Spreadbury v. Bitterroot Public Library et al

Filing 182

SCHEDULING ORDER:. Amended Pleadings due by 12/29/2011. Discovery due by 2/10/2012. Motions due by 3/9/2012. Proposed Pretrial Order due by 5/31/2012. As to Plaintiff's claims against Defendant Lee Enterprises, Inc.: Final Pretrial Conference set for 6/7/2012 at 02:15 PM in Missoula, MT before Judge Donald W. Molloy. Jury Trial set for 6/18/2012 at 08:30 AM in Missoula, MT before Judge Donald W. Molloy. As to Plaintiff's claims against all other Defendants: Final Pretrial Conference set for 6/14/2012 at 02:15 PM in Missoula, MT before Judge Donald W. Molloy. Jury Trial set for 6/25/2012 at 08:30 AM in Missoula, MT before Judge Donald W. Molloy. Signed by Jeremiah C. Lynch on 11/30/2011. (TCL, ) Modified on 12/2/2011 to reflect copy mailed to Spreadbury this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
_____________________________________________
MICHAEL E. SPREADBURY,

CV 11-64-M-DWM-JCL

Plaintiff,
vs.

ORDER

BITTERROOT PUBLIC LIBRARY,
CITY OF HAMILTON,
LEE ENTERPRISES, INC.,
BOONE KARLBERG, P.C.,
DR. ROBERT BROPHY, TRISTA SMITH,
NANSU RODDY, JERRY STEELE,
STEVE SNAVELY, STEVEN BRUNER-MURPHY,
RYAN OSTER, KENNETH S. BELL, and JENNIFER LINT,
Defendants.
_____________________________________________
Plaintiff Michael Spreadbury moves for an order setting this case for trial.
Defendants do not oppose the motion. Therefore, IT IS HEREBY ORDERED that
Spreadbury’s motion is GRANTED.
In view of the fact that the remaining claims advanced by Spreadbury
against Defendant Lee Enterprises, Inc. do not involve any question of law or fact
common to the claims he advances against the remaining Defendants, the Court
deems it appropriate to conduct a separate trial upon those claims under authority

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of Fed. R. Civ. P. 42(b) to avoid prejudice to Lee Enterprises, and to expedite
resolution of the claims against that entity.
Therefore, pursuant to Fed. R. Civ. P. 16(b), IT IS HEREBY ORDERED as
follows:
1.

The following schedule will govern all further pretrial proceedings:

Deadline for Amending Pleadings:

December 29, 2011

Disclosure of Plaintiff’s
Damages Experts and Simultaneous
Disclosure of Liability Experts:

January 13, 2011

Disclosure of Defendant’s
Damages Experts:

January 27, 2012

Discovery Deadline:

February 10, 2012

Motions Deadline (fully briefed):

March 9, 2012

Attorney Conference to Prepare
Final Pretrial Order:

week of May 14, 2012

Submit Final Pretrial Order &
Proposed Jury Instructions
and Trial Briefs electronically
to [e-mail]
(Trial Briefs are optional):

May 31, 2012

Notice to Court Reporter of
Intent to Use Real-Time:

May 31, 2012

Notice to I.T. Supervisor of
Intent to Use CD-ROM or
Videoconferencing:

May 31, 2012
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Spreadbury’s Claims Against Defendant Lee Enterprises, Inc.:
Final Pretrial Conference:

June 7, 2012, at 2:15 p.m.
Missoula, Montana

Jury Trial (7-member jury):

June 18, 2012, at 8:30 a.m.1
Russell Smith Courthouse
Missoula, Montana

Spreadbury’s Claims Against All other Defendants:
Final Pretrial Conference:

June 14, 2012, at 2:15 p.m.
Missoula, Montana

Jury Trial (7-member jury):

June 25, 2012, at 8:30 a.m.
Russell Smith Courthouse
Missoula, Montana

Continuance of the above deadlines will not be granted, absent compelling
reasons. A continuance of any deadline set by this order does not extend any
other deadline. Neither the date set for trial nor the date set to file motions will be
altered or changed even if the Court authorizes any other date to be changed.

