Johnson v. J.C. Penney Corporation, Inc.
MEMORANDUM OPINION AND ORDER that the 26 MOTION for Summary Judgment is DENIED; Mediation must occur by 11/17/2014; Pretrial Conference is set for 11/24/2014 01:30 AM in Federal Courthouse, Huntsville, AL before Judge C Lynwood Smith Jr., as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/6/2014. (Attachments: # 1 Pretrial Instructions)(AHI )
2014 Oct-06 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
November 24, 2014
Judge C. Lynwood Smith, Jr., Presiding
The cases shown on the attached docket are set for pretrial hearing pursuant to
Rule 16 of the Federal Rules of Civil Procedure. A conference-type hearing will be
held in chambers in the Federal Courthouse in the city specified and at the time
The conference will be addressed to consideration of the matters provided in
Rule 16, including the limitation of issues requiring trial, rulings on pending motions,
and settlement possibilities.
Counsel attending the conference are expected to be well informed about the
factual and legal issues of the case and to have authority to enter appropriate
stipulations and participate in settlement discussions. Counsel appearing at the
conference may be required to proceed at trial notwithstanding the naming of others
as designated trial counsel.
Promptly upon receipt of these instructions, counsel is to initiate discussions
with other counsel aimed at ascertaining which basic facts are not really in dispute,
and at clarifying the parties’ contentions (for example, just what is denied under a
On or before November 19, 2014, counsel for plaintiff shall submit to the
judge’s office in HUNTSVILLE, ALABAMA (not to the court clerk): a
PROPOSED PRETRIAL ORDER (simultaneously furnishing opposing counsel with
a copy) in WordPerfect format (if counsel’s word processor is not WordPerfect, it
may be capable of saving in WordPerfect format). The Proposed Pretrial Order can
be e-mailed to the chambers at firstname.lastname@example.org. It is anticipated
that in most cases the proposed order, with only minor insertions and changes, could
be signed by the court at the close of the hearing.
A sample of a proposed Pretrial Order is attached at the end of this docket to
illustrate the substance of an order in a typical case. Each order must, of course, be
tailored to fit the circumstances of the individual case. THIS SAMPLE HAS BEEN
PREPARED IN THE FORMAT (i.e., spacing, underlining, justification, bolding, etc.)
which should be submitted to the court. Please use only this format. Pretrial orders
in non-jury cases should follow the provision in the sample order for establishing a
procedure and schedule for preparation of a detailed statement of agreed facts.
Failure to be well informed and prepared for pretrial and failure
otherwise to comply with these instructions may require the court to
communicate directly with the parties to explain actions which may be
necessitated by such failure, particularly unwarranted continuances or increased
costs of litigation.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
THOMAS S. SMITH,
COLLINS CONSTRUCTION CO.,
JAMES K. ADAMS,
ELIZABETH D. SMITH,
COLLINS CONSTRUCTION CO.,
JAMES K. ADAMS,
A pretrial conference was held in the above cases on April 19, 2013, wherein,
or as a result of which, the following proceedings were held and action taken:
1. Appearances. Appearing at the conference were:
[Leave space for completion by the court]
2. Jurisdiction and venue. Subject matter jurisdiction exists under 28 U.S.C.
§ 1332 by reason of the amounts in controversy and the admitted diversity of
citizenship. Personal jurisdiction and venue are not contested.
3. Consolidation. These actions (CV09-S-234-_ and CV09-S-235-) involve
common questions of law and fact and are hereby ORDERED CONSOLIDATED
under Rule 42 for further proceedings and trial.
4. Parties and trial counsel. The parties before the court are correctly named,
and the designated trial counsel for the parties are, as set out below:
Thomas S. Smith
Robert Stephens (Brown,
Brownlee & Stephens);
Gene Baird (Baird &
Elizabeth D. Smith
Collins Construction Co.
James Johnson and Robert
Donovan (Phelps & Smith)
James K. Adams
5. Pleadings. The following pleadings (with the modifications contained in
this order) have been allowed: complaint, as amended May 5, 2009, on behalf of each
plaintiff; answer on behalf of defendants to each complaint. The answers filed to the
original complaints suffice as answers to the amended complaints without refiling.
