Saldana v. Mission Drywall, Inc. et al

Western District of Texas, txwd-5:2018-cv-01060

Order, (Proposed Scheduling Order due by 7/15/2019, Pretrial Conference set for 7/25/2019 10:00 AM before Judge Richard B. Farrer). Signed by Judge Richard B. Farrer.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHAEL SALDANA, INDIVIDUALLY § AND ON BEHALF OF ALL OTHERS § SIMILARLY SITUATED, LORENA § 5-18-CV-01060-FB-RBF CONTRERAS, JESUS S. OVALLE, § CHRISTIAN SANTANA, § § Plaintiffs, § § vs. § § MISSION DRYWALL, INC, BOB MUTZ, § DAVID ERNST, § Defendants. ORDER Before the Court is the status of the above-referenced case, which was referred to the undersigned for disposition pursuant to Rules CV-72 and 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. See Dkt. No. 21. IT IS ORDERED that this case is set for an Initial Pre-Trial Conference, pursuant to Federal Rule of Civil Procedure 16, on July 25, 2019 at 10:00 AM in Courtroom A on the 4th Floor of the John H. Wood, Jr. United States Courthouse, 655 E. Cesar Chavez Boulevard, San Antonio, Texas, 78206. The parties should be prepared to discuss entry of a Scheduling Order (or how the case is proceeding under the current Scheduling Order if one has already been entered), any other matters set forth in Rule 16(c)(2), and any motions that may be pending at the time of the conference. On or before July 15, 2019, the parties shall confer in the manner required by Rule 26(f) of the Federal Rules of Civil Procedure and submit a Joint Discovery/Case Management Plan that answers the following questions: 1 1. What is the basis for subject-matter jurisdiction? Are there any outstanding jurisdictional issues? For cases premised on diversity jurisdiction, provide the citizenship of each party1 and explain whether or not the parties agree that the amount in controversy exceeds $75,000. For removal cases, explain whether the parties agree that the amount in controversy exceeded $75,000 at the time of removal. If there is any disagreement on these issues, each party should state its respective position. 2. Are there any unserved parties? If more than 90 days have passed since the filing of the Complaint or Petition, should any unserved parties be dismissed? 3. What are the causes of action, defenses, and counterclaims in this case? What are the elements of the cause(s) of action, defenses, and counterclaims pled? 4. Are there any agreements or stipulations that can be made about any facts in this case or any element in the cause(s) of action? 5. State the parties' views and proposals on all items identified in Fed. R. Civ. P. 26(f)(3). 6. What, if any, discovery has been completed? What discovery remains to be done? Have the parties considered conducting discovery in phases? 7. What, if any, discovery disputes exist or are anticipated? 8. Have the parties discussed the desirability of filing a proposed order pursuant to Federal Rule of Evidence 502? 9. Have the parties discussed mediation? Is this a case that could be mediated early and effectively with limited discovery? If so, what discovery is essential to any early mediation and how could it be structured to streamline an early mediation? The Court will address the substance of the parties' joint report and discovery plan at the Initial Pretrial Conference. IT IS FURTHER ORDERED that, if not already provided, the parties shall submit a proposed scheduling order pursuant to Local Rule CV-16(c), no later than July 15, 2019. At the 1 The parties are reminded that the Court has a duty to examine its subject matter jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001). In diversity cases, the "court must be certain that all plaintiffs have a different citizenship from all defendants," Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258 (5th Cir. 1988), and it is the obligation of the party asserting federal jurisdiction to "distinctly and affirmatively allege" the citizenship of the parties. Howery, 243 F.3d at 919. If either party is an LLC, the citizenship of each member of the LLC should be provided. See Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, LLC, 757 F.3d 481, 483 (5th Cir. 2014). 2 Initial Pretrial Conference, the Court will discuss with the parties any proposed changes to the Court's standard scheduling order based on the circumstances of this case. The proposed scheduling order shall conform to the attached template. Out of town Counsel (at their discretion) may appear telephonically for the Pretrial Conference and should contact Magda Muzza, the Courtroom Deputy, for call-in information. She can be reached at (210) 244-5012 or Magda_Muzza@txwd.uscourts.gov. The use of speaker phones is prohibited during a telephonic appearance. Finally, those appearing before the Court are advised of the following matters. First, counsel should refrain from communicating with the Courtroom Deputy or other court staff concerning substantive matters. Substantive communications with the Court should be conducted via officially filed documents. Nondispositive motions filed with the Court—even where the opposing party is proceeding pro se—must include a certificate of conference, as indicated in the Local and Federal Rules, reflecting a good-faith, diligent effort to resolve the disputed issue that is the subject of the motion. See Local Rule CV-7(i) (applying to all nondispositive motions); see also Fed. R. Civ. P. 37(a)(1) (applying to discovery disputes). While email or letter correspondence with opposing counsel may on some occasions be appropriate—i.e., in the first instance or to ensure