SPEARS v. ALLAN SPEAR CONSTRUCTION LLC, et al

Filing 9

FINAL SCHEDULING ORDER AND MEDIATION REFERRAL re 7 Report of Rule 26(f) Planning Meeting: Amended Pleadings due by 6/1/2012., Discovery due by 8/30/2012., Mediation Report due by 10/11/2012., Dispositive Motions to be filed by 10/30/2012. Signed by CHIEF JUDGE M CASEY RODGERS on 3/14/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

TRAVIS SPEARS,
Plaintiff,
v.

CASE NO.: 1:12cv11/MP/GRJ

ALLAN SPEAR CONSTRUCTION, LLC,
and ALLAN SPEAR, III,
Defendants.
________________________________/
FINAL SCHEDULING ORDER
AND MEDIATION REFERRAL
Rule 1 of the Federal Rules of Civil Procedure requires a “just, speedy, and
inexpensive determination of every action.” Prior to the court’s issuance of a scheduling
order in accordance with Rule 16(b) of the Federal Rules of Civil Procedure, the parties
conferred and have submitted their joint scheduling report. Upon consideration,
IT IS ORDERED:
1.

The joint scheduling report (doc. 7) will control the matters set forth therein.

Pursuant to the parties’ proposal, all discovery shall be commenced in time for it to be
completed on or before August 30, 2012. The conduct of any discovery which would
require a later due date shall be permitted only on order of the Court. No extension of time
will be granted except for good cause and upon showing of diligence during the initial
discovery period [See N.D. Fla. Loc. R. 6.1]. The filing of motions SHALL NOT operate to
toll or extend the discovery cut-off date set forth in this paragraph.
The Rules of Civil Procedure set out explicit time limits for responses to discovery
requests. If an attorney cannot respond on time, this fact should be communicated by the

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most expeditious means to opposing counsel; and if consent to an extension of time
cannot be obtained, a motion requesting the same should be immediately filed and served.
In the meantime, no motion to compel a response shall be filed. Unless otherwise ordered
by the Court, no motions to compel discovery may be filed after the close of discovery.
Stipulations extending the time for responses to discovery may be made only as authorized
by Rule 29, Federal Rules of Civil Procedure, and Local Rule 6.1.
The Court will ordinarily award counsel fees for time spent in filing (and arguing) a
motion to compel if such a motion is necessary to make the recalcitrant party respond, or
for time spent in opposing (and arguing) such a motion that is found to be unnecessary or
without basis. Certification of all discovery requests, responses, and objections is required
under Rule 26(g), and violations thereof will be subject to sanctions.
Counsel should attempt to resolve discovery controversies without the Court’s
intervention. The Court will entertain a motion with respect to matters which remain in
controversy only if, after consultation and sincere attempts to resolve differences, counsel
are unable to reach an accord. Any motion filed shall include certification that such
attempts have been made, in accordance with Rule 7(B) and Rule 37, Federal Rules of
Civil Procedure, and shall be in the form required by Local Rule 26.2(C). Counsel’s
attention is also directed to the supplementation requirements of Rule 26(e) and their
obligations under Rule 26(g), as well as counsel’s potential liability for excessive costs
under Title 28, United States Code, Section 1927.
2.

The deadline for filing potentially dispositive motions as well as Daubert

motions1 is October 30, 2012. The filing of potentially dispositive motions need not,
however, await the deadline for such motions. Potentially dispositive motions should be
filed at the earliest appropriate time. It is rarely necessary that such motions await the
completion of all discovery.
1

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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Any motion for summary judgment filed pursuant to Rule 56 or Rule 12(b)(6), 12(c),
or 12(d), Federal Rules of Civil Procedure, shall be accompanied by a separate, short and
concise statement of the material facts as to which the moving party contends there is no
genuine issue to be tried. Failure to submit such a statement constitutes grounds for
denial of the motion.
The statement shall reference the appropriate deposition, affidavit, interrogatory,
admission, or other source of the relied-upon material fact, by page, paragraph, number,
or other detail sufficient to permit the Court to readily locate and check the source.
The party opposing a motion for summary judgment shall, in addition to other papers
or matters permitted by the rules, file and serve a separate, short and concise statement
of the material facts as to which it is contended that there exists a genuine issue to be
tried, in the format set forth above.
All material facts set forth in the statement required to be served by the moving party
will be deemed to be admitted unless controverted by the statement required to be filed
and served by the opposing party [See N.D. Fla. Loc. R. 56.1(A)].
Motions for summary judgment will be taken under advisement by the court 21
calendar days after the motion is filed or 7 calendar days after the responsive
memorandum is required to be filed under Local Rule 7.1(C)(1), whichever is later, unless
the court specifically sets the motion for hearing or sets a different advisement date.
Parties are required to file and serve affidavits and any other documents or materials
authorized to be filed under the Federal Rules of Civil Procedure prior to the advisement
date.

Only those documents and evidentiary materials in the record prior to the

advisement date will be considered in ruling on the motion.
3.

