Wehry v. Colavria Hospitality, Inc. et al

Filing 13

ORDER Scheduling Conference set for 9/5/2012 09:00 AM in Courtroom A 502 before Magistrate Judge Michael J. Watanabe, by Magistrate Judge Michael J. Watanabe on 7/13/2012. (mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Michael J. Watanabe

Civil Action No. 12-cv-01613-MSK-MJW
TARA WEHRY,
Plaintiff,
v.
COLAVRIA HOSPITALITY, INC., a Colorado corporation,
ST. PAUL NURSING HOME, INC., a Colorado corporation,
d/b/a ST. PAUL HEALTH CENTER, LTD, and
ST. PAUL HEALTH CENTER, a partnership
Defendants.
ORDER SETTING SCHEDULING/PLANNING CONFERENCE

The above captioned case has been referred to Magistrate Judge Michael J.
Watanabe pursuant to the Order Referring Case, entered by Judge Marcia S. Krieger,
on July 13, 2012.
IT IS HEREBY ORDERED that a Scheduling/Planning Conference pursuant to
Fed.R.Civ.P.16(b) shall be held on:
September 5, 2012, at 9:00 a.m.
in Courtroom A-502,
Fifth Floor,
Alfred A. Arraj U.S. Courthouse,
901 19th Street,
Denver, Colorado 80294

If this date is not convenient for any counsel/pro se party, he/she should confer
with opposing counsel/pro se party and file a motion to reschedule the conference to a
more convenient date.
Absent exceptional circumstances, no request for rescheduling any
appearance in this court will be entertained unless a written request is made FIVE

(5) business days in advance of the date of appearance.
THE PLAINTIFF SHALL NOTIFY ALL PARTIES WHO HAVE NOT ENTERED
AN APPEARANCE, OF THE DATE AND TIME OF THE SCHEDULING/PLANNING
CONFERENCE.
IT IS ORDERED that counsel/pro se parties in this case shall hold a prescheduling conference meeting and prepare a proposed Scheduling Order in
accordance with Fed.R.Civ.P.26(f) as amended, and D.C.COLO.LCivR 26.1 and App.
F, on or before 21 days prior to scheduling conference. Pursuant to Fed.R.Civ.P.26(d),
as amended, no discovery shall be sought until after the pre-scheduling conference
meeting. No later than 5 days prior to the Scheduling/Planning Conference, counsel/pro
se parties shall submit their proposed Scheduling Order (in PDF) in compliance with
the ECF Filing Procedures. In addition, on or before 14 days after the pre-scheduling
conference meeting, the parties shall comply with the mandatory disclosure
requirements of Fed.R.Civ.P.26(a)(1), as amended.
Counsel/pro se parties shall prepare the proposed Scheduling Order in
accordance with the form which may be downloaded in richtext format from the forms
section of the Court’s website at www.cod.uscourts.gov, and are also attached to this
document. Instructions for downloading the formats are posted in the forms section of
the website. Parties who are pro se or do not have access to the internet may visit the
Clerk’s Office in Alfred A. Arraj U.S. Courthouse, 901 19th Street, Room A-105,
Denver, Colorado. (The Clerk’s Office telephone number is [phone].)
Scheduling Orders prepared by parties not represented by counsel, or without access to
ECF, shall be submitted on paper.
All out-of-state counsel shall comply with D.C.COLO.LCivR 83.3 prior to the
Scheduling/Planning Conference.
It is the responsibility of counsel to notice the court of their entry of appearance,
notice of withdrawal, notice of substitution of counsel, or notice of change of counsel’s
address, e-mail address, or telephone number by complying with the ECF Procedures
and, filing the appropriate document with the court.
Please remember that everyone seeking entry into the Alfred A. Arraj United
States Courthouse will be required to show valid photo identification. See
D.C.COLO.LCivR 83.2B. Failure to comply with this requirement will result in denial of
entry into the Alfred A. Arraj United States Courthouse.
DONE AND SIGNED THIS 13th DAY OF JULY, 2012.
BY THE COURT:
s/Michael J. Watanabe
_____________________________
MICHAEL J. WATANABE

