Hon. James V. Selna · U.S. District Court for the Central District of California
=== Criminal Trial Order Revised, 8-17-17 ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) Case No. SACR -JVS ORDER RE CRIMINAL TRIAL vs. Plaintiff, ______________________________ ) Defendant(s) The above matter is set for trial before the Honorable James V. Selna, Courtroom 10C, Ronald Reagan Federal Building, 411 W. Fourth Street, Santa Ana, CA 92701. All aspects of the preparation and trial of this matter shall be conducted with dignity and civility to all, whether in the court room or elsewhere. FILINGS 1. All pleadings shall be served electronically on opposing counsel or faxed to opposing counsel no later than 4:30 p.m. on the day of filing. August 10, 2017 1 2. Counsel are ORDERED to list their e-mail address and facsimile transmission numbers along with their address and telephone numbers on all papers submitted to the Court in order to facilitate communication by the Court. MOTION PRACTICE 4. Memoranda of Points and Authorities in support of or in opposition to motions shall not exceed 25 pages. Replies shall not exceed 12 pages. Only in rare instances and for good cause shown will the Court grant an application to extend these page limitations. No supplemental brief shall be filed without prior leave of court. Typeface shall comply with Local Rule 11-3.1.1. (Civil). NOTE: If Times Roman font is used, the size must be no less than 14; if Courier is used, the size must be no less than 12. Footnotes shall be in the same size as text and no more than five lines. Filings which do not conform to the Local Rules and this Order will not be considered. The parties are reminded that the Local Criminal Rules incorporate the Local Civil Rules where there is no comparable provision in the Local Criminal Rules. (See Local Criminal Rule 57-1.) This includes the timing for filing of motions. 5. Before filing any motion for discovery, a party shall consult with opposing counsel to ascertain what discovery will be provided. Any discovery motion shall state with particularity what is requested, the basis for such requested production, whether such discovery has been formally requested, and whether such discovery has been declined. Motions made without prior consultation with opposing counsel or which fail to include the above information will not be heard. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 2 DISCOVERY & NOTICE 6. Counsel for the government and counsel for defendant shall comply promptly with discovery and notice pursuant to Fed. R. Crim. P. , Rules 12, 12.1, 12.2, 12.3, 15, and 16. Upon government counsel’s discovery of any evidence within the scope of Brady v. Maryland, 373 U.S. 83 (1963), such evidence shall be produced forthwith to counsel for the defendant. Counsel for the government shall also disclose to counsel for defendant the existence or non- existence of: (1) evidence obtained by electronic surveillance; (2) testimony by a government informer. PLEA AGREEMENTS 7. If the parties enter into a plea agreement, they shall promptly advise the Court Room Deputy, and shall timely arrange for a change of plea hearing for a date no later than 30 days from the full execution of the plea agreement TRIAL 8. Counsel for the government shall file with the Court in camera (under seal) all statements of all witnesses to be called by the government in its case-in-chief. Such statements shall be filed at least five (5) calendar days before trial. 9. Counsel shall arrive at the Courtroom promptly at 8:30 a.m. on the first day of trial. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 3 10. Counsel for the government shall present the Courtroom Deputy with the following documents on the first day of trial: a. b. c. THREE copies of the government's witness list. THREE copies of the government's exhibit list in the form specified in Local Rule 9.9 (Civil). ALL of the government’s exhibits, with official exhibit tags attached and bearing the same number shown on the exhibit list. Defendant's counsel does not have to deliver his or her exhibits to the Courtroom Deputy on the first day of trial; however, Defendant's counsel is responsible for affixing completed exhibit tags with the case name and case number to his or her exhibits which are intended to be used in the defendant’s case. Exhibit tags can be obtained from the receptionist in the Clerk's Office. Exhibits shall be numbered 1, 2, 3, 4, etc., NOT 1.1, 1.50 etc. If a blow up is an enlargement of an existing exhibit, it shall be designated with the number of the original exhibit followed by an “A”. Counsel for the government should be aware that the Court will order that exhibits such as firearms, narcotics, etc., remain in the custody of the agents during the pendency of the trial. The agent will be required to sign the appropriate form in order to take custody of such exhibits. It shall be the responsibility of the agents to produce said items for court, secure them at night and guard them at all times while in the courtroom. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 4 d. A bench book containing a copy of all exhibits that can be reproduced. Each exhibit shall be tabbed with the exhibit number for easy referral. Defendant's counsel shall provide the Court with a copy of their exhibits as they are introduced during trial. e. If not previously e-mailed to the Courtroom Deputy prior to trial, a 3 1/2-inch diskette in WordPerfect 9 or higher containing the exhibit list. A copy of the exhibit list with all admitted exhibits will be given to the jury during deliberations. Government and defense counsel shall review and approve the exhibit list with the Courtroom Deputy prior to it being given to the jury. 11. If counsel need to arrange for the installation of their own additional equipment, such as video monitors, overhead projectors, etc., notify the Courtroom Deputy no later than 4:30 p.m. two court days before trial so that the necessary arrangements can be made. 12. At least five court days prior to trial, each counsel shall file with the Clerk and serve on opposing counsel any special questions requested to be put to prospective jurors on voir dire. 13. Trials commence on Tuesday at 8:30 a.m., with jury selection beginning at 9:00 a.m., or as soon thereafter as possible. Trials are conducted Tuesday through Friday from 9:00 a.m. to 4:30 p.m., with two fifteen (15) minute breaks, and a lunch recess from 12:00 p.m. to 1:30 p.m. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 5 14. Before trial commences, the Court will give counsel an opportunity to discuss administrative matters and anticipated procedural or legal issues. During the trial, if there are any matters you wish to discuss, please inform the Courtroom Deputy. 15. The Court reserves the time from 8:30 a.m. to 9:00 a.m. to handle legal and administrative matters outside of the presence of the jury. The trial before the jury will commence promptly at 9:00 a.m. Counsel are urged to anticipate matters which may need discussion or hearing outside of the presence of the jury and to raise them during this period, during breaks or at the end of the day. The Court places a high priority on making efficient use of jurors’ time during the trial day. JURY INSTRUCTIONS & VERDICT FORMS 16. No later than one week before trial, jury instructions in the form described below are to be submitted. Where possible, counsel are to use the instructions from the Manual of Model Criminal Jury Instructions for the Ninth Circuit, West Publishing, latest edition, modified, as necessary, to fit the facts of the case (e.g., inserting names of defendant(s) to whom instruction applies). Where language appears in brackets in the model instruction, counsel shall select the appropriate text and eliminate the inapplicable bracketed text. Where no applicable Ninth Circuit model instruction is available, counsel are directed to use the instructions from O’Malley, Grenig & Lee (formerly Devitt, et al.), Federal Jury Practice and Instructions, West Publishing Co., current edition. Counsel shall include both general and substantive instructions. If not previously e-mailed to the Courtroom Deputy, Counsel shall submit a flash drive, compatible with Word 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 6 Perfect 9.0 or higher containing the proposed instructions and a “clean” set of such instructions, as set forth below. 17. Thirty days prior to trial, counsel shall meet and confer for the purpose of submitting a single packet of proposed jury instructions and objections, organized in the order the instruction are intended to be read. The packet shall contain all instructions desired by any party on all subjects. • If an instruction is agreed and joint, it shall be so labeled. • If the parties submit alternatives instructions on a topic, they shall be labeled A, B, C etc. (e.g, Party A’s Proposed Instruction No. 2A). Immediately behind the instruction, the party shall provide a statement of law in support of its version and any legal objection to the other party’s proposal. • If only one party submits an instruction on a topic, the party shall provide immediately behind the instruction a statement of law in support of its instruction. If there is any opposition, it shall appear immediately behind the proponent’s statement. The single packet shall be filed no later than seven days prior to the trial. At the same time, the parties shall also submit a WordPefect version to the [email protected] e-mail box. The Court will entertain such additional instructions as may be warranted by the evidence offered at trial. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 7 If a proposed instruction is a modification of a pattern instruction, , the proponent shall also include in the packet a version showing all deletions and additions to the pattern instruction, using bolding, italic, strike outs or similar means. The parties need not submit preliminary instruction to be given at the outset of trial, but they may submit additional instructions or revisions of the Court’s standard initial instructions. See the Court’s website for set of Exemplar Initial Jury Instructions in pdf. at the bottom of the page: http://156.131.20.221/CACD/JudgeReq.nsf/2fb080863c88ab47882567c9007fa0 70/fd063442150e12a3882579f5006b081e?OpenDocument The parties shall submit a joint proposed form of special verdict seven days prior to trial. If there are objections or competing special verdicts, they shall all be submitted in a single packet. 18. An index page shall accompany all jury instructions that are submitted to the Court. The index page shall indicate the following: a. The number of the instruction; b. A brief title of the instruction; c. The source of the instruction; and d. The page number of the instruction. EXAMPLE: Number Title Source Page Number #1 Duty of the Jury 9th Cir. 1.01 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INSTRUCTIONS GOVERNING PROCEDURE DURING TRIAL 19. Counsel shall not refer to their clients or any witness over 14 years of age by the person’s first name during trial. 20. Do not discuss the law or argue the case in opening statements. 21. When objecting, state only that you are objecting and the legal ground of the objection, e.g., hearsay, irrelevant, etc. Do not argue an objection before the jury. 22. Do not approach the Courtroom Deputy or the witness box without the Court's permission. Please return to the lectern when your purpose has been accomplished. Do not enter the well of the Court without the Court's permission. 23. Please rise when addressing the Court. In jury cases, please rise when the jury enters or leaves the courtroom. 24. Address all remarks to the Court. Do not directly address the Courtroom Deputy, the reporter or opposing counsel. If you wish to speak with opposing counsel, ask permission to talk to counsel off the record. All requests for the re-reading of questions or answers, or to have an exhibit placed in front of a witness, shall be addressed to the Court. 