In circumstances when the Federal Rules of Civil Procedure would require

leave of court for adding parties or amending pleadings, parties may be added or pleadings

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amended only with leave of court. The deadline to join additional parties and to amend
pleadings is June 1, 2012.2
4.

The disclosures required by Rule 26(a)(1) shall be provided (unless otherwise

stipulated), without awaiting a discovery request, to all other parties within 14 days from
the date of the parties’ conference required under Rule 26(f). Even if supplemented prior
to the deadline established by the joint scheduling report, disclosures under Federal Rule
of Civil Procedure 26 shall in any event be supplemented within a reasonable time after
learning information calling for supplementation and in time to ensure the opposing party
is not prejudiced by any failure to supplement immediately after the information was or with
diligence should have been discovered.
In accordance with Federal Rule of Civil Procedure 5(d), the parties shall serve but
shall not file with the clerk copies of disclosures under Federal Rules of Civil Procedure
26(a)(1) and 26(a)(2) or discovery materials (including notices of deposition, deposition
transcripts, interrogatories, responses to interrogatories, production requests, responses
to production requests, admissions requests, or responses to admissions requests), unless
and until needed for consideration of pending motions by the court. The parties need not
serve and shall not file with the clerk separate notices of serving interrogatories or
interrogatory responses, notices of serving production requests or responses, or notices
of serving admissions requests or responses.
Disclosures of retained expert witnesses and their written reports under Rule
26(a)(2) are due from plaintiff on or before June 20, 2012, and from defendants on or
before July 20, 2012. Supplementation under Rule 26(a) shall be made within 15 days
after the party receives additional information necessitating a supplementation, but in no
event no later than 30 days prior to the close of discovery. Third parties or parties added

2

The court rejects the parties’ proposed deadline of Septem ber 28, 2012, which falls beyond the

discovery com pletion deadline.
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or joined later shall disclose their experts under Rule 26(a)(2) within 60 days after
appearance in this case, or within 30 days after the disclosure by the opposing party,
whichever is the longer period. Expert witnesses not timely disclosed as required by Rule
26(a)(2), or whose opinions have been significantly modified or changed after discovery
has ended, will normally not be permitted to testify at trial. Also, a party’s failure to timely
disclose an expert witness’s report will normally be grounds to bar the witness from
testifying at trial.
5.

The deadlines established by this order for disclosures under Federal Rule

of Civil Procedure 26(a)(2) abrogate the deadlines set forth in Rule 26(a)(2)(C) and thus
apply regardless of whether proposed testimony is intended solely to contradict or rebut
evidence on the same subject matter identified by another party under Rule 26(a)(2)(B).
Leave of court must be sought, for good cause, prior to addition of testimony for which
timely disclosures were not made, even if the testimony is intended solely to contradict or
rebut evidence on the same subject matter identified by another party under Rule
26(a)(2)(B).
6.

By separate Order for Pretrial Conference to be issued later, a deadline will

be set for an attorney conference leading to the filing of a pretrial stipulation and related
papers. The deadline for the attorney conference (as established by the Order for Pretrial
Conference) also will be the deadline for disclosures under Federal Rule of Civil Procedure
26(a)(3). The deadline for objections under Federal Rule of Civil Procedure 26(a)(3) is five
days thereafter.
7.

Any motion in limine or other pretrial motion shall be served sufficiently in

advance of the pretrial conference to allow consideration of the motion at or prior to the
pretrial conference.

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8.

The parties shall mediate this case in accordance with the following

procedures:
(a)

The parties are directed to select a mediator certified by the Supreme Court

of Florida as a Circuit Court Mediator or a person otherwise mutually agreeable to the
parties. If the parties are unable to agree upon a mediator by a date three weeks prior to
the discovery deadline, the plaintiff shall immediately file a notice so indicating, and I will
appoint a mediator.
(b)

Unless otherwise agreed, the fee of the mediator shall be paid equally by the

parties. The fee shall be paid in the manner required by the mediator.
(c)

The first mediation conference shall commence by not later than 14 days

after the discovery deadline (but may commence at any earlier time). The mediator shall
set the initial mediation conference with due regard to schedules and other commitments
of the parties and counsel and may continue or adjourn the mediation conferences in his
or her discretion within the time constraints set out in this order.
(d)

The following persons MUST attend the mediation conference:
(1)

Counsel of record primarily responsible for the conduct of this matter

on behalf of each party.
(2)

All parties. In the case of a corporation, governmental entity, or other

organization, or officer in his or her official capacity, the party must attend through a
representative having full authority to settle the entire case for the party without further
consultation. In his or her discretion, however, the mediator may waive the requirement
that the attending representative’s full authority to settle be “without further consultation.”
Unless the mediator directs otherwise, the parties by agreement also may waive the
requirement that the attending representative’s full authority to settle be “without further
consultation.”

