Christ v. State of Montana et al

Filing 16

Order Vacating August 29, 2013 preliminary pretrial conference, ORDER re: 11 denying MOTION to Continue, and denying as moot MOTION for Leave to File amended complaint filed by Jason Christ. Motions terminated: 11 MOTION to Continue MOTION for Leave to File filed by Jason Christ. SCHEDULING ORDER: ( Bench Trial set for 6/23/2014 at 08:30 AM in Missoula, MT before Judge Donald W. Molloy., Final Pretrial Conference set for 6/23/2014 at 08:30 AM in Missoula, MT before Judge Donald W. M olloy., Amended Pleadings due by 10/7/2013., Discovery due by 2/24/2014., Motions due by 3/24/2014., Proposed Pretrial Order due by 6/16/2014.) Signed by Jeremiah C. Lynch on 8/26/2013. (TCL, ) Modified on 8/26/2013 to reflect copy mailed to Christ this date (APP, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JASON CHRIST,

CV 13–75–M–DWM-JCL
Plaintiff,
ORDER

vs.
STATE OF MONTANA, CITY OF
MISSOULA POLICE DEPARTMENT,
OFFICE OF THE PUBLIC DEFENDER,
DETECTIVE STACY LEAR, JUDGE
KAREN TOWNSEND, MISSOULA
COUNTY DISTRICT ATTORNEYS
JENNIFER CLARK and ANDREW
PAUL,
Defendants.
A Fed. R. Civ. P. 16 preliminary pretrial conference is presently set to be
conducted on August 29, 2013. On August 22, 2013, Defendants City of Missoula
Police Department and Stacy Lear filed their Fed. R. Civ. P. 26(f) proposed
discovery and scheduling plan. In their proposal the Defendants indicate that
Plaintiff Jason Christ did not respond to their effort to confer with him relative to
the required Rule 26(f) conference and plan, and he failed to participate in
preparing a jointly proposed schedule. Therefore, IT IS HEREBY ORDERED that

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the August 29, 2013 preliminary pretrial conference is VACATED, and the Court
will set a schedule in this matter below.
Also, on August 21, 2013, Christ moved for a continuance of this action,
and he moved for leave to file an amended complaint. Christ states he needs more
time to prosecute this case due to medical conditions he has, and he needs more
time to prepare a more detailed amended complaint which will contain new claims.
Defendants City of Missoula Police Department and Stacy Lear filed a
brief in response to Christ’s motions. Those Defendants oppose Christ’s motion to
continue these proceedings. They represent to the Court that contrary to Christ’s
description of his back injury and his asserted resulting inability to be active and
prepare legal documents, Christ has been actively involved in legal proceedings in
state court.
Based on the record before the Court, Christ has not presented sufficient
convincing evidence of good cause warranting a continuance of these proceedings
at this time. Therefore, IT IS HEREBY ORDERED that Christ’s motion for a
continuance is DENIED.
With respect to Christ’s motion to amend his Complaint, Defendants City of
Missoula Police Department and Stacy Lear state that they do not oppose the
motion. Furthermore, the Court notes that Defendants Jennifer Clark and Andrew
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Paul filed a motion on August 21, 2013, requesting the Court dismiss this action
against them on the ground that Christ failed to effect service of his Complaint
upon them within 120 days after it was filed with the Court as required by Fed. R.
Civ. P. 4(m). Clark and Paul’s motion is properly construed as a motion to dismiss
for insufficient service of process under Fed. R. Civ. P. 12(b)(5). Hernandez v.
Senegor, 2013 WL 1966122, *4 (E.D. Cal. 2013); J.O. ex rel Overstreet v. City of
Phoenix, 2013 WL 623601, *2 (D. Ariz. 2013). The proper procedural vehicle for
obtaining a dismissal under Rule 4(m) is Fed. R. Civ. P. 12(b)(5) which allows for
a dismissal for “insufficient service of process[.]” See Wasson v. Riverside
County, 237 F.R.D. 423, 424 (C.D. Cal 2006).
Because Clark and Paul’s motion to dismiss is deemed a motion filed under
Rule 12(b)(5), the provisions of Fed. R. Civ. P. 15(a)(1) apply to Christ’s motion
to amend. Rule 15(a)(1) states as follows:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
[...]
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
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Fed. R. Civ. P. 15(a)(1). Although Defendants City of Missoula Police
Department and Stacy Lear filed their responsive pleading to Christ’s Complaint
on July 30, 2013 (Dkt. 4), they do not oppose Christ’s motion to amend. See Fed.
R. Civ. P. 15(a)(2). Consequently, the Court deems it appropriate to conclude that
Clark and Paul’s Rule 12(b)(5) motion triggered the 21 days within which Christ
is permitted to amend his complaint once as a matter of course. Thus, Christ need
not move for leave to amend, and IT IS HEREBY ORDERED that Christ’s motion
to amend his Complaint is DENIED as moot.
1. Pursuant to Fed. R. Civ. P 16(b), the Court imposes the following
schedule which will govern all further pretrial proceedings:
Deadline for amending pleadings:

