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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SERGEI PORTNOY, No. CIV.S-04-1850 DFL DAD PS

Plaintiff,

v. ORDER

US BANK, et al.,

Defendants.

____________________________/

STATUS (PRETRIAL SCHEDULING) ORDER

READ THIS ORDER CAREFULLY. IT CONTAINS IMPORTANT DATES

WHICH THE COURT WILL STRICTLY ENFORCE AND WITH WHICH ALL COUNSEL AND

PARTIES MUST COMPLY. A FAILURE TO COMPLY WITH THE TERMS OF THIS

ORDER MAY RESULT IN THE IMPOSITION OF MONETARY AND ALL OTHER

SANCTIONS WITHIN THE POWER OF THE COURT, INCLUDING DISMISSAL OR AN

ORDER OF JUDGMENT. 

Pursuant to court order, a Status (Pretrial Scheduling)

Conference was held on February 4, 2005, at 10:00 a.m. Plaintiff

appeared pro se. Juan C. Basombrio appeared as counsel for

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defendants. After hearing, the court makes the following findings

and orders:

SERVICE OF PROCESS

All parties defendant have been served and no further

service is permitted except with leave of court, good cause having

been shown.

JOINDER OF PARTIES/AMENDMENTS

No further joinder of parties or amendments to pleadings is

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

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir.

1992).

JURISDICTION/VENUE

The court’s jurisdiction is contested and defendants’

motion to dismiss in this regard is currently under submission before

the undersigned. Venue is hereby found to be proper.

MOTION HEARING SCHEDULES

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

September 2, 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, Pete Buzo, at (916) 930-4128, 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

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the requirements for noticing such motions on the court's regularly

scheduled law and motion calendar. Opposition or statement of nonopposition 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. Dispositive motions shall be noticed for hearing

before the undersigned, to be resolved on findings and

recommendations to the district court. See 28 U.S.C. § 636(b)(1)(B)

and L.R. 72-302(c)(21).

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,

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. Counsel are 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

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SUBSTANTIVE MOTIONS PRESENTED IN THE GUISE of MOTIONS IN LIMINE AT

THE TIME OF TRIAL. COUNSEL ARE FURTHER 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,

SUBSTANTIAL SANCTIONS WILL BE LEVIED AGAINST COUNSEL WHO FAILED TO

TIMELY FILE AN APPROPRIATE MOTION.

DISCOVERY

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

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

"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 twenty-eight (28)

days after personal service and filing of the motion or not less than

thirty-one (31) days after mailed service and filing of the motion. 

In this regard, plaintiff is to designate in writing and file with

the court and serve upon all other parties the names of all experts

that he proposes to tender at trial not later than May 6, 2005. 

Defendants are to designate in writing and file with the court and

serve upon all other parties the names of all experts that they

propose to tender at trial not later than May 20, 2005. All experts

so designated are to be fully prepared to render an informed opinion

at the time of designation so that they may fully participate in any

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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.

An expert witness not appearing on said lists will not be

permitted to testify unless the party offering the witness

demonstrates: (a) that the necessity of the witness could not have

been reasonably anticipated at the time the lists were exchanged; (b)

the court and opposing counsel were promptly notified upon discovery

of the witness; and (c) that the witness was promptly proffered for

deposition.

FINAL PRETRIAL CONFERENCE

The Final Pretrial Conference is SET for November 4, 2005,

at 2:00 p.m., before the Honorable David F. Levi. The parties are

cautioned that counsel appearing for Pretrial will in fact try the

matter.

The 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.

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Plaintiff and defendants shall each file a separate

Pretrial Statement in accordance with the provisions of Local Rule

16-281. Additionally, the parties are to prepare a JOINT STATEMENT

with respect to the undisputed facts and disputed factual issues of

the case. See Local Rule 16-281(b)(3), (4), and (6). In that joint

statement, 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. 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 required to provide in their separate Pretrial Statements a list

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

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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; defendants'

exhibits shall be listed alphabetically. In the event that the

alphabet is exhausted, defendants' 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

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

whose law is applicable.

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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 January 9, 2006, at 9:00 a.m. before the

Honorable David F. Levi. Trial will be by jury.

SETTLEMENT CONFERENCE

A Settlement Conference will be set before a judge other

than the trial judge at the time of the Pretrial Conference.

Counsel are cautioned to have a principal capable of

disposition present at the Settlement Conference or to be fully

authorized to settle the matter on any terms and at the Settlement

Conference.

MISCELLANEOUS PROVISIONS

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

16(b), this 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

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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.

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.

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: April 15, 2005.

DAD:th

Ddadl\orders.prose\portnoy1850.schedord

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