United States Magistrate Judge

Appendix F

(Rev. 12/01/11)
INSTRUCTIONS FOR PREPARATION
OF SCHEDULING ORDER
When the court has set a scheduling conference pursuant to Fed. R. Civ. P. 16 and
D.C.COLO.LCivR 16.1 and 16.2 , a scheduling order shall be prepared in accordance with
these instructions. The rule 26(f) meeting shall be held at least 21 days before the proposed
scheduling order is due to be tendered. The disclosures required by Fed. R. Civ. P. 26(a)(1)
shall be exchanged at or within 14 days after the rule 26(f) meeting. Do not file any disclosure
statements with the court.

Seven days before the scheduling conference (see Fed. R. Civ. P. 6 for all
computations of time), counsel are to tender a proposed scheduling order which shall
include the signatures of counsel and pro se parties and shall provide for approval by
the court as specified on the attached form. Counsel and pro se parties should try, in
good faith, to agree upon matters covered in the scheduling order. Any area of
disagreement should be set forth with a brief statement concerning the basis for the
disagreement. The parties should expect that the court will make modifications in the
proposed scheduling order and will want to discuss all issues affecting management of
the case.

D.C.COLO.LCivR 72.2 authorizes magistrate judges to exercise jurisdiction of
civil matters upon the consent of the parties. If all parties have consented to the
exercise of jurisdiction by a magistrate judge pursuant to D.C.COLO.LCivR 72.2, the
“Notice of Availability of a United States Magistrate Judge to Exercise Jurisdiction and
Consent to the Exercise of Jurisdiction by a United States Magistrate Judge” form and a
proposed order of reference are to be filed promptly with the Clerk of the Court and the
consent indicated in section 6. of the proposed scheduling order. Note that
D.C.COLO.LCivR 72.2D. provides, in part: "Written consent to proceed before a
magistrate judge must be filed no later than 14 days after the discovery cut-off date. In
cases not requiring discovery, the parties shall have 40 days from the filing of the last
responsive pleading to file their unanimous consent." Refer to D.C.COLO.LCivR 72.2F.
if all parties have not been served or in the event additional parties are added after the
scheduling conference.
Listed on the following pages as Appendix F.1. is the format for the proposed
scheduling order. The bracketed and italicized information on the form explains what
the court expects.
Also listed on the following pages as Appendix F.2. is the format for the
proposed scheduling order in an ERISA action. The bracketed and italicized information
on the form explains what the court expects.

Also listed on the following pages as Appendix F.3. is the format for the
proposed joint case management plan for social security cases. The bracketed and
italicized information on the form explains what the court expects.
Also listed on the following pages as Appendix F.4. is the format for the
proposed joint case management plan for petitions for review of agency action in
environmental cases. The bracketed and italicized information on the form explains
what the court expects.
Scheduling orders shall be double-spaced in accordance with
D.C.COLO.LCivR 10.1E., even though the instructions in the following format for
the proposed scheduling order are single-spaced.

PARTIES AND COUNSEL ARE DIRECTED TO THE COURT’S WEBSITE,
http://www.cod.uscourts.gov/Dindex.htm, FOR ITS LOCAL RULES AND THE
GENERAL PROCEDURES OF EACH JUDICIAL OFFICER.

Appendix F.1.
(Rev. 03/12)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.
*
Plaintiff(s),
v.
*
Defendant(s).

SCHEDULING ORDER

1. DATE OF CONFERENCE
AND APPEARANCES OF COUNSEL AND PRO SE PARTIES
[Provide the date of the conference and the names, addresses, and
telephone numbers of counsel for each party and each pro se party. Identify by name
the party represented by each counsel.]
2. STATEMENT OF JURISDICTION
[Provide a concise statement of the basis for subject matter jurisdiction
with appropriate statutory citations. If jurisdiction is denied, give the specific reason for
the denial.]
3. STATEMENT OF CLAIMS AND DEFENSES
a.

Plaintiff(s):

b.

Defendant(s):

c.

