Shelby v. City of Omaha et al

Filing 24

AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE granting Joint Motion to Amend Final Progression Order 23 . Depositions due 5/31/2016. Jury Trial set for 12/12/2016 in Courtroom 3, Roman L. Hruska Federal Courthouse, 111 South 18th Plaza, Omaha, NE before Senior Judge Joseph F. Bataillon. Pretrial Conference set for 11/18/2016 at 10:00 AM in Chambers before Magistrate Judge Thomas D. Thalken. Ordered by Magistrate Judge Thomas D. Thalken. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TRACI SHELBY,
Plaintiff,

8:14CV379

vs.
CITY OF OMAHA, a Political
Subdivision, and
BERNARD L. POST, and
EDWARD B. MCNULTY, in their official
and individual capacities,

AMENDED ORDER
SETTING FINAL SCHEDULE
FOR PROGRESSION OF CASE

Defendants.
This matter comes before the court on the parties’ Joint Motion to Amend Final
Progression Order (Filing No. 23). Upon consideration,

IT IS ORDERED: The provisions of the court’s earlier, initial progression order
remain in effect, and in addition to those provisions, the following shall apply:
1.

The parties’ Joint Motion to Amend Final Progression Order (Filing No. 23)

is granted as set forth below.
2.

Motions for Summary Judgment. Motions for summary judgment shall

be filed not later than June 17, 2016. See NECivR 56.1 and 7.1.
3.

Discovery Deadlines.
a.

Deposition Deadline.

All depositions, whether or not they are

intended to be used at trial, shall be completed by May 31, 2016.
b.

Written Discovery Deadline. All interrogatories, requests for

admission and requests for production or inspection, whether or not they are
intended to be used at trial, shall be served sufficiently early to allow rule time
response before the deposition deadline. Counsel may stipulate to extensions of
time to respond to discovery requests in accordance with Fed. R. Civ. P. 29, but
such extensions shall not extend any of the dates in this order; any request to
extend the deadlines of this order shall be sought by motion.
c.

Discovery Motions. Discovery motions shall be filed not later than

February 1, 2016, as to matters which are then ripe for decision; discovery

matters arising after that date may be the subject of motions until the deposition
deadline. Counsel are reminded of the provisions of NECivR 7.1(i).
4.

Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, and

cross-claimant shall, as soon as practicable but not later than February 3, 2016, serve
all opposing parties with the statement required by Fed. R. Civ. P. 26(a)(2) regarding
each expert witness it expects to call to testify at trial pursuant to the provisions of Rule
702, 703 or 705, Fed. Rules of Evidence. Each defendant, counter-defendant, and
cross-defendant shall serve its statement of the expert witnesses it expects to call to
testify pursuant to Rule 702, 703 or 705, Fed. Rules of Evidence, pursuant to Fed. R.
Civ. P. 26(a)(2) as soon thereafter as practicable, but not later than April 4, 2016. If
necessary to refute the disclosed opinions of an expert witness of an opponent, a
plaintiff, counter-claimant, or cross-claimant may disclose additional expert witnesses
not later than April 21, 2016, provided that the disclosing party then provides all of the
information described in Fed. R. Civ. P. Rule 26(a)(2) and makes the expert witness
available for deposition prior to the date set for completion of depositions.
Supplementation of these disclosures, if originally made prior to these deadlines, shall
be made on these deadlines as to any information for which supplementation is
addressed in Fed. R. Civ. P. 26(e). The testimony of the expert at trial shall be limited
to the information disclosed in accordance with this paragraph.
5.

Pretrial Disclosures.2 Pursuant to Fed. R. Civ. P. 26(a)(3), each party

shall serve opposing counsel and file a redacted version as applicable with the following
information regarding the evidence it may present at trial other than solely for
impeachment purposes as soon as practicable but not later than the date specified:

1

A treating physician must be identified pursuant to Fed. R. Civ. P. 26(a)(2)(A), but a treating physician
is not deemed to be “retained or specially employed to provide expert testimony in a case” so as to
require a written report under Fed. R. Civ. P. 26(a)(2)(B), unless such treating physician is going to offer
an opinion beyond the medical records.
2

In accordance with the E-Government Act, counsel shall, on witness lists, exhibits, and other
disclosures and/or documents filed with the court, redact social security numbers, home addresses,
phone numbers, and other personally identifying information of witnesses, but shall serve an unredacted
version on opposing parties. See NECivR 5.3.
2

a.