25. Do not make an offer of stipulation unless you have conferred with opposing counsel and reached an agreement. Any stipulation of fact will require the defendant's personal concurrence and shall be submitted to the Court in August 10, 2017 9 writing for approval. A proposed stipulation should be explained to him or her in advance. 26. While court is in session, do not leave the counsel table to confer with investigators, secretaries, or witnesses unless permission is granted in advance. 27. When a party has more than one lawyer, only one may conduct the examination of a given witness and only that same lawyer may handle objections during the testimony of that witness. 28. If a witness was on the stand at a recess or adjournment, have the witness back on the stand and ready to proceed when court resumes. 29. Do not run out of witnesses. If you are out of witnesses and there is more than a brief delay, the Court may deem that you have rested. 30. The Court attempts to cooperate with doctors and other professional witnesses and will, except in extraordinary circumstances, accommodate them by permitting them to be put on out of sequence. Anticipate any such possibility and discuss it with opposing counsel. If there is an objection, confer with the Court in advance. 31. Counsel are advised to be on time; the Court starts promptly. SENTENCINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 August 10, 2017 10 32. All filings shall be made in accordance with Federal Rule of Criminal Procedure 32(f)(1) unless otherwise directed by the Court at the time the plea is taken or, in the case of trial, at the time the verdict is returned. 33. The Court generally makes available a draft Sentencing Memorandum fifteens minute prior to the sentencing hearing. SPECIAL APPEARANCES. 34. The Court does not entertain special appearances. * * * * * * * * * * * * 35. The Court thanks counsel in advance for their cooperation. DATED: _____________________________ James V. Selna United States District Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
=== Exemplar Initial Jury Instructions ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KELLY BUFFINGTON, Plaintiff, CASE NO: SACV 18-106 JVS (JDEx) v. NESTLE USA, INC., GERBER PRODUCTS COMPANY, Defendants. INITIAL JURY INSTRUCTIONS DATED: October 7, 2019 ___________________________ JAMES V. SELNA UNITED STATES DISTRICT JUDGE F 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 1 Members of the jury: You are now the jury in this case. It is my duty to instruct you on the law. These instructions are preliminary instructions to help you understand the principles that apply to civil trials and to help you understand the evidence as you listen to it. It is the final set of instructions that will govern your deliberations. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so. Please do not read into these instructions or anything I may say or do that I have an opinion regarding the evidence or what your verdict should be. F 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 2 To help you follow the evidence, I will give you a brief summary of the positions of the parties: This case involves plaintiff Kelly Buffington’s claims against defendants, Nestle USA, Inc. and Gerber Products Company. Kelly Buffington alleges claims for sex/pregnancy discrimination, disability discrimination, discrimination by association based on her daughter’s disability, failure to prevent discrimination, retaliation, CFRA interference, and wrongful termination in violation of public policy against both Nestle USA, Inc. and Gerber Products Company. Plaintiff alleges that she was employed by both Nestle USA, Inc. and Gerber Products Company. Plaintiff alleges that she has suffered non- monetary damages. Defendants deny all of plaintiff’s allegations. Defendant Nestle USA, Inc. denies that it ever employed Plaintiff. Both Defendants deny that they engaged in any discrimination or any other unlawful act and deny plaintiff’s allegations that her employment was improperly terminated. Defendants also deny that either one caused plaintiff damages, and contest the amount of damages plaintiff is claiming. F 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 3 When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it. When a party has the burden of proving any claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or defense is highly probable. This is a higher standard of proof than proof by a preponderance of the evidence. You should base your decision on all of the evidence, regardless of which party presented it. F 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 4 The evidence you are to consider in deciding what the facts are consists of: 1. the sworn testimony of any witness; 2. the exhibits which are received into evidence; and 3. any facts to which the lawyers have agreed. F 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 5 Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence is admitted for a limited purpose, you must consider it only for that limited purpose and for no other. F 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 6 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence. By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may provide a different explanation for the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense. F 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 7 In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: 1. Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, will say in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. 2. Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it. 3. Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition sometimes testimony and exhibits are received only for a limited purpose; when I give a limiting instruction, you must follow it. F 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4. Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial. F 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 8 There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard. F 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 9 In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. In considering the testimony of any witness, you may take into account: 1. the opportunity and ability of the witness to see or hear or know the things testified to; 2. the witness’s memory; 3. the witness’s manner while testifying; 4. the witness’s interest in the outcome of the case; 5. the witness’s bias or prejudice, if any; 6. whether other evidence contradicted the witness’s testimony; F 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7. the reasonableness of the witness’s testimony in light of all the evidence; and 8. any other factors that bear on believability. Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony. However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it. F 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 10 I will now say a few words about your conduct as jurors. First, keep an open mind throughout the trial, and do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case. Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise: Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, via text messaging, or any internet chat room, blog, website or application, including but not limited to Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat, or any other forms of social media. This applies to communicating with your family members, your employer, the media or press, and the people involved in the F 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 trial. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court. Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet, or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own. Do not visit or view any place discussed in this case, and do not use Internet programs or other devices to search for or view any place discussed during the trial. Also, do not do any research about this case, the law, or the people involved—including the parties, the witnesses or the lawyers—until you have been excused as jurors. If you happen to read or hear anything touching on this case in the media, turn away and report it to me as soon as possible. The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings. If any juror is exposed to any outside information, please notify the court immediately. F 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 11 During deliberations, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given. If at any time you cannot hear or see the testimony, evidence, questions or arguments, let me know so that I can correct the problem. F 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 12 If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you. When you leave, your notes should be left in the courtroom. No one will read your notes. They will be destroyed at the conclusion of the case. Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors. F 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT’S INSTRUCTION NO. 13 Trials proceed in the following way: First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. Buffington will then present evidence in support of its complaint, and counsel for defendants may cross-examine. Then defendants may present evidence, and counsel for defendants may cross-examine. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict. F 17
=== Initial Order Revised 6-2-21 ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. SACV 08-*-JVS(*x) INITIAL ORDER FOLLOWING FILING OF COMPLAINT ASSIGNED TO JUDGE SELNA v. *, Plaintiff, ______________________________ ) Defendant. *, Important Notice: The Court posts tentative law and motions rulings to the internet. Please see Section P, below. COUNSEL FOR PLAINTIFF SHALL SERVE THIS ORDER ON ALL DEFENDANTS AND/OR THEIR COUNSEL ALONG WITH THE SUMMONS AND COMPLAINT, OR IF THAT IS NOT PRACTICABLE AS SOON AS POSSIBLE THEREAFTER. IF THIS CASE WAS ASSIGNED TO THIS COURT AFTER BEING REMOVED FROM STATE COURT, THE DEFENDANT WHO REMOVED THE CASE SHALL SERVE THIS ORDER ON ALL OTHER PARTIES. Revised February 11, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This case has been assigned to the calendar of Judge James V. Selna. The intent of this Order is to ensure that this case will proceed so as “to secure [a] just, speedy and inexpensive determination.” (Fed.R.Civ. P., Rule 1.) A. THE COURT’S ORDERS Copies of Judge Selna’s orders that may have specific application to this case are available on the Central District of California website. See ¶ N. Those orders include the following: (1) Order Setting Rule 26(f) Scheduling Conference (2) Order re Civil Jury Trials (3) Order re Civil Court Trials (4) Order re RICO Case Statement B. SERVICE OF PLEADINGS Although Fed.R.Civ.P., Rule 4(m) does not require the summons and complaint to be served for as much as 90 days, the Court expects that the initial pleadings will be served much sooner than that, and will require plaintiff to show cause before then if it appears that there is undue delay. C. ASSIGNMENT TO A MAGISTRATE JUDGE Under 28 U.S.C. § 636, the parties may consent to have a Magistrate Judge preside over all proceedings, including trial. The Magistrate Judges who accept those designations are identified on the Central District’s website, which Revised February 11, 2013 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 also contains the consent form. See ¶ N. D. EX PARTE PRACTICE Ex parte applications are solely for extraordinary relief and should be used with discretion. See Mission Power Engineering Company v. Continental Casualty Co., 883 F. Supp. 488 (C. D. Cal. 1995). The Court will generally decide ex parte matters on the papers. Opposition to an ex parte application, if any, should be submitted within 24 hours. E. APPLICATIONS AND STIPULATIONS FOR EXTENSIONS OF TIME No stipulations extending scheduling requirements or modifying applicable rules are effective until and unless the Court approves them. Both applications and stipulations must set forth: 1. The existing due date or hearing date; 2. Specific, concrete reasons supporting good cause for granting the extension. In this regard, a statement that an extension “will promote settlement” is insufficient. The requesting party or parties must indicate the status of ongoing negotiations: Have written proposals been exchanged? Is counsel in the process of reviewing a draft settlement agreement? Has a mediator been selected? 