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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

GENERAL SECURITY INSURANCE

COMPANY,

Plaintiff(s), NO. CIV. S-04-1081 FCD/KJM

v. STATUS (PRETRIAL

SCHEDULING)ORDER

LIBERTY MUTUAL INSURANCE

COMPANY, et al.,

Defendant(s).

______________________________/

After reviewing the parties’ Joint Status Report, the court VACATES the Status

Conference set for October 7, 2005 and makes the following orders:

I. ORDER TO SHOW CAUSE

After review of Plaintiff’s and Defendant Liberty’s responses to the Order to Show Cause

(“OSC”) issued on September 15, 2005 the OSC is hereby DISCHARGED. The court cautions

counsel that any further failures to timely respond to any court orders will result in sanctions. 

II. SERVICE OF PROCESS

Defendant Liberty Mutual has been served and an answer filed on July 14, 2004. All

remaining defendants were served by publication as ordered by the court on October 14, 2004,

and subsequent defaults entered on February 9, 2005. No further service is permitted without

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leave of court, good cause having been shown. Based on the representations of Liberty Mutual

in the Joint Status Report they may file their dismissal of the cross defendants within 90 days of

this order. 

III. ADDITIONAL PARTIES/AMENDMENTS/PLEADINGS

No further joinder of parties or amendments to pleadings is permitted without leave of

court, good cause having been shown. See Fed. R. Civ. P. 16(b); Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604 (9th Cir. 1992).

IV. JURISDICTION/VENUE

Jurisdiction is predicated upon 28 U.S.C. section 1332 and Venue on 28 U.S.C. sections

2201-2202. Jurisdiction and venue are not contested.

V. DISCOVERY

All discovery shall be completed by February 3, 2006. In this context, “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 obeyed. All motions to compel discovery

must be noticed on the magistrate judge’s calendar in accordance with the local rules of

this court.

VI. EXPERT WITNESSES and EXPERT DISCOVERY

All counsel are to designate in writing, file with the court, and serve upon all other parties

the name, address, and area of expertise of each expert that they propose to tender at trial not

later than February 17, 2006. The designation shall be accompanied by a written report

prepared and signed by the witness. The report shall comply with Fed. R. Civ. P. 26(a)(2)(B). 

By March 8, 2006. Any party who previously disclosed expert witnesses may submit a

supplemental list of expert witnesses who will express an opinion on a subject covered by an

expert designated by an adverse party, if the party supplementing an expert witness designation

has not previously retained an expert to testify on that subject. The supplemental designation

shall be accompanied by a written report which shall also comply with the conditions as stated

above.

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Failure of a party to comply with the disclosure schedule as set forth above in all

likelihood will preclude that party from calling the expert witness at the time of trial. An expert

witness not appearing on the designation will not be permitted to testify unless the party offering

the witness demonstrates: (a) that the necessity for the witness could not have been reasonably

anticipated at the time the list was proffered; (b) that the court and opposing counsel were

promptly notified upon discovery of the witness; and (c) that the witness was promptly made

available for deposition.

For purposes of this scheduling order, an “expert” is any person who may be used at trial

to present evidence under Rules 702, 703, and 705 of the Federal Rules of Evidence, which

include both “percipient experts” (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) and “retained experts” (persons specifically designated by a party to be a testifying expert

for the purposes of litigation). Each party shall identify whether a disclosed expert is percipient,

retained, or both. It will be assumed that a party designating a retained expert has acquired the

express permission of the witness to be so listed. Parties designating percipient experts must

state in the designation who is responsible for arranging the deposition of such persons. 

All experts designated are to be fully prepared at the time of designation to render an

informed opinion, and give their basis for their opinion, so that they will be able to give full and

complete testimony at any deposition taken by the opposing party. Experts will not be permitted

to testify at the trial as to any information gathered or evaluated, or opinion formed, after

deposition taken subsequent to designation. All expert discovery shall be completed by 

April 10, 2006.

VII. MOTION HEARING SCHEDULE

All dispositive motions, except motions for continuances, temporary restraining orders or

other emergency applications, shall be heard no later than June 16, 2006. The parties may obtain

available hearing dates by calling Maureen Price, Deputy Courtroom Clerk at (916) 930-4163. 

