IHOP IP, LLC et al v. International House of Prayer et al

Filing 16

SCHEDULING AND TRIAL ORDER: #1 case for Jury Trial set for 3/18/2013 at 9:00 AM in Courtroom 7E, Kansas City. Pretrial Conference set for 3/4/2013 at 2:00 PM in Chambers. See Order for deadlines. Signed on 10/25/11 by Magistrate Judge John T. Maughmer. (Rollheiser, Sandy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

IHOP IP, LLC, et al.,
Plaintiffs,
v.
INTERNATIONAL HOUSE OF PRAYER,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No.
11-0548-CV-W-JTM

SCHEDULING AND TRIAL ORDER
A. DISCOVERY SCHEDULE
NOTICE TO ALL COUNSEL: Counsel are advised to read this Order
carefully. Suggestions in support of or in opposition to a motion shall be no
longer than 15 double spaced typewritten pages, exclusive of facts presented
in accordance with Local Rule 56.1, without permission of the Court. Reply
suggestions shall be limited to 10 double spaced pages, unless otherwise
authorized by the Court. Suggestions exceeding 10 pages in length shall have
a table of contents and table of authorities.
Pursuant to Fed. R. Civ. P. 16(b) and 26(f), and upon consideration of the parties'
proposed scheduling order, this Court finds that the following time limits are appropriate:
December 2, 2011 .

I.

Any motion to join additional parties will be filed on or before

II.

Any motion to amend the pleadings will be filed on or before

III.

All other non-dispositive motions except motions in limine will be filed on or before
October 31, 2012. Notwithstanding the above, no motion relating to a discovery
dispute shall be filed until the following steps have been taken:
A.

December 2, 2011.

Counsel for the moving party has in good faith conferred or attempted to
confer by telephone or in person with opposing counsel concerning the
matter prior to the filing of the motion. Merely writing a demand letter is
not sufficient. Counsel for the moving party shall certify compliance with
this rule in any discovery motion. See Fed. R. Civ. P. 26(c).

B.

IV.

If the issues remain unresolved after the attorneys have conferred in
person or by telephone, counsel shall arrange with the Court for an
immediate telephone conference with the judge and opposing counsel. No
written discovery motion shall be filed until this conference has been held.
See Local Rule 37.1.

All dispositive motions, except those under Fed. R. Civ. P. 12(h)(2) or (3), will be filed
on or before November 30, 2012 .
A.

Dispositive Motions:
All dispositive motions shall have a separate section wherein each
statement of fact is individually numbered, so that any party
opposing such motions may specifically point to a genuine issue of
material fact.

B.

Summary Judgment Motions:
1.

The suggestions in support of a motion for summary
judgment shall begin with a concise statement of
uncontroverted material facts. Each fact shall be set
forth in a separately numbered paragraph. Each fact
shall be supported by reference to where in the
record the fact is established. See Fed. R. Civ. P.
56(e).

2.

Suggestions in opposition to a motion for summary
judgment shall begin with a section that contains a concise
listing of material facts as to which the party contends a
genuine issue exists. Each fact in dispute shall be set forth
in a separate paragraph, shall refer specifically to those
portions of the record upon which the opposition party
relies, and, if applicable, shall state the paragraph number
in movant's listing of facts that is in dispute. All facts set
forth in the statement of the movant shall be deemed
admitted for the purpose of summary judgment unless
specifically controverted by the opposing party.

3.

All facts on which a motion or opposition is based shall be
presented in accordance with Fed. R. Civ. P. 56. Affidavits
or declarations shall be made on personal knowledge and
by a person competent to testify to the facts stated. Where
facts referred to are contained in another document, such as

2

a deposition, interrogatory answer or admission, a copy of
the relevant excerpt from the document shall be attached.
V.

All pretrial discovery authorized by the Federal Rules of Civil Procedure will be
completed on or before October 31 , 2012 .
A.

On or before
witnesses.

May 30, 2012, the plaintiffs will designate expert

B.

On or before
witnesses.

June 29, 2012, the defendants will designate expert

C.

Disclosure of Expert Testimony:
1.

With respect to a party who intends to call an expert for the
purpose of supporting an affirmative claim for relief,
Rule 26 expert witness reports shall be exchanged, and a
Certificate of Service filed, no later than June 6, 2012 ; and
shall, with respect to a party who intends to call an expert
for the purpose of defending against an affirmative claim
for relief, be exchanged, and a Certificate of Service filed,
no later than July 6, 2012.

2.

