Covington v. White et al

Filing 147

ORDER setting a Joint Report from the parties due 23 January 2015. Motions to Extend Time, 145 and 146 , denied without prejudice as moot. The liability issues are set for trial the week of 9 March 2015. Any trial in the related excessive-force ca se will go first, then this case. The City Defendants' objection to bifurcating liability and damages is overruled. Pretrial disclosure sheets, motions in limine, proposed jury instructions, and all other pretrial filings are due by 6 February 2015. Signed by Judge D. P. Marshall Jr. on 1/7/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
GARY COVINGTON, on behalf of
himself and all others similarly situated

PLAINTIFF

No. 2:12-cv-123-DPM

v.

ULESS WALLACE, HERMAN HALL, and
NEAL BYRD, all in their official capacities

DEFENDANTS

ORDER
1. The parties' jointly proposed changes to the draft notice, see attached,

are fine. The Court applauds the overall improvements in clarity. We still
need to fill in the blanks and craft an exclusion form. The Court also needs to
decide the particulars of notice. Joint report covering all this ground due by
23 January 2015.
2. The Court didn't intend to set a deadline for an interim fee petition.

Covington can file one whenever he chooses. His motions to extend time,
NQ 145 & 146, are denied without prejudice as moot.
3. The liability issues are set for trial the week of 9 March 2015. Any trial

in the related excessive-force case will go first, then this case. The City
Defendants' objection to bifurcating liability and damages is overruled.
Bifurcation makes good sense. FED. R. CIV. P. 42(b). Pretrial disclosure sheets,

motions in limine, proposed jury instructions, and all other pretrial filings are
due by 6 February 2015.

***
Motions, NQ 145 & 146, denied without prejudice as moot.
So Ordered.

D.P. Marshall Jr.
United States District Judge

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Draft Notice
23 December 2014

.NOTICE TO COVINGTON CLASS MEMBERS

I

To: All pretrial detainees at the Phillips County Jail who were denied a
prompt first appearance in the three years before this case was filedsince
on 22 June 2009~.
You may be eligible for compensation.
1. Class Action Claims

Your rights may be affected by this Gass Action. Gary Covington has
brought this lawsuit against Phillips County and the City of Helena-West
Helena. He alleges that the County and the City failed to provide a prompt
first appearance in court (within 72 hours of arrest) to pretrial detainees at
the County jail. Covington claims the City and the County violated the U.S.
Constitution. He seeks damages for himself and others who were allegedly
denied a prompt first appearance. The Court has held Phillips County
liable for its violation of the Constitution, and will set the matter for a trial
on damages owed. The City denies that it violated the Constitution and
denies any liability to Covington and other pretrial detainees. The Court
will hold a trial to resolve the City's potential liability.
2. Location of Lawsuit
This Gass Action is pending in the United States District Court for the
Eastern District of Arkansas. The purpose of this Notice is to tell you about

the Gass claim described in paragraph 1. This Notice is sent for the sole
purpose of informing you that this case is pending- so you can decide
whether to participate in this case or not.
3. Attorney Fees & Costs

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Draft Notice
17 December 2014

If Covington wins, then the Court will be asked to approve payment of

litigation expenses and attorney fees to the Oass Attorney. Expenses and
fees may be deducted from the total amount of recovery or they may be
awarded separately by the Court. No other fees or costs will be charged to
Oass members. If the City wins, you will not be responsible for paying any
costs or attorney's fees. Importantly, the Gty and the County have assured the Court
there will be no retaliation.

4. Class Representatives & Class Attorney
The Court has approved Gary Covington as Class Representative. The
Court has also approved a Class Attorney. He is
Luther Sutter
SUTTER & GILLHAM, P.L.L.C.
Attorneys at Law
Post Office Box 2012
Benton, Arkansas 72018
[phone]
If you decide to remain a member of the Oass and wish to communicate

with the Class Attorney, you may do so by writing to him.
5. Election by Class Members: Opt Out or Remain in the Class

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Draft Notice
17 December 2014

If you are a member of the Covington Class, as described in paragraph 1,
you must choose whether to remain a member of this Class Action and

have the Class Representative and Class Attorney identified in paragraph 4
represent you. Your decision will have important consequences.
A. If you come within the class of persons described in
paragraph 1, you will automatically become a Covington Class
Member unless you ask to be excluded from the Class in the
manner indicated below. If you want to be a Class Member,
you are not required to do anything at this time. By remaining a
Class Member, any claims you have against the County or the
City for damages will be decided in this case and cannot be
presented in any other lawsuit. As a member of the Covington
Class, you will be bound by any result obtained by the Class
Representative, whether favorable or unfavorable.
B. If you choose to be excluded from the Covington Class, you
must mail a written request to
postmarked on
or before
. By making this election to be
excluded: You will not be bound by any decision in this
lawsuit; you may present any claims you have against the
County or the City by filing your own lawsuit; or you may seek
to intervene in this lawsuit through your own counsel.
6. Rights and Obligations of Class Members
If you remain a member of this Class:

A. Gary Covington will act as your Class Representative and
Luther Sutter of Sutter & Gillham, P.L.L.C. will act as your
Class Attorney for the presentation of the claims against the
City and the County. If you desire, you may appear at any
proceeding in person or by an attorney you have selected. You
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Draft Notice
17 December 2014

may also seek to intervene individually and may advise the
Court if at any time you consider that you are not being fairly
and adequately represented by the Class Representative or
Class Attorney.
B. Your participation in any recovery that may be obtained
from the County or the City through trial or settlement will
depend on the results of the lawsuit. If no recovery is obtained
for the Class, you will be bound by that result too.
C. You will be entitled to notice and an opportunity to be heard
regarding any proposed settlement or dismissal of the Class
claims. For this reason, and to participate in any recovery, you
are requested to notify
of your full name and
current
address.

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Draft Notice
17 December 2014

7.FurtherProceedings
Pretrial and trial proceedings remain to be done in this case. You may
communicate with the Gass Attorney if you have evidence you believe
would be helpful to the establishment of the Covington Gass claims, and
you may be asked by the parties to provide information relevant to the
case.
8. Contact Information

I

Any questions you have concerning the matters contained in this Notice
should not be directed to the Court. They should be directed in writing to
_ _ _ _ _ _. You may write to the Gaims Administrator at
_ _ _ _ _ _ _. Additionally, you may learn more about the Gass
Action online at
or by calling 1-501-315-1910888287 1637. The pleadings and other records in this case may be examined
and copied at any time during regular office hours at the office of the Clerk
of the United States District Court, 600 West Capitol Avenue, Little Rock,
Arkansas.
9. Reminder as to Time Limit
If you wish to be excluded from the Covington Gass described in
paragraph 1, return the completed Exclusion Form to
------------~by mail postmarked on or before
_ _ _ _ _ _ _. [Form Missing]

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