Judge Kimberly J. Mueller


 United States District Court - Eastern District of California

501 I Street, Suite 4-200

Sacramento, CA 95814


Courtroom Deputy, Casey Schultz

Phone: (916) 930-4193



In all cases assigned to Judge Kimberly J. Mueller, it is hereby ORDERED:


(A)       Discovery matters that do not implicate the schedule of the case or that do not relate to sealing or redaction of documents related to dispositive motions are referred to the assigned United States Magistrate Judge, who will hear all discovery disputes subject to his or her procedures.  (The Magistrate Judge’s initials follow the Judge’s initials next to the case number.)  All discovery filings must include the words “DISCOVERY MATTER” in the caption to ensure proper routing.  Counsel are directed to contact the Magistrate Judge’s Courtroom Deputy Clerk to schedule matters for hearing or informal consideration according to that judge’s procedures.  Please do not direct courtesy copies of these documents to this court.

All motions to compel discovery must be noticed on the Magistrate Judge’s calendar in accordance with the local rules of this court and the Magistrate Judge’s own procedures.  While the assigned Magistrate Judge reviews proposed discovery phase protective orders, requests to seal or redact in connection with dispositive motions or trial are decided by Judge Mueller as discussed in more detail below.  In addition, while the assigned Magistrate Judge handles discovery motions, the Magistrate Judge cannot change the schedule set in the Order after the Initial Scheduling Conference, except that the Magistrate Judge may modify a discovery cutoff to the extent such modification does not have the effect of requiring a change to non-discovery deadlines, e.g., the dispositive motion deadline.

The decision of the Magistrate Judge shall be final unless a party shows the Magistrate Judge’s order is clearly erroneous or contrary to law.  Any party may file and serve a motion for review and reconsideration before this court.  See Local Rule 303(c).  The moving party must file and serve the motion within fourteen (14) days of service of a written ruling or within fourteen (14) days of an oral ruling that the Magistrate Judge states will not be followed by a written ruling.  The motion must specify which portions of the ruling are clearly erroneous or contrary to law and support the contention with points and authorities.

(B)       Unless both parties agree discovery would be premature or the parties have a material dispute about whether early discovery is appropriate, it is advisable for counsel to begin to conduct discovery actively before the Initial Scheduling Conference.  At the very least, the parties shall comply fully with the letter and spirit of Federal Rule of Civil Procedure 26(a) and promptly produce and obtain what they are required to in the early stages of discovery.  The court’s Order following the Initial Scheduling Conference sets firm deadlines for the completion of discovery.  In this context, “completed” means that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been obeyed. 


All counsel must designate in writing and serve upon all other parties the name, address, and area of expertise of each expert they propose to tender at trial, according to the schedule set forth in the Order after the Initial Scheduling Conference.  A written report prepared and signed by the witness shall accompany the designation.  The report shall comply with Federal Rule of Civil Procedure 26(a)(2)(B).  Any party who previously disclosed expert witnesses may submit a rebuttal list of expert witnesses who will express an opinion on a subject covered by an expert designated by an adverse party, if the party rebutting an expert witness designation has not previously retained an expert to testify on that subject.  A written report shall accompany the rebuttal designation, which shall also comply with the conditions stated above.

If a party does not comply with the disclosure schedule as set forth in the Order after the Initial Scheduling Conference, then that party will likely be precluded from calling the expert witness at the time of trial.  An expert witness not appearing on the designation will not be permitted to testify unless the party offering the witness demonstrates: (a) that the necessity for the witness could not have been reasonably anticipated at the time the list was proffered; (b) that the court and opposing counsel were promptly notified upon discovery of the witness; and (c) that the witness was promptly made available for deposition.

For purposes of discovery an “expert” is any person who may be used at trial to present evidence under Rules 702, 703 and 705 of the Federal Rules of Evidence, which includes both “percipient experts” (persons who, because of their expertise, have rendered expert opinions in the normal course of their work duties or observations pertinent to the issues in the case) and “retained experts” (persons specifically designated by a party to be a testifying expert for the purposes of litigation).  A party shall identify whether a disclosed expert is percipient, retained, or both.  The court presumes a party designating a retained expert has acquired the express permission of the witness to be so listed.  Parties designating percipient experts must state in the designation who is responsible for arranging the deposition of such persons.

