Opinion
ORDER REGARDING ALIGNMENT OF PARTIES AND PRETRIAL MATTERS
JUSTIN L. QUACKENBUSH, District Judge.
At the hearing on cross-motions for summary judgment on November 14, 2013, an issue was raised concerning how the trial should proceed given that Travelers initiated the action with a Complaint seeking declaratory judgment, and Arch then counterclaimed and made a jury demand. The court allowed the parties to brief the issue, and briefs were submitted on November 27, 2013. Arch asks that it be designated as the plaintiff/counter-defendant and that Travelers be designated as the defendants/counter-claimants. Travelers states that it now agrees with the court's initial impression as stated in its Order of November 20, 2013. (ECF No. 107). Travelers states it agrees there is no need for bifurcation, Arch's bad faith' claims should be tried to a jury, and Arch should proceed first as it bears the burden of proving bad faith. (ECF No. 110, p. 2). Travelers further states that during the presentation of trial there may be some equitable issues presented that are to be decided by the court. Additionally, the parties have recently contacted the court's staff and asked for additional guidance on the court's pretrial procedures, and requested that the court set briefing deadlines for motions in limine. Accordingly,
IT IS HEREBY ORDERED:
1. Arch will be considered the Plaintiff for purposes of presentation at trial and will present evidence first, offer the first opening statement, and utilize the exhibit numbers assigned to Plaintiff, etc.. Travelers will be considered the Defendants for purposes of trial.
2. All unresolved substantive or evidentiary issues which may foreseeably arise during trial shall be addressed by motions in limine to be served and filed not later than January 7, 2014, and shall be heard and resolved at the pretrial conference. Responsive briefs shall be filed not later than January 24, 2014. Reply briefs, if any, shall be filed no later than January 31, 2014.
3. Trial briefs, proposed jury instructions, and requested jury voir dire shall be filed and served on or before January 10, 2014. The court does not generally receive responding trial briefs. However, the court is aware of Eastern District of California Local Rule 285(b) which allows for responding trial briefs to be filed "within the time set by the Court but not less than seven (7) days before trial". If any party finds it necessary to file a responding trial brief, such responding brief shall be filed no later than January 24, 2014. Any responding brief shall not exceed 10 pages.
4. Proposed jury instructions may be preliminarily discussed at the final pretrial conference. Counsel will likely receive a draft of the court's proposed instructions during the first week of trial. At an appropriate point during the trial, an instruction conference will be held at which the court will hear any objections and exceptions to the proposed instructions.
5. Exhibit lists shall be filed and served and exhibits made available for inspection (or copies provided) on or before January 10, 2014. The exhibits shall not be filed. Objections to exhibits shall be filed and served on or before January 24, 2014, and shall be heard at the pretrial conference. The parties recently informed the court, that they have not followed the court's prior instructions on numbering exhibits. Therefore, as the parties will be re-numbering exhibits, the parties should do so to comply with the alignment at trial. All exhibits shall be pre-marked: Plaintiff Arch shall use numbers 1-499; Defendants Travelers shall use numbers 500- et seq.
6. Designation of substantive, as opposed to impeachment, deposition testimony of witnesses who will be unavailable to give live testimony at trial, shall be by highlighting in blue and served, not filed, on or before January 10, 2014. Cross-designations by highlighting in yellow shall be served, not filed, on or before January 24, 2014. Objections to any designated deposition testimony shall be filed and served on or before February 2, 2014, and shall be heard at the pretrial conference. Deposition transcripts are not to be filed except as necessary for the court's determination of objections. Unless necessary a party shall not file the entire transcript in the event of an objection, and shall file only those portions necessary to provide context and allow the court to evaluate the objection.
7. The final pretrial conference will be held on February 13, 2014 at 8:30 a.m., in Sacramento, California. All unresolved motions and objections will be heard at the pretrial conference. If an Agreed Pretrial Order has been lodged, counsel need not appear at the pretrial conference unless unresolved motions or objections exist.
8. The jury trial shall commence at 9:00 a.m., on Tuesday, March 25, 2014, in Sacramento, California.
9. The parties advised the court at the last hearing that they were considering mediation. In the event the parties schedule a mediation/settlement conference/ arbitration, they shall promptly inform the court of such date.
IT IS SO ORDERED. The Clerk is hereby directed to enter this Order and furnish copies to counsel.