2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JONATHAN FELIX, Case No.: 19cv891-W(MSB)

12 Plaintiff,

ORDER GRANTING IN PART JOINT

13 v. MOTION TO CONTINUE ALL DISCOVERY

AND RELATED DEADLINES BY SIXTY

14 CITY OF SAN DIEGO, et al.,

DAYS [ECF NO. 29]

15 Defendants. 16 17 On March 18, 2020, the parties filed a “Joint Motion to Extend All Discovery and 18 Related Deadlines by Sixty (60) Days.” (ECF No. 29.) In support, they contend that 19 written fact discovery has been completed, and the only outstanding fact discovery 20 concerns depositions of the individual Defendants, one San Diego Police Officer, and 21 Plaintiff’s fiancée. (Id. at 3.) The parties further state that the City of San Diego’s 22 operations have been significantly impacted by the ongoing public health crisis, “[a]ll 23 City buildings have been closed to the general public, and direction has been given to 24 focus on essential City services which include Police, Fire, Water, Wastewater and Trash 25 Disposal. (Id.) They further maintain that “[i]n order to promote the health, safety and 26 wellbeing of all involved, the parties agree to postpone the remaining fact witness 27 depositions until a time where meetings and travel are not discouraged by our local, 2 PART the motion. Having consulted with the chambers of District Judge Whelan, the 3 Court amends its Scheduling Order Regulating Discovery and Other Pre-Trial 4 Proceedings as follows: 5 1. All fact discovery shall be completed by all parties on or before June 2, 6 2020. “Completed” means that all discovery under Rules 30-36 of the Federal Rules of 7 Civil Procedure, and discovery subpoenas under Rule 45, must be initiated a sufficient 8 period of time in advance of the cut-off date, so that it may be completed by the cut-off 9 date, taking into account the times for service, notice and response as set forth in the 10 Federal Rules of Civil Procedure. 11 Counsel shall promptly and in good faith meet and confer with regard to all 12 discovery disputes in compliance with Local Rule 26.1(a). All discovery motions must be 13 filed within 30 days of the event giving rise to the dispute. For oral discovery, the event 14 giving rise to the dispute is the completion of the transcript of the relevant portion of 15 the deposition. For written discovery, the event giving rise to the discovery dispute is 16 the date of service of the response, not the date on which counsel reach an impasse in 17 meet and confer efforts. If a party fails to provide a discovery response, the event giving 18 rise to the discovery dispute is the date response was due. 19 The Court’s procedures for resolving discovery disputes are set forth in Magistrate 20 Judge Michael S. Berg’s Civil Chambers Rules, which are posted on the Court’s website. 21 A failure to comply in this regard will result in a waiver of a party’s discovery issue. 22 Absent an order of the court, no stipulation continuing or altering this requirement 23 will be recognized by the court. 24 2. The parties shall designate their respective experts in writing by June 5, 25 2020. Pursuant to Fed. R. Civ. P. 26(a)(2)(A), the parties must identify any person who 26 may be used at trial to present evidence pursuant to Rules 702, 703 or 705 of the Fed. R. 27 Evid. This requirement is not limited to retained experts. The date for exchange of 2 testimony the expert is expected to provide. The list shall also include the normal rates 3 the expert charges for deposition and trial testimony. 4 3. By July 17, 2020, each party shall comply with the disclosure provisions in 5 Rule 26(a)(2)(A) and (B) of the Federal Rules of Civil Procedure. This disclosure 6 requirement applies to all persons retained or specially employed to provide expert 7 testimony, or whose duties as an employee of the party regularly involve the giving of 8 expert testimony. Except as provided in the paragraph below, any party that fails to 9 make these disclosures shall not, absent substantial justification, be permitted to use 10 evidence or testimony not disclosed at any hearing or at the time of trial. In addition, 11 the Court may impose sanctions as permitted by Fed. R. Civ. P. 37(c). 12 4. Any party shall supplement its disclosure regarding contradictory or 13 rebuttal evidence under Federal Rules of Civil Procedure 26(a)(2)(D) and 26(e) by 14 July 31, 2020. 15 5. All expert discovery shall be completed by all parties by August 28, 2020. 16 The parties shall comply with the same procedures set forth in the paragraph governing 17 fact discovery. 18 6. Failure to comply with this section or any other discovery order of the court 19 may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on 20 the introduction of experts or other designated matters in evidence. 21 7. All other pretrial motions must be filed by September 25, 2020. Counsel 22 for the moving party must obtain a motion hearing date from the law clerk of the judge 23 who will hear the motion. The period of time between the date you request a motion 24 date and the hearing date may vary from one district judge to another. Please plan 25 accordingly. Failure to make a timely request for a motion date may result in the 26 motion not being heard. Motions in limine are to be filed as directed in the Local Rules, 27 or as otherwise set by the district judge. 2 2020, at 9:30 a.m., in the chambers of Magistrate Judge Michael S. Berg located at 221 3 West Broadway, Suite 3145, San Diego, CA 92101. All discussions at the Mandatory 4 Settlement Conference will be informal, off the record, privileged, and confidential. 5 Counsel for any non-English speaking party is responsible for arranging for the 6 appearance of an interpreter at the conference. 7 a. Personal Appearance of Parties Required: All named parties, party 8 representatives, including claims adjusters for insured defendants, as well as the 9 principal attorney(s) responsible for the litigation, must be present in person and legally 10 and factually prepared to discuss and resolve the case. Counsel appearing without their 11 clients (whether or not counsel has been given settlement authority) will be cause for 12 immediate imposition of sanctions and may also result in the immediate termination of 13 the conference. 14 b. Full Settlement Authority Required: A party or party representative 15 with full settlement authority1 must be present at the conference. Retained outside 16 corporate counsel shall not appear on behalf of a corporation as the party 17 representative who has the authority to negotiate and enter into a settlement. A 18 government entity may be excused from this requirement so long as the government 19 attorney who attends the Mandatory Settlement Conference has (1) primary 20 responsibility for handling the case, and (2) authority to negotiate and recommend 21 settlement offers to the government official(s) having ultimate settlement authority. 22