All experts designated are to be fully prepared at the time of designation to render an informed opinion, and give the bases for their opinion, so that they will be able to give full and complete testimony at any deposition taken by the opposing party.  Experts will not be permitted to testify at trial as to any information gathered or evaluated, or opinion formed, after deposition taken subsequent to designation.


The United States District Court for the Eastern District of California requires electronic filing of documents in all new and pending civil cases in which parties are represented by counsel.  A party proceeding without counsel may request authorization to file electronically.  Information about the court’s Electronic Case Filing system (“ECF”) is available on the court’s website at www.caed.uscourts.gov/caednew/index.cfm/cmecf-e-filing.  See also Local Rule 133.

All manually filed documents (only those documents exempted from the electronic filing requirements by the Local Rules) shall be served as otherwise required by the Federal Rules of Civil Procedure or Local Rule 133.


A.    Time For Filing and Hearing Motions; Meet and Confer Requirement

Motions shall be filed in accordance with Local Rule 230 and this order.  This court generally hears motions on designated Fridays, commencing at 10:00 a.m.  Available dates are listed on Judge Mueller’s homepage of the court’s website.  Once a motion, opposition and reply are filed, no supplemental brief shall be filed without prior leave of court.

All purely legal issues must be resolved by timely pretrial motions.  Local Rule 230 governs the calendaring and procedures of civil motions; the following provisions also apply:

(a)        Prior to filing a motion in a case in which the parties are represented by counsel, counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the contemplated motion and any potential resolution.  Plaintiff’s counsel should carefully evaluate the defendant’s contentions as to deficiencies in the complaint and in many instances the party considering a motion should agree to any amendment that would cure a curable defect.  Counsel should discuss the issues sufficiently so that if a motion of any kind is filed, including for summary judgment, the briefing is directed only to those substantive issues requiring resolution by the court.  Counsel should resolve minor procedural or other non-substantive matters during the meet and confer.  A notice of motion shall contain a certification by counsel filing the motion that meet and confer efforts have been exhausted, with a brief summary of meet and confer efforts.  If a motion is filed without certification, counsel can expect the hearing date to be vacated.

(b)        The opposition and reply must be filed by 4:00 p.m. on the date due. 

(c)        When the last day for filing an opposition brief falls on a legal holiday, the opposition brief shall be filed on the last court day immediately preceding the legal holiday.  Failure to comply with Local Rule 230(c), as modified by this order, may be deemed consent to the motion and the court may dispose of the motion summarily.  Brydges v. Lewis, 18 F.3d 651, 652−53 (9th Cir. 1994).

(d)       Notices of motions shall also address and disclose the status of any settlement discussions, including specification that no settlement discussions are occurring if applicable.  Thereafter, counsel shall provide an update on the status of settlement discussions whenever counsel files a motion, opposition, or reply, noting whether any of the parties are actively engaged in settlement discussions that may lead to a request to continue or vacate a noticed hearing date.  The parties must make a request to continue or vacate immediately upon realizing they seek a continuance, and no later than two weeks before the hearing.  The court will not entertain any later requests unless they are supported by verified extraordinary circumstances.  The court requires this information to more efficiently allocate its limited time and judicial resources.  Failure to update the court on settlement discussions and provide at least two weeks’ advance notice of a request to vacate or continue a hearing may result in sanctions, including monetary sanctions.

(e)        The parties are cautioned that failure to raise a dispositive legal issue that could have been tendered to the court by proper pretrial motion prior to the dispositive motion cut−off date may constitute waiver of such issue.  See Shewbridge v. El Dorado Irrigation Dist., No. 05-0740, 2007 WL 1294392, at *3 (E.D. Cal. Apr. 30, 2007) (citing North Pacifica, LLC v. City of Pacifica, 366 F.Supp.2d 927, 930 (N.D. Cal. 2005) (finding defendant, who raised res judicata defense for first time at trial’s damages phase, waived defense)).