IT IS FURTHER ORDERED:
2.

Local Rules and Electronic Filing. Parties are advised that revised Local

Rules for the District of Montana became effective December 1, 2010, and apply
in all pending cases. In addition, all counsel shall take steps to register in the
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Pursuant to 18 U.S.C. § 3161(h) and Fed. R. Crim. P. 50, criminal matters
take priority over civil matters in the event of a conflict. Accordingly, all civil
trial settings are subject to the Court’s criminal calendar.
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Court’s electronic filing system (“CM-ECF”). All counsel must show cause if
they are not filing electronically. Further information is available on the Court’s
website, www.mtd.uscourts.gov, or from the Clerk’s Office. See also L.R. 1.6.
3.

Service by E-Mail for Parties Not Filing Electronically. Parties not filing

electronically may consent to be served by e-mail, pursuant to Fed. R. Civ. P.
5(b)(2)(E), by completing, serving, and filing Form B from Appendix A to the
Local Rules. See L.R. 5.2(a).
4.

Stipulations. Pursuant to Fed. R. Civ. P. 16(c)(2)(C), the following facts

are admitted and agreed upon: none identified at this time
5.

Discovery Exhibits. During discovery, the exhibits shall be numbered

seriatim. Numbers used for exhibits during discovery shall be identically used at
trial.
6.

Foundation & Authenticity of Discovery Documents. Pursuant to Fed. R.

Civ. P. 16(c)(2)(C), the parties stipulate as to foundation and authenticity for all
written documents produced in pre-trial disclosure and during the course of
discovery. However, if counsel objects to either the foundation or the authenticity
of a particular document then counsel must make specific objection to opposing
counsel in writing within a reasonable time after receiving the document. If a
document is produced and the producing party objects either to the foundation or

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authenticity, the producing party shall so state, in writing, at the time of
production. All other objections are reserved for trial.
7.

Supplementation of Discovery Responses. Pursuant to Fed. R. Civ. P.

26(e), the parties have an affirmative obligation to supplement all discovery
responses, as necessary, throughout the course of the litigation.
8.

Experts. The parties informed the Court that they expect to engage experts

in the following areas: none identified at this time
Experts, if engaged, must be disclosed in accordance with the time limits set
forth in paragraph 1.
9.

Expert Disclosure.
(a) Retained or Specially Employed
Each party is responsible for ensuring that expert reports for any witness

who is retained or specially employed to provide expert testimony in the case, or
whose duties as an employee of a party involve giving expert testimony, are
complete, comprehensive, accurate, and tailored to the issues on which the expert
is expected to testify. Expert reports must satisfy the specific requirements of Fed.
R. Civ. P. 26(a)(2)(B). Objections to the timeliness or sufficiency of a Rule
26(a)(2)(B) report must be made within 14 days of the disclosure date set forth in
paragraph 1, or the objection will be deemed waived. An inadequate report or
disclosure may result in exclusion of the expert’s opinions at trial even though the
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expert has been deposed. In this regard, a treating physician is not considered an
expert witness unless the testimony offered by the treating physician goes beyond
care, treatment and prognosis. If the treating physician’s testimony goes beyond
care, treatment and prognosis then there must be full compliance with the
discovery requirements of Fed. R. Civ. P. 26(a)(2)(B).
(b) Other Witnesses Who Will Present Expert Testimony.
With respect to those expert witnesses not required to provide a written
report under Rule 26(a)(2)(B), a party must serve a disclosure by the expert
disclosure deadline set forth in paragraph 1, identifying the evidence and stating:
(i) the subject matter on which the witness is expected to present
evidence under Fed. R. Civ. Evid. 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is
expected to testify.
10.