23 1 “Full settlement authority” means that the individuals at the settlement conference must be 24 authorized to fully explore settlement options and to agree at that time to any settlement terms 25 acceptable to the parties. Heileman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 653 (7th Cir. 1989). The person needs to have “unfettered discretion and authority” to change the settlement position of a 26 party. Pitman v. Brinker Int’l, Inc., 216 F.R.D. 481, 485-86 (D. Ariz. 2003). The purpose of requiring a person with unlimited settlement authority to attend the conference contemplates that the person’s 27 view of the case may be altered during the face to face conference. Id. at 486. A limited or a sum 2 October 19, 2020, the parties shall submit directly to Magistrate Judge Berg’s chambers 3 (via hand delivery or by e-mail to the Court at efile_berg@casd.uscourts.gov), 4 confidential settlement statements. The statements are limited to ten (10) pages, plus 5 an additional ten (10) pages of exhibits. Each party’s settlement statement must outline 6 (1) the nature of the case and the claims, (2) position on liability or defenses; (3) 7 position regarding settlement of the case with a specific demand/offer for settlement, 8 and (4) any previous settlement negotiations or mediation efforts. The Mandatory 9 Settlement Conference statement must not merely repeat what was contained in the 10 Early Neutral Evaluation conference brief or any earlier settlement brief. The 11 settlement statement must specifically identify what the discovery process revealed 12 and the effect that the evidence has on the issues in the case. To the extent specific 13 discovery responses, portions of deposition testimony, or expert reports are pertinent 14 to the Court’s evaluation of the matter, these documents must be attached as exhibits. 15 Evidence supporting or refuting either party’s claim for damages must also be identified 16 and included as an exhibit. 17 If a specific demand or offer cannot be made at the time the settlement 18 statement is submitted, then the reasons as to why a demand or offer cannot be made 19 must be stated. Further, the party must explain when they will be in a position to state 20 a demand or offer. General statements such as a party will “negotiate in good faith” is 21 not a specific demand or offer. The settlement statement should be submitted 22 confidentially and need not be shared with other parties. 23 d. Requests to Continue a Mandatory Settlement Conference: Any 24 request to continue the Mandatory Settlement Conference, or request for relief from 25 any of the provisions or requirements of this Order, must be sought by a written 26 application. Absent good cause, requests for continuances will not be considered 27 unless submitted in writing no fewer than seven (7) calendar days prior to the 2 counsel and any unrepresented parties must still appear in person, unless a written 3 joint notice confirming the complete settlement of the case is filed no fewer than 4 twenty-four (24) hours before the scheduled conference. 5 9. Pursuant to Civil Local Rule 7.1(f)(3)(c), if an opposing party fails to file 6 opposition papers in the time and manner required by Civil Local Rule 7.1(e)(2), that 7 failure may constitute a consent to the granting of a motion or other request for ruling 8 by the court. Accordingly, all parties are ordered to abide by the terms of Local Rule 9 7.1(e)(2) or otherwise face the prospect of any pretrial motion being granted as an 10 unopposed motion pursuant to Civil Local Rule 7.1(f)(3)(c). Should either party choose 11 to file or oppose a motion for summary judgment or partial summary judgment, no 12 Separate Statement of Disputed or Undisputed Facts is required. 13 10. Despite the requirements of Civil Local Rule 16.1(f)(2), neither party is 14 required to file a Memorandum of Contentions of Fact and Law at any time. The parties 15 shall instead focus their efforts on drafting and submitting a proposed pretrial order by 16 the time and date specified by Civil Local Rule 16.1(f)(6)(b). The proposed pretrial order 17 shall comply with Civil Local Rule 16.1(f)(6) and the Standing Order in Civil Cases issued 18 by the assigned district judge. 