B.    Length and Format of Motion Papers

Memoranda of Points and Authorities in support of or in opposition to motions shall not exceed twenty (20) pages.  Replies shall not exceed ten (10) pages.  Only in rare instances and for good cause shown will the court grant an application to extend these page limitations.  All requests for page limit increases must be made in writing at least fourteen (14) days prior to the filing of the motion.

If Times New Roman font is used, the size must be no less than 12; if Courier is used, the size must be no less than 10.  Footnotes shall be in typeface no more than one size smaller than text size and should be used sparingly.

Pagination of exhibits:  Multi-page exhibits shall be internally paginated, with the pagination for each exhibit beginning with the number one; references to those exhibits shall refer to the exhibit designation and page number, i.e., Ex. A at 7; Ex. B at 1, etc.

The court encourages counsel to submit motions and supporting documents in a format susceptible to electronic searches, for example by optical character recognition (OCR) or imbedded hyperlinks to commercial databases such as Westlaw or Lexis Nexis.

C.    Citations

Counsel are reminded that the basic purpose of a legal citation is to allow the reader to locate a cited source accurately and efficiently.  Citations to case law shall identify the case being cited, and the specific page being referenced.  Certain kinds of authority are considered more useful, or authoritative, than others.  If more than one authority is cited in support of a proposition, these supporting authorities are to be listed such that the more authoritative appears first.  Statutory references should identify, with specificity, which sections and subsections are being referenced (e.g., 42 U.S.C. § 1983).  Counsel should avoid statutory references that do not indicate specifically which section and subsection are being referenced (e.g., 18 U.S.C. § 2511, et seq.).  Citations to treatises, manuals and other materials should similarly include the volume and the section being referenced.

D.    Young Attorneys

The court values the importance of training young attorneys.  The parties are encouraged to consider assigning oral argument to a young attorney.  If a written request for oral argument is filed before a hearing, stating an attorney of six or fewer years out of law school will present the oral argument, then the court will ordinarily hold the hearing, although the court’s schedule and calendar may require the hearing to be reset.  Otherwise, the court may find it appropriate in some actions to submit a motion without oral argument.

E.    Requests for Remote Appearances

The court strongly prefers in-person oral argument for civil law and motion practice; attorneys appearing in person are often better prepared, more professional and answer the court’s questions more thoroughly without talking over others.  Although virtual appearance is discouraged, the court will consider requests for virtual appearance if supported by a verified showing of hardship, such as health concerns or an unreasonable increase in litigation costs.  Any requests to appear remotely at a hearing on a noticed motion under Local Rule 174 must be in writing, must either be stipulated to or explain the opposing side’s position and must be filed no later than seven calendar days in advance of the noticed hearing date.  There will be no hybrid appearances; all persons appearing in a single case must appear by the same format.  Attorneys granted permission to appear virtually are expected to behave as if they were present in the courtroom: they must be in court attire, preferably standing, and fully prepared to answer the court’s questions.

F.    Pronouns

The court welcomes attorneys and parties to identify their pronouns in filings and when checking in with the Courtroom Deputy at the beginning of court hearings.  In this context, the court uses “pronouns” to refer specifically to third-person pronouns.


In addition to the requirements imposed by the Judicial Panel for Multidistrict Litigation (JPML) for a potential MDL, parties must notify this court promptly whenever a case is pending possible transfer by the JPML.  Prompt notification is mandatory whether or not the parties are the filing parties before the JPML formally requesting the transfer.


The court generally discourages parties from submitting proposed substantive orders, except with respect to consent decrees and findings of fact or if directed by the court.  If the court directs the filing of a proposed order, the order should be submitted in word processable form via email to: kjmorders@caed.uscourts.gov.


