J & J Sports Productions, Inc. v. Torres
Filing
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STATUS (PRETRIAL SCHEDULING) ORDER signed by Magistrate Judge Kendall J. Newman on 6/15/11: Designation of Expert Witnesses due by 10/28/2011. Discovery due by 1/13/2012. Dispositive Motions filed by 3/1/2012. Final Pretrial Conference set for 5/16/2012 at 11:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. Bench Trial set for 7/30/2012 at 09:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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J & J SPORTS PRODUCTIONS, INC.,
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Plaintiff,
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No. 2:10-cv-03009 KJM KJN PS
v.
ARMANDO RIOS TORRES,
INDIVIDUALLY and d/b/a CAVOUR
CLUB,
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Defendant.
STATUS (PRETRIAL SCHEDULING) ORDER
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READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES
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THAT THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL
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AND PARTIES MUST COMPLY.1 FAILURE TO COMPLY WITH THE TERMS OF THIS
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ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER
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SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN
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ORDER OF JUDGMENT.
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On June 9, 2011, this case was before the undersigned for a status (pretrial
scheduling) conference. Attorney Thomas P. Riley appeared on behalf of plaintiff. Defendant,
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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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who is proceeding without counsel, appeared on his own behalf. Defendant failed to file a status
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report in advance of the scheduling conference. The undersigned enters the following scheduling
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order:
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NATURE OF CASE
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Plaintiff complaint alleges that defendant is liable for violations of 47 U.S.C.
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§§ 553, 605; California Business and Professions Code § 17200; and the tort of conversion under
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California law. (See generally Compl., Dkt. No. 1.) All of plaintiff’s claims arise from
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defendant’s alleged unlawful or unauthorized interception and broadcast of a closed-circuit feed
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of a boxing match called “‘Firepower’: Manny Pacquiao v. Miguel Cotto, WBO Welterweight
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Championship Fight Program,” to which plaintiff allegedly held the exclusive commercial
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domestic distribution rights. (See id. ¶¶ 3, 9, 12, 19-20, 24, 30.) Defendant is alleged to be the
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owner, operator, licensee, permitee, or person in charge of a commercial establishment called the
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“Cavour Club,” where the alleged interception and broadcast occurred. (Id. ¶ 7.)
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SERVICE OF PROCESS
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The undersigned finds that service of process is proper, having previously denied
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defendant’s “Motion to Quash Service and Dismiss the Complaint.” (Order, Apr. 25, 2011, Dkt.
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No. 20.) Defendant filed an answer to plaintiff’s complaint on December 29, 2010. (Answer,
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Dkt. No. 6.)
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JOINDER OF PARTIES/AMENDMENTS
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No further joinder of parties or amendments to pleadings will be permitted except
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with leave of court and upon a showing of good cause.
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JURISDICTION/VENUE
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Jurisdiction and venue are undisputed and are hereby found to be proper. See 28
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U.S.C. §§ 1331 and 1391(b).
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MOTION HEARING SCHEDULES
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All law and motion, except as to discovery-related matters, shall be completed by
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March 1, 2012. The word “completed” in this context means that all law and motion matters
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must be heard by the above date. Counsel (and/or pro se parties)2 are cautioned to refer to the
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Local Rules regarding the requirements for noticing such motions on the court’s regularly
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scheduled law and motion calendar. This paragraph does not preclude motions for continuances,
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temporary restraining orders or other emergency applications, and is subject to any special
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scheduling set forth in the “MISCELLANEOUS PROVISIONS” paragraph below.
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The parties should keep in mind that the purpose of law and motion is to narrow
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and refine the legal issues raised by the case and to dispose of by pretrial motion those issues that
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are susceptible to resolution without trial. To accomplish that purpose, the parties need to
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identify and fully research the issues presented by the case, and then examine those issues in light
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of the evidence obtained through discovery. If it appears to counsel after examining the legal
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issues and facts that an issue can be resolved by pretrial motion, counsel are to file the
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appropriate motion consistent with the law and motion cutoff set forth above.
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ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY
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PRETRIAL MOTION. Counsel are reminded that motions in limine are procedural devices
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designed to address the admissibility of evidence. COUNSEL ARE CAUTIONED THAT THE
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COURT WILL LOOK WITH DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED
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UNDER THE GUISE OF MOTIONS IN LIMINE AT THE TIME OF TRIAL.
