Sturgis v. Cummings et al
TRIAL PREPARATION ORDER - CIVIL by Chief Judge Marcia S. Krieger on 8/16/13. (msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-01109-MSK-BNB
SERGEANT BRIAN CUMMINGS, individually;
RICHARD HALLMAN, individually;
DETECTIVE DONALD CHAGNON, individually;
SERGEANT CRAIG SIMPSON, individually; and
CITY OF COLORADO SPRINGS,
TRIAL PREPARATION ORDER
This Order sets deadlines, imposes requirements that supplement the Scheduling Order and
imposes trial preparation requirements.
A. Applicable Rules
This proceeding is subject to the Federal Rules of Civil Procedure, the Federal Rules of Evidence,
the Local Rules of Practice for the United States District Court for the District of Colorado and the MSK
Civ. Practice Standards. A copy of the Practice Standards is available from the Clerk=s office or can be
downloaded from the Court=s website at http://www.cod.uscourts.gov/Home.aspx under Judicial Officers'
Procedures. Parties who are not represented by counsel (pro se) are responsible for knowledge of and
compliance with all applicable rules and provisions of this Order. References in this Order to Acounsel@
apply to parties appearing pro se.
If a party to this case is incarcerated, it is the responsibility of that party to provide a copy of this
Order and all other orders issued in this case to his or her Case Manager. For purposes of attending a
scheduled hearing by telephone, the Case Manager should contact the Courtroom Deputy Clerk, Patricia
Glover at (303)335-2185 at least two business days prior to the hearing to make the necessary
arrangements for the inmate to participate.
B. Dispositive and Rule 702 Motions
The deadline in the Scheduling Order for the filing of dispositive motions shall also be the
deadline for parties to file motions challenging the foundational requirements of opinion testimony under
Fed. R. Evid. 702. If the dispositive motion deadline is changed, the Rule 702 motion deadline
automatically changes to match it.
The format for dispositive motions is set out in MSK Civ. Practice Standard V.H, found at
http://www.cod.uscourts.gov/Home.aspx. The format for Rule 702 motions is also found at
http://www.cod.uscourts.gov/Home.aspx. Failure to use the appropriate format may result in a delayed
ruling on the motion. If determination of a Rule 702 motion is required for determination of a dispositive
motion, please so state in the title of the Rule 702 motion.
Requests for modification of deadlines set by the Scheduling Order will be referred to the
Magistrate Judge for resolution. However, any request to extend the dispositive motion deadline
more than 30 days beyond the deadline originally set in the initial Scheduling Order must show
exceptional circumstances warranting the extension.
If the dispositive motion deadline passes without dispositive motions being filed, the parties shall
contact Chambers within 10 days of the dispositive motion deadline to request the setting of a Final
Pretrial Conference. Failure to contact Chambers within this time may result in the case being dismissed
for failure to prosecute.
C. Final Pretrial Conference and Trial Setting
The Court will not set a Final Pretrial Conference at this time. A Final Pretrial Conference will
be scheduled once dispositive motions are determined, or upon the request of the parties should no
dispositive motions be filed.
The Court will set a date for trial at the conclusion of the Final Pretrial Conference. It is the
Court=s intention that the trial date will be as soon as 30 days after the Final Pretrial Conference, or as
quickly thereafter as the Court=s calendar makes possible. The parties should be prepared to advise the
Court as to the minimum number of days needed for trial.
Trial counsel shall appear at the Final Pretrial Conference and shall be prepared to address their
own availability and the availability of necessary witnesses. If two or more counsel represent one party,
please be prepared to proceed with one counsel if the other has a conflict, or to explain why the available
counsel cannot proceed alone. All parties to the action shall be physically present at the Final
Pretrial Conference; failure of a party to appear will result in a order that that party obtain a full,
expedited transcript of the Conference at that party=s expense. Where a party is an organization, the client
representative who will appear at trial on behalf of that organization shall be present.