3. Whether there have been prior requests for extensions, and whether these were granted or denied by the Court. Revised February 11, 2013 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. TRO’S AND INJUNCTIONS Parties seeking emergency or provisional relief shall comply with F.R.Civ.P., Rule 65 and Local Rule 65. The Court will not rule on any application for such relief for at least 24 hours after the party subject to the requested order has been served; such party may file opposing or responding papers in the interim. G. CASES REMOVED FROM STATE COURT All documents filed in state court, including documents appended to the complaint, answers and motions, must be refiled in this Court as a supplement to the Notice of Renewal, if not already included. See 28 U.S.C. § 1447(a),(b). If the defendant has not yet answered or moved, the answer or responsive pleading filed in this Court must comply with the Federal Rules of Civil Procedure and the Local Rules of the Central District. If before the case was removed a motion was pending in state court, it must be re-noticed in accordance with Local Rule 7. H. STATUS OF FICTITIOUSLY NAMED DEFENDANTS This Court intends to adhere to the following procedures where a matter is removed to this Court on diversity grounds with fictitiously named defendants. (See 28 U.S.C. §§ 1441(a) and 1447.) 1. Plaintiff is normally expected to ascertain the identity of and serve any fictitiously named defendants within 120 days of the removal of the action to this Court. Revised February 11, 2013 4 2. If plaintiff believes (by reason of the necessity for discovery or otherwise) that fictitiously named defendants cannot be fully identified within the 120-day period, an ex parte application requesting permission to extend that period to effectuate service may be filed with this Court. Such application shall state the reasons therefor, and may be granted upon a showing of good cause. The ex parte application shall be served upon all appearing parties, and shall state that appearing parties may comment within seven (7) days of the filing of the ex parte application. 3. If plaintiff desires to substitute a named defendant for one of the fictitiously named parties, plaintiff first shall seek to obtain consent from counsel for the previously-identified defendants (and counsel for the fictitiously named party, if that party has separate counsel). If consent is withheld or denied, plaintiff may apply ex parte requesting such amendment, with notice to all appearing parties. Each party shall have seven calendar days to respond. The ex parte application and any response should comment not only on the substitution of the named party for a fictitiously named defendant, but on the question of whether the matter should thereafter be remanded to the Superior Court if diversity of citizenship is destroyed by the addition of the new substituted party. See U.S.C. § 1447(c), (d). I. BANKRUPTCY APPEALS Counsel shall comply with the ORDER RE PROCEDURE TO BE FOLLOWED IN APPEAL FROM BANKRUPTCY COURT issued at the time the appeal is filed in the District Court. J. MOTIONS UNDER FED.R.CIV.P., Rule 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised February 11, 2013 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Many motions to dismiss or to strike could be avoided if the parties confer in good faith (as they are required to do under L.R. 7-3), especially for perceived defects in a complaint, answer or counterclaim which could be corrected by amendment. See Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996) (where a motion to dismiss is granted, a district court should provide leave to amend unless it is clear that the complaint could not be saved by any amendment). Moreover, a party has the right to amend his complaint “once as a matter of course at any time before a responsive pleading is served.” Fed.R.Civ.P., Rule 15(a). A 12(b)(6) motion is not a responsive pleading and therefore plaintiff might have a right to amend. See Nolen v. Fitzharris, 450 F.2d 958, 958-59 (9th Cir. 1971); St. Michael’s Convalescent Hospital v. California, 643 F.2d 1369, 1374 (9th Cir. 1981). And even where a party has amended his Complaint once or a responsive pleading has been served, the Federal Rules provide that leave to amend should be “freely given when justice so requires.” F.R.Civ.P., Rule 15(a). The Ninth Circuit requires that this policy favoring amendment be applied with “extreme liberality.” Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). These principles require that counsel for the plaintiff should carefully evaluate the defendant’s contentions as to the deficiencies in the complaint, and that in many instances the moving party should agree to any amendment that would cure a curable defect. The moving party shall attach a copy of the challenged pleading to the Memorandum of Points and Authorities in support of the motion. The foregoing provisions apply as well to motions to dismiss a counterclaim, answer or affirmative defense, which a plaintiff might contemplate bringing. Revised February 11, 2013 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 K. REQUIREMENTS FOR BRIEFS In addition to the requirements in Local Rule 11, the Court requires the following for all briefs: 1. No footnote shall exceed 5 lines. The Court strongly discourages the use of extensive footnotes as a subterfuge to avoid page limitations in the Local Rules. 11-3.1.1. 2. All footnotes shall be in the same type size as text. See Local Rule 3. Each case cited shall include a jump cite to the page or pages where the relevant authority appears (e.g., United States v. Doe, 500 U. S. 1, 14, 17 (1997 . Failure to follow these requirements may result in rejection of a brief for correction. L. LEAD COUNSEL Lead counsel shall appear on all dispositive motions, scheduling conferences, and settlement conferences. The Court does not entertain special appearances; only counsel of record may appear. M. COURTESY COPIES A courtesy copy of all electronically filed pleadings shall be delivered to Judge Selna’s courtesy copy drop on the tenth floor at the rear of the elevator Revised February 11, 2013 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 lobby by noon the day following filing. Failure to make timely delivery of the courtesy copies may result in a delay in hearing a motion or ordering the matter off calendar. N. ELECTRONIC COPIES When the Court requires an electronic copy of a document (e.g., with proposed jury instructions), a copy shall be submitted at time of filing in one the following manners: providing a copy on a disk, CD, or thumb drive in a labeled envelope and lodged with the clerk; or by e-mailing a copy to the Court Room Deputy ([email protected]). Regardless of media, the document should be formatted in WordPerfect9 or higher. O. WEBSITE Copies of this Order and other orders of this Court are available on the Central District of California’s website, at “www.cacd.uscourts.gov” at Judge Selna’s home page located under “Judge’s Procedures and Schedules.” P. TENTATIVES–DAY OF HEARING AND WEB POSTING The Court attempts to issue tentative rulings on each motion. Tentatives will be posted on the Court’s website: www.cacd.uscourts.gov/. From the home page, click on “Judges’ Procedures and Schedules” in the left column. From the list, click on “Hon. James V. Selna,” which will take you to Judge Selna’s page. Click on the red notice in the upper left: “Click here to view Tentative Rulings.” Then click on the desired ruling which comes up in a .pdf file which can be read with an Adobe Acrobat reader. Judge Selna attempts to post tentatives by late Friday afternoon 8 preceding the hearing date. Hard copies of tentatives will also be available from the clerk approximately 15 minutes before the hearing. O. EMERGENCY AFTER-HOURS CONTACTS. In the event that an after-hours emergency arises, the Court can be reached through United States Marshal’s Command Center in Los Angeles (213-894-2485) or Santa Ana (714-338-4610). The Court thanks counsel and the parties for their anticipated cooperation. IT IS SO ORDERED. Dated: June 2, 2021 ____________________________ James V. Selna United States District Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
=== OrderSettingSchedConfRVSD ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA v. Plaintiff(s), *, _______________________________) Defendant(s). *, CASE NO. CV*-JVS(*x) ORDER SETTING RULE 26(f) SCHEDULING CONFERENCE Date: * Time: 1:30 p.m. This case has been assigned to Judge James V. Selna. If plaintiff has not already served the complaint (or any amendment thereto) on all defendants, plaintiff shall promptly do so and shall file proofs of service within three days thereafter. Defendants also shall timely serve and file their responsive pleadings and file proofs of service within three days thereafter. This matter is set for a scheduling conference on the above date. The conference will be held pursuant to Fed.R.Civ.P., Rule 16(b). The parties are reminded of their obligations under Fed.R.Civ.P., Rule 26(a)(1) to disclose information (without awaiting a discovery request) and under Rule 26(f) to confer on a discovery plan not later than twenty-one (21) days prior to the scheduling conference and to file a report with the Court entitled “Joint Rule 26(f) Report” not later than fourteen (14) days after they confer. Failure to comply with the following requirements or to cooperate in the preparation of the Joint Rule 26(f) Report may lead to the imposition of sanctions. Unless there is a likelihood that upon motion by a party the Court would order that any or all discovery is premature, it is advisable for counsel to begin to conduct discovery actively before the Scheduling Conference. At the very least, the parties shall comply fully with the letter and spirit of Rule 26(a) and thereby obtain and produce most of what would be produced in the early stage of discovery, because at the Scheduling Conference the Court will impose tight deadlines to complete discovery. 1. Joint Rule 26(f) Report. The Joint Rule 26(f) Report, which shall be filed not later than one week before the scheduling conference, shall be drafted by plaintiff (unless the parties agree otherwise), but shall be submitted and signed jointly. “Jointly” contemplates a single report, regardless of how many separately-represented parties there are. The Joint Rule 26(f) Report shall report on all matters enumerated below, which include those required to be discussed by Rule 26(f) and Local Rule 26: a. Synopsis: a short synopsis (not to exceed two pages) of the main claims, counterclaims, and/or affirmative defenses. b. c. Legal issues: a brief description of the key legal issues. Damages: the realistic range of provable damages. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 d. Insurance: whether there is insurance coverage, the extent of coverage, and whether there is a reservation of rights. e. Motions: a statement of the likelihood of motions seeking to (i) add other parties or claims or (ii) file amended pleadings or (iii) transfer venue. f. Discovery and experts: pursuant to Rule 26(f), state what, if any, changes in the disclosures under R. 26(a) should be made; the subjects on which discovery may be needed and whether discovery should be conducted in phases or otherwise be limited; what discovery has been conducted thus far; whether applicable limitations should be changed or other limitations imposed; and whether the Court should enter other orders. Please state how many depositions each side will conduct. Also discuss the proposed time of expert witness disclosures under F.R.Civ.P. 26(a)(2). g. Dispositive motions: a description of the issues or claims that any party believes may be determined by motion for summary judgment or motion in limine. h. Settlement and settlement mechanism: a statement of what settlement discussions and/or written communications have occurred (specifically excluding any statement of the terms discussed) and a statement pursuant to the Local Rule 16-14.4 selecting a settlement mechanism under that rule. i. Trial estimate: a realistic estimate of the time required for trial and whether trial will be by jury or by court. Each side should specify (by number, not by name) how many witnesses it contemplates calling. If the time estimate for trial given in the Rule 26(f) Joint Report exceeds eight court days, counsel shall be prepared to discuss in detail the estimate. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 j. Timetable: complete of the Presumptive Schedule of Pretrial Dates form attached as Exhibit A to this Order and attach it to the Rule 26(f) report. Submission of a completed Exhibit A is mandatory. The current entries in the “Weeks Before Trial” column merely reflect what the Court believes are appropriate for many, if not most, cases; those entries are not necessarily applicable to this case, and the form is designed to enable counsel to request the Court to set different last dates by which the key requirements must be completed. Each side should write in the month, day and year it requests for each event. E.g., for the expert discovery cut-off it might be “10/7/02" for plaintiff and “10/28/02" for defendant, if they cannot agree. At the conference, the Court will review this form with counsel. Each entry proposing dates shall fall on a Monday, except the trial date which is a Tuesday. In appropriate cases the Court will order different dates after it hears from Counsel. The proposed non-expert and expert discovery cut-off date means: the last day by which all depositions must be completed and responses to all previously-served written discovery must be provided. The proposed cut-off date for motions means: the last date on which motions may be heard, not noticed. k. Other issues: a statement of any other issues affecting the status or management of the case (e.g., unusually complicated technical or technological issues, disputes over protective orders, extraordinarily voluminous document production, non-English speaking witnesses, discovery in foreign jurisdictions, etc.). l. Conflicts: for conflict purposes, corporate parties must identify all subsidiaries, parents and affiliates. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 m. Patent cases: propose dates and methodology for claim construction and Markman hearings. The Court intends to follow the process outlined in the rules for patent cases which have been adopted by the 1 Northern District of California. At a minimum, the Court will require the exchange of Proposed Terms and Claim Elements for Construction, preparation and filing of a Joint Claim Construction and Prehearing Statement, and simultaneous opening and reply briefs. See Local Patent Rules, Northern District of California, Rules 4-2, 4-3, 4-5. n. Magistrates: Do the parties wish to have a Magistrate Judge preside? Under 28 U.S.C. § 636, the parties may consent to have a Magistrate Judge preside over all the proceedings, not just discovery. They may pick any Magistrate Judge (not just the one assigned to this case) from among those Magistrate Judges who accept these designations. (They are identified on the Central District’s website, which also contains the consent form.) The Joint Rule 26(f) Report should set forth the above enumerated information under section headings corresponding to this Order. 2. Scheduling Conference. 1 T h e r u l e s a t f o u n d http://www.cand.uscourts.gov/CAND/LocalRul.nsf/fec20e529a5572f0882569b6006607e0/473 5a1c69bd18b418825695f00730cdd?OpenDocument i n t e r n e t c a n t h e o n b e 5 Scheduling Conferences will be held in the Ronald Reagan Building, 411 West Fourth Street, Court Room 10C, Santa Ana. Counsel shall comply with the following: a. Participation. The lead trial attorney must attend the Scheduling Conference, unless excused for good cause shown in advance of the Scheduling Conference. b. Continuance. A continuance of the Scheduling Conference will be granted only for good cause. 3. Protective Orders. If you seek a protective order, propose it to opposing counsel before the Scheduling Conference, if at all possible. Protective Order should be submitted to the assigned Magistrate Judge for consideration. 4. Notice to be Provided by Counsel. Plaintiff’s counsel or, if plaintiff is appearing pro se, defendant’s counsel, shall provide this Order to any parties who first appear after the date of this Order and to parties who are known to exist but have not yet entered appearances. 5. Disclosures to Clients. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Counsel are ordered to deliver to their respective clients a copy of this Order and of the Court’s Scheduling and Case Management Order, which contains the schedule that the Court sets at the Scheduling Conference. 6. Court’s Website. Copies of this and all other orders of this Court that may become applicable to this case are available on the Central District of California website, at “www.cacd.uscourts.gov,” under “Judge’s Procedures and Schedules.” Copies of the Local Rules are available on the website.2 The Court thanks the parties and their counsel for their anticipated cooperation in carrying out these requirements. IT IS SO ORDERED. Dated: _________________ Copies to: All Counsel of Record ____________________________ James V. Selna United States District Judge 2 They may also be purchased from one of the following: Los Angeles Daily Journal 915 East First Street Los Angeles, CA 90012 West Publishing Company 50 West Kellogg Blvd. St. Paul, MN 55164-9979 Metropolitan News 210 South Spring Street Los Angeles, CA 90012 H:\Civil\Orders\Scheduling Orders\OrderSettingSchedConfRVSD.wpd 7
=== Attchmnt to Sched Conf Ord Revised, 1-6-10 ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JUDGE JAMES V. SELNA PRESUMPTIVE SCHEDULE OF PRETRIAL DATES Matter Time Weeks before trial Plaintiff's Request (Insert speciific date) Court Order Defendant's Request (Insert specific date) Trial date (jury) (court) Estimated length: _____________ days 8:30 a.m. (Tuesdays) [Court trial:] File Findings of Fact and Conclusions of Law and Summaries of Direct Testimony Final Pretrial Conference; Hearing on Motions in Limine; File Agreed Upon Set of Jury Instructions and Verdict Forms and Joint Statement re Disputed Instructions and Verdict Forms; File Proposed Voir Dire Qs and Agreed- to Statement of Case Lodge Pretrial Conf. Order; File Memo of Contentions of Fact and Law; Exhibit List; Witness List; Status Report re Settlement Last day for hand-serving Motions in Limine Last day for hearing motions Last day for hand-serving motions and filing (other than Motions in Limine). Please note extended notice requirements for motions for summary judgment under F.R.Civ. P. 56(c). Non-expert Discovery cut-off 11:00 a.m. (Mondays) 1:30 p.m. (Mondays) -1 -2 -3 -6 -7 -11 -15 ADDITIONAL MATTERS TO BE DETERMINED AT SCHEDULING CONFERENCE L.R. 16-14 Settlement Choice: (1) CT/USMJ (2) Atty (3) Outside ADR Expert discovery cut-off Rebuttal Expert Witness Disclosure Opening Expert Witness Disclosure [See F.R.Civ.P. 26(a)(2)] Last day to conduct Settlement Conference Last day to amend pleadings or add parties Revised 1-6-10 EXHIBIT A
=== Court Trial Order Revised, 1-6-10 ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION SA CV __________ JVS( x) I. ORDER FOR COURT TRIAL SETTING DATES FOR: Discovery Cut-Off: ____________________ Pre-Trial Conference: ____________________ at 11:00 A.M. Trial: ____________________ at 9:00 A.M. II. Order for Preparation for COURT TRIAL, Proposed Findings of Fact & Conclusions of Law, and Scheduling III. Order Governing Attorney and Party Conduct at Trial. Plaintiff(s), vs. _________________________________ Defendant(s). SCHEDULING: 1. In General: All motions to join other parties or to amend the pleadings shall be filed and served within sixty (60) days of the date of this order and noticed for hearing within Revised January 6, 2010 ninety (90) days hereof. All unserved parties shall be dismissed no later than the date set for the Final Pre-Trial Conference. 2. Motions for Summary Judgment or Partial Summary Judgment: Motions for summary judgment or partial summary judgment shall be heard no later than the last day for hearing motions, as set forth in the accompanying minute order. Please note the extended notice requirements under F. R. Civ. P. 56(c) which are longer than provided in the Local Rules. 3. Discovery Cut-Off: The Court has established a cut-off date for discovery in this action. All discovery is to be completed on, or prior to, the cut- off date. Accordingly, the following discovery schedule shall apply to this case: A. Depositions: All depositions shall be scheduled to commence at least five (5) working days prior to the discovery cut-off date. All original depositions to be used in trial shall be lodged with the Courtroom Deputy on the day of trial. B. Interrogatories: All interrogatories must be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off date except in extraordinary circumstances. C. Production of Documents, etc.: All requests for production, etc., shall be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off date except in extraordinary circumstances. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised January 6, 2010 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Request for Admissions: All requests for admissions shall be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off date except in extraordinary circumstances. E. Discovery Motions: Any motion respecting the inadequacy of responses to discovery must be filed and served not later than ten (10) days after the discovery cut-off date. Whenever possible, the Court expects counsel to resolve discovery problems among themselves in a courteous, reasonable, and professional manner. Repeated resort to the Court for guidance in discovery is unnecessary and will result in the Court appointing a Special Master at the joint expense of the parties to resolve discovery disputes. The Court expects that counsel will strictly adhere to the Civility and Professional Guidelines adopted by the United States District Court for the Central District of California. F. Disclosure of Expert Testimony: The above discovery cut- off date includes expert discovery, unless the Court otherwise orders, and the Court orders the sequence of disclosures provided by Fed. R. Civ. Proc. 26(a)(2)(C), unless the parties otherwise stipulate in writing and obtain the Court’s approval. FINAL PRE-TRIAL CONFERENCE: This case has been placed on calendar for a Final Pre-Trial Conference pursuant to Fed. R. Civ. P. 16. Strict compliance with the requirements of the Fed. R. Civ. P. and Local Rules are required by the Court. ORDER FOR PREPARATION FOR COURT TRIAL, PROPOSED II. Revised January 6, 2010 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND SCHEDULING EXHIBIT CONFERENCE FRIDAY BEFORE TRIAL: MOTIONS AND EXHIBITS The Court ORDERS that all counsel comply with the following in their preparation for trial: 1. MOTIONS IN LIMINE: Because the matter will be tried to the Court, the Court believes that there should be a much reduced need for motions in limine. All motions in limine must be filed and served a minimum of four (4) weeks prior to the scheduled pretrial date. Each motion should be separately filed and numbered. All opposition documents must be filed and served at least three (3) weeks prior to the scheduled pretrial date. All reply documents must be filed and served at least two (2) weeks prior to the scheduled pretrial date. All motions in limine will be heard on the scheduled pretrial date, unless the Court otherwise orders. The Court limits the number of in limine motions which a party or group of affiliated parties may file to four, not including (1) any in limine motion which seeks an exclusionary sanction under Rule 37(c)(1) of the Federal Rules of Civil Procedure and (2) any in limine motion which invokes the Court’s power under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), to exclude or limit expert testimony. Motions made on the latter two grounds shall prominently state the basis for the motion in the title of the motion on the caption page. Any party desiring to tender any other in limine motions shall file an ex parte application no later than seven Revised January 6, 2010 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 days prior to the due date for such motions, attaching the proposed motion and making a showing why it is imperative that the issue be dealt with by a motion in limine. granted: The Court deems the following motions to have been made and • Exclusion of evidence of settlement talks, offers of compromise and similar evidence excludable under Federal Rule of Evidence 408 without an offer of proof first made outside the presence of the jury. • Exclusion of expert opinions not disclosed under Rule 26(a)(2) of the Federal Rule of Civil Procedure or otherwise subjected to examination at the expert’s deposition. All motions in limine will be heard on the scheduled pretrial date, unless the Court otherwise orders. 