6. Statement of the case.
(a) Agreed summary. This case arises out of a collision between two
vehicles which occurred August 5, 2008, at the intersection of 21st Street and 5th
Avenue South in the city limits of Birmingham, Alabama. An automobile owned and
then being operated by plaintiff Thomas S. Smith (and in which his wife, plaintiff
Elizabeth D. Smith, was a passenger) was proceeding northward on 21st Street (a
one-way street for northbound traffic). A truck owned by defendant Collins
Construction Co. and then being operated by the other defendant, James K. Adams,
was proceeding eastward on 5th Avenue South (two-way traffic). A standard traffic
control device (green/yellow/red lights) governed traffic entering the intersection and
was functioning on this occasion. Both drivers claim to have had the green light. The
corporate defendant admits that Adams was its employee and was acting within the
line and scope of such employment at the time.
(b) Plaintiffs’ positions. Plaintiff Thomas S. Smith seeks $75,000 in
compensatory damages for: his own personal injuries, medical expenses and lost
wages; property damage to his automobile; and for his wife’s medical expenses, past
and future, and the loss of her services and consortium, past and future. Plaintiff
Elizabeth D. Smith seeks $125,000 in compensatory damages for her personal injuries
and disfigurement. Plaintiffs claim that these damages were proximately caused by
the negligence of the defendants asserting that Adams was negligent in: (1) violating
Ala. Code § 32-5A-31 (running yellow or red light) and/or (2) failing to exercise
ordinary care under the circumstances. Plaintiffs withdraw any contention of wanton
misconduct on the part of the defendants. Plaintiff Thomas S. Smith denies any
contributory negligence on his part.
(c) Defendants’ positions. Defendants deny any negligence on the part
of Adams and contest the amount of damages claimed by plaintiffs. As to the claims
made by Thomas S. Smith, defendants assert that Smith was himself contributorily
negligent by (1) violating Ala. Code § 32-5A-31 and/or (2) failing to exercise
ordinary care under the circumstances. Defendants withdraw any contention of
contributory negligence on the part of plaintiff Elizabeth D. Smith.
7. Discovery and other pretrial procedures.
(a) The __________________, 2011 order entered pursuant to FRCP
Rule 16(b) closed discovery as of _______________.
(b) The Standard Pretrial Procedures specified on Exhibit A hereto are
adopted as part of this order.
(c) Pending motions:
[Here list motions, if any, with space for court’s ruling]
8. Jury Trial. Five working days prior to the scheduled trial, the parties shall
present to the court any special questions or topics for voir dire examination of the
jury venire, and, to the extent the same can be anticipated, any requests for
instructions to the jury (including extracts of any statutes on which instructions are
requested). Any motions in limine shall be filed on or before
[Leave about 6 lines for possible additions by the court]
9. Trial Date. This case is set for trial in ____________, Alabama, on the
_______ day of ____________, 2013, at _______ a.m. [Counsels’ estimated length
ORDERED this _______ day of ________________, 2013, that the above
provisions be binding on all parties unless modified by further order for good cause
United States District Judge
*For non-jury case, the following should be substituted for paragraph 8:
8. Statement of agreed and disputed facts.
(a) By ___________________, 2013, plaintiff’s counsel shall submit to
defendant’s counsel a statement setting forth the principal facts proposed to be proved
by plaintiff in support of plaintiff’s claim as to liability and damages.
(b) By ___________________, 2013, defendant’s counsel shall return the
statement to plaintiff’s counsel, indicating thereon those factual contentions of the
plaintiff with which they disagree and adding thereto those additional facts proposed
to be proved by the defendant.
(c) By ___________________, 2013, plaintiff’s counsel shall indicate thereon
those factual contentions of the defendant with which plaintiff disagrees and shall file
the modified statement, serving a copy thereof on opposing counsel. While it is not
necessary plaintiff’s counsel to retype the final product, it may be helpful in many
cases for this to be done before filing. If retyped, it is preferable to have all agreed
facts, regardless of by whom proposed, collected under one heading and to have the
respective additional facts proposed by the parties, which facts are in dispute,
collected under separate headings.