19 11. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. 20 Civ. P. 26(a)(3) by 12/21/2020. Failure to comply with these disclosure requirements 21 could result in evidence preclusion or other sanctions under Fed. R. Civ. P. 37. 22 12. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by 23 December 28, 2020. At this meeting, counsel shall discuss and attempt to enter into 24 stipulations and agreements resulting in simplification of the triable issues. Counsel shall 25 exchange copies and/or display all exhibits other than those to be used for 26 impeachment. The exhibits shall be prepared in accordance with Local Rule 27 16.1(f)(4)(c). Counsel shall note any objections they have to any other parties’ Pretrial 2 13. Counsel for plaintiff will be responsible for preparing the pretrial order and 3 arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By January 4, 4 2021, plaintiff’s counsel must provide opposing counsel with the proposed pretrial order 5 for review and approval. Opposing counsel must communicate promptly with plaintiff’s 6 attorney concerning any objections to form or content of the pretrial order, and both 7 parties shall attempt promptly to resolve their differences, if any, concerning the order. 8 14. The Proposed Final Pretrial Conference Order, including objections to any 9 other parties’ Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and 10 lodged with the assigned district judge by January 11, 2021, and shall be in the form 11 prescribed in and comply with Local Rule 16.1(f)(6). 12 15. In addition to submitting the proposed final pretrial conference order, the 13 parties are further ordered to separately submit informal letter briefs, not exceeding 14 two single spaced pages, served on opposing counsel and received in the chambers of 15 Judge Thomas J. Whelan, United States District Judge (and not filed with the Clerk’s 16 Office) by 2:30 p.m. on January 20, 2021. 17 The letter brief should be a relatively informal and straightforward document. The 18 letter brief should outline a short, concise and objective factual summary of the party’s 19 case in chief, the number of hours/days each party intends to expend at trial, the 20 approximate number of witnesses, whether certain witnesses will be coming in from out 21 of town, the number of testifying expert witnesses, whether any unique demonstrative 22 exhibits may be presented, the number of proposed motions in limine that may be filed, 23 precisely when the parties would be prepared to submit their in limine papers (and 24 whether the parties have met and conferred with respect to in limine issues), the issue 25 of proposed jury instructions and when the parties intend to submit them before trial, 26 and voir dire issues, either party’s preference as to what date(s) the trial should begin 27 and any other pertinent information that either party may deem useful to assist the 1 16. The final Pretrial Conference is scheduled on the calendar of the Honorable 2 || Thomas J. Whelan on January 25, 2021, at 10:30 a.m. 3 17. The parties must review the chambers’ rules for the assigned district judge 4 magistrate judge. 5 18. A post trial settlement conference before a magistrate judge may be held 6 || within 30 days of verdict in the case. 7 19. The dates and times set forth herein will not be modified except for good 8 || cause shown. 9 20. Briefs or memoranda in support of or in opposition to any pending motion 10 || shall not exceed twenty-five (25) pages in length without leave of a district court judge. 11 || No reply memorandum shall exceed ten (10) pages without leave of a district court 12 judge. Briefs and memoranda exceeding ten (10) pages in length shall have a table of 13 || contents and a table of authorities cited. 14 21. —Plaintiff’s counsel shall serve a copy of this order on all parties that enter 15 || this case hereafter. 16 IT IS SO ORDERED. 17 || Dated: March 19, 2020 _ = i _ 2 FF 19 Honorable Michael S. Berg United States Magistrate Judge 20 21 22 23 24 25 26 27 28