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(3) If a party is insured, a representative of the insurer having full authority
to settle without further consultation. In his or her discretion, however, the mediator may
waive the requirement that the insurer’s representative’s full authority to settle be “without
further consultation.” Unless the mediator directs otherwise, the parties by agreement also
may waive the requirement that the attending insurer’s representative’s full authority to
settle be “without further consultation.”
(e)

Failure of any person to attend the mediation conference as required shall

result in the imposition of sanctions.
(f)

The parties shall confer in advance on the submission of written materials to

the mediator and shall proceed in accordance with any agreement they reach or the
instructions of the mediator. In the absence of agreement of the parties or instructions
from the mediator, no written submissions to the mediator are required, but either party
may submit materials as it deems appropriate, which the mediator may consider as he or
she deems appropriate.
(g)

The mediator shall have authority to control the procedures to be followed in

mediation, may adjourn the mediation conference and set times for reconvening, and may
suspend or terminate mediation whenever, in the opinion of the mediator, the matter is not
appropriate for further mediation.
(h)

All discussions, representations, and statements made at the mediation

conference shall be off the record and privileged as settlement negotiations. Mediation
proceedings shall not be recorded by a court reporter or by an electronic recording device,
except as necessary to memorialize any settlement that may be reached.
(i)

This referral to mediation does not automatically toll the time for completion

of any other matter in this case.

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(j)

The parties are encouraged to settle as many issues during mediation as

possible. Partial or complete settlements shall immediately be reduced to writing in the
presence of the mediator and shall be signed by all parties and their counsel.
(k)

Mediation in this case must be completed on or before a date 28 days after

the discovery deadline. The mediator or parties shall file a report within 14 days thereafter
indicating when mediation was conducted and the outcome of the mediation (that is,
whether the matter was settled or impasse was declared). If the matter is settled in full,
notice to the court shall be immediate.
(l)

Counsel for each party shall, within 10 days of the date of this order, consult

with his or her client about the advantages (including savings of costs and attorney’s fees)
and disadvantages of proceeding with mediation immediately rather than awaiting the
deadlines set in this order. On motion of any party, the court will consider ordering that
mediation commence immediately or at a time earlier than otherwise required by this order.
With or without such an order, the parties by agreement may commence mediation at any
time before the deadlines set in this order.
9.

In any proceeding in which a party is seeking attorney’s fees from the

opposing party to be awarded by the Court pursuant to a statute, contract, or law, the party
seeking such an award of attorney’s fees shall:
(a)

Maintain a complete, separate, and accurate record of time (to the nearest

1/10 of an hour) devoted to the particular action, recorded contemporaneously with the
time expended, for each attorney and each specific activity (i.e. not just “research” or
“conference”) involved in the action, and
(b)

File a summary of such time record with the Clerk of the Court by the 15th day

of each month during the pendency of the action, for work done during the preceding
month. If the attorney determines that the attorney/client privilege requires these records
be filed under seal, the attorney must, at the time of such filing, place the records in a

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sealed envelope no larger than 8-1/2 by 11 inches. The attorney must also attach to the
front of these sealed records a summary, for filing, of the time records and serve a copy
thereof on opposing parties or their counsel, which summary shall state the total of the
hours represented by the sealed filing, i.e.,
“TOTAL ATTORNEY HOURS THIS FILING”
“TOTAL NON-ATTORNEY HOURS THIS FILING”
Attorney time records will not be placed in the general case action file, but will be
maintained in a separate folder in the Clerk’s Office. Upon termination of this case or the
determination of attorney’s fees, whichever occurs later, all sealed time records in this civil
action will be destroyed.
(c)

If claim will be made for services performed by any person not a member of

the bar, a separate time record shall be maintained for each such individual and filed as
specified above, together with the hourly rate at which such person is actually reimbursed.
(d)

Time records for past work performed to date in this case shall be filed within

30 days from receipt of this order, or by the required filing date of the current month’s time
records, whichever is later.
The purpose of this requirement is to enable the Court to adequately perform its
function in awarding attorney’s fees. Failure to comply with these requirements will result
in attorney’s fees being disallowed for the required reporting period. A motion for an award
of attorney’s fees and related non-taxable expenses should be made in accordance with
Rule 54(d), Federal Rules of Civil Procedure, and must be filed and served within 30 days
after entry of judgment.
10.

Each party represented by an attorney is required to file documents

electronically, not in paper form, with limited exceptions. Compliance with this requirement
is mandatory. Paper filings are a burden on the clerk of the court, delay the transmission
of the documents to the judge, and waste the judge’s time. The clerk is directed to report

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to the judge for appropriate action any paper filings in this matter that occur more than 14
days after the date of this order.
11.

Each nongovernmental corporate party must file a statement that identifies

any parent corporation and any publicly held corporation that owns 10% or more of its
stock or states that there is no such corporation. The deadline for filing the statement is
set forth in Fed. R. Civ. P. 7.1, and, if not filed sooner, the statement must in any event be
filed within 14 days of the date of this order. A supplemental statement must be filed upon
any change in the information that the statement requires.
12.

This order may be amended by the Court on its own motion or upon motion

of any party.

SO ORDERED this 14th day of March, 2012.

M. Casey Rodgers

s/
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 1:12cv11/MP/GRJ