Each party shall disclose to every other party any evidence
that the party may present at trial under Rules 702, 703, or
705 of the Federal Rules of Evidence. This disclosure shall
be in written affidavit form, prepared and signed by the
witnesses and shall include a complete statement of all
opinions to be expressed, and the basis and reasons
therefor; the data or other information relied upon in
forming such opinions; the qualifications of the witness;
and a listing of any other cases in which the witness has
testified as an expert at trial or in deposition within the
preceding five (5) years.

3.

If any party after receiving the reports described in
paragraphs C.(1) and C.(2) above from an opposing party
wishes to submit evidence intended solely to contradict or
rebut evidence on the same subject matter, they may do so
in the same manner described above within thirty (30) days
after the receipt of said reports from such other party.
Thereafter, the testimony of each party's expert witness
shall be strictly limited at trial to the opinions and the
bases for the opinions filed under this section.
3

D.

Daubert Motions
All motions to strike expert designations or preclude expert testimony premised
on Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), shall be
filed on or before November 30, 2012. The deadline for filing motions in limine
does not apply to these motions. Failure to file a Daubert motion prior to this
deadline will constitute a waiver of any arguments based on Daubert.

VI. Motions for Extension of Time:
All motions for extension of time, pursuant to Fed. R. Civ. P. 6(b), or to respond to
request for discovery, pursuant to Fed. R. Civ. P. 31, 33, 34, and 36, must state:
A.

The date when the original pleading, response, or other action is or was
first due;

B.

The number of previous extensions and the date the last extension expires;

C.

The cause for the requested extension, including a statement as to why the
action due has not been completed in the allotted time; and

D.

Whether the requested extension is approved or opposed by opposing
counsel (agreement by counsel of a requested extension is not binding on
the Court).

Any motion for an extension of time filed without first complying with these procedures
will be denied.
VII. Certifications to the Court:
Prior to the close of discovery, counsel for all parties shall meet, at least once, in
person, and discuss settlement. Upon completion of this requirement, counsel
shall certify to this Court the time and place of such meeting, the names of parties
and counsel present and the results of the meeting.

PLEASE NOTE:

Counsel are directed to accompany all motions with a proposed order.

4

B. TRIAL ORDER
I. Trial Setting:
A.

B.

II.

This case is scheduled as the #1 case for a jury trial commencing March 18,
2013, at 9:00 a.m.. The trial will be held in Courtroom 7E (7th Floor), Charles
Evans Whittaker United States Courthouse, 400 E. 9th Street, Kansas City,
Missouri.
A final pretrial conference will be held one-half (½) hour before the trial in
Courtroom 7E, Charles Evans Whittaker United States Courthouse, 400 E. 9th
Street, Kansas City, Missouri.

Initial Pretrial Conference:
A.

An initial pretrial conference in this case will be held on March 4, 2013 , at 2:00
p.m. in CHAMBERS, Room 7662 (7th floor), Charles Evans Whittaker United
States Courthouse, 400 E. 9th Street, Kansas City, Missouri.

B.

The agenda for the initial pretrial conference will include:
1.

Identification of facts not in dispute to which the parties will stipulate, in
order to save trial time;

2.

Identification of factual and legal issues to be tried;

3.

Disposition of pending motions;

4.

Discussion of any legal questions which a party or parties believe must be
resolved prior to trial;

5.

Discussion of any suggestions by counsel to simplify and expedite the
trial;

6.

Discussion of the status of settlement negotiations;

7.

Notification of specific rules of trial procedures employed by the Court;
and,

8.

Discussion of expert testimony expected to be presented at trial.

5

III.

Post Discovery:
A.

Witness List: Ninety (90) days prior to trial, each party will file a list of the
names of all persons the party anticipates calling as witnesses at trial. If a person
is not listed by a party, that person will not be permitted to testify, absent leave of
court and for the sole purpose of reasonably unanticipated rebuttal or
impeachment. After the time for filing lists of witnesses has expired, no
supplemental or amended list will be filed without leave of Court and for good
cause.

B.

Exhibit List: Ninety (90) day prior to trial, each party shall serve and file a list of
all exhibits which may be offered in evidence. It is not necessary to list exhibits
to be used solely for reasonably unanticipated impeachment or rebuttal purposes.
1.

Except by leave of Court for good cause, no exhibit will be received in
evidence which is not so listed by the counsel offering the exhibit, and

2.

After the time for filing lists of exhibits has expired, no supplemental or
amended list of exhibits will be filed without leave of Court for good
cause.

C.

Making Exhibits Available to Opposing Party: Unless otherwise agreed to, the
parties shall exchange copies of all trial exhibits, including documents, 14 days
before trial, each party bearing the costs of producing their own exhibits. Any
party having an authenticity objection to any exhibit shall file its objection seven
(7) days before trial.