Jury trials usually begin on Monday afternoons at 1:00 p.m. and bench trials usually begin on
Tuesday mornings at 9:00 a.m. With approximately six hours available per trial day, one week jury trials
usually allow for 22 hours of in-court time, which includes presentation of evidence, opening and closing
statements, and argument on evidentiary objections and trial motions. (This calculation excludes time for
jury selection, charging conference and initial and concluding instructions for the jury.) One week bench
trials usually allow for 24 hours for presentation of all evidence, opening and closing statements,
objections, and arguments. Absent objections made at the Final Pre-Trial Conference, a chess clock will
be used to divide trial time equally between Plaintiff(s) and Defendant(s). Parties can use their time as
they choose, and are free to restructure time between themselves.
Any problems in the trial setting or special needs for witness scheduling should be addressed at
the Final Pretrial Conference. Designated witnesses should be available during the entire trial period.
Their unavailability may not constitute a basis for delay in or continuance of the trial. Counsel should
always have a sufficient number of witnesses available to testify such that recesses or early adjournments
of the trial day will not be necessary. If witnesses are not available, lost time may be counted against the
party whose case is being presented.
At the time fixed for trial, all parties shall be present and ready to proceed. If any party is absent
or unprepared to proceed, judgment may be entered forthwith in favor of the opposing party or the time of
unavailability credited against the party=s share of the trial time. If both parties are absent or unprepared,
the case may be dismissed, and costs, fees, or sanctions may be imposed against either or both parties
and/or their counsel.
D. Proposed Final Pretrial Order
Counsel shall meet and confer sufficiently in advance of the Final Pretrial Conference to jointly
prepare a Proposed Final Pretrial Order. The parties shall file the Proposed Final Pretrial Order, proposed
jury instructions, and proposed voir dire questions at least 7 days before the conference.
Except as follows, parties should follow the format and instructions for the Final Pretrial Order
found on the Court=s website, http://www.cod.uscourts.gov/Forms.aspx, with the following modifications:
Section 3: Claims and Defenses B (Parties are encouraged to omit a narrative summary of the
claims, defenses, facts, and legal theories. If a party includes a narrative summary, such summary should
not exceed one page in length.)
Separately enumerate each claim and affirmative defense (i.e. a defense on which the Defendant
bears the burden of proof) to be tried. For each claim and affirmative defense for which a party has the
burden of proof, such party shall designate:
1) the party that has the burden of proof;
2) the standard of proof;
3) if the claim is governed by state law, the state whose law controls the claim; and
4) each element that must be proved. For each element, state whether the necessary facts are
stipulated. If not, the party with the burden of proof shall, separately for each element, state the
particular fact(s) it intends to prove to satisfy that element. For each fact, list the witness or
exhibit that will establish that fact. An example is attached to this Order. Any claims or
affirmative defenses not specifically identified may be deemed waived.
Section 4: Stipulations - One of the purposes of a trial is to determine the facts upon which the
parties cannot agree. However, it is not necessary to present evidence of facts which are not it dispute.
Indeed, it saves the parties time and expense and focuses the trial when parties identify relevant facts that
are not disputed. 1 To assist the jury in understanding the opening statement and in considering the
evidence, such stipulated facts will be included in a jury instruction given to the jury prior to opening
statements. Please be cognizant of the difference between disputing the existence of a fact and disputing
the significance of that fact. For example, a stipulation to the existence of fact (e.g. that the sun set at
7:00 p.m. on the day in question) does not prevent the party from arguing as to the significance of that
fact (e.g. that there was or was not adequate daylight at 7:00 p.m.).
Section 5: Pending motions B In addition to the information required in Appendix G, identify
all motions either party anticipates making prior to trial, including the specific relief to be requested.
Section 6: Witnesses B Parties should attach a single, joint list of all witnesses. The form is
found at: http://www.cod.uscourts.gov/Documents/Judges/MSK/msk_witness.pdf.aspx under Judicial
Officers= Procedures. Please designate the total time needed for the testimony of each witness (or the
time necessary to present deposition testimony). It does not matter what type of examination will be used
to elicit the testimony, nor who will call the witness. The time calculation is not a limitation on the
amount of time that a witness may be examined at trial; parties may allocate their allotted trial time as
FED.R.CIV.P. 11(b)(4) provides guidance as to when a matter is in dispute.
they see fit. The estimated duration of testimony in the Witness List is used solely to ensure that the time
set aside for trial is sufficient to receive the testimony of all expected witnesses.