Witnesses - On or before March 14, 2016: The name, address

and telephone number of each witness, separately identifying those whom the
party expects to present and those whom the party may call if the need arises.
b.

Deposition Testimony and Discovery - The designation of

discovery testimony and discovery responses intended to be utilized at trial is not
required for this case. Motions to require such designations may be filed not
later than fifteen days prior to the deposition deadline.
c.

Trial Exhibits - On or before November 4, 2016: A list of all

exhibits it expects to offer by providing a numbered listing and permitting
examination of such exhibits, designating on the list those exhibits it may offer
only if the need arises.
d.

Waiver of Objections: Any and all objections to the use of the

witnesses, deposition testimony, discovery responses, or exhibits disclosed
pursuant to the above subparagraphs, including any objection pursuant to Fed.
R. Civ. P. 32(a) that a deponent is available to testify at the trial, shall be made a
part of the pretrial order. Failure to list objections (except those under Fed. R.
Evid. 402 and 403) is a waiver of such objections, unless excused by the court
for good cause shown.
6.

Motions in Limine.
a.

Motions in limine challenging the admissibility of expert testimony at

trial under Fed. R. Evid. 702 shall be filed by July 18, 2016. See Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137 (1999); Daubert v. Merrell-Dow
Pharms., 509 U.S. 579 (1993).

The motions should be accompanied by a

request for a hearing, if necessary. Failure to timely move for a hearing may
constitute waiver of the request for a hearing.
b.

Any other motions in limine shall be filed on or before November

11, 2016.
7.

The Final Pretrial Conference with the undersigned magistrate judge is

set for November 18, 2016, at 10:00 a.m. in chambers, Suite 2271, Roman L. Hruska
United States Courthouse, 111 South 18th Plaza, Omaha, Nebraska. The final pretrial
conference shall be attended by lead counsel for represented parties. Counsel shall
3

complete prior to the pretrial conference, all items as directed in NECivR 16.2. 3 By the
time of the pretrial conference, full preparation for trial shall have been made so that trial
may begin immediately thereafter. The pretrial conference will include a discussion of
settlement, and counsel shall be prepared through investigation, discovery and
communication with clients and insurers, if any, to discuss fully the subject of
settlement, including realistic expectations about liability, obstacles to agreement, offers
made, and offers which can be made at the conference. Counsel shall be prepared to
make additional offers or proposals for settlement in behalf of their clients at the pretrial
conference, and counsel shall be prepared to make or opine on recommendations for
further negotiations and conferences.
8.

Settlement.
a.

Not later than two weeks prior to trial, plaintiff or plaintiff’s counsel

shall serve on defendants or defendants’ counsel a written, updated settlement
proposal. Defendants or defendants’ counsel shall respond in writing to such
proposal not later than one week before trial.
b.

In the event the parties mediate their dispute, notice of the

mediation shall be given to the staff of the magistrate judge’s office. The filing of
a mediation reference order will terminate pending motions, without prejudice to
refiling. If the mediation is not successful, the moving party may reinstate such a
motion by filing a written notice to that effect, and the other parties may respond
in accordance with the local rules, regarding the date of the notice as reinstating
the response/reply time that remained as of the date the mediation reference
order was filed.
c.

Notice of settlement shall be given to the trial judge’s office as soon

as practicable but in any event in time to avoid summoning a jury. If a case
settles and notice of settlement is not given in sufficient time to avoid summoning
a jury, assessment of jury costs may -- and normally will -- be made against a
party and/or counsel for one or more of the parties.

3

For purposes of this

All personal information should be redacted from the public version of the order and/or attachments
filed with the clerk. See NECivR 5.3.
4

paragraph, a jury is considered summoned for a trial at noon the business day
prior to the designated date of trial.
9.

Trial is set to commence, at the court’s call, during the week of December

12, 2016, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon and a jury.
Unless otherwise ordered, jury selection shall be at the commencement of trial.
10.

Motions to alter dates. All requests for changes of deadlines or settings

established herein shall be directed to the magistrate judge by appropriate motion,
including all requests for changes of trial dates. Such motions shall not be considered
in the absence of a showing by counsel of due diligence in the timely development of
this case for trial and the recent development of circumstances, unanticipated prior to
the filing of the motion, which require that additional time be allowed.

Dated this 2nd day of December, 2015.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

5