Rebuttal Experts. Any evidence intended solely to contradict or rebut

evidence on the same subject matter identified by another party as testimony or
evidence to be offered by a witness who is retained or specially employed to
provide expert testimony in the case or whose duties as an employee of a party in
the case involve giving expert testimony, must be disclosed within thirty (30) days
of the date set forth in paragraph 1 for expert disclosure. Fed. R. Civ. P.
26(a)(2)(D).
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11.

Supplementation of Incomplete or Incorrect Expert Reports.

Supplemental disclosures by a witness who is retained or specially employed to
provide expert testimony in the case or whose duties as an employee of a party in
the case involve giving expert testimony, whose report or deposition is incomplete
or incorrect, must be disclosed no later than ninety (90) days before the date set for
trial set forth in paragraph 1.
12.

Motions. Pursuant to Fed. R. Civ. P. 16(b)(3)(A), all dispositive motions,

discovery motions, and motions in limine shall be fully briefed by the date set
forth in paragraph one. “Fully briefed” means that the brief in support of the
motion and the opposing party’s response brief are filed with the court.
13.

Unopposed Motions. Unopposed motions shall be accompanied by a

proposed order, separate from the motion. The proposed order shall be a Word
Perfect document with 14-point Times New Roman font, and there shall be no
code or formatting in the case caption in the proposed order. The proposed order
shall be e-filed under the heading “Text of Proposed Order” and e-mailed to
[e-mail]. Failure to comply with this procedure will
result in delayed resolution of the unopposed motion.
14.

Hearings & Oral Arguments. Parties shall provide an alphabetized index

of cases expected to be referenced, with citations, to the Court Reporter
immediately prior to any oral argument or hearing.
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15.

Number of Jurors and Length of Trial. Trial of this case shall be

conducted in Missoula, Montana, before a jury of 7 persons.
16.

Attorney Conference for Trial Preparation. If the case does not settle,

counsel for the plaintiffs shall convene an attorneys’ conference during the week
indicated in paragraph 1, or before, to complete the Final Pretrial Order, to
exchange exhibits and witness lists, and to complete or plan for the completion of
all items listed in L.R. 16.5(b). The Final Pretrial Order shall comply with the
form prescribed by Fed. R. Civ. P. 26(a)(3)(A)(i)-(iii) and Local Rule 16.4.
Except for relevancy, objections to the use or designation of deposition testimony
are waived if they are not disclosed on the opposing party’s witness list, and
objections to exhibits are waived if they are not disclosed on the opposing party’s
exhibit list. See generally Forms D, E, and F, Local Rules Appendix A.
17.

Trial Exhibits.
(a) Exhibits are to be bound in a loose leaf binder with extended tabs, and

must be exchanged with opposing counsel prior to the final pretrial conference.
(b)

Each exhibit contained in the binders must bear an extended tab

showing the number of the exhibit. The exhibit list must identify those exhibits
the party expects to offer and those the party may offer if the need arises. Fed. R.
Civ. P. 26(a)(3)(A)(iii); Form F, Local Rules Appendix A.

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(c)

Exhibits marked for use at trial that have not been numbered in

discovery shall be marked by plaintiffs using an agreed upon range of arabic
numbers and by defendants using a different agreed upon range of arabic numbers.
(d)

Each exhibit document will be paginated, including any attachments

thereto. Exhibits shall not be duplicated. An exhibit may be used by either of the
parties.
(e)

One copy of the original document exhibits shall be submitted for the

exclusive use of the court, and will be contained in a binder. The binder shall be
delivered to the chambers of Judge Donald W. Molloy on or before the date of the
final pretrial conference.
(f) Failure to comply with (a) through (e) above may result in the exclusion
of the exhibit at trial.
(g) Jury Evidence Recording System. The parties shall be prepared to
use the Jury Evidence Recording System (JERS). JERS is available through the
court. It allows jurors to use a touch-screen to see the evidence admitted at trial in
the jury room during their deliberations. Detailed information about how to use
JERS, including contact information for District personnel who can explain
further, is found on the Court's website, http://www.mtd.uscourts.gov/ under the
heading "Attorneys". Parties must contact the Clerk's office for technical

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assistance for the use of JERS by the time of the Final Pretrial Conference in the
case and in no event less than two weeks before trial.
18.

