United States of America v. Rader et al

Filing 8

ORDER - With the agreement of the Chief Judge and the other district judges, Judge Kopf will handle all magistrate matters for this case. The district judge assigned to try this case has not changed. Defendants Rader, Blue Valley Community Action, an d Pacesetter Corporation shall file their response to the plaintiff's amended complaint, filing 7 on or before November 25, 2009. Attached is a "Report of Parties' Rule 26(f) Planning Conference." Counsel are directed to meet a nd confer and file the report by December 14, 2009. A final scheduling order will be entered based on the Rule 26(f) report. The Clerk's office shall set a case management deadline for this report. This order applies to the parties, even if they are not represented by counsel. The Clerks office shall send a copy of this order to the served defendants. Ordered by Judge Richard G. Kopf. (Copies mailed as directed)(GJG)

IN THE UNITED STATES DISTRICT COURT FO R THE DISTRICT OF NEBRASKA U N IT ED STATES OF AMERICA, Plaintiff, v. L ORNA S. RADER, ALVIN L. RADER, (deceased), BLUE VALLEY CO M M UN ITY ACTION, Inc., and PA CESETTER CORPORATION, et. al., D e f e n d a n t s. IT IS ORDERED that: 1. W ith the agreement of the Chief Judge and the other district judges, Judge Kopf will handle all magistrate matters for this case. The district judge assigned to try this case has not changed. Defendants Rader, Blue Valley Community Action, and Pacesetter Corporation shall file their response to the plaintiff's amended complaint on or before Novem ber 25, 2009. Attached is a "Report of Parties' Rule 26(f) Planning Conference." Counsel are directed to meet and confer and file the report by December 14, 2009. A final scheduling order will be entered based on the Rule 26(f) report. The Clerk's office shall set a case management deadline for this report. This order applies to the parties, even if they are not represented by co u n sel. The Clerk's office shall send a copy of this order to the served defendants as f o ll o w s : Lorna S. Rader Cairo, NE 68824 ) ) ) ) ) ) ) ) ) ) ) ) ) )

4 :0 9 c v 3 1 8 0 ORDER

2.

3.

4.

5.

Pacesetter Corporation n/k/a Optimus Corp. c/o Donald D. Kluthe 4405 S. 96th Street Om aha, NE 68127 Blue Valley Community Action, Inc. c/o Joseph F. Chilen, Trustee 510 D Street P. O. Box 4 Fairbury, NE 68352

Dated: November 9, 2009 BY THE COURT: s/ Richard G. Kopf United States District Judge

2

IN THE UNITED STATES DISTRICT COURT FO R THE DISTRICT OF NEBRASKA P l a i n t i ff , ) ) ) ) ) ) ) ) )

: CV R EPO R T OF PARTIES' RULE 26(f) P LA N N IN G CONFERENCE

v. D efe n d an t.

Counsel for the parties met on ____________________ in person/by telephone. R e p r e s e n ti n g plaintiff was ____________________; representing defendant was

____________________. The parties discussed the case and jointly (except as noted below) m ak e the following report:1 I. Initial Matters: A. Jurisdiction and Venue: The defendant does _____ does not _____ contest jurisdiction and/or venue. If contested, such position is because: 1. 2. B. Jurisdiction: _____________________________________________. V enue: __________________________________________________.

Imm unity: The defendant has raised _____ will _____ will not _____ raise an im m unity defense. If so: 1. 2. Basis of Immunity Defense: __________________________________. The earliest defendant can file a motion to dismiss on the basis of im m unity is:_______________________________________________.

Counsel are advised to use caution in filing this report as well as other documents so there is no disclosure of information required by the E-Government Act of 2002 to be kept non-public, such as addresses, phone numbers, social security numbers, etc. If such identifiers are required to be disclosed to opposing parties, you may wish to file redacted versions for the public court file and serve opposing parties with unredacted versions. See NECivR 5.3, available on the court's Website at www.ned.uscourts.gov. 2

1

C.

If either jurisdiction or venue is being challenged, or if a defense of immunity w ill be raised, state whether counsel wish to delay proceeding with the initial phases of discovery until those issues have been decided, and if so: 1. 2. The earliest a motion to dismiss or transfer will be filed is:___________. The initial discovery, limited to that issue, that will be necessary to file or respond to the motion is ___________________________________ ________________________________________________________.

D.

R ule 11 Certification: As a result of further investigation as required by Fed. R. Civ. P. 11, after filing the initial pleadings in this case, the parties agree that the follow ing claims and defenses raised in the pleadings do not apply to the facts of this case, and hereby agree the court may dismiss or strike these claims and defenses at this time (an order adopting this agreement will be entered). ______________________________________________________________ ______________________________________________________________.

