Christmas v. Mentor ABI, LLC

Filing 24

Minute Order. Proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Motion Hearing held on 2/25/2015, granting 14 Motion for Extension of Time to Complete Discovery ; granting 17 Motion to Continue, Motion for Extension of Deadlines; dismissing w/o prej 12 Motion for Summary Judgment. Bench Trial set for 10/5/2015 10:00 AM before Magistrate Judge Joseph C. Wilkinson Jr.. Pretrial Conference set for 9/24/2015 04:00 PM before Magistrate Judge Joseph C. Wilkinson Jr.. Deadlines as stated herein. (Attachments: # 1 Pretrial Notice Form) (cms)

THIS PRE-TRIAL NOTICE CONTAINS NEW MATERIAL.
REVISED SEPTEMBER, 2007

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PRE-TRIAL NOTICE
IT IS ORDERED that a pre-trial conference will be held in
chambers before Judge IVAN L.R. LEMELLE, Section “B”, in the cases
shown on the attached list on the dates and the times there
indicated.
The purpose of the pre-trial conference is to secure a
just and speedy determination of the issues. If the type of pretrial order set forth below does not appear calculated to achieve
these ends in this case, please arrange a conference with the Judge
and opposing counsel immediately so that alternative possibilities
may be discussed.
The procedure necessary for the preparation of the formal
pre-trial order that will be reviewed and entered at this conference is as follows:
I.
The proposed pre-trial order must be electronically filed
with the Court by 4:30 p.m. on a day that allows two full work days
prior to the conference, excluding Saturdays, Sundays and holidays
(i.e., if the conference is set for 10:00 a.m. Friday, it must be
filed by 4:30 p.m. Tuesday; if the conference is set on Monday, the
pre-trial order must be filed by 4:30 p.m. Wednesday). The pretrial order need not be delivered to Chambers on paper.
The
proposed pre-trial order shall bear electronic signatures of all
counsel at the time it is electronically filed with the Court.
Following the pre-trial conference, the Court will issue a minute
entry which, inter alia, will APPROVE and ADOPT the pre-trial
order, either in its entirety or with specified modifications.
II.
Counsel for all parties shall confer in person (face to
face) or by telephone at their earliest convenience for the purpose
of arriving at all possible stipulations and for the exchange of
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copies of documents that will be offered in evidence at the trial.
It shall be the duty of counsel for plaintiff to initiate this
conference, and the duty of other counsel to respond. If, after
reasonable effort, any party cannot obtain the cooperation of other
counsel, it shall be that party's duty to communicate immediately
with the Court. The conference of counsel shall be held at least
ten days prior to the date of the scheduled pre-trial conference in
order that counsel for all parties can furnish each other with a
statement of the real issues each party will offer evidence to
support, eliminating any issues that might appear in the pleadings
about which there is no real controversy, and including in such
statement issues of law as well as ultimate issues of fact from the
standpoint of each party. Counsel for plaintiff then will prepare
a proposed pre-trial order and submit it to opposing counsel. Once
any necessary changes are made, counsel for plaintiff shall
electronically file the final proposed pre-trial order with the
Court.
III.
At their meeting, counsel must consider the following:
A.
Jurisdiction.
Since jurisdiction may not ever be
conferred by consent and since prescription or statutes of
limitations may bar a new action if the case or any ancillary
demand is dismissed for lack of jurisdiction, counsel should make
reasonable effort to ascertain that the Court has jurisdiction.
B.
Parties.
Correctness of identity of legal entities;
necessity for appointment of tutor, guardian, administrator,
executor, etc., and validity of appointment if already made;
correctness of designation of party as partnership, corporation or
individual d/b/a trade name.
C.
parties.

Joinder.

Questions of misjoinder or nonjoinder of
IV.

At the pre-trial conference counsel must be fully
authorized and prepared to discuss settlement possibilities with
the Court.
Counsel are urged to discuss the possibility of
settlement with each other thoroughly before undertaking the
extensive labor of preparing the proposed pre-trial order. Save
your time, the Court's time, and the client's time and money.