Pursuant to Local Rule 72-302(c)(19) all motions for default judgment are to be brought

before the assigned magistrate judge in an action. However, in light of the representation of the

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1The court urges any party that contemplates bringing a

motion for summary judgment or who must oppose a motion for

summary judgment to review Local Rule 56-260.

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parties in the Joint Status Report the filing of a motion for default judgment is STAYED pending

the resolution of dispositive motions in this action.

All purely legal issues are to be resolved by timely pretrial motions. Local Rule 78-230

governs the calendaring and procedures of civil motions with the following additions:

(A) The opposition and reply must be filed by 4:00 p.m. on the day due; and

(B) When the last day for filing an opposition brief falls on a legal holiday, the

opposition brief shall be filed on the last court day immediately

preceding the legal holiday.

Failure to comply with Local Rule 78-230(c), as modified by this order, may be deemed consent

to the motion and the court may dispose of the motion summarily. Brydges v. Lewis, 18 F.3d

651, 652-53 (9th Cir. 1994). Further, failure to timely oppose a summary judgment motion1 may

result in the granting of that motion if the movant shifts the burden to the nonmovant to

demonstrate that a genuine issue of material fact remains for trial. Marshall v. Gates, 44 F.3d

722 (9th Cir. 1995).

The court places a page limit of twenty (20) pages on all initial moving papers, twenty

(20) pages on oppositions, and ten (10) pages for replies. All requests for page limit increases

must be made through the courtroom deputy clerk at least fourteen (14) days prior to the filing of

the motion. 

For the court’s convenience, citations to Supreme Court cases should include parallel

citations to the Supreme Court Reporter.

The parties are reminded that a motion in limine is a pretrial procedural device designed

to address the admissibility of evidence. The court will look with disfavor upon dispositional

motions (except those noted on page 3) presented at the Final Pretrial Conference or at trial in the

guise of motions in limine.

The parties are cautioned that failure to raise a dispositive legal issue that could

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have been tendered to the court by proper pretrial motion prior to the dispositive motion

cut-off date may constitute waiver of such issue.

VIII. FINAL PRETRIAL CONFERENCE

The Final Pretrial Conference is set for August 25, 2006 at 1:30 p.m. At least one of the

attorneys who will conduct the trial for each of the parties shall attend the Final Pretrial

Conference. If by reason of illness or other unavoidable circumstance a trial attorney is unable to

attend, the attorney who attends in place of the trial attorney shall have equal familiarity with the

case and equal authorization to make commitments on behalf of the client.

Counsel for all parties, are to be fully prepared for trial at the time of the Final Pretrial

Conference, with no matters remaining to be accomplished except production of witnesses for

oral testimony. The parties shall file, not later than seven (7) calendar days prior to the Final

Pretrial Conference, a joint pretrial statement. The provisions of Local rules 16-281 shall apply

with respect to the matters to be included in the joint pretrial statement. In addition to those

subjects listed in Local Rule 16-281(b), the parties are to provide the court with a plain, concise

statement that identifies every non-discovery motion tendered to the court and its resolution.

Failure to comply with Local Rule 16-281, as modified by this order, may be grounds for

sanctions.

Concurrently with the filing of the Final Pretrial Conference Statement, counsel

shall submit to chambers a word processing version of the statement, its entirety, (including

the witness and exhibit lists) to: fcdorders@caed.uscourts.gov.

The parties should identify first the undisputed core facts relevant to all claims. The

parties should then, in a concise manner, identify those undisputed core facts that are relevant to

each claim. 

The disputed core facts should be identified in the same manner. Where the parties are

unable to agree as to what disputed core facts are properly before the court for trial, they should

nevertheless list all disputed core facts asserted by each party. 

Each disputed fact or undisputed core fact should be separately numbered or lettered.

Each party shall identify and concisely list each disputed evidentiary issue which will be

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the subject of a motion in limine.

Each party shall identify the points of law which concisely describe the legal issues of the

trial which will be discussed in the parties’ respective trial briefs. Points of law should reflect

issues derived from the core undisputed and disputed facts. Parties shall not include argument of

authorities with any point of law. 

The parties shall prepare a joint statement of the case in plain concise language which

will be read to the jury at the beginning of the trial. The purpose of the joint statement is to

inform the jury what the case is about.

The parties are reminded that pursuant to Local Rule 16-281 they are required to list in

the Final Pretrial Conference Statement all witnesses and exhibits they propose to offer at trial. 

