liability.
11
3.
Nature and extent of damages.
12
4.
Whether and to what extent Plaintiff Bolthouse is
13
a food processor within the meaning of the Good Manufacturing
14
Practices Act (21 C.F.R. § 110, et seq.)
15
16
5.
Whether and to what extent the Good Manufacturing
Practices Act applies to Plaintiff Bolthouse.
17
6.
Whether Ecolab breached any promise to, through
18
the use of Ecolab’s product, provide advice and expert services,
19
decrease microbial growth and substantially increase the shelf
20
life of Bolthouse carrots.
21
7.
Whether Ecolab misrepresented to Bolthouse that
22
Tsunami 100 would reduce microbial growth and increase shelf
23
life.
24
8.
Whether Ecolab negligently performed its services
25
in providing Tsunami 100 as a substitute for chlorine dioxide in
26
its NSC line.
27
28
9.
Whether the Tsunami 100 product sold to Bolthouse
was defective in its design and manufacture, and whether Ecolab
11
1
failed to warn Bolthouse about the possible risks of Tsunami 100,
2
assuming the foundation that Ecolab knew of any alleged risks.
3
Defendants
4
5
1.
Manufacturing Practices Act is evidence of negligence per se.
6
7
2.
3.
Whether Plaintiffs’ negligence and strict
liability claims are barred by California’s Economic Loss Rule.
10
11
Whether Plaintiffs’ warnings and/or instruction
claims are barred by the doctrine of federal preemption.
8
9
Whether Bolthouse’s violations of the Good
4.
Comparative fault.
VII. Consent to Magistrate Judge Jurisdiction.
12
1.
The parties have not consented to transfer the
13
case to the Magistrate Judge for all purposes, including trial.
14
VIII.
15
1.
Corporate Identification Statement.
Any nongovernmental corporate party to any action in
16
this court shall file a statement identifying all its parent
17
corporations and listing any entity that owns 10% or more of the
18
party's equity securities.
19
its initial pleading filed in this court and shall supplement the
20
statement within a reasonable time of any change in the
21
information.
22
IX.
23
24
A party shall file the statement with
Discovery Plan and Cut-Off Date.
A.
Subjects and timing of discovery.
1.
The parties have scheduled a mediation for July
25
27, 2011, and have thus agreed to hold off on initiating formal
26
discovery through August 1, 2011 (or until an agreed-upon earlier
27
date if the mediation is postponed or the parties decide to not
28
mediate at this time).
In the meantime, the parties will
12
1
informally exchange agreed-upon information prior to the
2
mediation.
3
4
2.
following subjects:
5
6
Bolthouse intends to conduct discovery on the
a.
Other customers of Ecolab that have
experienced problems with Tsunami 100;
7
b.
Marketing materials and any other
8
representations made by Ecolab to the public or its customers as
9
to the effectiveness of Tsunami 100 (including the alleged
10
“certain conditions” that are required for Tsunami 100 to be
11
effective);
12
c.
The design and manufacture of Tsunami 100;
13
d.
Testing and research concerning Tsunami 100;
14
e.
Warnings given about Tsunami 100;
15
f.
Regulatory approval of Tsunami 100;
16
g.
Communications (including presentations)
17
between the parties and nonparties concerning Bolthouse’s
18
purchase or use of Tsunami 100;
19
h.
The use of Tsunami 100 by Bolthouse,
20
including any related services, recommendations, or testing
21
provided by Ecolab;
22
i.
Any pre- or post-dispute investigation
23
concerning Bolthouse’s 2009 carrot spoilage problem or its legal
24
claims;
25
26
j.
The facts allegedly supporting Ecolab’s
affirmative defenses;
27
k.
Sales and profits of Tsunami 100; and
28
l.
Insurance coverage.
13
1
2
3.
Ecolab intends to seek discovery on the following
subjects:
3
a.
East and West Plant ready-to-eat baby carrot
4
production line and equipment design, manufacture, maintenance,
5
design changes, improvements, and repairs.
6
7
b.
from 2005 through 2010.
8
9
c.
d.
Bolthouse’s shelf-life history, expectations,
and related information.
12
13
Communications by and within Bolthouse
concerning its decision to purchase Tsunami 100.
10
11
East and West Plant baby carrot production
e.
Customer complaints of abnormal decomposition
of Bolthouse products.
14
f.
Photographs and videos depicting the carrot
15
production lines, including photographs taken during the post-
16
discovery investigation.
17
18
g.
carrot production lines for previous five years.
19
20
h.
23
24
FDA and other agency investigations at
i.
Process water monitoring information and
j.
Bolthouse’s policies and requirements
Bolthouse.
21
22
Microbial tests on East and West Plants
documentation.
concerning its carrot suppliers and other suppliers.
25
k.
Inventory rotation policies.
26
l.
Bolthouse’s cleaning and sanitation practices
27
and policies, cross-contamination controls, weather tracking data
28
for harvesting, temperature and humidity data, and Sanitation
14
1
Standard Operating Procedures for the previous ten years.
2
m.