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V.
The pre-trial conference must be attended by the
attorneys who will try the case, unless prior to the conference the
Court grants permission for other counsel to attend.
These
attorneys will familiarize themselves with the pre-trial rules and
will come to the conference with full authority to accomplish the
purposes of Rule 16 of the Federal Rules of Civil Procedure.
VI.
Pre-trial conferences will not be continued except for
good cause shown in a written motion presented sufficiently in
advance of the conference for opposing counsel to be notified.
VII.
Failure on the part of counsel to appear at the conference may result in sanctions, including but not limited to sua
sponte dismissal of the suit, assessment of costs and attorney
fees, default or other appropriate sanctions.
VIII.
All pending motions and all special issues or defenses
raised in the pleadings must be called to the Court's attention in
the proposed pre-trial order.
IX.
The proposed
following information:

pre-trial

order

shall

set

forth

the

1.

The date of the pre-trial conference.

2.

The appearance
represented.

3.

A description of the parties, and in cases of insurance
carriers, their insured must be identified. The legal
relationships of all parties with reference to the
claims, counterclaims, third-party claims and cross
claims, etc.

4.

a.

of

counsel

identifying

the

party(s)

With respect to jurisdiction, a brief summary of
the factual basis supporting each claim asserted,
whether original claim, counterclaim or third-party

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claim, etc., and, the legal and jurisdictional
basis for each such claim, or if contested, the
jurisdictional questions;
b.

In diversity damage suits, there is authority for
dismissing the action, either before or after
trial, where it appears that the damages reasonably
could not come within the jurisdictional limitation. Therefore, the proposed pre-trial order in
such cases shall contain either a stipulation that
$75,000 is involved or a summary of the evidence
supporting the claim that such sum reasonably could
be awarded.

5.

A list and description of any motions pending or contemplated and any special issues appropriate for determination in advance of trial on the merits. If the Court at
any prior hearing has indicated that it would decide
certain matters at the time of pre-trial conference, a
brief summary of those matters and the position of each
party with respect thereto should be included in the pretrial order.

6.

A brief summary of the material facts claimed by:
a. Plaintiff
b. Defendant
c. Other parties.

7.

A single listing of all uncontested material facts.

8.

A single listing of the contested issues of fact. (This
does not mean that counsel must concur in a statement of
the issues; it simply means that they must list in a
single list all issues of fact.)
Where applicable,
particularities concerning the following fact issues
shall be set forth:
a.

Whenever there is in issue the seaworthiness of a
vessel or an alleged unsafe condition of property,
the material facts and circumstances relied upon to
establish the claimed unseaworthy or unsafe condition shall be specified with particularity;

b.

Whenever there is in issue negligence of the defendant or contributory or comparative negligence of
the plaintiff, the material facts and a circumstances relied upon to establish the claimed negligence shall be specified with particularity;

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c.

Whenever personal injuries are at issue, the nature
and extent of the injuries and of any alleged
disability shall be specified with particularity;

d.

Whenever the alleged breach of a contractual obligation is in issue, the act or omissions relied
upon as constituting the claimed breach shall be
specified with particularity;

e.

Whenever the meaning of a contract or other writing
is in issue, all facts and circumstances surrounding execution and subsequent to execution, both
those admitted and those in issue, which each party
contends serve to aid interpretation, shall be
specified with particularity;

f.

Whenever duress or fraud or mistake is in issue,
and set forth in the pleadings, the facts and
circumstances relied upon as constituting the
claimed duress or fraud or mistake (see Fed. R.
Civ. P. 9(b)) shall also be set forth in the pretrial order;

g.

If special damages are sought, they shall be itemized with particularity.
(See Fed. R. Civ. P.
9(g));

h.

If a conspiracy is charged, the details of facts
constituting the conspiracy shall be particularized.

9.

A single listing of the contested issues of law.
explanation in 8 above.)