(d) In stating facts proposed to be proved, counsel shall do so in simple,
declarative, consecutively numbered sentences, avoiding “color words,” labels, and
legal conclusions. In indicating disagreement with a proposed fact, counsel shall do
so by deletion or interlineation of particular words and phrases so that the nature of
the disagreement will be clear. Objections to the admissibility of a proposed fact
(whether as irrelevant or on other grounds) may be made at trial and, without court
order, may not be used to avoid indicating agreement or disagreement with the truth
of the proposed fact.
STANDARD PRETRIAL PROCEDURES
1. Damages. The parties shall by
serve and file a list itemizing
all damages and equitable relief being claimed or sought, showing the amount (and,
where applicable, the method and basis of computation) of such items.
2. Witnesses--Exchange of Lists.
(a) Expert witnesses.--To the extent the parties have not previously
complied with F.R.Civ.P. 26(a)(2), the parties shall by
file a list stating the names and addresses of all expert witnesses who have
been identified in accordance with the report of the parties’ planning meeting
under F.R.Civ.P. 26(f) and in accordance with earlier orders and whose
testimony they may offer at trial. The list shall include, to the extent not
previously provided, the information specified in F.R.Civ.P 26(a)(2)(B) with
respect to any such person other than a medical expert.
(b) Other witnesses.--To the extent the parties have not previously
complied with F.R.Civ.P. 26(a)(3), the parties shall by
and file a list stating the names and addresses of all witnesses (other than
expert witnesses) whose testimony they may offer at trial.
(c) Contents of lists.--The parties shall appropriately indicate on such
lists (1) which are their “primary” witnesses (those whose testimony they
expect to offer, absent a favorable ruling on summary judgment, directed
verdict, or involuntary dismissal), (2) which are their “optional” witnesses
(those whose testimony will probably not be needed, but who have been listed
to preserve their right to offer such testimony should the need arise in the light
of developments at trial), and (3) which of their primary and optional witnesses
they expect to present by means of depositions.
Unless specifically agreed by the parties or allowed by the court for good cause
shown, the parties shall be precluded from offering substantive evidence through any
witness not so listed. The listing of a witness does not commit the party to have such
witness available at trial or to call such witness to testify, but does preclude the party
from objecting to the presentation of such witness’s testimony by another party. As
to any witnesses shown on such list to be presented by deposition, a party may serve
and file a list disclosing any objections to the use under Rule 32(a) of a deposition
designated by another party pursuant to the foregoing or under F.R.Civ.P.
26(a)(3)(B). Objections not so disclosed, other than objections under Rules 402 and
403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the
court for good cause shown.
(a) Exchange of lists.-- To the extent the parties have not previously
complied with F.R.Civ.P. 26(a)(3)(C), the parties shall by
serve and file a list providing an appropriate identification of each document
or other exhibit, including summaries of other evidence, separately identifying
those which the party expects to offer and those which the party may offer if
the need arises. As to any document or other exhibit, including summaries of
other evidence shown on such list, a party may serve and file a list disclosing
any objection on or before
, together with the grounds
therefor, that may be made to the admissibility of materials identified on such
list. Objections not so disclosed, other than objections under Rules 402 and
403 of the Federal Rules of Evidence, shall be deemed waived unless excused
by the court for good cause shown. Unless specifically agreed by the parties
or allowed by the court for good cause shown, the parties shall be precluded
from offering as substantive evidence any exhibit not so identified. Except
where beyond the party’s control or otherwise impractical (e.g., records from
an independent third-party being obtained by subpoena), each party shall make
such exhibits available for inspection and copying.
(b) Marking.--Each party which anticipates offering as substantive
evidence as many as six exhibits shall premark such exhibits in advance of
trial, using exhibit labels and exhibit lists available from the Clerk of Court.
By the time the case is scheduled for trial, a copy of the exhibit list shall be
served and filed, with the exhibits being made available for inspection by
opposing counsel; the presentation of evidence at trial shall not ordinarily be
interrupted for opposing counsel to examine a document that has been so
identified and made available for inspection.
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