After the name of each witness, each party shall provide a brief statement of the nature of the

testimony to be proffered. The parties may file a joint list or each party may file separate lists. 

These list(s) shall not be contained in the body of the Final Pretrial Conference 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. Defendant’s exhibits shall be listed

alphabetically. The parties shall use the standard exhibit stickers provided by the court: pink or

yellow for the plaintiff and blue for the defendant. In the event that the alphabet is exhausted, the

exhibits shall be marked “AA-ZZ” and “AAA-ZZZ” etc. All multi-page exhibits shall be listed

stapled or otherwise fastened together and each page within the exhibit shall be numbered. The

list of exhibits shall not include excerpts of depositions, which may be used to impeach

witnesses. In the event that plaintiff(s) and defendant(s) offer the same exhibit during trial,

that exhibit shall be referred to by the designation the exhibit is first identified. The court

cautions the parties to pay attention to this detail so that all concerned, including the jury,

will not be confused by one exhibit being identified with both number and a letter.

The Final Pretrial Order will contain a stringent standard for the offering at trial of

witnesses and exhibits not listed in the Final Pretrial Order, and the parties are cautioned that the

standard will be strictly applied. On the other hand, the listing of exhibits or witnesses that a

party does not intend to offer will be viewed as an abuse of the court’s processes.

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2If the pretrial conference discloses that no material facts

are in dispute and that the undisputed facts entitle one of the

parties to judgment as a matter of law,the court may summarily

dispose of the case or claims. Portsmouth Square v. Shareholders

Protective Comm., 770 F.2d 866, 868-69 (9th Cir. 1985).

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Counsel shall produce all trial exhibits to Maureen Price, the Courtroom Clerk, no later

than 3:00 p.m. on the Friday before the trial.

The parties also are reminded that pursuant to Rule 16 of the Federal rules of Civil

Procedure it will be their duty at the Final Pretrial Conference to aid the court in: (a) the

formulation and simplification of issues and the elimination of frivolous claims or defenses; (b)

the settling of facts that should properly be admitted; and (c) the avoidance of unnecessary proof 

and cumulative evidence. Counsel must cooperatively prepare the joint Final Pretrial Conference

Statement and participate in good faith at the Final Pretrial Conference with these aims in mind.2

A failure to do so may result in the imposition of sanctions which may include monetary

sanctions, orders precluding proof, elimination of claims or defenses, or such other sanctions as

the court deems appropriate.

IX. TRIAL SETTING

The trial is set for October 31, 2006 at 9:00 a.m. Trial will be to the court. The length

of the trial length will be determined at the final pretrial conference. 

X. SETTLEMENT CONFERENCE

No settlement conference is currently scheduled. A settlement conference may be set at

the time of the Final Pretrial Conference or at an earlier time at the parties’ request. In the event

that an earlier settlement conference date is requested, the parties shall file said request jointly, in

writing. If the case will be tried to a jury, all parties should be prepared to advise the court

whether they will stipulate to the trial judge acting as settlement judge and waive disqualification

by virtue thereof.

Counsel are instructed to have a principal with full settlement authority present at the

Settlement Conference or to be fully authorized to settle the matter on any terms. At least seven

(7) calendar days before the Settlement Conference, counsel for each party shall submit to the

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chambers of the settlement judge a confidential Settlement Conference Statement. Such

statements are neither to be filed with the Clerk nor served on opposing counsel. Each party,

however, shall serve notice on all other parties that the statement has been submitted. If the

settlement judge is not the trial judge, the Settlement Conference Statement shall not be disclosed

to the trial judge.

XI. MODIFICATION OF STATUS (PRETRIAL SCHEDULING) ORDER

The parties are reminded that pursuant to Rule 16(b) of the Federal Rules of Civil

Procedure, the Status (Pretrial Scheduling) Order shall not be modified except by leave of court

upon a showing of good cause. Agreement by the parties pursuant to stipulation alone does not

constitute good cause. Except in extraordinary circumstances, unavailability of witnesses or

counsel, does not constitute good cause.

XII. OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER

This Status Order will become final without further order of the court unless objections

are filed within ten (10) court days of service of this Order.

IT IS SO ORDERED.

DATED:October 5, 2005

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL JR.

UNITED STATES DISTRICT JUDGE

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