Final Pretrial Order. The parties should e-file the proposed Final Pretrial

Order and e-mail a copy in Word Perfect format to
[e-mail]. Once filed and signed by the Court, the Final
Pretrial Order supersedes all prior pleadings and may not be amended except by
leave of court for good cause shown.
19.

Final Pretrial Conference. Counsel for the parties shall appear before the

Court in chambers at Missoula, Montana, for the final pretrial conference on the
date and time set forth in paragraph 1. Each party should bring Judge Molloy’s
copy of its trial exhibits if a copy has not already been delivered to chambers.
20.

Trial Briefs. Trial briefs are optional but if filed must be received by the

court on the date indicated in paragraph 1.
21.

Jury Instructions.
(a)

The parties shall jointly prepare jury instructions upon which they

agree (proposed joint instructions). If necessary, each party may also prepare a set
of proposed supplemental instructions if different from the agreed joint
instructions. No two instructions shall be submitted with the same number.
The parties shall also prepare an agreed upon verdict form with the instructions. If
a verdict form cannot be agreed to, each party shall prepare a separate verdict form
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together with a written statement explaining why they do not agree on a joint
verdict form.
(b) Filing of Joint Proposed Jury Instructions and Joint Proposed Verdict
Form: By the date set forth in paragraph 1, any party filing electronically or, if no
party is filing electronically, Plaintiff’s counsel shall (1) file one working copy of
the Joint Proposed Jury Instructions and Joint Proposed Verdict Form, and (2) email the same documents, plus a clean copy of each, to
[e-mail]. If the documents are filed conventionally, the
filing party must deliver them to the Clerk of Court in the Division of venue.
(c) Electronic Filers’ Supplemental Proposed Jury Instructions and Separate
Verdict Forms: By the date set forth in paragraph 1, each party shall (1) file one
working copy of its supplemental proposed Jury Instructions, together with its
proposed verdict form if the parties do not jointly propose one; and (2) e-mail the
same documents, plus a clean copy of each, to [e-mail].
(d) Conventional Filers’ Supplemental Proposed Jury Instructions and
Separate Verdict Forms: By the date set forth in paragraph 1, each party shall (1)
deliver to the Clerk of Court in the Division of venue one working copy of its
supplemental proposed Jury Instructions, together with its proposed verdict form if
the parties do not jointly propose one; and (2) e-mail the same documents, plus a
clean copy of each, to [e-mail].
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22.

Format of Jury Instructions.
(a)

The clean copy shall contain:
(1)
(2)

(b)

a heading reading “Instruction No. ___”, and
the text of the instruction.

The working copy shall contain:
(1)

a heading reading “Instruction No. ”,

(2)

the text of the instruction,

(3)

the number of the proposed instruction,

(4)

the legal authority for the instruction, and

(5)

the title of the instruction; i.e., the issue of law addressed by the
proposed instruction.

(c)

Jury instructions shall be prepared in 14-point Times New Roman
font.

23.

Settling of Instructions. The parties are advised that final instructions for

submission to the jury will be settled in chambers, on the record, prior to closing
argument, at which time counsel may present argument and make objections.
24.

Calling Witnesses At Trial.
When a witness is called to testify at trial, counsel shall provide to the clerk

of court four (4) copies of a single page document, see Form I, Local Rules
Appendix A, providing the following information about the witness:
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a) the full name and current address of the witness;
b) a brief description of the nature and substance of the witness’s testimony;
c) date witness was deposed or statement taken
d) a listing of each exhibit to which the witness may refer during direct
examination.
DATED this 30th day of November, 2011.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

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