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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

NO. CIV. S-04-633 LKK/CMK

Plaintiff,

v.

PIER 1 IMPORTS (US), INC;

and MELLON/PIER 1 PROPERTIES

LIMITED PARTNERSHIP I,

Defendants.

 /

STATUS (PRETRIAL SCHEDULING) CONFERENCE

A Status (Pretrial Scheduling) Conference was held in Chambers

on July 15, 2005. SCOTT HUBBARD appeared as counsel for plaintiff;

ROLAND JUAREZ and CHRISTINE SAMSEL appeared as counsel for

defendants. All dates heretofore set are VACATED and the following

dates are SET:

MOTION HEARING SCHEDULES

Based on the court's reopening of law and motion, plaintiff's

motion for summary judgment is dropped from calendar, to be refiled

in its entirety or re-noticed for hearing prior to the close of law

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and motion herein established.

All law and motion except as to discovery is left open, save

and except that it shall be conducted so as to be completed by

December 15, 2005. The word "completed" in this context means that

all law and motion matters must be heard by the above date.

Because this date is not necessarily a date previously set aside

for law and motion hearings, it is incumbent upon counsel to

contact this court's courtroom deputy, Ana Rivas at (916) 930-4133,

sufficiently in advance so as to ascertain the dates upon which law

and motion will be heard and to properly notice its motion for

hearing before that date. Counsel are cautioned to refer to Local

Rule 78-230 regarding the requirements for noticing such motions

on the court's regularly scheduled law and motion calendar.

Opposition or statement of non-opposition to all motions shall be

filed not later than 4:30 p.m. fourteen (14) days preceding the

hearing date, or by proof of service by mail not less than

seventeen (17) days preceding the hearing date. This paragraph

does not preclude motions for continuances, temporary restraining

orders or other emergency applications, and is subject to any

special scheduling set forth in the "MISCELLANEOUS PROVISIONS"

paragraph below.

At the time of filing a motion, opposition, or reply, counsel

are directed to email a copy in word processing format to the

Judge’s Assistant, Tim Hinkle, at thinkle@caed.uscourts.gov. 

The parties should keep in mind that the purpose of law and

motion is to narrow and refine the legal issues raised by the case,

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and to dispose of by pretrial motion those issues that are

susceptible to resolution without trial. To accomplish that

purpose, the parties need to identify and fully research the issues

presented by the case, and then examine those issues in light of

the evidence gleaned through discovery. If it appears to counsel

after examining the legal issues and facts that an issue can be

resolved by pretrial motion, counsel are to file the appropriate

motion by the law and motion cutoff set forth supra.

ALL PURELY LEGAL ISSUES ARE TO BE RESOLVED BY TIMELY PRETRIAL

MOTION AND A FAILURE TO MAKE SUCH A MOTION WILL ORDINARILY BE

VIEWED AS A WAIVER AT THE TIME OF PRETRIAL. COUNSEL ARE CAUTIONED

THAT IF ANY LEGAL ISSUE THAT SHOULD HAVE BEEN TENDERED TO THE COURT

BY PRETRIAL MOTION MUST BE RESOLVED BY THE COURT AFTER LAW AND

MOTION CUTOFF, FOR INSTANCE WHERE THE ISSUE IS JURISDICTION,

SUBSTANTIAL SANCTIONS WILL BE LEVIED AGAINST COUNSEL WHO FAIL TO

TIMELY FILE AN APPROPRIATE MOTION.

Counsel are further reminded that motions in limine are

procedural devices designed to address the admissibility of

evidence. COUNSEL ARE CAUTIONED THAT THE COURT WILL LOOK WITH

DISFAVOR UPON SUBSTANTIVE MOTIONS PRESENTED IN THE GUISE OF MOTIONS

IN LIMINE AT THE TIME OF TRIAL.

DISCOVERY

No modifications of the discovery requirements found in the

Federal Rules is ordered.

All discovery is left open, save and except that it shall be

so conducted as to be completed by October 15, 2005. The word

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"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

complied with. Motions to compel discovery must be noticed on the

magistrate judge's calendar in accordance with the local rules of

this court and so that such motions will be heard not later than

September 15, 2005. All experts witnesses have been previously

designated.

FINAL PRETRIAL CONFERENCE

The Final Pretrial Conference is SET for March 13, 2006, at

1:30 p.m. Counsel are cautioned that counsel appearing for

Pretrial will in fact try the matter.

Counsel for all parties are to be fully prepared for trial at

the time of the Pretrial Conference, with no matters remaining to

be accomplished except production of witnesses for oral testimony.

Counsel are referred to Local Rules 40-280 and 16-281 relating to

the contents of and time for filing Pretrial Statements. In

addition to those subjects listed in Local Rule 16-281(b), the

parties are to provide the court with a plain, concise statement

which identifies every non-discovery motion tendered to the court,

and its resolution. A FAILURE TO COMPLY WITH LOCAL RULES 40-280

AND 16-281 WILL BE GROUNDS FOR SANCTIONS.