October 7, 2013

Deadline for disclosure of
affirmative liability
and damages experts (all parties):

December 19, 2013

Deadline for disclosure of
responsive experts (all parties):

January 20, 2014

Discovery deadline:

February 24, 2014

Motions deadline (fully briefed):

March 24, 2014

Attorney conference to prepare
Final Pretrial Order:

June 2, 2014

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E-file Final Pretrial Order,
Proposed Findings of Fact &
Conclusions of Law, and
trial briefs and e-mail
to [e-mail]
(trial briefs are optional):
June 16, 2014
Notice to court reporter of
intent to use real-time:

June 16, 2014

Notice to I.T. supervisor of
intent to use CD-ROM or
video-conferencing:

June 16, 2014

Final pretrial conference:

June 23, 2014, at 8:30 a.m.
Russell Smith Courthouse
Missoula, Montana

Bench trial:

June 23, 2014, immediately following the
Final Pretrial Conference1
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, particularly the motions deadline or trial deadline.

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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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IT IS FURTHER ORDERED:
2. Local Rules and electronic filing. All counsel shall take steps to register in
the 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. 1.4.
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 agreeing to such service in writing. See L.R. 1.4(c)(3).
4. Stipulations. Pursuant to Fed. R. Civ. P. 16(c)(2)(C), the following facts are
admitted and agreed upon: none established 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 items. Pursuant to Fed. R. Civ. P.
16(c)(2)(C), the parties stipulate to the foundation and authenticity of all discovery
items 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 discovery item, then counsel must make a specific objection to opposing
counsel, in writing, within a reasonable time after receiving the item. If a
discovery item is produced and the producing party objects either to its foundation
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or 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
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disclosure may result in exclusion of the expert’s opinions at trial even though the
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, 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
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of the date set forth in paragraph 1 for expert disclosure. Fed. R. Civ. P.
26(a)(2)(D)(ii).
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 1. “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.
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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.
15. Bench trial. Bench trial of this case shall be conducted in Missoula,
Montana, before the Honorable Donald W. Molloy.
16. Attorney conference for trial preparation. If the case does not settle,
counsel for the plaintiff 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 C.
17. Trial Exhibits.
(a)

Counsel shall electronically exchange exhibits (by CD, DVD, e-mail,

or other agreed upon method) with opposing counsel prior to the final pretrial

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conference. Counsel must provide a binder of paper copies of the exhibits upon
request of opposing counsel.
(b)

Each exhibit must show the number of the exhibit. If paper copies of

the exhibits are exchanged, 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 C.
(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 must be paginated, including any attachments thereto.

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

Counsel shall file with the Court a CD or DVD of the exhibits, as

well as one paper copy of the exhibits. The paper copy shall be formatted as
described in (b), above. The electronic files and paper copy 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.
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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. Proposed Findings of Fact & Conclusions of Law.
(a)

The parties shall jointly prepare one copy of proposed Findings of

Fact upon which they agree, with citations to the record for each Finding of Fact.
Each party may also prepare a separate proposed Findings of Fact with citations to
the record for each Finding of Fact for matters upon which parties cannot reach
agreement.
(b)

The parties shall jointly prepare one copy of proposed Conclusions of

Law upon which they agree, with appropriate citations for each Conclusion of
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Law. Each party may also prepare a separate proposed Conclusions of Law with
appropriate citations for each Conclusion of Law for matters upon which parties
cannot reach agreement.
The parties should e-file the Proposed Findings of Fact & Conclusions of
Law and e-mail a copy in Word Perfect format to
[e-mail] on the date indicated in paragraph 1.
22. 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 C, providing the following information about the witness:
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; and
d) a listing of each exhibit to which the witness may refer during direct
examination.

DATED this 26th day of August, 2013.

Jeremiah C. Lynch
United States Magistrate Judge
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