Whitney v. Percell et al

Filing 64

RULE 16 SCHEDULING ORDER: Discovery due by 2/28/2014. Dispositive motions due by 4/14/2014. (See document for further details). Signed by Senior Judge Stephen M McNamee on 6/18/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carol E. Whitney,
Plaintiff,

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v.
United States of America,

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Defendants
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No. CV-11-2256-PHX-SMM
RULE 16 SCHEDULING ORDER

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On June 18, 2013, a Pretrial Conference was held in open Court pursuant to Rule
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16(b) of the Federal Rules of Civil Procedure. Prior to the conference, the parties filed a
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Rule 26(f) Case Management Plan. Pursuant to the terms of the Case Management Plan, and
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the representations made by the parties at the Rule 16 Preliminary Pretrial Conference, all
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parties were ordered to comply with the deadlines established in this Order.
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IT IS HEREBY ORDERED that the current provisions of the Federal Rules of Civil
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Procedure shall apply to all proceedings concerning this case.
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IT IS FURTHER ORDERED that all Initial Disclosures as defined in Federal Rule
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of Civil Procedure 26(a), if not already exchanged prior to the time of this Preliminary
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Pretrial Conference, shall be made no later than five (5) days after date of entry of this
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Order or, in the alternative, no later than (already completed) .
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IT IS FURTHER ORDERED that to satisfy the requirements of Federal Rule of

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Civil Procedure 26(a), the parties shall file with the Clerk of the Court a Notice of Initial

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Disclosure, rather than copies of the actual disclosures.

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IT IS FURTHER ORDERED that any amendment to the Complaint shall be filed

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no later than (already completed) . Any amendment to the Answer shall be filed no later

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than (already completed) .

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IT IS FURTHER ORDERED that the Plaintiff(s) shall disclose the identity of any

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person who may be used at trial to present evidence under Federal Rules of Evidence 701,

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702, 703, 704, and 705 no later than September 6, 2013.1 The Defendant(s) shall disclose

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the identity of any person who may be used at trial to present evidence under Federal Rules

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of Evidence 701, 702, 703, 704, or 705 no later than November 1, 2013. Rebuttal experts

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if any, shall be disclosed no later than December 6, 2013. No deposition of any expert

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witnesses shall occur before the disclosures concerning expert witnesses mandated by this

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Order are made. All expert depositions shall be completed by February 28, 2014.

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IT IS FURTHER ORDERED that the disclosures of the identities of any persons

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who may be used at trial to present evidence under Federal Rules of Evidence 701, 702, 703,

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704, or 705 shall also include all of the disclosures required by Federal Rule of Civil

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Procedure 26(a)(2)(B) if the witness is either (1) retained or specifically employed to provide

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expert testimony in the case, or (2) is an agent or employee of the party offering the

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testimony whose duties regularly involve giving expert testimony.

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IT IS FURTHER ORDERED that all discovery, including depositions of parties,

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witnesses, and experts, answers to interrogatories, and supplements to interrogatories must

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be completed by February 28, 2014. In no event, however, shall this provision alter the

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duties and obligations imposed upon the parties by Federal Rule of Civil Procedure 26(e).

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This Order contemplates that each party will conduct discovery in such a manner as to

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The parties are hereby given notice that this Order requires disclosure greater than that
required by Federal Rule of Civil Procedure 26(a)(2).

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complete, within the deadline, any and all discovery. "Last minute" or "eleventh hour"

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discovery which results in insufficient time to undertake additional discovery and which

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requires an extension of the discovery deadline will be met with disfavor, and could result

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in denial of an extension, exclusion of evidence, or the imposition of other sanctions.

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IT IS FURTHER ORDERED that depositions shall be limited as provided by Rules

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30 and 31 of the Federal Rules of Civil Procedure unless the parties otherwise stipulate in

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writing when permitted to do so pursuant to the Rules or when granted permission to depart

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from the provisions of the Rules by Order of this Court. Notwithstanding any provision in

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the Federal Rules of Civil Procedure or the Local Rules, the parties shall conduct no more

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than 10 depositions.