2. FINDINGS OF FACT AND CONCLUSION OF LAW: Findings of facts and Conclusions of Law shall be prepared, lodged, and served in accordance with the Local Rules, unless otherwise ordered by the Court. . 3. TRIAL EXHIBITS: Counsel are to prepare their exhibits for presentation at the trial by placing them in binders that are indexed by exhibit number with tabs or dividers on the right side. Counsel shall submit to the Court an original and one copy of the Revised January 6, 2010 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 binders. The exhibits shall be in a three-ring binder labeled on the spine portion of the binder showing both the volume number and the exhibit numbers and contain an index of each exhibit included in the volume. Exhibits must be numbered in accordance with Fed. R. Civ. P. 16, 26, and the Local Rules. The Court requires that the following be submitted to the Courtroom Deputy Clerk on the first day of trial: A. The original exhibits with the Court’s exhibit tags shall be stapled to the front of the exhibit on the upper right-hand corner with the case number, case name, and exhibit number placed on each tag. B. One bench book with a copy of each exhibit for use by the Court, tabbed with numbers as described above. (Court’s exhibit tags not necessary.) C. Three (3) copies of exhibit lists. D. Three (3) copies of witness lists. All counsel are to meet not later than ten (10) days before trial and to stipulate so far as is possible as to foundation, waiver of the best evidence rule, and to those exhibits which may be received into evidence at the start of trial. The exhibits to be so received will be noted on the extra copies of the exhibit lists. III. ORDER GOVERNING ATTORNEY AND PARTY CONDUCT AT TRIAL Revised January 6, 2010 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opening Statements, Examining Witnesses, and Summation A. Opening statements, examination of witnesses, and summation will be from the lectern only. B. Counsel must not consume time by writing out words or drawing charts or diagrams. Counsel may do so in advance and explain that the item was prepared earlier as ordered by the Court to save time. C. In criminal cases, defense counsel should avoid asking their client self-serving questions such as whether the client is married, has children, has a war record or has ever been arrested. Such questions are almost always irrelevant. Where such information would be relevant, in counsel’s opinion, counsel must obtain advance permission from the Court prior to making such inquiries. D. Never strike the lectern for emphasis. E. The Court will honor reasonable time estimates for opening and closing arguments. Direct Examination by Declaration The Court will receive all direct examination by way of declaration as outlined below. A. Twenty days prior to trial, each party asserting a claim (e.g., plaintiff, cross-claimant) shall file and personally deliver to all other parties a declaration for each witness who will testify in the party’s case in chief setting Revised January 6, 2010 7 forth the witness’ direct testimony. The declaration should be in the usual narrative fashion, but at a party’s election, may be set out in question-and-answer format. Each declaration shall attach and authenticate each document intended to be offered through the witness. B. Thirteen days prior to trial, each party defending a claim (e.g., defendant, cross-defendant) shall personally deliver to all other parties a declaration for each witness who will testify in the party’s case in chief setting forth the witness’ direct testimony. The declaration should be in the usual narrative fashion, but at a party’s election, may be set out in question-and-answer format. Each declaration shall attach and authenticate each document intended to be offered through the witness. C. In the case of a witness not under a party’s control, the offering party shall use its best efforts to secure the declaration required by paragraph A or B. However, inability to secure the required declaration will not preclude a party from calling such a witness. D. Any evidentiary objections to a declaration shall be filed and served no later than five days before trial. Evidentiary objections should be made with the same thoughtfulness and care as if they were being made in open court. The Court is unlikely to give consideration to blanket or rote objections. E. At trial, a party calling a witness who has submitted a declaration shall have the witness authenticate his or her declaration and make any additions or corrections. The witness shall then be tendered for cross-examination. In the normal course, the Court will then allow re-direct and re-cross. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised January 6, 2010 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Objections to Questions: A. Counsel must not use objections for the purpose of making a speech, recapitulating testimony, or attempting to guide the witness. B. When objecting, counsel must rise to state the objection and state only that counsel objects and the legal ground of objection. If counsel wishes to argue an objection further, counsel must ask for permission to do so. General Decorum: A. Please keep the trial low-key. It is not a contest of dramatic ability or an oratorical contest. It is to be a dignified search for the truth. B. Counsel must not approach the Clerk or the witness box without specific permission. When permission is given, please return to the lectern when the purpose of the permission is finished. Counsel must not engage in questioning a witness at the witness stand. C. Please rise when addressing the Court. D. Counsel must address all remarks to the Court. Counsel are not to address the Clerk, the Reporter, persons in the audience, or opposing counsel. If counsel wishes to speak with opposing counsel, counsel must ask permission to talk off the record. Any request for the re-reading of questions or answers shall be addressed to the Court. E. Counsel must not address or refer to witnesses or parties by first Revised January 6, 2010 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 names alone. Young witnesses (under 14) may, however, be addressed and referred to by their first name. F. Counsel must not make an offer of stipulation unless counsel has conferred with opposing counsel and has reason to believe the stipulation will be acceptable. G. While Court is in session, counsel must not leave counsel table to confer with any personnel or witnesses in the back of the courtroom unless permission has been granted in advance. H. Counsel should not by facial expression, nodding or other conduct exhibit any opinion, adverse or favorable, concerning any testimony being given by a witness. Counsel should admonish counsel’s own client(s) and witnesses to avoid such conduct. I. Where a party has more than one lawyer, only one may conduct the direct or cross-examination of a given witness. Promptness of Counsel and Witnesses: A. The Court makes every effort to commence proceedings at the time set. Promptness is expected from counsel and witnesses. It is counsel's duty of the first day of trial to advise the Court on the first day of any commitments that may result in counsel’s absence or late arrival. B. If a witness is on the stand when a recess is taken, it is counsel’s duty to have the witness back on the stand, ready to proceed, when the court Revised January 6, 2010 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 session resumes. (1) If a witness was on the stand at adjournment, it is counsel’s duty to have the witness adjacent to, but not on, the stand, ready to proceed when the court session resumes. (2) It is counsel’s duty to notify the courtroom deputy clerk in advance if any witness should be accommodated by use of the witness stand’s automated platform which lowers and raises to accommodate witnesses who are unable to otherwise take the witness stand. C. No presenting party may be without witnesses. If counsel has no more witnesses to call and there is more than a brief delay, the Court may deem that the party has rested. D. The Court attempts to cooperate with physicians, scientists, and all other professional witnesses and will, except in extraordinary circumstances, accommodate them by permitting them to be put on out of sequence. Counsel must anticipate any such possibility and discuss it with opposing counsel. If there is objection, confer with the Court in advance. Exhibits: A. Each counsel should keep counsel’s own list of exhibits and should keep track when each has been admitted in evidence. B. Each counsel is responsible for any exhibits that counsel secures from the Clerk and, during all recesses and at noontime and afternoon Revised January 6, 2010 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adjournments, counsel must return all exhibits in counsel’s possession to the Clerk. C. An exhibit not previously marked should, at the time of its first mention, be accompanied by a request that the Clerk mark it for identification. To save time, counsel must show a new exhibit to opposing counsel before it is mentioned in Court. D. Whenever in counsel’s opinion a particular exhibit is admissible, it should be moved into evidence, unless tactical or other consideration dictate otherwise. E. Counsel are to advise the Clerk of any agreements they have with respect to the proposed exhibits and as to those exhibits that may be received so that no further motion to admit need be made. F. When referring to an exhibit, counsel should refer to its exhibit number whenever possible. Witnesses should be asked to do the same. G. Exhibit Binders. 1. Where the volume of exhibits is less than ten binders, Counsel are to prepare exhibits for trial by placing them in three ring binders that are indexed by exhibit number with tabs or dividers on the right side and indicating on the spine of the binder the exhibit numbers contained and the volume number. The exhibits must be numbered in accordance with Fed. R. Civ. P. 16, 26 and the Local Rules. Counsel shall have the original set (with the exhibit tags affixed to the upper or lower right hand corner) and a bench copy on the exhibits, three (3) copies of the exhibit list and three (3) copies of the witness list to the Courtroom Deputy Revised January 6, 2010 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Clerk on the first day of trial. 