Thiede v. Burcoff et al
ORDER GRANTING 21 MOTION to Adjourn 12 Scheduling Order, and Extension of Dates filed by Jadie Settles., ( Discovery due by 8/14/2017, Dispositive Motion Cut-off set for 9/1/2017< /b>, Final Pretrial Conference set for 10/30/2017 02:00 PM before District Judge Robert H. Cleland, Jury Trial set for 11/13/2017 09:00 AM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION (PORT HURON)
MAYOR LEROY BURCOFF, ET AL.,
AMENDED - SCHEDULING ORDER (JURY)
The court has considered and will grant in part Defendant Settles’ Motion for
Adjournment /Extension of Dates filed on 5/24/2017 and advises counsel to carefully
read the provisions of this Order. The court may shorten the deadlines established in
this Order (e.g., if no dispositive motion is filed by the deadline for such action, the court
may advance all remaining dates by 60 days or more).
IT IS HEREBY ORDERED as follows:
Use of the court’s electronic filing system (“CM/ECF”) is mandatory. Chambers’
copies of many papers filed electronically need not be submitted (but see “Motion
Guidelines,” ¶ 5, below).
The deadline for completing (not simply scheduling) court-supervised discovery is
8/14/2017. A discovery demand that is served such that a response is not due before
the discovery deadline is deemed of no effect unless counsel agree to comply in spite of
the discovery deadline. Extensions of court-supervised discovery are not ordinarily
granted in the absence of unusual circumstances. Although unsupervised discovery
may be agreed to among counsel, court deadlines are not changed based upon mere
agreement. Any proposed protective order should include language limiting the amount
of material filed under seal as described on this court’s website.1
PRELIMINARY AND FINAL WITNESS LISTS:
Each party must deliver a final witness list, to the opposing party and file a copy
with the court on or before 7/31/2017. The list must constitute a full good-faith
disclosure of each witness who is both known to the party and intended at that time to
be called at trial. In the event that a party desires to supplement the list with additional
witnesses, the party may do so by stipulation or, if a stipulation is not forthcoming, with
a motion supported by a showing of good cause. Witness lists must include after each
witness’s name an informative synopsis (one or two sentences) outlining the witness’s
DISPOSITIVE MOTION DEADLINE:
The deadline for filing pretrial motions requiring extensive briefing and
consideration (including motions under Rule 56 and those challenging a purported
expert under Daubert v Merrell Dow Pharmaceuticals, Inc, 509 U. S. 579 (1993)) is
See http://www.mied.uscourts.gov > Judges > District Judges > Judge Robert H.
Cleland > Practice Guidelines
a) Concurrence. Before filing any motion, read and closely follow E. D. Mich.
LR 7.1(a)(2) in seeking concurrence. Moving counsel must specifically report the
events that lead to concurrence being refused. Unreasonable withholding of consent
may lead to sanctions under LR 7.1(a)(3), as may the absence (or functional absence)
of effort to seek an agreement that was later accomplished upon the motion being filed.
PLEASE NOTE: RESPONSES TO DISPOSITIVE MOTIONS ARE TO BE FILED
WITHIN 14 DAYS, REPLIES WITHIN 7 DAYS.
b) Form issues.
i) Chambers’ copies of complex briefs. The court does not require
chambers’ copies of rudimentary and reasonably concise motions and
briefs. However, motions that are complex and accompanied by extensive
briefs and numerous exhibits are requested to be provided in physical
form as chambers’ copies. Generally, if a brief exceeds twenty pages, or
is accompanied by more than five exhibits or exhibits totaling more
than twenty pages, a chambers’ copy should be provided.
Please deliver such chambers’ copies within 48 hours after
the brief is filed. Insert a tabbed divider at each exhibit or
affix a tab to the first page of the exhibit.
Chambers copies should be printed from the docket so
that they contain the Pg ID in the upper right hand corner.
ii) Binding: avoid top-punching of chambers’ copies.
