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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THE RAINLINE CORPORATION, )

) CIV. S-04-2700 GEB DAD

Plaintiff, )

)

v. ) STATUS (PRETRIAL

) SCHEDULING) ORDER

CENTRAL STRIPING SERVICE, INC., ) 

JAMES LESNIEWSKI, SUSAN LESNIEWSKI,)

)

Defendants. )

)

The status (pretrial scheduling) conference scheduled in

this case for July 11, 2005, is vacated since the joint status report

submitted by the parties indicates that the following order should

issue.

In the parties’ JSR they dispute how and when this action

should be scheduled. Plaintiff argues the action has been pending

since December 2004 and trial should commence on August 14, 2006. 

Defendants counter that trial should not commence until February 6,

2007. The parties have only a slight difference of seven months as to

when trial should be scheduled, but they have marked differences

concerning when a Markman hearing should be held. 

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1 To avoid unnecessary litigation over the claims, the parties

should meet and confer before filing the initial filings to see if

agreement can be reached on any issue.

2

MARKMAN PROCEDURE

Defendants insist an early Markman hearing would be

efficacious because the parties’ experts should know how the Judge

construes the patent claims in dispute before the exchange of expert

reports is required. Plaintiff disagrees, indicating that a Markman

hearing scheduled before expert discovery would be premature and

inefficient – suggesting that such an early scheduling would not

promote litigation economy, but would frustrate it. “Markman does not

obligate the trial judge to conclusively interpret claims at an early

stage in the case.” Sofamor Danek Group, Inc. v. DePuy-Motech, Inc.,

74 F.3d 1216, 1221 (Fed. Cir. 1996). Therefore, the following

Markman claim construction schedule is adopted:1

1. Opening brief and proposed Markman claim construction

order shall be filed no later than December 16, 2005.

2. Any response brief and/or proposed Markman claim

construction order shall be filed no later than January 17, 2006.

3. The Markman hearing will be held February 13, 2006,

commencing at 10:00 a.m. 

SERVICE OF PROCESS

All defendants have been served and no further service is

permitted, except with leave of Court, good cause having been shown.

///

///

///

///

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2 Defendants’ statement that they might seek to amend their

Answer to include unspecified affirmative defenses is too imprecise to

justify excluding this possible amendment from the “good cause”

standard. "Parties anticipating possible amendments . . . have an

'unflagging obligation' to alert the Rule 16 scheduling judge of the

. . . timing of such anticipated amendments in their status reports so

that the judge can consider whether such amendments may properly be

sought solely under the Rule 15(a) standard, and whether structuring

discovery pertinent to the parties' decision whether to amend is

feasible." Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal.

1999) (citation omitted). 

3 Unless the parties resolve their dispute regarding the amount

of discovery that should be allowed to be conducted, it will have to be

litigated before the magistrate judge. “The Lesniewski defendants will

serve their initial disclosures on July 15, 2005.” (JSR at 5.)

3

JOINDER OF ADDITIONAL PARTIES/AMENDMENT

Central Striping has until July 11, 2005, to seek leave

under Rule 15 of the Federal Rules of Civil Procedure “to conform its

answer to the answer filed . . . on behalf of the Lesniewskis.” (JSR

at 4.) Further, Defendants have until October 28, 2005, to file a

motion for leave which would amend their Answer under Federal Rule of

Civil Procedure 15 to assert the affirmative defense of inequitable

conduct before the United States Patent and Trademark Office.2 No

further joinder of parties or amendments to pleadings is permitted

except with leave of Court, good cause having been shown. 

DISCOVERY

(a) All discovery shall be completed by August 30, 2005.3 

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 orders,

if necessary, and, where discovery has been ordered, the order has

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4 The parties are advised that the Magistrate Judges in the

Eastern District are responsible for resolving discovery disputes. See

Local Rule 72-302(c)(1). Accordingly, counsel shall direct all

discovery-related matters to the Magistrate Judge assigned to this case.

A party conducting discovery near the discovery "completion" date runs

the risk of losing the opportunity to have a jurist resolve discovery

motions pursuant to the Local Rules.

5 This time deadline does not apply to motions for continuances,

temporary restraining orders, emergency applications, or motions under

Rule 16(e) of the Federal Rules of Civil Procedure.

4

been complied with or, alternatively, the time allowed for such

compliance shall have expired.4

(b) Each party shall comply with Federal Rule of Civil

Procedure 26(a)(2)’s initial expert witness disclosure and report

requirements on or before October 14, 2005, and with the rebuttal

expert disclosures authorized under the Rule on or before November 18,

2005.