Other Parties:

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[Provide concise statements of all claims or defenses. Each party, in light
of formal or informal discovery undertaken thus far, should take special care to eliminate
frivolous claims or defenses. Fed. R. Civ. P. 11 and 16(c)(2)(A). Do not summarize the
pleadings. Statements such as defendant denies the material allegations of the
complaint" are not acceptable.]
4. UNDISPUTED FACTS
The following facts are undisputed:
[When the parties have the Rule 26(f) meeting, they should make a
good-faith attempt to determine which facts are not in dispute.]
5. COMPUTATION OF DAMAGES
[Include a computation of all categories of damages sought and the basis
and theory for calculating damages. See Fed. R. Civ. P. 26(a)(1)(A)(iii). This should
include the claims of all parties. It should also include a description of the economic
damages, non-economic damages, and physical impairment claimed, if any.]
6. REPORT OF PRECONFERENCE DISCOVERY AND
MEETING UNDER FED.R.CIV.P. 26(f)
a.

Date of Rule 26(f) meeting.

b.

Names of each participant and party he/she represented.

c.

Statement as to when Rule 26(a)(1) disclosures were made or will be
made.

[If a party’s disclosures were not made within the time provided in Fed. R. Civ. P.
26(a)(1)(C) or by the date set by court order, the parties must provide an explanation
showing good cause for the omission.]
d.

Proposed changes, if any, in timing or requirement of disclosures under
Fed. R. Civ. P. 26(a)(1).

e.

Statement concerning any agreements to conduct informal discovery:

[State what processes the parties have agreed upon to conduct informal
discovery, such as joint interviews with potential witnesses or joint meetings with clients
to discuss settlement, or exchanging documents outside of formal discovery. If there is
agreement to conduct joint interviews with potential witnesses, list the names of such
witnesses and a date and time for the interview which has been agreed to by the
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witness, all counsel, and all pro se parties.]
f.

Statement concerning any other agreements or procedures to reduce
discovery and other litigation costs, including the use of a unified exhibit
numbering system.

[Counsel and pro se parties are strongly encouraged to cooperate in order to
reduce the costs of litigation and expedite the just disposition of the case. Discovery and
other litigation costs may be reduced, for example, through telephone depositions, joint
repositories for documents, use of discovery in other cases, and extensive use of expert
affidavits to support judicial notice. Counsel and pro se parties also will be expected to
use a unified exhibit numbering system if required by the practice standards of the
judicial officer presiding over the trial of this case.]
g.

Statement as to whether the parties anticipate that their claims or
defenses will involve extensive electronically stored information, or that a
substantial amount of disclosure or discovery will involve information or
records maintained in electronic form.

[In such cases, the parties must indicate what steps they have taken or will take
to (I) preserve electronically stored information; (ii) facilitate discovery of electronically
stored information; (iii) limit the associated discovery costs and delay; (iv) avoid
discovery disputes relating to electronic discovery; and (v) address claims of privilege or
of protection as trial-preparation materials after production of computer-generated
records. Counsel should describe any proposals or agreements regarding electronic
discovery made at the Rule 26(f) conference and be prepared to discuss issues
involving electronic discovery, as appropriate, at the Scheduling Conference.]
[When the parties have their Rule 26(f) meeting, they must discuss any issues
relating to the disclosure and discovery of electronically stored information, including the
form of production, and also discuss issues relating to the preservation of electronically
stored information, communications, and other data. At the Rule 26(f) meeting, the
parties should make a good faith effort to agree on a mutually acceptable format for
production of electronic or computer-based information. In advance of the Rule 26(f)
meeting, counsel carefully investigate their client’s information management systems so
that they are knowledgeable as to its operation, including how information is stored and
how it can be retrieved.]
h.

Statement summarizing the parties’ discussions regarding the possibilities
for promptly settling or resolving the case.