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DISCOVERY
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To the extent that the parties have not already exchanged initial disclosures
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pursuant to Federal Rule of Civil Procedure 26(a)(1), they shall exchange such initial disclosures
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on or before July 14, 2011.
All discovery shall be completed by January13, 2012. The word “completed”
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means that all discovery shall have been conducted so that all depositions have been taken and
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Any reference to “counsel” in this order includes parties appearing without counsel,
otherwise referred to as appearing in propria persona or pro se.
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any disputes relative to discovery shall have been resolved by appropriate order if necessary and,
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where discovery has been ordered, the order has been complied with. Motions to compel
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discovery must be noticed on the undersigned’s law and motion calendar in accordance with the
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Local Rules and must be heard not later than December 29, 2011.
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To the extent that defendant’s “response” filed on May 9, 2011 (Dkt. No. 21),
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seeks some relief relative to defendant’s discovery obligations, that relief is denied. The parties
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are reminded that discovery-related motions must conform to the requirements of the Federal
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Rules of Civil Procedure and this court’s Local Rules, including Local Rule 251.
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EXPERT DISCLOSURES
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The parties are to designate in writing and file with the court, and serve upon all
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other parties, the names of all experts they propose to tender at trial, pursuant to the following
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schedule: initial expert disclosures shall be made on or before October 28, 2011; rebuttal expert
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disclosures shall be made on or before December 2, 2011.
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An expert witness not appearing on such lists will not be permitted to testify
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unless the party offering the witness demonstrates: (a) that the necessity of the witness could not
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have been reasonably anticipated at the time the lists were exchanged; (b) the court and opposing
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counsel were promptly notified upon discovery of the witness; and (c) that the witness was
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promptly proffered for deposition. Failure to provide the information required along with the
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expert designation may lead to preclusion of the expert’s testimony or other appropriate
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sanctions.
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For the purposes of this scheduling order, experts are defined as “percipient” and
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“Rule 26” experts. Both types of experts shall be listed. Percipient experts are persons who,
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because of their expertise, have rendered expert opinions in the normal course of their work
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duties or observations pertinent to the issues in the case. Another term for their opinions are
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“historical opinions.” Percipient experts are experts who, unless also designated as Rule 26
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experts, are limited to testifying to their historical opinions and the reasons for them. That is,
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they may be asked to testify about their opinions given in the past and the whys and wherefores
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concerning the development of those opinions. However, they may not be asked to render a
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current opinion for the purposes of the litigation.
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Rule 26 experts, who may also be percipient experts, shall be specifically
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designated by a party to be a testifying expert for the purposes of the litigation. A Rule 26 expert
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may express opinions formed for the purposes of the litigation. A party designating a Rule 26
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expert will be assumed to have acquired the express permission of the witness to be so listed.
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The parties shall comply with the information disclosure provisions of Federal
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Rule of Civil Procedure 26(a)(2) for any expert, who is in whole or in part designated as a
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Rule 26 expert. This information is due at the time of designation. Failure to supply the required
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information may result in the Rule 26 expert being stricken. All Rule 26 experts are to be fully
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prepared to render an informed opinion at the time of designation so that they may fully
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participate in any deposition taken by the opposing party. Rule 26 experts will not be permitted
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to testify at trial as to any information gathered or evaluated, or opinion formed, which should
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have been reasonably available at the time of designation. The court will closely scrutinize for
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discovery abuse opinions offered at deposition that differ markedly in nature and/or in bases from
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those expressed in the mandatory information disclosure.
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FINAL PRETRIAL CONFERENCE
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The final pretrial conference is set before United States District Judge Kimberly J.
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Mueller on May 16, 2012, at 11:00 a.m., in Courtroom No. 3. Counsel are cautioned that counsel
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appearing at the pretrial conference will in fact try the matter. Counsel for all parties are to be
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fully prepared for trial at the time of the pretrial conference, with no matters remaining to be
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accomplished except production of witnesses for oral testimony. Counsel are referred to Local
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Rules 281 and 282 relating to pretrial statements and conferences. A FAILURE TO COMPLY
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WITH LOCAL RULES 281 AND 282 WILL BE GROUNDS FOR SANCTIONS.