the motion is unopposed—in the Court's view, the best and most efficient way to comply with the conference requirement is through either an in-person meeting or actual conversation by telephone.2 Accordingly, absent extenuating circumstances, a certificate of 2 See, e.g., Compass Bank v. Shamgochian, 287 F.R.D. 397, 400 (S.D. Tex. 2012) (noting that a single letter unilaterally identifying alleged flaws in discovery responses and setting an arbitrary response deadline is insufficient to comply with the conference requirement, "as it does not equate to a good faith conferral or attempt to confer); Care Envtl. Corp. v. M2 Techs. Inc., No. CV-05-1600 (CPS), 2006 WL 1517742, at *1, 3 (E.D.N.Y. May 30, 2006) (explaining, "confer" means to "meet, in person or by telephone, and make a genuine effort to resolve the dispute"); 3 conference noting one or two unsuccessful attempts to confer—particularly where the attempts occur the day the motion is filed—will be disfavored and may result in denial of the requested relief. See Local Rule CV-7(i). Finally, reasonable requests for deadline extensions that do not threaten meaningful prejudice to the client typically should not be opposed. See Local Rule AT- 4(b); see also Ex M to Local Rules. At the same time, the Court frowns upon last-minute requests for extensions or continuances, unless there is a genuine emergency or extenuating circumstances. IT IS SO ORDERED. SIGNED this 2nd day of May, 2019. RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE Local Rule AT-4(e) ("When a discovery dispute arises, opposing lawyers should attempt to resolve it by working cooperatively together."). 4 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHAEL SALDANA, INDIVIDUALLY § AND ON BEHALF OF ALL OTHERS § SIMILARLY SITUATED, LORENA § 5-18-CV-01060-FB-RBF CONTRERAS, JESUS S. OVALLE, § CHRISTIAN SANTANA, § § Plaintiffs, § § vs. § § MISSION DRYWALL, INC, BOB MUTZ, § DAVID ERNST, § § Defendants. § SCHEDULING RECOMMENDATIONS The parties recommend that the following deadlines be entered in the scheduling order to control the course of this case. 1. A report on alternative dispute resolution in compliance with Local Rule CV-88 shall be filed by __________ (the standard period being 90 days after the first defendant's appearance). 2. The parties asserting claims for relief shall submit a written offer of settlement to opposing parties by ________ (the standard period being 90 days after the first defendant's appearance), and each opposing party shall respond, in writing by ________ (the standard period being 104 days after the first defendant's appearance). 3. The parties shall file all motions to amend or supplement pleadings or to join additional parties by ___________ (the standard period being 120 days after the first defendant's appearance). 4. All parties asserting claims for relief shall file their designation of testifying experts, and proposed exhibits, and shall serve on all parties, but not file, the materials required by Fed. R. Civ. P. 26(a)(2)(B) by __________ (the standard period being 90 days before the discovery deadline). Parties resisting claims for relief shall file their designation of testifying experts, and proposed exhibits, and shall serve on all parties, but not file, the materials required by Fed. R. Civ. P.26(a)(2)(B) by _________ (the standard period being 45 days before the close of discovery). All designations of rebuttal experts shall be filed within 15 days of receipt of the report of the opposing expert. 5. An objection to the reliability of an expert's proposed testimony under Federal Rule of Evidence 702 shall be made by motion, specifically stating the basis for the objection and identifying the objectionable testimony, within ___ (the standard period being 30 days) days of receipt of the written report of the expert's proposed testimony, or within ________ (the standard period being 30 days) days of the expert's deposition, if a deposition is taken, whichever is later. 6. The parties shall complete discovery on or before ________ (the standard period being six months after the first defendant's appearance). Counsel may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances, and no trial setting will be vacated because of information obtained in post-deadline discovery. 7. All dispositive motions as defined in Local Rule CV-7(c) shall be filed no later than _________ (the standard period being 30 days after the discovery deadline). Dispositive motions and responses to dispositive motions shall be limited to limited to 20 pages in length. Replies, if any, shall be limited to 10 pages in length in accordance with Local Rule CV-7(f). 8. The trial date will be determined at a later date by the Court. The parties shall consult Local Rule CV-16(d) regarding matters to be filed in advance of trial. At the time the trial date is set, the Court will also set the deadline for the filing of matters in advance of trial. 9. All of the parties who have appeared in the action conferred concerning the contents of the proposed scheduling order on ___________, and the parties have (agreed/disagreed) as to its contents. The following positions and reasons are given by the parties for the disagreement as to the contents of the proposed scheduling order______________. Plaintiff offers the following explanation of why all parties have not been served__________________. __________________________ (Signature) __________________________ (Print of type name) ATTORNEY FOR __________________________ (Print or type name) CERTIFICATE OF SERVICE