MOTION HEARING SCHEDULE

The last hearing date for motions shall be October 30, 2006,

at 9:00 a.m.5

All purely legal issues are to be resolved by timely

pretrial motions. Motions shall be filed in accordance with Local

Rule 78-230(b). Opposition papers shall be filed in accordance with

Local Rule 78-230(c). Failure to comply with this local rule 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 motion may result

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

nonmovant to demonstrate a genuine issue of material fact remains for

trial. Cf. Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995). When the

last day for filing an opposition brief falls on a legal holiday, the

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5

opposition brief shall be filed on the next court day immediately

following the legal holiday. See Fed. R. Civ. P. 6(a). 

Any party bringing a motion to dismiss, motion for summary

judgment or summary adjudication, motion for judgment on the

pleadings, or motion to remand shall attach to the motion a copy of

the latest complaint (or cross-complaint where applicable).

 In determining any motion for summary judgment, the Court

will assume that the material facts as claimed in the movant's

Statement of Undisputed Facts and adequately supported by evidence are

admitted without controversy except to the extent that such material

facts are (1) disputed in the nonmovant's response to the movant's

"Statement of Undisputed Facts," and (2) controverted by declaration

or other written evidence filed in opposition to the motion. See L.R.

56-260(b); Nilsson, Robbin, et al., v. Louisiana Hydrolec, 854 F.2d

1538, 1545 (9th Cir. 1988). A party opposing a motion for summary

judgment must serve upon all parties and file with the Clerk of Court

the evidence upon which the opposing party will rely in opposition to

the motion in accordance with L.R. 78-230(c). Evidence not timely

filed by a party will not be considered. See Marshall v. Gates, 44

F.3d at 725. 

Absent highly unusual circumstances, reconsideration of a

motion is appropriate only where:

(1) The Court is presented with newly discovered evidence

that could not have reasonably been discovered prior to the filing of

the party's motion or opposition papers;

(2) The Court committed clear error or the initial decision

was manifestly unjust; or

(3) There is an intervening change in controlling law.

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28 6 Such motions include contentions under the collateral estoppel

or res judicata doctrines.

6

A motion for reconsideration based on newly discovered evidence shall

set forth, in detail, the reason why said evidence could not have

reasonably been discovered prior to the filing of the party's motion

or opposition papers. Motions for reconsideration shall comply with

Local Rule 78-230(k) in all other respects.

The parties are reminded that motions in limine are

procedural devices designed to address the admissibility of evidence

and are cautioned that the Court will look with disfavor upon motions6

presented at the final pretrial conference or at trial in the guise of

motions in limine. The parties are further cautioned that if any

legal issue which should have been tendered to the Court by proper

pretrial motion requires resolution by the Court after the established

law and motion cut-off date, substantial sanctions may be assessed for

the failure to file the appropriate pretrial motion and/or the Court

may elect not to decide the motion and to treat it as untimely. See

U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099,

1104 (9th Cir. 1985) (affirming district court's denial of untimely

motion since "pretrial order controls the subsequent course of action

unless modified by a subsequent order"), rejected on other grounds,

Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1995);

Dedge v. Kendrick, 849 F.2d 1398 (11th Cir. 1988) (same). 

 FINAL PRETRIAL CONFERENCE

The final pretrial conference is set for December 18, 2006,

at 2:30 p.m. The parties are cautioned that the lead attorney who

WILL TRY THE CASE for each party shall attend the final pretrial

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7 The failure of one or more of the parties to participate in

the preparation of any joint document required to be filed in this case

does not excuse the other parties from their obligation to timely file

the document in accordance with this Order. In the event a party fails

to participate as ordered, the party or parties timely submitting the

document shall include a declaration explaining why they were unable to

obtain the cooperation of the other party. 

7

conference. In addition, all persons representing themselves and

appearing in propria persona must attend the pretrial conference.

The parties shall file a JOINT pretrial statement with the

Court not later than seven (7) days prior to the final pretrial

conference.7 The Court uses the parties' joint pretrial statement to

prepare its final pretrial order. The final pretrial order supersedes

the pleadings and controls the facts and issues which may be presented

at trial. Issues asserted in pleadings which are not preserved for

trial in the final pretrial order cannot be raised at trial. Hotel

Emp., et al. Health Tr. v. Elks Lodge 1450, 827 F.2d 1324, 1329 (9th

Cir. 1987) (“Issues not preserved in the pretrial order are eliminated

from the action.”); Valley Ranch Dev. Co. v. F.D.I.C., 960 F.2d 550,

554 (5th Cir. 1992) (indicating that an issue omitted from the

pretrial order is waived, even if it appeared in the pleading); cf.

