Hawkins v. County of Lincoln et al

Filing 186

MEMORANDUM AND ORDER - The plaintiffs' Motion for Leave to Amend Discovery Responses, (filing no. 180 ), is granted. A telephonic conference will be held on February 28, 2012 at 10:00 (CST) to discuss final progression of this case to trial. To facilitate discussion, counsel for the parties shall confer and, on or before February 27, 2012 at 5:00 p.m. (CST), they shall jointly file a supplemental Rule 26(f) Report, a copy of which is attached. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KARA HAWKINS, Personal
Representative of the Estate of Phillip
Hatcher, Deceased,
Plaintiff,
v.
COUNTY OF LINCOLN, a Nebraska
Political Subdivision, and GREAT
PLAINS REGIONAL MEDICAL
CENTER, a Nebraska corporation,
Defendants.

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7:10CV5001

MEMORANDUM AND ORDER

Having failed to timely respond to the County’s requests for admissions, the plaintiffs
now move to withdraw their deemed admissions. (Filing No. 180). The plaintiff has filed a
lengthy affidavit and brief describing the magnitude of her workload during December 2011,
when the discovery answers became due. But there is nothing of record indicating Plaintiff’s
counsel ever attempted to speak with the County’s attorney to resolve the current discovery
issue–a simple step which could have averted the expenditure of time by plaintiffs’ counsel in
drafting and filing the motion, by defense counsel in responding to the motion, and by this court
in reviewing the motion and issuing a ruling.

The current situation was the catalyst behind Nebraska Civil Rule 7.0.1(i). Under Rule
7.0.1(i):
Discovery Motions. To curtail undue delay in the administration of justice, this
court only considers a discovery motion in which the moving party, in the written
motion, shows that after personal consultation with opposing parties and sincere
attempts to resolve differences, the parties cannot reach an accord. This showing
must also state the date, time, and place of the communications and the names of
all participating persons. “Personal consultation” means person-to-person
conversation, either in person or on the telephone. An exchange of letters, faxes,
voice mail messages, or emails is also personal consultation for purposes of this
rule upon a showing that person-to-person conversation was attempted by the
moving party and thwarted by the nonmoving party.
NECivR 7.0.1(i) (emphasis added).

The plaintiffs’ motion is a discovery motion. As the moving parties, the plaintiffs were
required to speak with defense counsel in person, or at least attempt to do so, before filing the
motion. Based on the record before the court, the personal consultation required under Nebraska
Civil Rule 7.0.1(i) never occurred.

Absent the County’s willingness to allow the withdrawal of plaintiffs’ deemed admissions,
the court would have denied the plaintiffs’ motion. But the court will not undermine the courtesy
extended by the County to the plaintiffs at this time. However, the parties are hereby notified that
recurrent and unwarranted motion practice disrupts the court’s scheduling, and for the court’s own
sake, the court will neither ignore nor condone the negative impact of counsels’ unrelenting
acrimony on this court’s limited resources.

Although the parties currently have a scheduling conference with the court set for April
5, 2012, the undersigned magistrate judge was recently again assigned to this case and needs an
update on its current posture and the parties’ plan for final progression to trial.

Accordingly,
IT IS ORDERED:
1)

The plaintiffs’ Motion for Leave to Amend Discovery Responses, (filing no. 180),
is granted.

2)

A telephonic conference will be held on February 28, 2012 at 10:00 (CST) to
discuss final progression of this case to trial. To facilitate discussion, counsel for
the parties shall confer and, on or before February 27, 2012 at 5:00 p.m. (CST),
they shall jointly file a supplemental Rule 26(f) Report, a copy of which is
attached.
February 14, 2012.

BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

Plaintiff(s),

v.

Defendant(s).

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_:__CV____
SUPPLEMENTAL
RULE 26(f) REPORT

The following attorneys conferred to prepare this Report:
(Identify, for each party, the counsel who participated in preparing the Report).
The parties discussed the case and jointly make the following report:
CASE PROGRESSION:
A.

Experts.
1)

2)

Experts and, unless otherwise agreed, expert reports shall be served by
_________________. Note: The parties may agree on separate dates for the
plaintiff(s) and the defendant(s).

3)

B.

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 _________________.

Motions to exclude expert testimony on Daubert and related grounds will be
filed by _________________.

Discovery.
1)
Written discovery under Rules 33 through 36 of the Federal Rules of Civil
Procedure will be completed by _________________.
2)

Depositions, whether or not they are intended to be used at trial, will be
completed by _________________.

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C.

The following claims and/or defenses may be appropriate for disposition by
dispositive motion (motion to dismiss or for summary judgment or partial
summary judgment):
__________________________________________________________.
Motions to dismiss and/or for summary judgment will be filed by
_______________.

D.

Other matters to which the parties stipulate and/or which the court should know
or consider:
__________________________________________________________.

E.

Consent to Trial Before Magistrate Judge.
In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73,
the parties in this case may voluntarily consent to have a United States Magistrate
Judge conduct any and all further proceedings in the case, including the trial, and
order the entry of final judgment. The consent must be unanimous, and any appeal
must be taken to the United States Court of Appeals. If the parties do not
presently consent, they may do so at a later time and the case will remain with the
assigned United States District Judge or, if not previously assigned, will be
randomly assigned to a United States District Judge.
_____ All parties hereby voluntarily consent to have the United States Magistrate
Judge conduct any and all further proceedings in this case including the trial, and
order the entry of final judgment.
_____ All parties do not consent at this time.

F.

Trial date.
1)

Jury Trial:
a.

_____ No party has timely demanded a jury trial.

b.
_____ A party has timely demanded a jury trial and does not
anticipate waiving that demand, and the parties agree that all or part of the
claims in this case must be tried to a jury.
c.
_____ A party has demanded a jury trial, and the parties disagree
on whether trial by jury is available in this case. A motion to strike the

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(plaintiff’s/defendant’s) demand for jury trial will be filed no later than
_________________.
d.
_____ Having previously demanded a jury trial, the plaintiff now
waives jury trial. The 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 waived.
e.
_____ Having previously demanded a jury trial, the defendant now
waives jury trial. The plaintiff 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 waived.
2)

This case will be ready for trial before the court by: (month, year) .

3)

The estimated length of trial is _____ days.

Dated: ________________________

______________________________
Counsel for Plaintiff(s)

______________________________
Counsel for Defendant(s)

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/______________________________

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