Bolthouse’s purchase of cleaning and
3
sanitation products and services for East and West Plants for
4
previous five years.
5
n.
Bolthouse employee training concerning Good
6
Manufacturing Practices, cleaning, sanitation, personnel hygiene,
7
food safety, and carrot production.
8
9
10
11
12
13
14
15
o.
Temperature information and related documents
for buildings, water, warehousing, transportation, and pallet
RFIDs.
p.
Bolthouse product recalls for similar
contamination issues.
q.
Documents and information supporting
Bolthouse’s alleged damages.
r.
Bolthouse’s reputation as a supplier of
16
quality carrots and other products, and the alleged damage to
17
Bolthouse’s reputation as a result of the carrot quality issues.
18
19
20
s.
Other incidents that have affected
Bolthouse’s reputation as a supplier of quality products.
t.
Bolthouse’s relationship with Loblaw and
21
other customers, and information related to Bolthouse’s claimed
22
damages related to Loblaw and other customers.
23
u.
Communications between Bolthouse and its
24
insurance carriers concerning the claims and allegations in
25
Plaintiffs’ Complaint, including claims accepted and paid by
26
insurance carriers, and claims rejected.
27
28
v.
Bolthouse’s layoffs of sanitation workers in
2008, and the effect on sanitation practices, policies, and
15
1
results.
2
w.
Changes in Bolthouse corporate culture and
3
carrot production philosophies when the William Bolthouse family
4
sold its majority interest in the business to a Chicago-based
5
private equity group.
6
C.
7
Issues concerning electronically stored information.
1.
No issues have been identified at this time.
The
8
parties will continue to meet and confer about ESI, including the
9
form in which it should be produced.
10
D.
11
Issues concerning privileges.
12
1.
E.
No issues have been identified at this time.
13
Limits on discovery.
1.
The parties have stipulated to a maximum of 30
14
written interrogatories and 30 requests for admission per side,
15
with no limits on requests for production of documents.
16
Responses to written discovery will be due 45 days after service
17
(plus any additional time under Rule 6(d)).
18
F.
19
Other orders.
1.
The parties will file a proposed stipulated
20
protective order to preserve the confidentiality of information.
21
The parties will agree to the form of a protective order to
22
protect confidential information identified and/or produced in
23
discovery.
24
25
26
27
28
G.
The case is scheduled as follows:
1.
The parties have agreed that they shall make their
Rule 26(a)(1) initial disclosures on or before June 29, 2011.
2.
The parties are ordered to complete all non-expert
discovery on or before March 16, 2012.
16
1
3.
Plaintiffs are directed to disclose all expert
2
witnesses, in writing, on or before April 16, 2012.
Defendants
3
are directed to disclose all expert witnesses, in writing, on or
4
before May 15, 2012.
5
disclosures by Plaintiffs will be made on or before June 15,
6
2012.
7
Defendants will be made on or before July 16, 2012.
8
will comply with the provisions of Federal Rule of Civil
9
Procedure 26(a)(2) regarding their expert designations.
Any rebuttal or supplemental expert
Any rebuttal or supplemental expert disclosures by
The parties
Local
10
Rule 16-240(a) notwithstanding, the written designation of
11
experts shall be made pursuant to F. R. Civ. P. Rule 26(a)(2),
12
(A) and (B) and shall include all information required
13
thereunder.
14
order may result in the Court excluding the testimony or other
15
evidence offered through such experts that are not disclosed
16
pursuant to this order.
17
4.
18
Failure to designate experts in compliance with this
The parties are ordered to complete all expert
discovery on or before August 1, 2012.
19
5.
The provisions of F. R. Civ. P. 26(b)(4) shall
20
apply to all discovery relating to experts and their opinions.
21
Experts shall be fully prepared to be examined on all subjects
22
and opinions included in the designation and their reports, which
23
shall include every opinion to be rendered and all reasons for
24
each opinion.
25
sanctions.
26
X.
27
28
Failure to comply will result in the imposition of
Pre-Trial Motion Schedule.
1.
All Non-Dispositive Pre-Trial Motions, including any
discovery motions, shall be filed on or before August 1, 2012,
17
1
and heard on September 7, 2012, at 9:00 a.m. before Magistrate
2
Judge Sheila K. Oberto in Courtroom 8.
3
2.
In scheduling such motions, the Magistrate
4
Judge may grant applications for an order shortening time
5
pursuant to Local Rule 142(d).
6
obtain an order shortening time, the notice of motion must comply
7
with Local Rule 251 and this schedule.
8
3.
However, if counsel does not
All Dispositive Pre-Trial Motions are to be
9
filed no later than August 31, 2012, and will be heard on October
10
1, 2012, at 10:00 a.m. before the Honorable Oliver W. Wanger, in
11
Courtroom 3, 7th Floor.
12
shall comply with Local Rule 230.
13
XI.
14
15
Pre-Trial Conference Date.
1.
October 29, 2012, at 11:00 a.m. in Courtroom 3, 7th
Floor, before the Honorable Oliver W. Wanger.
