Lustgraaf v. Behrens et al

Filing 329

MEMORANDUM AND ORDER- The following cases are consolidated for discovery and pretrial preparation: 8:08-cv-00335-JMG-CRZ Lustgraaf v. Behrens et al, 8:08-cv-00399-JMG-CRZ Poole et al v. Behrens et al, 8:08-cv-00436-JMG-CRZ Vacanti v. Sunset Financia l Services, Inc. et al, 8:09-cv-00013-JMG-CRZ Green et al v. Sunset Financial Services, Inc. et al. 8:08-cv-00335-JMG-CRZ Lustgraaf v. Behrens et al is hereby designated as the "Lead Case," and 8:08-cv-00399-JMG-CRZ Poole et al v. Behrens e t al; 8:08- cv-00436-JMG-CRZ Vacanti v. Sunset Financial Services, Inc. et al; 8:09-cv- 00013-JMG-CRZ Green et al v. Sunset Financial Services, Inc. et al; and 8:09- cv-00044-JMG-CRZ Vacanti v. Sunset Financial Services, Inc. et al are designated as a "Member Cases." Any motion for separate trials on the plaintiffs' claims shall be filed on or before February 22, 2013, in the absence of which the above-captioned cases will also be consolidated for trial on the court's own motion. ( Jury Trial set for 9/23/2013 at 09:00 AM in Courtroom 1, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Judge John M. Gerrard. Pretrial Conference set for 9/10/2013 at 10:00 AM and will be conducted by WebEx conferencing before Magistrate Judge Cheryl R. Zwart. A Telephone Conference set for 5/14/2013 at 01:00 PM by telephone before Magistrate Judge Cheryl R. Zwart to discuss the status of case progression and potential settlement. Counsel for plaintiff shall place or arrange the call. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARLIN LUSTGRAAF,
Plaintiff,
vs.
BRYAN S. BEHRENS, SUNSET FINANCIAL
SERVICES, INC.,

8:08CV335

MEMORANDUM AND ORDER

Defendants.
JEAN POOLE, Trustees of the Poole Family Trust;
and DEE POOLE, Trustees of the Poole Family
Trust;

8:08CV399

Plaintiffs,
vs.
BRYAN S. BEHRENS, SUNSET FINANCIAL
SERVICES, INC.,
Defendants.
MILO VACANTI,
Plaintiff,

8:08CV436

vs.
SUNSET FINANCIAL SERVICES, INC., BRYAN
S. BEHRENS,
Defendants.
WILLIAM GREEN, JOANN GREEN,
Plaintiffs,

8:09CV13

vs.
SUNSET FINANCIAL SERVICES, INC., BRYAN
S. BEHRENS,
Defendants.
MILO VACANTI,
Plaintiff,
vs.
SUNSET FINANCIAL SERVICES, INC.,
BRYAN S. BEHRENS,
Defendants.

8:09CV44

The above-captioned cases involve common questions of law and fact.
Consolidating the cases will serve the interests of justice and judicial economy.
Accordingly,
IT IS ORDERED:
1)

The following cases are consolidated for discovery and pretrial preparation:
8:08-cv-00335-JMG-CRZ
8:08-cv-00399-JMG-CRZ
8:08-cv-00436-JMG-CRZ
8:09-cv-00013-JMG-CRZ
8:09-cv-00044-JMG-CRZ

Lustgraaf v. Behrens et al
Poole et al v. Behrens et al
Vacanti v. Sunset Financial Services, Inc. et al
Green et al v. Sunset Financial Services, Inc. et al
Vacanti v. Sunset Financial Services, Inc. et al

2)

8:08-cv-00335-JMG-CRZ Lustgraaf v. Behrens et al is hereby designated
as the “Lead Case,” and 8:08-cv-00399-JMG-CRZ Poole et al v. Behrens et
al; 8:08-cv-00436-JMG-CRZ Vacanti v. Sunset Financial Services, Inc. et
al; 8:09-cv-00013-JMG-CRZ Green et al v. Sunset Financial Services, Inc.
et al; and 8:09-cv-00044-JMG-CRZ Vacanti v. Sunset Financial Services,
Inc. et al are designated as a “Member Cases.”

3)

The court's CM/ECF System has the capacity for “spreading” text among
consolidated cases. If properly docketed, the documents filed in the Lead
Case will automatically be filed in the Member Case. To this end, the
parties are instructed to file in the Lead Case, 8:08-cv-00335-JMG-CRZ
Lustgraaf v. Behrens et al, all further documents except those described in
paragraph 4 and to select the option “yes” in response to the System’s
question of whether to spread the text.

4)

The parties may not use the spread text feature to file complaints, amended
complaints, and answers; to pay filing fees electronically using pay.gov; to
file items related to service of process; or to file notices of appeal.

5)

If a party believes that an item in addition to those described in paragraph 4
should not be filed in both of these consolidated cases, the party must move
for permission to file the item in only one of the cases. The motion must be
filed in both of the consolidated cases using the spread text feature.

6)

Any motion for separate trials on the plaintiffs' claims shall be filed on or
before February 22, 2013, in the absence of which the above-captioned
cases will also be consolidated for trial on the court's own motion.

2

IT IS FURTHER ORDERED that the final progression order is as follows:
1)

The jury trial of this case is set to commence before John M. Gerrard,
United States District Judge, in the Special Proceedings Courtroom, United
States Courthouse, Omaha, Nebraska at 9:00 a.m. on September 23, 2013,
or as soon thereafter as the case may be called, for a duration of ten (10)
trial days. This case is subject to the prior trial of criminal cases and such
other civil cases as may be scheduled for trial before this one.
Jury
selection will be held at commencement of trial.

2)

The Pretrial Conference is scheduled to be held before the undersigned
magistrate judge on September 10, 2013 at 10:00 a.m., and will be
conducted by WebEx conferencing. To facilitate this conferencing method,
the parties’ proposed Pretrial Conference Order and Exhibit List(s) must be
emailed to [e-mail], in either Word Perfect or Word
format, by 5:00 p.m. on September 9, 2013. An email will be sent to
counsel of record with the instructions and codes for participating in the
pretrial conference by WebEx.

3)

A telephonic conference with the undersigned magistrate judge will be held
on May 14, 2013 at 1:00 p.m. to discuss the status of case progression and
potential settlement. Counsel for plaintiff shall place or arrange the call.

4)

Supplemental mandatory disclosures shall be served by January 28, 2013.

5)

The deadline for completing written discovery under Rules 33 through 36
of the Federal Rules of Civil Procedure is May 13, 2013. Motions to
compel Rule 33 through 36 discovery must be filed by April 29, 2013.

6)

The deadlines for complete expert disclosures, (both retained experts, (Fed.
R. Civ. P. 26(a)(2)(B)), and non-retained experts, (Fed. R. Civ. P.
26(a)(2)(C)), are:
For the plaintiff(s):
For the defendant(s):
Plaintiffs' rebuttal (if any):

February 25, 2013
March 27, 2013
April 19, 2013

7)

The deposition deadline is May 13, 2013.

8)

The deadline for filing motions to dismiss and motions for summary
judgment is June 10, 2013.

3

9)

The deadline for filing motions to exclude testimony on Daubert and
related grounds is June 10, 2013.

10)

Motions in limine shall be filed on or before August 5, 2013.

11)

The parties shall comply with all other stipulations and agreements recited
in their Rule 26(f) planning report that are not inconsistent with this order.

January 2, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

4