Bind any judge’s or chambers’ copies of briefs and
appendices with a staple in the upper left corner unless
more than about 20 pages are presented, in which case
please bind in “book form” along the left margin.
iii) Page limits on text. The “text” of a brief as discussed in Local Rule
7.1(c)(3) includes things such as the case summary and argument, but
does not apply to the statement of facts, table of contents, index of
iv) Citations on the record. All citations should refer to the Dkt# and Pg
ID that appears on the upper right hand corner of a filed document. For
Example: (Dkt. #5. Pg. ID 393.)
c) Time of Filing. Dismissal Motions may be filed at any time. Summary
Judgment Motions usually are filed closely following the end of discovery; those filed
much earlier often must wait for additional discovery to be completed. In municipal
liability cases, motions to dismiss for qualified immunity, if based on pleadings, raise
only questions of law and are to be filed before discovery commences.
d) Briefing and Hearings. Responses to motions in this case are due as
specified in the Federal and Local Rules. The court may set other specific, shorter dates
for responses and replies in some motions. An “oral argument” or “hearing” date may
be identified, but such date is merely a scheduling device and and not a guarantee that
argument will be conducted. A motion may be decided on the briefs only, and
sometimes just days before argument. Short extensions of deadlines that do not affect
other deadlines may be granted by the court’s Case Manager Lisa Wagner. Counsel
must seek concurrence before contacting the court.
e) Hearings by telephone. The court will on its own initiative or at the request
of counsel conduct some conferences and hearings by telephone or video conference;
other reasonable suggestions that may reduce time, expense, and inconvenience
require to resolve a case are invited.
f) Motion Standards. Clearly describe the standard governing your motion, but
please avoid lengthy boilerplate recitations of legal standards or lengthy “string cites” in
support of well-established principles. On the merits, please focus your analysis on a
few well-chosen cases, preferably recent and from controlling courts. You are
encouraged to lodge with judge’s chambers copies of your main cases, with relevant
passages highlighted and tabbed (an equivalent copy to be provided to opposing
counsel, but not to be filed with the Clerk). Copies of multiple cases, if provided, are to
be submitted in a separate “case appendix” beginning with an index.
g) Rule 56 Motion Statement of Material Facts; format of “fact appendix.”
A Rule 56 motion must begin with a “Statement of Material Facts.” Such a Statement is
to be included as the first section of the Rule 56 Motion, but the pages of that section do
not count against the page limit for briefs. The Statement must consist of numbered
paragraphs briefly describing the material facts underlying the motion. Each proffered
fact is to be supported by a citation to record evidence, using the Docket Number and
Pg. ID, presented in a separate Fact Appendix.2 The response to a Rule 56 Motion
must begin with a “Counter-statement of Material Facts” if any of the moving party’s
proffered facts are contested. The paragraph numbering must correspond to the first
Statement of Facts. Any proffered fact in the movant’s Statement of Material Facts that
is not specifically contested will, for the purpose of the motion, be deemed admitted.3
The factual record is to be contained in a separate “fact appendix.” Begin the
appendix with an index, followed by the tabbed exhibits. Submit enough of a document
or deposition to allow it to be read in context, but avoid unnecessarily submitting things,
including depositions, in toto. Documents and exhibits such as interrogatories,
deposition and affidavits provided in the appendix should be highlighted to focus
attention on your point.
Chambers’ copies of fact appendices of more than 20 pages must be separately
bound and include a cover sheet identifying the motion to which they are appended. All
pages from the same deposition or document should be at the same tab.
Examples of movant’s separate material factual statements:
1. Plaintiff Jones worked for ABC Corp. in an at-will position from 1999 until his
termination in 2005. (Dkt. #22, Pg. ID 40)
25. ABC Corp. Human Resources Director Smith testified that the only reason Jones
was terminated was repeated tardiness. (Dkt. #25, Pg. ID 7)
For examples of non-movant’s corresponding factual statements:
1. Plaintiff admits that he worked for ABC Corp. in an at-will position, but the
commencement of employment was in 1997. Dkt. #22, Pg. ID 50)
25. Plaintiff admits that Human Resources Director Smith testified at page 5 that
Jones was terminated for tardiness, however Smith also agreed that he said in an
email to ABC Corp. Vice President Brown that Jones should “move out” since he
was “getting along in years.”(Dkt. #25, Pg. ID 30)
h) The court endeavors to decide pending motions promptly, ordinarily within
four weeks after a hearing, or within two weeks after the time for a response has passed
without a response being filed. Complex motions or those raising novel issues may
require additional time to conclude. If a motion has been pending in chambers without
resolution for an apparently inordinate time, counsel are asked to notify the court’s case
manager by telephone or in writing (jointly if possible) as to the status of the motion.