10.

For each party, a list and description of exhibits
intended to be introduced at the trial. Prior to the
confection of the proposed pre-trial order, the parties
shall meet, exchange copies of all exhibits, and agree as
to their authenticity and relevancy. As to any exhibits
to which the parties cannot agree, memoranda shall be
electronically filed on or before five working days prior
to trial.
a.

(See

Each list of exhibits first should describe those
that are to be admitted without objection, and then
those to which there will be objection, noting by
whom the objection is made (if there are multiple
adverse parties), and the nature of the objection.
Markers identifying each exhibit should be attached
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to the exhibits at the time they are shown to
opposing counsel during preparation of the pretrial order;
b.

If a party considers he has good cause not to
disclose exhibits to be used solely for the purpose
of impeachment, he may ex parte request a conference with the Court and make his position known to
the Court in camera.

c.

Where appropriate to preserve trade secrets or
privileges, the listing of exhibits may be made
subject to a protective order or in such other
fashion as the Court may direct. If there are such
exhibits, the pre-trial order will state:
The
parties will discuss exhibits alleged to be
privileged (or to contain trade secrets, etc.) at
the pre-trial conference.

d.

In addition to the formal list of exhibits submitted by each side, counsel shall meet and prepare
copies of a joint bench book of tabbed exhibits to
be delivered to the Court five working days before
the start of the trial.
If the trial is a jury
trial and counsel desires to display exhibits to
the members of the jury, then sufficient copies of
such exhibits must be available so as to provide
each juror with a copy.
Alternatively, the
courtroom is equipped with an Electronic Evidence
Presentation Cart which consists of a document
camera, vcr/dvd player, input for multiple laptop
computers, and a data projector, all of which may
be used to display exhibits. The courtroom is also
equipped with a large pull-down screen, counsel
monitors with the ability for annotation at the
witness and attorney stations, and two large plasma
screens for the jury's use. Counsel are instructed
to contact the Case Manager at 504-589-7747 to
schedule a brief training session on the use of
this equipment during the week immediately prior to
trial.

e.

Unless otherwise ordered by the Court, only exhibits included on the exhibit list and/or for which
memoranda have been submitted shall be included for
use at trial.

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f.

a.

A list of all deposition testimony to be offered
into evidence. The parties shall, prior to trial,
meet and agree as to the elimination of all irrelevant and repetitive matter and all colloquy between
counsel. In addition, the parties shall, in good
faith, attempt to resolve all objections to testimony so that the Court will be required to rule
only on those objections to which they cannot reach
an agreement as to their merit. As to all objections to the testimony which cannot be amicably
resolved, unless otherwise ordered by the Court,
the parties shall electronically file, not less
than three days prior to trial, a statement identifying the portions objected to, and the grounds
therefor. Proponents and opponents shall furnish
the Court appropriate statements of authorities in
support of their positions as to the proposed
testimony.

b.

11.

Each counsel shall submit to the Court on the day
of trial a list of exhibits properly marked for
identification which he or she desires to use at
trial.

In non-jury trials, the parties shall, at least
five days prior to trial, submit to the Court:
A summary of what each party intends to prove
and convey to the Court by the deposition
testimony,
including,
where
appropriate,
particular page and line reference to said
depositions.
The parties shall indicate to
the Court by page and line numbers, those
parts of the deposition which each party
intends to use, and upon which each party
shall rely, in proving their respective cases.
Any objections to the proposed deposition
testimony should be handled in the form and
fashion described above.

12.

a.

A list and brief description of any charts, graphs,
models, schematic diagrams, and similar objects
which, although not to be offered in evidence,
respective counsel intend to use in opening statements or closing arguments;

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b.

13.

Either a stipulation that the parties have no
objection to the use of the listed objects for such
purpose, or a statement of the objections to their
use; and a statement that if other such objects are
to be used by any party, they will be submitted to
opposing counsel at least three days prior to trial
and, if there is then opposition to their use, the
dispute will be submitted to the Court at least one
day prior to trial.

a.