16
17
In scheduling such motions, counsel
2.
The parties are ordered to file a Joint Pre-
Trial Statement pursuant to Local Rule 281(a)(2).
18
3.
Counsel's attention is directed to Rules 281
19
and 282 of the Local Rules of Practice for the Eastern District
20
of California, as to the obligations of counsel in preparing for
21
the pre-trial conference.
22
compliance with those rules.
23
XII. Motions - Hard Copy.
24
1.
The Court insists upon strict
The parties shall submit one (1) courtesy paper copy to
25
the Court of any motions filed.
Exhibits shall be marked with
26
protruding numbered or lettered tabs so that the Court can easily
27
identify such exhibits.
28
///
18
1
2
XIII.
1.
Trial Date.
December 11, 2012, at the hour of 9:00 a.m. in
3
Courtroom 3, 7th Floor, before the Honorable Oliver W. Wanger,
4
United States District Judge.
5
2.
This is a jury trial.
6
3.
Counsels' Estimate Of Trial Time:
7
8
9
10
11
a.
4.
Eight to 10 days.
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 August 7,
12
2012, at 10:30 a.m. in Courtroom 8 before the Honorable Sheila K.
13
Oberto, United States Magistrate Judge.
14
2.
Unless otherwise permitted in advance by the
15
Court, the attorneys who will try the case shall appear at the
16
Settlement Conference with the parties and the person or persons
17
having full authority to negotiate and settle the case on any
18
terms at the conference.
19
3.
Permission for a party [not attorney] to attend
20
by telephone may be granted upon request, by letter, with a copy
21
to the other parties, if the party [not attorney] lives and works
22
outside the Eastern District of California, and attendance in
23
person would constitute a hardship.
24
allowed, the party must be immediately available throughout the
25
conference until excused regardless of time zone differences.
26
Any other special arrangements desired in cases where settlement
27
authority rests with a governing body, shall also be proposed in
28
advance by letter copied to all other parties.
19
If telephone attendance is
1
4.
Confidential Settlement Conference Statement.
2
At least five (5) days prior to the Settlement Conference the
3
parties shall submit, directly to the Magistrate Judge's
4
chambers, a confidential settlement conference statement.
5
statement should not be filed with the Clerk of the Court nor
6
served on any other party.
7
marked "confidential" with the date and time of the Settlement
8
Conference indicated prominently thereon.
9
request the return of their statements if settlement is not
The
Each statement shall be clearly
Counsel are urged to
10
achieved and if such a request is not made the Court will dispose
11
of the statement.
12
13
5.
Statement shall include the following:
14
15
The Confidential Settlement Conference
a.
A brief statement of the facts of the
b.
A brief statement of the claims and
case.
16
17
defenses, i.e., statutory or other grounds upon which the claims
18
are founded; a forthright evaluation of the parties' likelihood
19
of prevailing on the claims and defenses; and a description of
20
the major issues in dispute.
21
c.
A summary of the proceedings to date.
22
d.
An estimate of the cost and time to be
23
expended for further discovery, pre-trial and trial.
24
e.
The relief sought.
25
f.
The parties' position on settlement,
26
including present demands and offers and a history of past
27
settlement discussions, offers and demands.
28
///
20
1
XV.
2
Or Other Techniques To Shorten Trial.
3
Request For Bifurcation, Appointment Of Special Master,
1.
The parties have not requested bifurcation.
To the
4
extent that punitive damages are sought, that issue of the
5
amount, if any, of punitive damages, shall be tried in a
6
continuous trial in a second phase before the same jury after the
7
entitlement has been established, both as to liability and the
8
existence of compensatory damages, and the grounds for the
9
recovery of punitive damages, if any.
10
11
12
13
XVI. Related Matters Pending.
1.
XVII.
1.
There are no related matters.
Compliance With Federal Procedure.
The Court requires compliance with the Federal
14
Rules of Civil Procedure and the Local Rules of Practice for the
15
Eastern District of California.
16
efficient administration of this case, all counsel are directed
17
to familiarize themselves with the Federal Rules of Civil
18
Procedure and the Local Rules of Practice of the Eastern District
19
of California, and keep abreast of any amendments thereto.
20
XVIII.
21
1.
To aid the court in the
Effect Of This Order.
The foregoing order represents the best
22
estimate of the court and counsel as to the agenda most suitable
23
to bring this case to resolution.
24
specifically reserved for this case.
25
any time that the schedule outlined in this order cannot be met,
26
counsel are ordered to notify the court immediately of that fact
27
so that adjustments may be made, either by stipulation or by
28
subsequent scheduling conference.
21
The trial date reserved is
If the parties determine at
1
2.
Stipulations extending the deadlines contained
2
herein will not be considered unless they are accompanied by
3
affidavits or declarations, and where appropriate attached
4
exhibits, which establish good cause for granting the relief
5
requested.
6
7
3.
Failure to comply with this order may result in
the imposition of sanctions.
8
9
10
IT IS SO ORDERED.
Dated:
June 14, 2011
emm0d6
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