Section 7: Exhibits B Exhibits should be listed on a single, joint exhibit list using the form
available at http://www.cod.uscourts.gov/Documents/Judges/MSK/msk_exhibit.pdf.aspx under Judicial
Officers= Procedures. Exhibits should be numbered without designation as Plaintiff=s or Defendant=s
exhibits. Parties may use the same exhibit numbers as used in pretrial discovery. The provisions of
subsection (b) of Appendix G regarding the filing of objections to exhibits are waived. All objections are
reserved for trial.
Hard copies of the exhibits to be used at trial should be put in two notebooks (original for the
witness; copy for the Court). Please only put exhibits you are certain to admit in the notebooks; exhibits
that you might use ( such as those anticipated for impeachment or rebuttal) can be added to the notebooks
during the trial if they are admitted. Exhibit notebooks shall be given to the Courtroom Deputy Clerk on
the first day of trial.
E. Modification of Order
This Order may not be modified by agreement of the parties. However, upon timely, written
application, any party may seek modification as may be necessary to meet a bona fide emergency, to
avoid irreparable injury or harm, or as may otherwise be necessary to do substantial justice. Extensions
of time and continuances will not normally be granted for Apress of other business@ or for circumstances
that could reasonably have been anticipated.
Failure to comply with the provisions of this Order or the applicable procedural rules may
result in imposition of sanctions including, but not limited to, vacation of the trial, barring the
presentation of evidence, dismissal of claims or defenses, entry of default or awards of fees and
costs in accordance with FED.R.CIV.P. 16 and 37.
DATED this 16th day of August, 2013.
BY THE COURT:
Marcia S. Krieger
United States District Court
Attachment to Trial Preparation Order
Claim 1: Breach of contract under Colorado law
Plaintiff has burden of proof by a preponderance of the evidence
(1)-(3) offer, acceptance, consideration
(a) the parties stipulate that these elements are satisfied
(4) performance by the plaintiff
(a) On March 3, 2004, Peter Plaintiff delivered one crate of widgets to
Widget Packers, Inc. (Testimony of Peter Plaintiff; Don Defendant;
Exhibits 1, 4)
(b) The widgets conformed to the specifications in the contract.
(Testimony of Peter Plaintiff; Exhibit 2)
(c) The widgets were delivered on the date set by the contract. (Exhibit
(5) non-performance by the defendant
(a) Widget Packers, Inc. failed to remit payment on the terms set by the
contract. (Testimony of Barry Bookkeeper; Exhibit 2)
(b) Peter Plaintiff has made several written demands for payment. (Peter
Plaintiff; Exhibits 3, 5, 7)
(a) Peter Plaintiff has been damaged in the contract amount of
$10,000. (Testimony of Peter Plaintiff; Exhibit 2).
Claim 2: Unjust Enrichment under Colorado law
Plaintiff has burden of proof on all elements by a preponderance of the evidence
(1) Defendant has received a benefit
(a) On March 3, 2004, Peter Plaintiff delivered one crate of widgets to
Widget Packers, Inc. pursuant to a contractual agreement. (Testimony of
Peter Plaintiff; Don Defendant; Exhibits 1, 2, 4).
(2) the benefit is at the Plaintiff=s expense
(a) Widget Packers, Inc. failed to remit payment on the terms set by the
contract. (Testimony of Barry Bookkeeper, Exhibit 2)
(3) justice requires that Defendant reimburse the Plaintiff for the benefit
(a) The widgets have a market value of $15,000. (Testimony of Peter
(b) Don Defendant is in breach of the contract. (Testimony of Peter
Affirmative Defense to Claim 2: Failure to mitigate under Colorado law
Defendant has burden of proof on all elements by a preponderance of the evidence
(1) Plaintiff had a reasonable opportunity to avoid injury
(a) On March 5, 2004, Don Defendant left a message on Peter
Plaintiff=s voice mail offering to return the crate of widgets
unopened. (Testimony of Don Defendant; Peter Plaintiff)
(b) On March 8, 2004, Don Defendant wrote to Peter Plaintiff,
offering to assign the contract for the purchase of widgets to
WidgetCo. (Don Defendant; Warren Widget; Exhibit 6)
(2) Plaintiff unreasonably failed to avail itself of opportunities to
(a) Peter Plaintiff did not respond to the March 5, 2004 message.
(b) Peter Plaintiff did not respond to the March 8, 2004 letter.
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