A list of witnesses for all parties, including the
names, addresses and statement of the general
subject matter of their testimony (it is not sufficient to designate the witness simply "fact,"
"medical" or "expert"), and an indication in good
faith of those who will be called in the absence of
reasonable notice to opposing counsel to the contrary;

b.

A statement that the witness list was filed in
accordance with prior court orders.
No other
witnesses shall be allowed unless agreeable to all
parties and their addition does not affect the
trial date.
This restriction will not apply to
rebuttal witnesses or documents whose necessity
cannot be reasonably anticipated. Furthermore, in
the case of expert witnesses, counsel shall certify
that they have exchanged expert reports in accordance with prior court orders.
Expert witnesses
whose reports have not been furnished opposing
counsel shall not be permitted to testify nor shall
experts be permitted to testify to opinions not
included in the reports timely furnished;

c.

Except for good cause shown, the Court will not
permit any witness to testify unless with respect
to such witness there has been complete compliance
with all provisions of the pre-trial order and
prior court orders;

d.

Counsel shall not be allowed to ask questions on
cross-examination of an economic expert which would
require the witness to make mathematical calculations in order to frame a response unless the
factual elements of such questions shall have been
submitted to that expert witness not less than
three full working days before trial.

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14.

A statement indicating whether the case is a jury or nonjury case.
a.

If the case is a jury case, then indicate whether
the jury trial is applicable to all aspects of the
case or only to certain issues, which issues shall
be specified.
In jury cases, add the following
provisions:
"Proposed jury instructions, special jury
interrogatories, trial memoranda, and any
special questions that the Court is asked to
put to prospective jurors on voir dire shall
be electronically filed with the Court not
later than five working days prior to the
trial date, unless specific leave to the
contrary is granted by the Court."

b.

In a non-jury case, suggested findings of fact and
conclusions of law and a separate trial memorandum
are required, unless the Court enters an order that
such
is
not
required.
Same
are
to
be
electronically filed not less than five full working days prior to trial.

c.

In a jury case, a trial memorandum shall be required only when and to the extent ordered by the
Court. However, any party may in any event file
such memoranda not less than five working days
prior to trial and should accomplish this with
respect to any anticipated evidentiary problems
which require briefing and jury instructions requiring explanation beyond mere citation to authority.

15.

In cases where damages are sought, include a statement
for completion by the Court, that "The issue of liability
(will or will not) be tried separately from that of
quantum." It is the policy of this Court in appropriate
cases to try issues of liability and quantum separately.
Accordingly, counsel should be prepared to discuss at the
pre-trial conference the feasibility of separating such
issues. Counsel likewise should consider the feasibility
and desirability of separate trials as to other issues.

16.

A statement describing any other matters that might
expedite a disposition of the case.

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17.

A statement that trial shall commence on
,
at
a.m./p.m. and a realistic estimate of
the number of trial days required. Where counsel cannot
agree upon the number of trial days required, the
estimate of each side should be given.

18.

The statement that "This pre-trial order has been
formulated after conference at which counsel for the
respective parties have appeared in person. Reasonable
opportunity has been afforded counsel for corrections, or
additions, prior to signing. Hereafter, this order will
control the course of the trial and may not be amended
except by consent of the parties and the Court, or by
order of the Court to prevent manifest injustice."

19.

The statement that "Possibility of settlement of this
case was considered."

20.

The proposed pre-trial order must contain appropriate
signature spaces for counsel for all parties.

IT IS FURTHER ORDERED that the foregoing pre-trial notice
be mailed to counsel of record for all parties to these cases,
and that counsel will comply with the directions set forth
herein.
New Orleans, Louisiana
SEPTEMBER 27, 2007
IVAN L.R. LEMELLE
UNITED STATES DISTRICT JUDGE
EACH NUMBERED PARAGRAPH IS TO BE PRECEDED
BY A HEADING DESCRIPTIVE OF ITS CONTENT

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