Local Rule 233 applies to motions for administrative relief, such as motions to exceed page limits or requests to extend a response deadline.  If a party cannot obtain the relief it seeks through Local Rule 233, that party may seek relief in an ex parte application.  Ex parte applications typically are not heard but are submitted by the court unless otherwise notified.  The filer is required to contact the courtroom deputy and the opposing party prior to the filing of the ex parte application in order to advise that such request is being made.  In addition, the document(s) must indicate whether or not an opposition will be filed.  The filer shall include an affidavit indicating a satisfactory explanation for the following: (1) the need for the issuance of such an order, (2) the inability of the filer to obtain a stipulation for the issuance of such an order from other counsel or parties in the action, and (3) why such request cannot be noticed on the court’s motion calendar as provided by Local Rule 230.  Any opposition shall be filed no later than 48 hours from the filing of the ex parte application.   When an ex parte application is filed on a Friday, the time for filing the opposition is extended to 72 hours from the filing.


Parties seeking emergency or provisional relief shall comply with Federal Rule of Civil Procedure 65 and Local Rule 230.  The court typically will not rule on any application for such relief for at least twenty-four (24) hours after the party subject to the requested order has been served; such party may file opposing or responding papers in the interim.


The parties are reminded that under Federal Rule of Civil Procedure 16(b), no stipulations extending scheduling requirements are effective until and unless the court approves them.  Agreement of the parties by stipulation alone does not constitute good cause.  Except in extraordinary circumstances, unavailability of witnesses or counsel does not constitute good cause.  As noted, the assigned Magistrate Judge is authorized to modify only the discovery dates to the extent such modification does not have the effect of requiring a change to non-discovery deadlines, e.g., the dispositive motion deadline.  Both applications and stipulations must be filed well in advance of the date due and set forth:

(A)       the existing due date or hearing date as well as the discovery cutoff date, the last date for hearing motions, the pre-trial conference date and the trial date, when included in the existing schedule;

(B)       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, i.e., have written proposals been exchanged?  Is counsel in the process of reviewing a draft settlement agreement?  Has a mediator been selected?; and

(C)       whether there have been prior requests for extensions, and whether these were granted or denied by the court.


The court will set a Final Pretrial Conference date after the resolution of any dispositive motions, or passage of the dispositive motion cutoff, with a trial date being determined at the pretrial conference.  The parties should be prepared to confirm a trial date within 60 to 120 days from the date of the final pretrial conference, and should be available for trial accordingly.


A Settlement Conference may be set at the time of the Final Pretrial Conference or at an earlier time at the parties’ request, if not ordered at the Initial Scheduling Conference.  At any time, parties may request jointly, in writing, a court settlement conference date or referral to the Voluntary Dispute Resolution Program (VDRP). 

Counsel are instructed to have a principal with full settlement authority present at any Settlement Conference or to be fully authorized to settle the matter on any terms.  Each judge has different order requirements for the submission of settlement conference statements; the appropriate instructions will be sent to you after the settlement judge is assigned.


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 Removal.  See 28 U.S.C. § 1447(a), (b).  If the defendant has not yet responded, the answer or responsive pleading filed in this court must comply with the Federal Rules of Civil Procedure and the Local Rules of the Eastern District.  If a motion was pending in state court before the case was removed, it must be re-noticed in accordance with Local Rule 230.


No document will be sealed, nor shall a redacted document be filed, without the prior approval of the court.  If a document for which sealing or redaction is sought relates to the record on a motion to be decided by Judge Mueller, the request to seal or redact should be directed to her and not the assigned Magistrate Judge.  All requests to seal or redact shall be governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the discovery phase shall not govern the filing of sealed or redacted documents on the public docket. 

The court will only consider requests to seal or redact filed by the proponent of sealing or redaction.  This means that if a party plans to make a filing that includes material an opposing party has identified as confidential and potentially subject to sealing, the filing party shall provide the opposing party with sufficient notice in advance of filing to allow for the opposing party to seek an order of sealing or redaction from the court.


No counsel or party shall attempt to contact the court or its chambers staff by telephone, e-mail or by any other ex parte means.  Counsel may contact the Courtroom Deputy with appropriate inquiries.  To facilitate communication with the Courtroom Deputy, counsel should list their facsimile transmission numbers along with their telephone numbers and e-mail addresses on papers filed with the court.