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IT IS FURTHER ORDERED pursuant to Federal Rule of Civil Procedure 30(d)(1)

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that there shall be a time limit of 4 hours2 to conduct a deposition of any witness in this

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case. Additional time shall be allowed where the deponent or a party impedes or delays the

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examination. This time limit may only be extended by Order of this Court upon motion of

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any party that demonstrates good cause for doing so. Counsel shall conduct themselves

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courteously and professionally, especially during the taking of depositions. Any objections

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made during the course of a deposition must be in accordance with Rule 30(c)(2) of the

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Federal Rules of Civil Procedure.

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IT IS FURTHER ORDERED that notwithstanding any provisions of the Federal

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Rules of Civil Procedure or any other provisions of this Order, non-party witnesses shall not

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be permitted to attend, either physically, electronically, or otherwise, the deposition of any

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other witness in this case without an Order of this Court to the contrary.

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IT IS FURTHER ORDERED that discovery by interrogatory shall generally be

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governed by Federal Rule of Civil Procedure 33. However, notwithstanding Federal Rule

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The Court finds that a presumptive limit of seven (7) hours is sufficient for
depositions in a standard track civil case.
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of Civil Procedure 33, there is a limit of 40 interrogatories, including discrete subparts,

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applicable to this case.

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IT IS FURTHER ORDERED that requests for admissions shall be governed by

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Federal Rule of Civil Procedure 36. The parties shall serve no more than 25 requests for

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admissions.

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IT IS FURTHER ORDERED reminding counsel of their duty under Rule 26(e) of

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the Federal Rules of Civil Procedure to supplement all Rule 26(a) disclosures and responses

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to discovery requests. Pursuant to Rule 26(e)(1), any additions or other changes to

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information previously disclosed must be made prior to the time that Rule 26(a)(3) Pretrial

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Disclosures are due. Since this Court effectively requires all Rule 26(a)(3) Pretrial

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Disclosures to be contained in the Proposed Final Pretrial Order, this Order contemplates that

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all exhibits and witnesses that may be offered at trial will have been disclosed before the

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close of discovery as established by the provisions of this Order. This Order therefore

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supersedes the “thirty-day before trial” disclosure deadline contained in that Rule. Therefore

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(1) failure to have timely supplemented a Rule 26(a) disclosure, including but not limited to

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witnesses and exhibits, or (2) a failure to have timely supplemented responses to any valid

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discovery requests, or (3) attempting to include any witnesses or exhibits in the Proposed

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Final Pretrial Order that were not previously disclosed in a timely manner as to allow for

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meaningful discovery prior to the discovery cutoff date as established by this Order, may

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result in the exclusion of such evidence at trial or the imposition of other sanctions.

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IT IS FURTHER ORDERED that, in the event of a discovery dispute, the parties

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shall contact the Court to request a telephonic conference prior to filing any discovery

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motions. The parties shall not contact the Court regarding a discovery dispute unless they

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have been unable to resolve the dispute themselves, despite personal consultation and sincere

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efforts to do so. The parties shall not file any written materials related to a discovery dispute

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or discovery motion without express leave of Court. If the Court does order written

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submissions, the movant shall include a statement certifying that counsel could not

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satisfactorily resolve the matter despite personal consultation and sincere efforts to do so, in
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accordance with LRCiv 7.2(j) of the Rules of Practice of the United States District Court for

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the District of Arizona.

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IT IS FURTHER ORDERED that all dispositive motions shall be filed no later than

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April 4, 2014. Such motions must be, in all respects, in full compliance with the Rules of

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Practice of the United States District Court for the District of Arizona.

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IT IS FURTHER ORDERED that no submissions to the Court shall contain any
footnotes in excess of five (5) lines.

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IT IS FURTHER ORDERED that all parties are hereby specifically admonished that

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failure to respond to a motion by serving and filing an answering memorandum within the

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time period expressly provided for in LRCiv 7.2 of the Rules of Practice of the United States

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District Court for the District of Arizona may be deemed a consent to the denial or granting

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of the motion and the Court may then dispose of the motion summarily.

