PORTLAND PIPE LINE CORPORATION et al v. CITY OF SOUTH PORTLAND et al

Filing 168

ORDER on Filing Deadlines. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PORTLAND PIPE LINE
CORPORATION, et al.,
Plaintiffs,
v.
CITY OF SOUTH PORTLAND,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

2:15-cv-00054-JAW

ORDER ON FILING DEADLINES
Following issuance of its Order dated May 11, 2017 (ECF No. 156), the Court
held a telephone conference of counsel on June 8, 2017 to discuss further proceedings.
At that conference, subject to witness availability, it was initially agreed that a
testimonial hearing would be held on July 11, 2017 to address the question of subject
matter jurisdiction discussed in the May 11, 2017 Order. In anticipation of that
hearing, the parties agreed to the following dates for disclosures:
1) June 21, 2017: Plaintiffs’ Summary of Direct Examinations;
2) June 22, 2017: Plaintiffs’ List of Exhibits;
3) July 6, 2017: Defendants’ Summary of Direct Examinations; and
4) July 7, 2017: Defendants’ List of Exhibits.
After the June 8, 2017 telephone conference, however, the Defendants discovered that
Sarah Emerson, one of their proposed witnesses, although available on July 11, 2017,
would not be available during the time preceding the July 11, 2017 hearing to allow

Defendants’ counsel to adequately prepare for the hearing.

Defs.’ Mot. to Reset

Deadlines at 2-3 (ECF No. 161). On June 12, 2017, over the Plaintiffs’ objections, the
Court granted the Defendants’ motion to continue the hearing scheduled for July 11,
2017, but it denied the Defendants’ motion to reset the deadlines in order to give
counsel an opportunity to consult once a new hearing date was set. Order (ECF No.
164).
On June 13, 2017, the Court reset the hearing date for August 9, 2017. Notice
of Rescheduled Hr’g (ECF No. 165). Unfortunately, counsel have not been able to
agree on the resetting of dates for prehearing submissions. Compare Letter from Att’y
John J. Aromando to Hon. John A. Woodcock, Jr. (Jun. 16, 2017) (ECF No. 166)
(Aromando Letter); with Letter from Jonathan M. Ettinger to Hon. John A. Woodcock,
Jr. (Jun. 19, 2017) (ECF No. 167) (Ettinger Letter). Counsel agree that the Plaintiffs’
Summary of Direct Examinations and List of Exhibits will be due by July 5, 2017 and
that Defendants’ Summary of Direct Examinations and List of Exhibits will be due
by July 26, 2017.
The point of disagreement is whether the exchange of witness lists should be
joint or staggered. The Plaintiffs prefer a joint submission on June 23, 2017, arguing
that it is standard practice for the parties in a civil case to file witness lists
simultaneously and that the identity of the Defendants’ witnesses will inform which
witnesses the Plaintiffs may call at the hearing. Aromando Letter at 1-2. Further,
the Plaintiffs say that a staggered filing will give the Defendants an unfair advantage
and all the Plaintiffs are seeking is “an even playing field.” Id. at 2.

2

The Defendants argue that staggered deadlines would be consistent with the
Plaintiffs’ burden of proof on the jurisdictional issue. Ettinger Letter at 2. The
Defendants also press their earlier insistence that the Plaintiffs promised not to
present any evidence at the upcoming hearing that has not been revealed in
discovery, saying that if the Plaintiffs made this concession, simultaneous due dates
would be appropriate. Id.
The Court concludes that it is appropriate for both parties to reveal their
anticipated witnesses at the same time and to this extent, it agrees with the Plaintiffs
that a simultaneous due date for the list of witnesses is appropriate. There is no
mystery as to the issues on the jurisdictional question now before the Court and for
efficiency, it makes sense to allow the Plaintiffs to consider the witnesses the
Defendants contemplate calling at the August 9, 2017 hearing in order to frame their
summary of testimony. At the same time, the Court is not inclined to be hypertechnical, if the parties are able to demonstrate good cause for the addition of a
witness or a supplementation of testimony, they are free to move the Court to adjust
the schedule in the interest of justice.
Finally, to respond to the Defendants’ point about discovery, the Court does
not view the scheduling issue to be an appropriate place to extract concessions about
discovery and promises about anticipated testimony. The Court does not wish the
August 9, 2017 hearing to devolve into discovery disputes. The issues before the
Court are of public significance and the Court is interested in reaching the merits of

3

the jurisdictional issues, rather than responding to accusations of discovery
violations.
The Court ORDERS that the following schedule will apply to the upcoming
August 9, 2017 hearing:
(1) June 23, 2017: the parties will exchange witness lists;
(2) July 5, 2017: the Plaintiffs will serve a summary of direct testimony and
their exhibit list; and
(3) July 26, 2017: the Defendants will serve a summary of direct testimony and
their exhibit list.
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE

Dated this 20th day of June, 2017

4