I I.

Rem aining Claims and Defenses: A. Plaintiff's Claims, Elements, Factual Application: The elements of the plaintiff's rem aining claims and the elements disputed by defendant are as follows. For each claim, list and number each substantive element of proof and the facts plaintiff claims make it applicable or established in this case (DO NOT repeat boilerplate allegations from pleadings): 1. CL A IM ONE:_____________________________________________. E l e m e n t s :_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _________________________________________________________ _________________________________________________________ __ __ __ __ __ __ __ __ __ _______________________________________. Factual Application: ________________________________________ _________________________________________________________ _________________________________________________________ ____________________ __ __ __ __ __ __ __ __ _____________________.

3

O f these elements, defendant disputes the following numbered elements:__________________________________________________. (R EPEA T FOR EACH CLAIM) B. D efen ses. The elements of the remaining affirmative defenses raised by the pleadings are as follows: List each affirmative defense raised or expected to be raised by the defendant(s), the substantive elements of proof for it, and how the defendant claims the facts of this case make such defense applicable or established. (DO NOT repeat boilerplate allegations from pleadings or deny m atters on which plaintiff has the burden of proof): 1. FIRST DEFENSE:__________________________________________. E l e m e n t s :_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _________________________________________________________ _________________________________________________________ _ _ _ _ _ _ _ _ _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ _ _ _ _ _ _ _ _ _ . Factual Application: ________________________________________ _________________________________________________________ _________________________________________________________ _________ __ __ __ __ __ __ __ __ ________________________________. O f these elements, plaintiff disputes the following elements: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . (REPEAT FOR EACH DEFENSE) III. A m en ding Pleadings; Adding Parties: A. The plaintiff does _____ does not _____ anticipate need to amend pleadings or add parties. If necessary, plaintiff can file the necessary motions to add parties or amend pleadings by ____________________________________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . If more than sixty days, the reasons that much time is necessary are ______________________________________________________________.

4

B.

The defendant does _____ does not _____ anticipate need to amend pleadings or add parties. If necessary, defendant can file the necessary motions to add parties or amend pleadings by ______________________________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ . If more than sixty days, the reasons that much time is necessary a r e :_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ _ .

C.

Plaintiff _____ will not _____ move for class certification. The proposed class is: ____________________________________________________________. The earliest the motion for class certification can be filed is:_______________ ___ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ ____.

IV .

D ispositive Motion Assessment: A. The following claims and/or defenses may be appropriate for disposition by early m otion to dismiss: _______________________________________________ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . B. The following claims and/or defenses may be appropriate for disposition by summ ary judgment or partial summary judgment:_______________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . C. The discovery necessary to determine whether to file dispositive motions on such claim s and/or defenses is ______________________________________. It can be completed, at the earliest, by ________________________________.

V.

S ettlem en t: A. Status/A ssessment of Settlement Discussions. Counsel state: _____ There have been no efforts taken yet to resolve this dispute. _____ This dispute has been the subject of efforts to resolve it _____ prior to filing in court; _____ after court filing, but before the filing of this report. Those efforts consisted of:____________________________________. 5

_____ Counsel believe that with further efforts in the near future, the case can be resolved, and the court is requested to delay entering an initial progression order for _____ days to facilitate immediate negotiations or m ediation. Defendant's counsel will report to the court by letter at the end of this period on the status of such discussions. _____ C ounsel have discussed the court's Mediation Plan and its possible app lication in this case with clients and opposing counsel. Mediation ____ will be appropriate in this case at some point; _____ will not be appropriate because:_________________________________________. _____ This case can be settled, but settlement is not very likely, and negotiations w ill be difficult because:____________________________. _____ This case will not be settled because:____________________________. B. N ext Step. The minimum discovery needed to conduct further settlement

discussions is: By Plaintiff(s): _____________________________________. By Defendant(s): ________________________________________________. This discovery will be completed by ____________________, and plaintiff(s) w ill then communicate to defendant(s) a written, updated settlement proposal. V I. D iscovery Plan: The parties submit the following plan for their completion of discovery: A. Subjects for Discovery (i.e., factual issues that discovery may resolve): ______________________________________________________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ __ __ __ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . B. A greed Discovery Procedures: 1. U niqu e Circumstances. The following facts or circumstances unique to this case will make discovery more difficult or more time c o n s u m i n g :_ _ _ _ __ __ __ __ __ __ __ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _________________________________________________________ ________________________________ __ __ __ __ __ __ __ __ _________. 6