2. Where the volume of exhibits is greater than ten binders Counsel are to prepare one (1) full set of the exhibits in three ring binders that are indexed by exhibit number with tabs or dividers on the right side and indicating on the spine of the binder the exhibit numbers contained and the volume number. Each exhibit shall have an exhibit tag placed in the upper or lower right hand corner of the first page of the exhibit. (These are the exhibits that will go to the jury during deliberations). With regard to exhibits for the Judge and witnesses, there should be a book for each witness that contains only the exhibits needed for that specific witness with dividers on the right side. This book should be presented to the witness when the witness is called. A copy of this book should be provided to the Judge at the time the witness is called. The Court requires counsel to submit the full set of exhibits, three (3) copies of the exhibit list and three (3) copies of the witness list to the Courtroom Deputy Clerk on the first day of trial. Depositions: A. All depositions that are to be used in the trial, either as evidence or for impeachment, must be signed and lodged with the Courtroom Deputy on the first day of trial or such earlier date as the Court may order. For any deposition in which counsel is interested, counsel should check with the clerk to confirm that the clerk has the transcript and that the transcript is properly signed. B. In using depositions of an adverse party for impeachment, either one of the following procedures may be adopted: (1) If counsel wishes to read the questions and answers as Revised January 6, 2010 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged impeachment and ask the witness no further questions on that subject, counsel shall first state the page and line where the reading begins and the page and line where the reading ends, and allow time for any objection. Counsel may then read the portions of the deposition into the record. (2) If counsel wishes to ask the witness further questions on the subject matter, the deposition is placed in front of the witness and the witness is told to read silently the pages and lines involved. Then counsel may either ask the witness further questions on the matter and thereafter read the quotations or read the quotations and thereafter ask the further questions. Counsel should have an extra copy of the deposition for this purpose. C. Where a witness is absent and the witness’ testimony is offered by deposition, please inquire whether the Court prefers to (1) have a reader occupy the witness chair and read the testimony of the witness while the examining lawyer asks the questions, or, (2) read the deposition in chambers without the questions and answers being repeated for the record. In such instances, the deposition may be offered in evidence as an exhibit. D. Evidentiary objections should be made with the same thoughtfulness and care as if the objections were being made in open court during the examination of the witness. The Court is unlikely to give consideration to blanket or rote objections. Using Numerous Answers to Interrogatories and Requests for Admissions: Whenever counsel expects to offer a group of answers to interrogatories or requests for admissions, extracted from one or more lengthy Revised January 6, 2010 14 documents, counsel should prepare a new document listing each question and answer and identifying the document from which it has been extracted. Copies of this new document should be given to the Court and opposing counsel. This procedure is intended to save time. Advance Notice of Evidentiary or Difficult Questions: If any counsel has reason to anticipate that a difficult question of law or evidence will raise legal argument, requiring research and/or briefing, counsel must give the Court advance notice. Counsel are directed to notify the Clerk at the day’s adjournment if an unexpected legal issue arises that could not have been foreseen and addressed by a motion in limine (see Fed. R. Evid. 103). IV. The Clerk is ordered to serve a copy of this Order on counsel/parties in this action. DATED: COPIES TO: COUNSEL OF RECORD ________________________ James V. Selna United States District Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
=== Jury Trial Order Revised, 12-5-13 ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION Plaintiff(s), vs. Defendant(s). _________________________________ SA CV 03- JVS (x) I. ORDER FOR JURY TRIAL SETTING DATES FOR: Discovery Cut-Off: Pre-Trial Conference: at 11:00 A.M. Trial: at 8:30 A.M. II. Order for Preparation for JURY TRIAL III. Order Governing Attorney & Party Conduct at Trial. SCHEDULING: I. 1. In General: All motions to join other parties or to amend the pleadings shall be filed and served within sixty (60) days of the date of this order and noticed for hearing within ninety (90) days hereof. All unserved parties shall Revised December 5, 2013 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be dismissed no later than the date set for the Final Pre-Trial Conference. 2. Motions for Summary Judgment or Partial Summary Judgment: Motions for summary judgment or partial summary judgment shall be heard no later than the last day for hearing motions, as set forth in the accompanying minute order. 3. Motions Index. If any motion or set of motions concurrently noticed involves more than three pleadings, the moving party shall file within three days of filing an index of the moving papers (e.g., notice, memorandum of points an authorities, declaration) with the name of each pleading and the docket number. Within three days of filing reply papers, the moving party shall file an updated index of all moving papers, all opposition papers, and all reply papers with the name of each pleading and the docket number. Where redacted pleadings have been filed, the index should refer to the unredacted version. 4. Discovery Cut-Off: The Court has established a cut-off date for discovery in this action. All discovery is to be completed on, or prior to, the cut- off date. Accordingly, the following discovery schedule shall apply to this case: A. Depositions: All depositions shall be scheduled to commence at least five (5) working days prior to the discovery cut-off date. All original depositions to be used in trial shall be lodged with the Courtroom deputy on the first day of trial or such earlier date as the Court may order. B. Interrogatories: All interrogatories must be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off Revised December 5, 2013 2 date except in extraordinary circumstances. C. Production of Documents, etc.: All requests for production, etc., shall be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off date except in extraordinary circumstances. D. Request for Admissions: All requests for admissions shall be served at least forty-five (45) days prior to the discovery cut-off date. The Court will not approve stipulations between counsel that permit responses to be served after the cut-off date except in extraordinary circumstances. E. Discovery Motions: Any motion respecting the inadequacy of responses to discovery must be filed and served not later than ten (10) days after the discovery cut-off date. Whenever possible, the Court expects counsel to resolve discovery problems among themselves in a courteous, reasonable, and professional manner. Repeated resort to the Court for guidance in discovery is unnecessary and may result in the Court appointing a Special Master at the joint expense of the parties to resolve discovery disputes. The Court expects that counsel will strictly adhere to the Civility and Professional Guidelines adopted by the United States District Court for the Central District of California. F. Disclosure of Expert Testimony: The above discovery cut- off date includes expert discovery, unless otherwise ordered by Court, and the Court orders the sequence of disclosures provided by Fed. R. Civ. Proc. 26(a)(2)(C), unless the parties otherwise stipulate in writing and obtain the Court’s approval. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised December 5, 2013 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FINAL PRE-TRIAL CONFERENCE: This case has been placed on calendar for a Final Pre-Trial Conference pursuant to Fed. R. Civ. P. 16. Strict compliance with the requirements of the Fed. R. Civ. P. and Local Rules are required by the Court. II. ORDER FOR PREPARATION FOR JURY TRIAL, MOTIONS, INSTRUCTIONS, AND EXHIBITS The Court ORDERS that all counsel comply with the following in their preparation for trial: 1. MOTIONS IN LIMINE: All motions in limine must be filed and served a minimum of four (4) weeks prior to the scheduled pretrial date in accordance with Local Rule 6. Each motion should be separately filed and numbered. All opposition documents must be filed and served at least three (3) weeks prior to the scheduled pretrial date. All reply documents must be filed and served at least two (2) weeks prior to the scheduled pretrial date. Motions in limine should be used to raise legitimate evidentiary issues, and not as veiled motions for summary adjudication. The Court limits the number of in limine motions which a party or group of affiliated parties may file to four, not including (1) any in limine motion which seeks an exclusionary sanction under Rule 37(c)(1) of the Federal Rules of Civil Procedure and (2) any in limine motion which invokes the Court’s power Revised December 5, 2013 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993), to exclude or limit expert testimony. Motions made on the latter two grounds shall prominently state the basis for the motion in the title of the motion on the caption page. Any party desiring to tender any other in limine motions shall file an ex parte application no later than seven days prior to the due date for such motions, attaching the proposed motion and making a showing why it is imperative that the issue be dealt with by a motion in limine. granted: The Court deems the following motions to have been made and • Exclusion of evidence of settlement talks, offers of compromise and similar evidence excludable under Federal Rule of Evidence 408 without an offer of proof first made outside the presence of the jury. • Exclusion of expert opinions not disclosed under Rule 26(a)(2) of the Federal Rule of Civil Procedure or otherwise subjected to examination at the expert’s deposition. All motions in limine will be heard on the scheduled pretrial date, unless the Court otherwise orders. 2. JURY INSTRUCTIONS, VERDICT FORMS, and VOIR DIRE: Jury Instructions. Thirty days prior to trial, counsel shall meet and confer for the purpose of submitting a single packet of proposed jury instructions Revised December 5, 2013 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and objections. The packet shall contain all instructions desired by any party on all subjects, and shall be organized in the order to be given. • If an instruction is agreed and joint, it shall be so labeled. • If the parties submit alternatives instructions on a topic, they shall be labeled A, B, C etc. (e.g, Party A’s Proposed Instruction No. 2A). Immediately behind the instruction, the party shall provide a statement of law in support of its version and any legal objection to the other party’s proposal. • If only one party submits an instruction on a topic, the party shall provide immediately behind the instruction a statement of law in support of its instruction. If there is any opposition, it shall appear immediately behind the proponent’s statement. The single packet shall be filed no later than seven days prior to the trial. At the same time, the parties shall also submit a WordPefect version to the [email protected] e-mail box. The Court will entertain such additional instructions as may be warranted by the evidence offered at trial. If a proposed instruction is a modification of a pattern instruction, such as a Ninth Circuit Model Instruction or a CACI instruction, the proponent shall also include in the packet a version showing all deletions and additions to the pattern instruction, using bolding, italic, strike outs or similar means. The parties need not submit preliminary instruction to be given at the outset of trial, but they may submit additional instructions or revisions of the Revised December 5, 2013 6 Court’s standard initial instructions. See the Court’s website for set of Exemplar Initial Jury Instructions in pdf. at the bottom of the page: http://156.131.20.221/CACD/JudgeReq.nsf/2fb080863c88ab47882567c9007fa070/ fd063442150e12a3882579f5006b081e?OpenDocument Proposed Verdict Form. On the first day of trial, plaintiff shall file and serve plaintiff’s verdict form on defendant. Voir Dire. At least four (4) court days prior to trial, each counsel shall file and serve on opposing counsel any special questions requested to be put to prospective jurors on voir dire. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised December 5, 2013 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. TRIAL EXHIBITS: Counsel are to prepare their exhibits for presentation at the trial by placing them in binders that are indexed by exhibit number with tabs or dividers on the right side. Counsel shall submit to the Court an original and one copy of the binders. The exhibits shall be in a three-ring binder labeled on the spine portion of the binder showing both the volume number and the exhibit numbers and contain an index of each exhibit included in the volume. Exhibits must be numbered in accordance with Fed. R. Civ. P. 16, 26, and the Local Rules. (Please see alternate instructions at Page 15 if the total number of exhibits, for all parties exceeds 10 volumes.) The Court requires that the following be submitted to the Courtroom Deputy Clerk on the first day of trial: A. The original exhibits with the Court’s exhibit tags shall be stapled to the front of the exhibit on the upper right-hand corner with the case number, case name, and exhibit number placed on each tag. B. One bench book with a copy of each exhibit for use by the Court, tabbed with numbers as described above. (Court’s exhibit tags not necessary.) C. Three (3) copies of exhibit lists, plus an electronic copy in WordPerfect® 6.0 or later generations of WordPerfect®. E-mailing the electronic copy to the Courtroom Deputy is the most convenient to accomplish this. D. Three (3) copies of witness lists. Revised December 5, 2013 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E. A joint statement of the case suitable for reading by the Court to the prospective panel of jurors prior to the commencement of jury selection. Counsel are ordered to confer and agree to a one-page joint statement of the case no later than five (5) days prior to the trial date. All counsel are to meet not later than ten (10) days before trial and to stipulate so far as is possible as to foundation, waiver of the best evidence rule, and to those exhibits which may be received into evidence at the start of trial. The exhibits to be so received will be noted on the extra copies of the exhibit lists. III. ORDER GOVERNING ATTORNEY AND PARTY CONDUCT AT TRIAL: Opening Statements, Examining Witnesses, and Summation A. Unless otherwise ordered, the trial day will be 9:00 a.m. to noon and 1:30 p.m. to 4:30 p.m. with a 15 minute break during each session. B. At the end of each day, counsel presenting his or her case shall advise opposing counsel of the witnesses anticipated the following day with an estimate of the length of direct examination. Opposing counsel shall provide an estimate of the length of cross–examination. Cooperation of counsel will ensure a smooth flow of witnesses. C. Opening statements, examination of witnesses, and summation will be from the lectern only. Counsel must not consume time by writing out words or drawing charts or diagrams. Counsel may do so in advance and explain that the item was prepared earlier as ordered by the Court to save time. Revised December 5, 2013 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. In final argument of jury cases, counsel must avoid addressing any juror by name and avoid any appeal to a juror to put himself or herself in the position of a party, such as “What would you take for such pain?” or “What would you expect your son or daughter to do in the same circumstances?” E. In criminal cases, defense counsel should avoid asking their client self-serving questions such as whether the client is married, has children, has a war record or has ever been arrested. Such questions are almost always irrelevant. Where such information would be relevant in counsel’s opinion, counsel should obtain permission from the Court prior to making such inquiries. F. Never strike the lectern for emphasis. G. The Court will honor reasonable time estimates for opening and closing addresses to the jury. Please be advised this Court will not require a jury to sit longer than 75 minutes in any one session during counsel’ summation. Objections to Questions: A. Counsel must not use objections for the purpose of making a speech, recapitulating testimony, or attempting to guide the witness. B. When objecting, counsel must rise to state the objection and state only that counsel objects and the legal ground of objection. If counsel wishes to argue an objection further, counsel must ask for permission to do so; the Court may or may not grant a request for conference at sidebar. The Court strongly discourage sidebars because they represent an inefficient use of jury time when matters can be anticipated. Revised December 5, 2013 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 General Decorum: A. Please keep the trial low-key. It is not a contest of dramatic ability or an oratorical contest. It is to be a dignified search for the truth. B. Counsel must not approach the Clerk or the witness box without specific permission. When permission is given, please return to the lectern when the purpose of the permission is finished. Counsel must not engage in questioning a witness at the witness stand. C. Please rise when addressing the Court and rise when the jury enters or leaves the courtroom. D. Counsel must address all remarks to the Court. Counsel are not to address the Clerk, the Reporter, persons in the audience, or opposing counsel. If counsel wishes to speak with opposing counsel, counsel must ask permission to talk off the record. Any request for the re-reading of questions or answers shall be addressed to the Court. E. Counsel must not address or refer to witnesses or parties by first names alone. Young witnesses (under 14) may, however, be addressed and referred to by their first name. F. Counsel must not make an offer of stipulation unless counsel has conferred with opposing counsel and has reason to believe the stipulation will be acceptable. G. While Court is in session, counsel must not leave counsel table to Revised December 5, 2013 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confer with any personnel or witnesses in the back of the courtroom unless permission has been granted in advance. H. Counsel should not by facial expression, nodding or other conduct exhibit any opinion, adverse or favorable, concerning any testimony being given by a witness. Counsel should admonish counsel’s own client(s) and witnesses to avoid such conduct. I. Where a party has more than one lawyer, only one may conduct the direct or cross-examination of a given witness. Promptness of Counsel and Witnesses: A. The Court makes every effort to commence proceedings at the time set. Promptness is expected from counsel and witnesses. It is counsel’s duty of the first day of trial to advise the Court on the first day of any commitments that may result in counsel’s absence or late arrival. B. If a witness is on the stand when a recess is taken, it is counsel’s duty to have the witness back on the stand, ready to proceed, when the court session resumes. (1) If a witness was on the stand at adjournment, it is counsel’s duty to have the witness adjacent to, but not on, the stand, ready to proceed when the court session resumes. (2) It is counsel’s duty to notify the courtroom deputy clerk in advance if any witness should be accommodated by use of the witness stand’s Revised December 5, 2013 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 automated platform which lowers and raises to accommodate witnesses who are unable to otherwise take the witness stand. C. No presenting party may be without witnesses. If counsel has no more witnesses to call and there is more than a brief delay, the Court may deem that the party has rested. D. The Court attempts to cooperate with physicians, scientists, and all other professional witnesses and will, except in extraordinary circumstances, accommodate them by permitting them to be put on out of sequence. Counsel must anticipate any such possibility and discuss it with opposing counsel. If there is objection, confer with the Court in advance. Exhibits: A. Each counsel should keep counsel’s own list of exhibits and should keep track when each has been admitted in evidence. B. Each counsel is responsible for any exhibits that counsel secures from the Clerk and, during all recesses and noontime and afternoon adjournments, counsel must return all exhibits in counsel’s possession to the Clerk. C. An exhibit not previously marked should, at the time of its first mention, be accompanied by a request that the Clerk mark it for identification. To save time, counsel must show a new exhibit to opposing counsel before it is mentioned in Court. D. Whenever in counsel’s opinion a particular exhibit is admissible, Revised December 5, 2013 13 it should be offered unless tactical considerations dictate otherwise. The motion to admit will be dealt with at the next available recess if there is objection. No exhibit shall be read or displayed to the jury until admitted. E. When referring to an exhibit, counsel should refer to its exhibit number whenever possible. Witnesses should be instructed to do the same. F. The Court resists taking time to pass an exhibit among the jury for viewing when it is admitted. A request to do so should be made to the Court in a recess period preceding introduction of the exhibit. G. Absent unusual circumstances, counsel must not ask witnesses to draw charts or diagrams nor ask the Court’s permission for a witness to do so. If counsel wishes to question a witness in connection with graphic aids, the material must be fully prepared before the court session starts. H. Exhibit Binders. 1. Where the volume of exhibits is less than ten binders, Counsel are to prepare exhibits for trial by placing them in three ring binders that are indexed by exhibit number with tabs or dividers on the right side and indicating on the spine of the binder the exhibit numbers contained and the volume number. The exhibits must be numbered in accordance with Fed. R. Civ. P. 16, 26 and the Local Rules. Counsel shall have the original set (with the exhibit tags affixed to the upper or lower right hand corner) and a bench copy on the exhibits, three (3) copies of the exhibit list and three (3) copies of the witness list to the Courtroom Deputy Clerk on the first day of trial. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised December 5, 2013 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Where the volume of exhibits is greater than ten binders Counsel are to prepare one (1) full set of the exhibits in three ring binders that are indexed by exhibit number with tabs or dividers on the right side and indicating on the spine of the binder the exhibit numbers contained and the volume number. Each exhibit shall have an exhibit tag placed in the upper or lower right hand corner of the first page of the exhibit. (These are the exhibits that will go to the jury during deliberations). With regard to exhibits for the Judge and witnesses, there should be a book for each witness that contains only the exhibits needed for that specific witness with dividers on the right side. This book should be presented to the witness when the witness is called. A copy of this book should be provided to the Judge at the time the witness is called. The Court requires counsel to submit the full set of exhibits, three (3) copies of the exhibit list and three (3) copies of the witness list to the Courtroom Deputy Clerk on the first day of trial. Depositions: A. All depositions that will be used in the trial, either as evidence or for impeachment, must be signed and lodged with the Courtroom Deputy on the first day of trial or such earlier date as the Court may order. For any deposition in which counsel is interested, counsel should check with the clerk to confirm that the clerk has the transcript and that the transcript is properly signed. B. In using depositions of an adverse party for impeachment, counsel shall first announce the page and line reference of the passage desired to be read, and allow opposing counsel an opportunity to state any objection. Counsel shall use either of the following procedures: (1) If counsel wishes to read the questions and answers as Revised December 5, 2013 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 alleged impeachment and ask the witness no further questions on that subject, counsel may merely read the relevant portions of the deposition into the record. (2) If counsel wishes to ask the witness further questions on the subject matter, the deposition is placed in front of the witness and the witness is told to read silently the pages and lines involved. Then counsel may either ask the witness further questions on the matter and thereafter read the quotations or read the quotations and thereafter ask further questions. Counsel should have an extra copy of the deposition for this purpose. C. Where a witness is absent and the witness’ testimony is offered by deposition, please observe the following procedure. A reader should occupy the witness chair and read the testimony of the witness while the examining lawyer asks the questions. Using Numerous Answers to Interrogatories and Requests for Admissions: Whenever counsel expects to offer answers to interrogatories or requests for admissions, the desired discovery shall be read to the jury. Any objections shall be resolved in advance. Advance Notice of Evidentiary or Difficult Questions: If counsel has reason to anticipate that a difficult question of law or evidence will raise legal argument, requiring research and/or briefing, counsel must give the Court advance notice. Counsel are directed to notify the Clerk at the day’s adjournment if an unexpected legal issue arises that could not have been foreseen and addressed by a motion in limine (see Fed. R. Evid. 103). To the maximum Revised December 5, 2013 16 extent possible such matters shall be taken outside normal jury hours (e.g., recess, before or after the trial day). Juror Questionnaires: The Court discourages the use of juror questionnaires except in complex cases or cases involving juror privacy issues. If a party intends to propose a questionnaire, the party shall meet and confer with all parties with the goal of arriving at a joint questionnaire. Any proposed questionnaire shall be submitted to the Court not later than thirty days prior to trial. The particulars for administering a questionnaire will be discussed at the pretrial conference. IV. The Clerk is ordered to serve a copy of this Order on counsel/parties in this action. DATED: COPIES TO: COUNSEL OF RECORD PRO SE PARTIES James V. Selna United States District Judge 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Revised December 5, 2013 17
=== ERISA Add to Sched Conf Ord ===
ERISA Addendum to Scheduling Conference Order Where the plaintiff’s claim is predicated in whole or in part on denial of benefits under a plan regulated by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1000 et seq. (ERISA), the parties shall address the following additional issues in their Joint Report: 1. Standard of Review. What standard of review is applicable? If the parties are in disagreement, they shall propose a schedule for early briefing and decision of this issue on Motion. 2. Pre-Emption. Is there any contention that any state–law claim asserted by plaintiff is pre-empted by ERISA? If so, the parties shall propose a schedule for early briefing and decision of the issue on Motion. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
=== Rico Order ===
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NO. ORDER RE RICO CASE STATEMENT Plaintiff, v. Defendants. ____________________________________) In this action, claims have been asserted under the Racketeer Influenced and Corrupt Organizations provisions of the Organized Crime Control Act of 1970 (“RICO”), 18 U.S.C. § 1961 et seq. Accordingly, IT IS HEREBY ORDERED as follows: Plaintiff1 shall file, within twenty (20) days hereof, a RICO case statement. The statement shall include the facts relied upon to initiate this RICO complaint as a result of the reasonable inquiry required by Rule 11 of the Federal Rules of Civil 1 If the party asserting a RICO violation is not the plaintiff, such as a counterclaimant , this requirement applies to such party as well. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Procedure. It shall use the caption numbers and letters set forth below, and shall state in detail and with specificity the following information. 1. RICO Provision. State whether the alleged unlawful conduct is in violation of 18 U.S.C. §§ 1962(a), (b) (c), and/or (d). 2. Defendants. List each RICO defendant and state the alleged misconduct and basis of liability of each defendant. 3. Other RICO Violators. List all alleged RICO violators, other than the defendants listed above, and state the alleged misconduct of each wrongdoer. 4. Victims. List the alleged victims and state how each victim was allegedly injured. 5. Pattern of Racketeering Activity. Describe in detail the pattern of racketeering activity or collection of unlawful debts alleged for each RICO claim. A description of the pattern of racketeering shall include the following information: a. List the alleged predicate acts and the specific statutes which were allegedly violated; b. Provide the dates of the predicate acts, the participants in the predicate acts, and a description of the facts surrounding the predicate acts; 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. If the RICO claim is based on the predicate offenses of mail fraud, wire fraud or fraud in the sale of securities, the “circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. P. 9(b). Identify the time, place and contents of the alleged failures to disclose and/or misrepresentations, and the identity of persons to whom and by whom the alleged misrepresentations and/or failures to disclose were made; d. State whether there has been a criminal conviction for violation of the predicate acts and if so, provide particulars; e. State whether civil litigation has resulted in a judgment with respect to the predicate acts and if so, provide particulars; f. Describe how the predicate acts are both “related” and “continuous” within the meaning of H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900 (1989) and its progeny, including Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995). 6. Enterprise. Describe in detail the alleged enterprise for each RICO claim and specify just what structure it had. A description of the enterprise shall include the following information: a. The names of the individuals, partnerships, corporations, associations or other legal entities that allegedly constitute the enterprise; 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. The purpose, function and course of conduct of the enterprise, and whether its usual and daily activities were part of or separate from the pattern of racketeering activity. See Chang v. Chen, 80 F.3d 1293, 1298 (9th Cir. 1996.) c. Whether any named defendants are or were employees, officers or directors of the alleged enterprise; d. Whether you are alleging that the defendants are or were separate from the alleged enterprise, collectively constitute the enterprise itself, or are or were members of the enterprise; and e. Whether (and if so how) the enterprise was affected by or benefitted from the pattern of racketeering activity. 7. Interstate or Foreign Commerce. Describe the effect of the activities of the enterprise on interstate or foreign commerce. 8. Section 1962(a). If the complaint alleges a violation of 18 U.S.C. § 1962(a), provide the following information: a. State who received the income derived from the pattern of racketeering activity or through the collection of an unlawful debt; and b. Describe the use or investment of such income. 9. Section 1962(b). If the complaint alleges a violation of 18 U.S.C. § 1962(b), describe in detail the acquisition or maintenance of any 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 interest in or control of the alleged enterprise. 10. Section 1962(c). If the complaint alleges a violation of 18 U.S.C. § 1962(c), provide the following information: a. b. State who is employed by or associated with the enterprise; and State whether the same entity is both the liable “person” and the “enterprise” under § 1962(c). 11. Section 1962(d). If the complaint alleges a violation of 18 U.S.C. § 1962(d), describe in detail the alleged conspiracy. 12. Injury to Business or Property. a. Describe the alleged injury to business or property; b. Describe the direct causal relationship between the alleged injury and the violation of the RICO statute. 13. Damages. List the damages sustained for which each defendant is allegedly liable. 14. State Claims. List all supplemental state claims, if any. Dated: ________________ ___________________________ James V. Selna United States District Judge 5
=== Resume ===
BIOGRAPHY OF JAMES V. SELNA Born: February 22, 1945, Santa Clara, California. Education: Stanford Law School, J.D. 1970 (Article and Book Review Editor, Law Review 1968-70), Order of the Coif; Stanford University, A.B. 1967 (With Distinction) , Phi Beta Kappa. Judicial Experience: Superior Court of the State of California for the County of Orange, appointed December 31, 1998. Assignments: Long-Cause Civil Trial Team, Jan.–Mar., 1999. North Panel (Criminal), Mar. 1999– Apr. 2000. Civil Panel (Limited Jurisdiction), Apr. 2000–Aug. 2001. Civil Panel (General Jurisdiction), Aug. 2001–June 2002. Civil Complex Panel, June 2002–April 2003 United States District Court, Central District of California Nominated, January 29, 2003 Confirmed, March 27, 2003 Oath of Office, April 30, 2003 Professional Experience: Associate, O’Melveny & Myers LLP, 1970-77; Partner, 1978-98 (Los Angeles, 1970-1983; Newport Beach, 1983-98), complex civil litigation. Major litigations: Memorex v. IBM, Los Angeles Memorial Coliseum Commission v. National Football League (“Raiders Case”), Trans Alaska Pipeline Tariff Proceeding, Exxon Valdez. 1 Bar Activities: Member, California State Bar Standing Committee on Federal Courts (1982-85); Member, Executive Committee, California State Bar Litigation Section (1986-89); Member, Executive Committee, California State Bar Antitrust Section (1992-95), Advisor (1995 ); Member, Executive Committee, Los Angeles County Bar Antitrust Section (1981-82, 1983-84); Member, Board of Directors, Orange County Federal Bar Association (1991-92). Speaking Engagements: Faculty Member, Columbia Law School, Trial of an Antitrust Case (1982); Faculty Member, Practising Law Institute Program on Litigating Antitrust Case; Speaker, Federal Trade Commission Distinguished Speaker Series (1982); Speaker, CEB Competitive Business Practices Institute (1984-87, 1991); Speaker, CEB Program, “Appellate Review Before Judgment” (1985); Speaker, ALI-ABA Conference on Museum Law (1991); Chair, CEB Program, “Protecting Trade Secrets” (1992, 1995); Speaker, CEB Program, “Protecting Trade Secrets Before and During Litigation” (1997); Chair, CEB Program, “Proof in Competitive Business Practices Cases” (1997); Speaker, CEB Program, “Advanced Course of Study: Federal Practice” (1999). Other Professional & Community Activities: Member, National Panel (1984-98), Large Complex Case Panel, American Arbitration Association (1993-98); Board of Trustees, Orange County Museum of Art, Vice-Chairman (1996-2000), Emeritus, 2000–; Board of Trustees, Newport Harbor Art Museum (1985-93, 1994-96), President (1994–96), Vice President (1988-90), Secretary and General Counsel (1991-93); Member, Board of Directors, Orange County Business Committee for the Arts (1988-98); Member, Board of Directors, Phoenix House (1983-85). 2
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