D.

Exhibit Index: All exhibits to be offered in evidence shall be listed on the court's
Exhibit Index form which can be obtained from the Clerk's Office. The original
and two copies of the completed index shall be delivered to the courtroom deputy
at least one-half hour before trial.

E.

Exhibits Delivered to the Court: Each exhibit that may be offered into evidence
should be properly marked with the court's exhibit sticker which can be obtained
from the Clerk's Office. Plaintiff shall number its exhibits 1 through 499;
defendant shall number its exhibits 500 through 999. Each party shall provide
two binders containing copies of each exhibit that can be copied inexpensively to
be used by the Judge and Law Clerk during trial. These binders shall be delivered
to the courtroom deputy one-half hour before trial.

F.

Deposition Testimony:
1.

At least 14 days prior to the date of the trial, each party shall designate the
parts of each deposition which will be offered as evidence;
6

2.

3.

G.

At least seven (7) days prior to the date of the trial, each party shall
designate deposition testimony in response to an opponent's designation;
and
At least five (5) days prior to the date of the trial, each party shall file its
objections to any deposition testimony designated pursuant to paragraphs
1. and 2. above.

Proposed Jury Instructions:
Thirty (30) days prior to trial, each party shall file the original and one copy of
each proposed jury instruction. The original of each proposed instruction should
be entitled "Instruction No. ___" and have no citations of authority typed on it.
Each copy, however, should reflect the authorities upon which the instruction is
based. Proposed instructions in diversity cases where Missouri law applies
should conform to MAI. In all other cases, the Manual of Model Civil Jury
Instructions for the District Courts of the Eighth Circuit should be followed if
reasonably possible. The parties shall submit the proposed instructions on a CD
as well as on paper.

H.

Filing of List of Voir Dire Questions in Jury Cases:
1.

2.

I.

Thirty (30) days prior to trial, each party shall file proposed voir dire
questions. Counsel will be afforded an opportunity to examine the panel.
Prior to the pretrial conference, counsel should confer regarding their
proposed voir dire questions they plan to ask. If opposing counsel objects
to a particular question, counsel should discuss and attempt to resolve the
objection. If not resolved, counsel should bring the objection up at the
pretrial conference, and
The Court will ask qualifying questions and questions from each party's
prepared questions. At the conclusion of the Court's questioning, if time
permits, each attorney will be allowed up to 20 minutes to direct questions
to the entire jury panel. An Attorney may then direct follow-up questions
to a juror who responds to a question directed to the entire panel.

Filing of Trial Briefs in Jury and Non-Jury Cases and Suggested Findings of Fact
in Non-Jury Cases:
1.

In actions to be tried with or without a jury, at least 14 days prior to the
date of trial, counsel for each party shall file a trial brief stating separately
the factual and legal contentions for the party for whom the trial brief is
filed, with citations of authority relied upon in respect to each legal
contention, and
7

2.

J.

In actions to be tried without a jury, each party will file suggested findings
of fact and suggested conclusions of law separately stated in separately
numbered paragraphs.

Pretrial Evidentiary Motions:
1.

2.

K.

At least seven (7) days prior to the pretrial conference on March 4, 2013,
counsel shall file any motion seeking an evidentiary ruling before trial,
and
Any responses to these motions shall be filed four (4) days prior to the
pretrial conference.

Filing of Stipulation of Uncontroverted Facts:
1.

Within 21 days after the time fixed for the completion of discovery,
counsel for each party will meet and enter into a stipulation of
uncontroverted facts and waive objections to admissibility of exhibits
which are based on lack of identification, when the identification thereof
is not to be contested. At this conference, counsel will produce each
exhibit listed, or to be listed, on behalf of his client for inspection by
counsel for other parties. Notwithstanding the fact that the time for
discovery will have closed by the time set for this meeting, a request to
stipulate, if preserved in the record, will constitute a request for admission
under Fed. R. Civ. P. 36, and failure to stipulate may be subject to
sanctions under Fed. R. Civ. P. 37(c). The Stipulation of Uncontroverted
Facts will then be prepared by counsel for plaintiff, signed by counsel for
all parties, and filed by counsel for plaintiff no more than forty (40) days
after the date fixed for the close of discovery.

2.

Counsel for plaintiff will initiate the arrangements for the meeting
outlined in K.1. above.

IT IS SO ORDERED.

/s/ JOHN T. MAUGHMER
JOHN T. MAUGHMER
United States Magistrate Judge
Kansas City, Missouri

8