Counsel have agreed to the following actions to address that d i f f i c u lt y : _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ________ __ __ __ __ __ __ __ __ _________________________________. 2. Electronic Discovery Provisions: Counsel have conferred regarding the preservation of electronically produced and/or electronically stored inform ation or data that may be relevant--whether privileged or not--to the disposition of this dispute, including: (a) (b) ( c) (d) ( e) (f) (g) (h) The extent to which disclosure of such data should be limited to that which is available in the normal course of business, or o th e rw is e ; The anticipated scope, cost, and time required for disclosure of such information beyond that which is available in the normal course of business; The format and media agreed to by the parties for the production of such data or information as well as agreed procedure for such p r o d u ctio n ; Whether reasonable measures have been implemented to preserve such data; The persons who are responsible for such preservation, including any third parties who may have access to or control over any such in fo r m a tio n ; The form and method of notice of the duty to preserve; Mechanisms for monitoring, certifying, or auditing custodial c o m p l ia n c e ; Whether preservation will require suspending or modifying any routine business processes or procedures, records management procedures and/or policies, or any procedures for the routine destruction or recycling of data storage media; Methods to preserve any potentially discoverable materials such as voice mail, active data in databases, or electronic messages; The anticipated costs of preserving these materials and how such costs should be allocated; and The entry of and procedure for modifying the preservation order as the case proceeds.

( i) ( j) (k)

The parties agree that: _____ N o special provisions are needed in respect to electronic discovery. The co urt should order protection and production of such information in accordance with its usual practice.

7

_____ The following provisions should be included in the court's scheduling order: ___________________________________________________ ________________________________________________________. 3. D isclosures2 required by Rule 26(a)(1), including a statement of how each m atter disclosed relates to the elements of the disclosing party's claims or defenses _____ have been completed; _____ will be completed by: ______________________________________________________ _ _ _ _ _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . 4. D iscovery will be conducted in stages or otherwise restricted, as follows (S tate agreed restrictions, stages, scheduling stays, etc.). NOTE: The co urt will expect discovery necessary to considering the matters in Parts IV and V above to be undertaken first, unless there is good reason to delay it. __________________________________________________ _________________________________________________________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . 5. 6. 7. _____ _____ __ __ _ Is the maximum number of interrogatories, including subparts, that may be served by any party on any other party. Is the maximum number of depositions that may be taken by plaintiffs as a group and defendants as a group. Depositions will be limited by Rule 30(d)(2), except the d e p o s itio n s of ____________________, which by

agreement shall be limited as follows: _______________ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . 8. If expert witnesses are expected to testify at the trial, counsel agree to at least identify such experts, by name and address, (i.e., without the full reports required by Rule 26(a)(2)), by: ___________________________. The parties stipulate that they will be required to give at least _____ days' notice of their intention to serve records/documents or subpoenas on third

9.

2

See note 1, supra. 8

parties, to enable court consideration of them, if necessary, prior to is s u an c e . 10. O ther special discovery provisions agreed to by the parties or suggested by either party are: _________________________________________ _________________________________________________________ _ _ _ _ _ _ _ _ _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ _ _ _ _ _ _ _ _ _ . V I I. Trial Scheduling: A. The parties now anticipate that the case can be ready for trial by _____, 20___, and (if more than eight months from now) the special problems or circumstances that necessitate that much time for trial preparation are: ___________________ ______________________________________________________________. B. C. Counsel think that the trial of this case, if necessary, will require _____ trial days. Ju ry Trial: 1. _____ Having previously demanded jury trial, the plaintiff now w aives jury trial. Defendant will file a demand for jury trial within _____ days of the filing of this report, in the absence of which jury trial will be deemed to have been w a iv e d . 2. _____ Having previously demanded jury trial, the defendant now w aives jury trial. Plaintiff will file a demand for jury trial w ithin _____ days of the filing of this report, in the absence of which jury trial will be deemed to have been w a iv e d . 3. _____ The parties disagree on whether trial by jury is available in th is case. A motion to strike the ___________________'s

9

demand for jury trial will be filed no later than _____________________________________________. V III. O ther: Other matters to which the parties stipulate and/or which the court should know or consider: __________________________________________________________ ____________________________________________________________________. D a te d :_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

__________________________ Counsel for Plaintiff

__________________________ Counsel for Defendant

10

CERTIFICATE OF SERVICE I hereby certify that on ______________, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: _____________________________________________ , and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants:_____________________________________________.

s/_____________________________

11