Such notification is a service that is appreciated by the court and is not viewed by the
court as inappropriate or impertinent.
i) In the event that a problem arises which counsel believe cannot reasonably be
brought directly to the assigned judge, counsel should be aware that this District is
honored to have a Court Ombudsman to serve pro bono as an intermediary between
judicial officers and the bar. The Ombudsman acts on an informal basis to interface and
address any matters that may lack an institutional mechanism or other forum for
redress. All contacts with the Ombudsman are strictly confidential.4
MOTIONS IN LIMINE:
Motions in limine must be filed on or before 10/23/2017. The court will not
receive Motions in limine on the day of trial without good cause shown for the delay.
“Motions in limine,” as used here, indicates the relatively uncomplicated cautionary
motions often seen at the commencement of a case. A motion, even if labeled as one
“in limine,” which will require extensive briefing and consideration (such as a Daubert
motion; see section 5, above) must be filed in accordance with the deadline for filing
JOINT JURY INSTRUCTIONS:
Plaintiff's counsel is hereby ORDERED to convene a meeting of the
attorneys (see Fed. R. Civ. P. 51); all counsel are ORDERED to confer prior to trial to
discuss the indispensable “core” jury instructions in a good faith effort to narrow the
areas of dispute and with a view toward reaching agreement as to an acceptable form.
The court will deliver its own standard introductory and concluding instructions5 and will
instruct the jury at the beginning of the case at least on the elements of proof. The
object of the instruction conference, then, should include principally these matters:
The elements of the plaintiff's claim;
The elements of any affirmative defenses;
Specialized case-specific instructions, e.g., concerning unusual
factors in this case;
A form of the verdict, usually incorporating logically sequential
questions based on the elements of proof.
Plaintiff's counsel is ORDERED to lodge with judge’s chambers a unified
set of stipulated proposed jury instructions no later than 10/23/2017.
Instructions are to be transmitted through e-mail and not filed with
the Clerk. Instructions are to be submitted similar to a proposed order using the
utilities link of CM/ECF (See section 9.3 Utilities Features - Proposed Orders of
the Electronic Case Filing User Manual) with a courtesy copy to chambers.
See http://www.mied.uscourts.gov > Judges > District Judges > Judge Robert H.
Cleland > Practice Guidelines
If counsel are unable to fully agree as specified herein, plaintiff’s counsel
is ORDERED to so inform the court in writing by the deadline for the filing of instructions
listed above and to lodge with judge’s chambers all agreed-on and contested
instructions. The court will ordinarily conduct an expedited in-person conference.
The court ORDERS objecting counsel to supply opposing counsel in writing the
reason(s) for any objections to a proposed instruction so that each contested instruction
can be followed by a statement of case law, statutory or other basis of support and a
verbatim restatement of the basis given for any objection.
JOINT FINAL PRETRIAL STATEMENT:
Plaintiff’s counsel must submit a proposed joint final pretrial order pursuant to
Local Rule 16.2 to chambers on or before 10/23/2017.
FINAL PRETRIAL/SETTLEMENT CONFERENCE:
The court will conduct in chambers a Final Pretrial and Settlement Conference
under the provisions of Fed. R. Civ. P. Rule 16(d) on 10/30/2017, at 2:00 p.m.
Demand and response. Plaintiff is hereby ORDERED to transmit a clear,
written and good faith settlement demand insuring that it is received by defendant not
later than 14 days before the conference. Defendant is ORDERED to respond to that
demand in writing, clearly and in good faith, insuring that it is received by plaintiff not
later than 7 days before the conference. Further communication is strongly encouraged.
Attendance. The following persons and entities are hereby ORDERED to
personally attend the conference:
Trial counsel for each party;
All parties who are natural persons;
A representative on behalf any other party;
A representative of any insurance carrier which has undertaken the
prosecution or defense of the case and has contractually reserved to itself
the ability to settle the action.
A “representative” must possess full authority to engage in settlement
discussions and to agree upon a full and final settlement. “Full authority” is measured
by the last demand of plaintiff and authority must extend at least to that level.
The requirement that each party “personally attend” is not satisfied by trial
counsel professing to have full authority and attending on behalf of the client. Being
“available by telephone” does not equal “personally attending” the conference.
party who disregards these conference requirements risks fines, costs, fees, foreclosure
of witnesses, loss of claims or loss of defenses under Fed. R. Civ. P. 16(f) and Local
In the event that a party determines that it will not participate in negotiation
toward case settlement and intends simply to proceed to trial, that fact must be made
known to the court and the opposing party as early as possible. Substitute
arrangements for a final pretrial conference will follow.