The parties shall file Separate Pretrial Statements, the

contents and timing of which are set forth in Local Rule 16-281,

except that the parties are to prepare a JOINT STATEMENT with

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respect to the undisputed facts and disputed factual issues of the

case. See Local Rule 16-281(b)(3), (4), and (6). The parties are

reminded to include in their joint statement all disputed and

undisputed special factual information as required by Local Rule

16-281(b)(6). 

The undisputed facts and disputed factual issues are to be set

forth in two separate sections. In each section, the parties

should identify first the general facts relevant to all causes of

action. After identifying the general facts, the parties should

then identify those facts which are relevant to each separate cause

of action. In this regard, the parties are to number each

individual fact or factual issue. Where the parties are unable to

agree as to what factual issues are properly before the court for

trial, they should nevertheless list in the section on "DISPUTED

FACTUAL ISSUES" all issues asserted by any of the parties and

explain by parenthetical the controversy concerning each issue.

Each individual disputed fact or factual issue shall include the

following introductory language: "Whether or not . . . ." The

parties should keep in mind that, in general, each fact should

relate or correspond to an element of the relevant cause of action.

Notwithstanding the provisions of Local Rule 16-281, the Joint

Statement of Undisputed Facts and Disputed Factual Issues is to be

filed with the court concurrently with the filing of plaintiff's

Pretrial Statement. If the case is tried to a jury, the undisputed

facts will be read to the jury.

Pursuant to Local Rule 16-281(b)(10) and (11), the parties are

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required to provide in their Pretrial Statements a list of

witnesses and exhibits that they propose to proffer at trial, no

matter for what purpose. These lists shall not be contained in the

Pretrial 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. In the event that the

alphabet is exhausted, defendant's exhibits shall be marked "2A-2Z,

3A-3Z, etc." The Pretrial Order will contain a stringent standard

for the proffering of witnesses and exhibits at trial not listed

in the Pretrial Order. Counsel are cautioned that the standard

will be strictly applied. On the other hand, the listing of

exhibits or witnesses which counsel do not intend to call or use

will be viewed as an abuse of the court's processes.

Pursuant to Local Rule 16-281(b)(12), a party is required to

provide a list of all answers to interrogatories and responses to

requests for admission that the party expects to offer at trial.

This list should include only those documents or portions thereof

which the party expects to offer in its case-in-chief. Unless

otherwise barred by a rule of evidence or order of this court, the

parties remain free to tender appropriate discovery documents

during trial for such purposes as, but not limited to, impeachment

or memory refreshment.

Pursuant to Local Rule 16-281(b)(8), the parties' Pretrial

Statements shall contain a "statement of legal theory, etc." Each

party shall commence this section by specifying as to each claim

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whether federal or state law governs, and if state law, the state

whose law is applicable.

Counsel are also reminded that, pursuant to Fed. R. Civ. P.

16, it will be their duty at the Pretrial Conference to aid the

court in (a) formulation and simplification of issues and the

elimination of frivolous claims or defenses; (b) settling of facts

which should be properly admitted; and (c) the avoidance of

unnecessary proof and cumulative evidence. Counsel must prepare

their Pretrial Statements, and participate in good faith at the

Pretrial Conference, with these aims in mind. A FAILURE TO DO SO

MAY RESULT IN THE IMPOSITION of SANCTIONS which may include

monetary sanctions, orders precluding proof, eliminations of claims

or defenses, or such other sanctions as the court deems

appropriate.

TRIAL SETTING

Trial is SET for June 13, 2006, at 10:30 a.m. Trial will be

by the court sitting without jury. 

MISCELLANEOUS PROVISIONS

The parties are reminded that pursuant to Fed. R. Civ. P.

16(b), the Status (pretrial scheduling) Order shall not be modified

except by leave of court upon a showing of good cause. Counsel are

cautioned that changes to any of the scheduled dates will

necessarily result in changes to all other dates. Thus, even where

good cause has been shown, the court will not grant a request to

change the discovery cutoff date without modifying the pretrial and

trial dates.

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Agreement by the parties pursuant to stipulation does not

constitute good cause. Nor does the unavailability of witnesses

or counsel, except in extraordinary circumstances, constitute good

cause.

The parties are reminded of their continuing obligation to

supplement their statements relative to the identification of

parent corporations and any publicly held company that owns 10% or

more of the party's stock within a reasonable time of any change

in the information.

The parties are admonished that they are not to cite or refer

to any of the quotations inscribed in the pavers on the front plaza

of the United States Courthouse in any written or oral presentation

to the court or a jury.

There appear to be no other matters presently pending before

the court that will aid the just and expeditious disposition of

this matter.

IT IS SO ORDERED.

DATED: July 27, 2005.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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