Raney v. District of Columbia, 892 F. Supp. 283 (D.D.C. 1995)

(refusing to modify the pretrial order to allow assertion of a

previously-pled statute of limitations defense); Olympia Co., Inc. v.

Celotex Corp., 597 F. Supp. 285, 289 (E.D. La. 1984) (indicating that

“[a]ny factual contention, legal contention, any claim for relief or

defense in whole or in part, or affirmative matter not set forth in

[the pretrial statement] shall be deemed . . . withdrawn,

notwithstanding the contentions of any pleadings or other papers

previously filed [in the action]”). 

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8 In this section of the joint pretrial statement the parties

must specify what the judge is expected to decide and what the jury is

expected to decide. For instance, if the judge is expected to make a

ruling after the jury decides factual disputes, the factual issues to be

submitted to the jury shall be specified.

9 In separate attachments to the joint pretrial statement each

party shall list all witnesses and each exhibit individually that the

party intends to offer at trial. Plaintiff’s exhibits shall be listed

numerically; defendant’s exhibits shall be listed alphabetically.

10 If there are no legal or equitable contentions, the title

shall reflect only what is at issue. The requirement in (b)(8) is

modified since a party only needs to state sufficient law to show

viability of an issue. But it must be clear whether precise federal or

state law governs. If state law governs, the state whose law is

applicable must be specified. Since the governing law is stated in

conjunction with the elemental facts to establish a pled claim or

defense, there is no need for a separate statement of disputed factual

issues required by (b)(4). The relief sought, referenced in (b)(7),

shall follow the issue or issues giving rise to that relief. 

8

The following provisions of Local Rule 16-281 shall apply

with respect to the matters to be included in the joint pretrial

statement: (b)(1), (b)(2),8 (b)(3), (b)(5), (b)(9), (b)(10),

(b)(11),9 (b)(12) to and including (b)(21), and (c). 

The subject matter in Local Rule 16-281(b)(4), (b)(7), and

(b)(8) shall be combined in a single section titled “Factual, Legal

and/or Equitable Contentions.”10 In the “Factual, Legal and/or

Equitable Contentions” section, the parties shall number or

alphabetize each individually-pled cause of action and pled

affirmative defense to preserve the issue for trial. Each pled claim

or affirmative defense must be accompanied by the elemental facts

supporting it and the relief sought, if applicable. For example: 

Plaintiff claims that Defendant violated her Fourth Amendment right to

be free from excessive force by applying the handcuffs too tight and

seeks general damages. If the parties disagree about the inclusion of

an issue in this section, that issue shall be followed by the title

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9

“Controversy”, under which the parties’ respective positions on the

issue shall be stated. The parties are warned that the “Factual,

Legal and/or Equitable Contentions” section of the joint pretrial

statement could be used to specify the issues preserved for trial in

the pretrial order, and that order could issue without the court

holding the scheduled final pretrial conference. See Mizwicki v.

Helwig, 196 F.3d 828, 833 (7th Cir. 1999) (“There is no requirement

that the court hold a pretrial conference.”). 

The parties are further warned that “since [the] process [of

having them delineate trial issues] is designed to promote efficiency

and conserve judicial resources, ‘there is no reason to require that

the elimination of non-trialworthy claims await a formal motion for

summary judgment.’” Berkovitz v. Home Box Office, Inc., 89 F.3d 24,

29 (1st Cir. 1996). "If the pretrial [statement] 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 issue. Portsmouth Square v.

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

(emphasis added). 

If possible, at the time of filing the joint Pretrial

Statement counsel shall also email it in a format compatible with

WordPerfect to: geborders@caed.uscourts.gov.

SETTLEMENT CONFERENCE

No settlement conference is currently scheduled. The

parties shall address in their joint pretrial statement whether they

wish to have a judge-assisted settlement conference. If counsel wish

the trial judge to act as settlement judge, written stipulations to

this effect which waive the judge's disqualification from later acting

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as the trial judge must be filed prior to the scheduling of the

settlement conference. See Local Rule 16-270(b). If the parties wish

to participate in Court-assisted settlement prior to the final

pretrial conference, they should contact the Deputy Clerk.

TRIAL SETTING

Trial is set for March 20, 2007, commencing at 9:00 a.m. 

MISCELLANEOUS

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 a mere stipulation by itself to change dates does not

constitute good cause. 

OBJECTIONS TO STATUS (PRETRIAL SCHEDULING) ORDER

Any party may, within ten (10) court days after the date

this Order is filed, file and serve written objections to any part of

this Order. Any objection must specify the requested correction,

addition, and/or deletion. Any response to an objection must be filed

and served within ten (10) court days after the objection is filed.

IT IS SO ORDERED.

Dated: June 30, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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