JURY TRIAL SCHEDULE:
This case is assigned for trial 11/13/2017.
Counsel are directed to make whatever adjustments that may be required in trial
or vacation schedules as soon as possible. The court uses the “Blind Strike” system of
jury selection. 6
EXHIBITS; EXAMINING, PRE-MARKING AND LISTING:
Plaintiff's counsel is hereby ORDERED to convene a meeting of the attorneys at
which all counsel are ORDERED to meet and:
a) identify any objections as to authenticity, foundation, relevance, etc., of each
proposed exhibit and deposition. Each party’s exhibits and depositions must then be
listed separately, first those as to which there are no objections, and second those as to
which there are objections. An “exhibit” includes both those which a party fully intends
to introduce and those which the party simply might introduce. A “deposition” includes
redacted portions thereof intended for trial use. Agreed-upon exhibits and depositions,
identified on a separate listing and prepared for submission to the court as explained
more fully in ¶14(a), below, will be considered admitted at the outset of trial and may be
used by either party at any time.
b) supply to opposing counsel in writing the reason(s) for the withholding of such
stipulation or assertions of such objections as to each exhibit proposed by the opposing
party as to which counsel has objected or withheld stipulation.
See http://www.mied.uscourts.gov >Judges >District Judges > Judge Robert Cleland
> Practice Guidelines
c) arrange to number and label all exhibits (both those agreed to and those
objected to) IN ADVANCE OF TRIAL (court time cannot be used for the labeling of
exhibits and the court’s reporter does not label exhibits for counsel). Plaintiff should use
exhibit numbers beginning with 101 and defendant should use numbers beginning with
501. In the event of an extraordinarily large number of exhibits or for other reasons,
counsel should agree upon a reasonable alteration to π-101 / ∆-501 numbering.
EXHIBIT LISTS, TRIAL BRIEFS AND ELECTRONIC PRESENTATION:
a) Counsel for plaintiff is ORDERED by 10/23/2017:
i) to file a list of exhibits, the admissibility of which is stipulated to by both
parties, and a list of the depositions similarly stipulated to, and
ii) to lodge with judge’s chambers an electronic copy of the exhibits
b) Counsel for plaintiff and for defendant each are ORDERED by the same date
noted in section a), above, to file:
i) a trial brief,7 and
ii) a list of that party’s proposed exhibits, the admissibility of which has
been objected to by the opposing party, and the reason (supplied by
opposing counsel) for the objection, and
iii) proposed findings of fact and proposed conclusions of law if there are
any issues to be decided by the court alone.
A good trial brief will do more than merely restate the case summary contained in the
JFPTO, although a theory of the case is usually the core. It may, for example, assist the
court by outlining counsel’s intended position on anticipated evidence or witness problems.
c) Counsel are directed to consider the use of electronic presentation
technologies to minimize the need for paper copies of documents. The court can make
available certain kinds of electronic presentation technology.
ELECTRONIC PRESENTATION TECHNOLOGIES:
Counsel are directed to prepare and use electronic presentation technologies at
trial to eliminate, or at least substantially minimize, the need for any physical copies of
documents in court. The court is equipped electronic presentation technology. Counsel
are expected to acquire a working knowledge before trial.
DEPOSITION USE AT TRIAL:
Electronically-recorded depositions for use at trial must be carefully edited in
order to meet ordinary trial limitations, limited to direct examination, cross examination
on matters raised in direct, and possibly redirect. See, Fed. R. Evid. 611). Any
extended rounds of questions and answers beyond redirect must be redacted unless
the court has been persuaded, in advance, that unusual circumstances require such
extended questioning. All objections, commentary by counsel and other extraneous
material (which, the court urges, include obviously irrelevant or superfluous testimony
even if no objection was lodged) must be effectively redacted. It is not sufficient to
merely reduce the volume in court. The court will explain to the jury that editing of such
depositions is necessary and common practice.
SUMMARY OF MAJOR DEADLINES
Final Witness List
Dispositive Motion Deadline
Joint Final Pretrial Order and Instructions
Final Pretrial/Settlement Conference
Counsel are cautioned not to rely upon this summary alone.
Important detailed information is contained in the Scheduling
Order, ignorance of which can imperil claims or defenses.
IT IS SO ORDERED.
s/ Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
June 28, 2017
ALL COUNSEL OF RECORD
S:\Cleland\JUDGE'S DESK\Lisa's Folder\16-13650 THIEDE sched order.wpd
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