[The parties are required by Fed. R. Civ. P. 26(f)(2) to have discussed the
possibilities for a prompt settlement or resolution of the case by alternate dispute
resolution. They must also report the result of any such meeting, and any similar future
meeting, to the magistrate judge within 14 days of the meeting.]
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7. CONSENT
[Pursuant to D.C.COLO.LCivR 72.2, all full-time magistrate judges in the District
of Colorado are specially designated under 28 U.S.C. § 636(c)(1) to conduct any or all
proceedings in any jury or nonjury civil matter and to order the entry of judgment.
Parties consenting to the exercise of jurisdiction by a magistrate judge must complete
and file the court-approved Consent to the Exercise of Jurisdiction by a United States
Magistrate Judge form.]
[Indicate below the parties’ consent choice. Upon consent of the parties and an
order of reference from the district judge, the magistrate judge assigned the case under
28 U.S.C.§ 636(a) and (b) will conduct all proceedings related to the case.]
All parties [have or have not] consented to the exercise of jurisdiction of a
magistrate judge.
8. DISCOVERY LIMITATIONS
[In the majority of cases, the parties should anticipate that the court will adopt the
presumptive limitations on depositions established in Fed. R. Civ. P. 30(a)(2)(A)(I) and
33(a)(I). The parties are expected to engage in pretrial discovery in a responsible
manner consistent with the spirit and purposes of Fed. R. Civ. P. 1 and 26 through 37.
The parties are expected to propose discovery limits that are proportional to the needs
of the case, the amount in controversy, and the importance of the issues at stake in the
action. See Fed. R. Civ. P. 26(g)(1)(B)(iii). The court must limit discovery otherwise
permitted by the Federal Rules of Civil Procedure if it determines that “the burden or
expense of the proposed discovery outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the discovery in resolving the
action.” See Fed. R. Civ. P. 26(b)(2)(C).]
a.

Modifications which any party proposes to the presumptive numbers of
depositions or interrogatories contained in the Federal Rules.

[If a party proposes to exceed the numerical limits set forth in Fed. R. Civ. P.
30(a)(2)(A)(I), at the scheduling conference they should be prepared to support that
request by reference to the factors identified in Fed. R. Civ. P. 26(b)(2)(C)]
b.

Limitations which any party proposes on the length of depositions.

c.

Limitations which any party proposes on the number of requests for
production and/or requests for admission.

[If the parties propose more than twenty-five (25) requests for production and/or
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requests for admission, at the scheduling conference they should be prepared to
support that proposal by reference to the factors identified in Fed. R. Civ. P.
26(b)(2)(C).]
d.

Other Planning or Discovery Orders

[Set forth any other proposed orders concerning scheduling or discovery. For
example, the parties may wish to establish specific deadlines for submitting protective
orders or for filing motions to compel.]
9. CASE PLAN AND SCHEDULE
a.

Deadline for Joinder of Parties and Amendment of Pleadings:

[Set time period within which to join other parties and to amend all pleadings.
This deadline refers to timing only and does not eliminate the necessity to file an
appropriate motion and to otherwise comply with Fed. R. Civ. P. 15. Unless otherwise
ordered in a particular case, for good cause, this deadline should be no later than 45
days after the date of the scheduling conference, so as to minimize the possibility that
late amendments and joinder of parties will precipitate requests for extensions of
discovery cutoff, final pretrial conference, and dispositive motion dates. Counsel and pro
se parties should plan discovery so that discovery designed to identify additional parties
or claims is completed before these deadlines.]
b.

Discovery Cut-off:

c.

Dispositive Motion Deadline:

[Set time periods in which discovery is to be completed and dispositive motions
are to be filed.]
d.

Expert Witness Disclosure
1.

The parties shall identify anticipated fields of expert testimony, if
any.

2.

Limitations which the parties propose on the use or number of
expert witnesses.

3.

The parties shall designate all experts and provide opposing
counsel and any pro se parties with all information specified in Fed.
R. Civ. P. 26(a)(2) on or before
, 201__.
[This includes disclosure of information applicable to “Witnesses
Who Must Provide A Written Report” under Rule 26(a)(2)(B) and
information applicable to “Witnesses Who Do Not Provide a Written
Report” under Rule 26(a)(2)(C).]
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4.

The parties shall designate all rebuttal experts and provide
opposing counsel and any pro se party with all information specified
in Fed. R. Civ. P. 26(a)(2) on or before
, 201___. [This includes disclosure of information applicable to
“Witnesses Who Must Provide A Written Report” under Rule
26(a)(2)(B) and information applicable to “Witnesses Who Do Not
Provide a Written Report” under Rule 26(a)(2)(C).]

[Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no exception to the
requirements of the Rule will be allowed by stipulation unless the stipulation is in writing
and approved by the court. In addition to the requirements set forth in Rule
26(a)(2)(B)(I)-(vi), the expert’s written report also must identify the principles and
methods on which the expert relied in support of his/her opinions and describe how the
expert applied those principles and methods reliably to the facts of the case relevant to
the opinions set forth in the written report.]
e.

Identification of Persons to Be Deposed:

[List the names of persons to be deposed and provide a good faith estimate of
the time needed for each deposition. All depositions must be completed on or before the
discovery cut-off date and the parties must comply with the notice and scheduling
requirements set for in D.C.COLOLCivR 30.1.]
f.

Deadline for Interrogatories:

[The parties are expected to serve interrogatories on opposing counsel or a pro
se party on a schedule that allows timely responses on or before the discovery cut-off
date.]
g.

Deadline for Requests for Production of Documents and/or Admissions

[The parties are expected to serve requests for production and/or requests for
admission on opposing counsel or a pro se party on a schedule that allows timely
responses on or before the discovery cut-off date.]
10. DATES FOR FURTHER CONFERENCES
[The magistrate judge will complete this section at the scheduling conference if
he or she has not already set deadlines by an order filed before the conference.]
a.

Status conferences will be held in this case at the following dates and
times:
__________________________________________________________ .

b.

A final pretrial conference will be held in this case on ____________ at
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___o’clock m. A Final Pretrial Order shall be prepared by the parties and
submitted to the court no later than seven (7) days before the final pretrial
conference.
11. OTHER SCHEDULING MATTERS
a.

Identify those discovery or scheduling issues, if any, on which counsel
after a good faith effort, were unable to reach an agreement.

b.

Anticipated length of trial and whether trial is to the court or jury.

c.

Identify pretrial proceedings, if any, that the parties believe may be more
efficiently or economically conducted in the District Court’s facilities at 212
N. Wahsatch Street, Colorado Springs, Colorado; Wayne Aspinall U.S.
Courthouse/Federal Building, 402 Rood Avenue, Grand Junction,
Colorado; or the U.S. Courthouse/Federal Building,103 Sheppard Drive,
Durango, Colorado.

[Determination of any such request will be made by the magistrate judge based
on the individual needs of the case and the availability of space and security resources.]
12. NOTICE TO COUNSEL AND PRO SE PARTIES
[The following paragraphs shall be included in the scheduling order:]
The parties filing motions for extension of time or continuances must comply with
D.C.COLO.LCivR 6.1D. by submitting proof that a copy of the motion has been served
upon the moving attorney's client, all attorneys of record, and all pro se parties.
Counsel will be expected to be familiar and to comply with the Pretrial and Trial
Procedures or Practice Standards established by the judicial officer presiding over the
trial of this case.
With respect to discovery disputes, parties must comply with D.C.COLO.LCivR
7.1A.
In addition to filing an appropriate notice with the clerk's office, a pro se party
must file a copy of a notice of change of his or her address or telephone number with
the clerk of the magistrate judge assigned to this case.
In addition to filing an appropriate notice with the clerk's office, counsel must file
a copy of any motion for withdrawal, motion for substitution of counsel, or notice of
change of counsel's address or telephone number with the clerk of the magistrate judge
assigned to this case.

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13. AMENDMENTS TO SCHEDULING ORDER
[Include a statement that the scheduling order may be altered or amended only
upon a showing of good cause.]

DATED at Denver, Colorado, this ____ day of

, 20

.

BY THE COURT:

United States Magistrate Judge

APPROVED:
s/
________________________________
(Name)
(Address)
(Telephone Number)
Attorney for Plaintiff (or Plaintiff, Pro Se)

s/
________________________________
(Name)
(Address)
(Telephone Number)
Attorney for Defendant (or Defendant,
Pro Se)

[Please affix counsels' and any pro se party's signatures before submission of the final
scheduling order to the court.]

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