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Notwithstanding Local Rule 281, the parties shall submit a joint pretrial statement
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not later than fourteen (14) days prior to the pretrial conference. The joint pretrial statement shall
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conform with the requirements of Local Rule 281(b). The undisputed facts and disputed factual
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issues shall be set forth in two separate sections. The parties should identify those facts which
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are relevant to each separate cause of action. In this regard, the parties are to number each
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individual fact or factual issues. Where the parties are unable to agree as to what factual issues
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are properly before the court for trial, they should nevertheless list in the section on “DISPUTED
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FACTUAL ISSUES” all issues asserted by any of the parties and explain by parenthetical the
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controversy concerning each issue. The parties should keep in mind that, in general, each fact
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should relate or correspond to an element of the relevant cause of action. The parties should also
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keep in mind that the purpose of listing the disputed factual issues is to apprise the court and all
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parties about the precise issues that will be litigated at trial. The court is not interested in a
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listing of all evidentiary facts underlying the issues that are in dispute.3 The joint statement of
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undisputed facts and disputed factual issues is to be filed with the court concurrently with the
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filing of the joint pretrial statement.
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Pursuant to Local Rule 281(b), the parties are required to provide with their
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pretrial statement a list of witnesses and exhibits that they propose to proffer at trial, no matter
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for what purpose. These lists shall not be contained in the pretrial statement itself, but shall be
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attached as separate documents to be used as addenda to the final pretrial order. Plaintiff’s
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exhibits shall be listed numerically; defendants’ exhibits shall be listed alphabetically. The
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pretrial order will contain a stringent standard for the proffering of witnesses and exhibits at trial
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not listed in the pretrial order. Counsel are cautioned that the standard will be strictly applied.
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On the other hand, the listing of exhibits or witnesses which counsel do not intend or use will be
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viewed as an abuse of the court’s processes.
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Counsel (and pro se parties) are reminded that, pursuant to Federal Rule of Civil
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However, with respect to the listing of undisputed facts, the court will accept
agreements as to evidentiary facts.
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Procedure 16, it will be their duty at the pretrial conference to aid the court in: (a) formulation
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and simplification of issues and the elimination of meritless claims or defenses; (b) settling of
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facts that should be properly admitted; and (c) avoidance of unnecessary proof and cumulative
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evidence. The parties must prepare their joint pretrial statement and participate in good faith at
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the pretrial conference with these aims in mind. A FAILURE TO DO SO MAY RESULT IN
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THE IMPOSITION OF SANCTIONS, which may include monetary sanctions, orders precluding
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proof, eliminations of claims or defenses, or such other sanctions as the court deems appropriate.
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TRIAL SETTING
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Neither party has demanded a jury trial in this case. Accordingly, a bench trial is
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set to commence before Judge Mueller on July 30, 2012, at 9:00 a.m., in Courtroom No. 3. The
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court anticipates that the trial will take approximately two to three days.
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SETTLEMENT CONFERENCE & VOLUNTARY DISPUTE RESOLUTION PROGRAM
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From the status report and representations made at the status (pretrial scheduling)
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conference, it appears that the parties are amenable to settlement discussions. Once the parties
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believe that a settlement conference would be beneficial, they shall file with the court a written
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stipulation to participate in a proposed settlement conference. The parties shall conduct any
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settlement conference before a magistrate judge other than the undersigned unless the parties
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stipulate to the undersigned acting as the settlement judge and file written waivers of any
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disqualification by virtue thereof. The parties shall file settlement conference statements drafted
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in conformity with Local Rule 270 no later than fourteen days before any settlement conference.
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The court’s Voluntary Dispute Resolution Program (“VDRP”) is unavailable
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unless all parties are represented by an attorney. See E. Dist. Local Rule 271(a)(2). Defendant
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is proceeding pro se and, accordingly, no referral to VDRP may be made at this time.
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MISCELLANEOUS PROVISIONS
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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
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good cause. Counsel are cautioned that changes to any of the scheduled dates will necessarily
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result in changes to all other dates. Thus, even where good cause has been shown, the court will
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not grant a request to change the discovery cutoff date without modifying the pretrial and trial
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dates.
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Agreement by the parties pursuant to stipulation does not constitute good cause.
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Nor does the unavailability of witnesses or counsel, except in extraordinary circumstances,
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constitute good cause.
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IT IS SO ORDERED.
DATED: June 15, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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