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IT IS FURTHER ORDERED that the parties shall not notice oral argument on any

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motion. Instead, a party desiring oral argument on a motion shall request argument by

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placing “Oral Argument Requested” immediately below the title of such motion, pursuant

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to LRCiv 7.2(f) of the Rules of Practice of the United States District Court for the District

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of Arizona. The Court will then issue a minute order scheduling the oral argument.

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Oral argument shall be scheduled at the request of a party on all motions to dismiss

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and motions for summary judgment. On all other motions on which a party requests oral

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argument, the Court will determine whether oral argument is necessary. FURTHER, THE

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PARTIES ARE REMINDED THAT OBTAINING A HEARING DATE IS PURELY

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ADMINISTERIAL. ACCORDINGLY, REGARDLESS OF A HEARING DATE, THE

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COURT MAY, AT ANY TIME AFTER THE MOTION IS FULLY BRIEFED,

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DETERMINE THAT A HEARING IS UNWARRANTED AND RULE ON THE MOTION

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WITHOUT ORAL ARGUMENT.

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IT IS FURTHER ORDERED that any and all motions, requests, or stipulations for

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extensions of time shall be made in accordance with the provisions of LRCiv 7.3 of the Rules

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of Practice of the United States District Court for the District of Arizona. Notwithstanding
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this directive, however, if such a motion, request, or stipulation seeks an extension of time

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in which to file a memorandum in response or in reply to a motion previously noticed for oral

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argument, under no circumstances shall such a motion, request, or stipulation seek an

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extension that would preclude the Court from having at least thirty (30) days from the due

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date for the filing of the reply memorandum to consider the merits of the underlying motion

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unless the motion, request, or stipulation also seeks to vacate and reschedule the oral

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argument. Any motion, request, or stipulation that so seeks both an extension of time and

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rescheduling of a hearing shall contain a memorandum of points and authorities which

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demonstrates good cause for the Court to grant the requested extension.

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IT IS FURTHER ORDERED that, if no dispositive motions are pending before the

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Court after the dispositive motions deadline has passed, Plaintiff(s) shall file a Notice of

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Readiness for Order Re: Final Pretrial Conference within ten (10) days of the dispositive

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motions deadline.

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IT IS FURTHER ORDERED that, if dispositive motions are pending before the

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Court following the dispositive motions deadline, the Court will issue an Order Re: Final

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Pretrial Conference following its resolution of the dispositive motions, if necessary.

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IT IS FURTHER ORDERED that the Order Re: Final Pretrial Conference shall: 1)

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set deadlines for the filing of and response to motions in limine; 2) instruct the parties on

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their duties in preparing for the Final Pretrial Conference and for trial; and 3) include a form

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for the completion of the parties’ Proposed Pretrial Form of Order.

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IT IS ORDERED that the attorneys for each party who will be responsible for trial

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of the lawsuit shall APPEAR and PARTICIPATE in a Final Pretrial Conference on April

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7, 2014 at 3:00 p.m. in courtroom # 605 on the sixth floor of the United States Courthouse,

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401 West Washington Street, Phoenix, Arizona. Because the Final Pretrial Conference is

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held for the benefit of all parties, and further because the presence of all parties will facilitate

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frank discussion of the pertinent issues in the lawsuit, each party, or a representative with

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binding settlement authority if the party is an entity, shall attend the Final Pretrial

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Conference. At the Final Pretrial Conference, the Court shall set a firm trial date.
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IT IS FURTHER ORDERED that the parties shall keep the Court informed

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regarding the possibility of settlement and should settlement be reached, the parties shall file

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a Notice of Settlement with the Clerk of the Court.

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IT IS FURTHER ORDERED that this Court views compliance with the provisions

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of this Order as critical to its case management responsibilities and the responsibilities of the

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parties under Rule 16 of the Federal Rules of Civil Procedure.

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DATED this 18th day of June, 2013.

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