Klein v. TD Ameritrade Holding Corporation, et al

Filing 243

THIRD AMENDED PROGRESSION ORDER. The provisions of the Court's earlier, initial progression order (as amended) remain in effect, with additional provisions. Class notice shall be issued by March 17, 2020. The Final Pretrial Conference with the assigned magistrate judge is set for January 4, 2021, at 11:00 a.m. in chambers, 111 South 18th Plaza, Suite 2271, Roman L. Hruska United States Courthouse, Omaha, Nebraska. A 14-day jury trial is set to commence, at the Court's call, during the week of January 25, 2021, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon. Ordered by Magistrate Judge Susan M. Bazis. (MBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RODERICK FORD, on behalf of himself and
all similarly situated;

8:14CV396

Plaintiff,
THIRD AMENDED PROGRESSION
ORDER

vs.
TD AMERITRADE HOLDING
CORPORATION, TD AMERITRADE, INC.,
and FREDRIC TOMCZYK,
Defendants.

On August 10, 2016, the Court entered the Order for Initial Progression of the Case (Filing
No. 126) which provided that discovery in this case was limited to class certification until such
issue is resolved. On September 14, 2018, the Court entered an order granting Lead Plaintiff’s
motion for class certification. The parties conferred on September 20, 2018. Defendants have filed
a petition for an immediate appeal of the Court’s class certification order and have sought a stay
of discovery pending appeal. Subject to the Court’s ruling on Defendants’ request to stay
discovery, the parties agreed upon the schedule set forth below for the progression of this case to
trial, which the Court hereby adopts.
Accordingly,
IT IS ORDERED that the provisions of the Court’s earlier, initial progression order (as
amended) remain in effect, and in addition to those provisions, the following shall apply:
1.
Motion to Dismiss and Motions for Summary Judgment. Motions to dismiss
and/or for summary judgment shall be filed not later than July 22, 2020. See NECivR 56.1 and
NECivR 7.1. Oppositions to any summary judgment motion shall be filed by September 17, 2020.
Replies in support of summary judgment shall be filed by October 21, 2020.
2.
2, 2018.
3.

Mandatory disclosures required by Rule 26(a)(1) will be completed by November

Discovery Deadlines:
a. Deposition Deadline. Depositions, (except for expert depositions), whether or
not they are intended to be used at trial, shall be completed by December 16,
2019. Expert depositions shall be completed by July 1, 2020.
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 completed by August 16, 2019. 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 July 16,
2019, 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). Motions to compel
shall not be filed without first contacting the chambers of the undersigned
magistrate judge to set a conference to discuss the parties’ dispute.
4.
If expert witnesses are expected to testify at the trial, counsel agree to at least
identify such experts on which any party has the burden of proof, by name, address, and subject
matter (i.e., without the full reports required by Rule 26(a)(2)), by December 16, 2019. Expert
reports and disclosures on any issue in which a party shall have the burden of proof shall be served
by March 17, 2020. Rebuttal expert reports and disclosures shall be served by May 13, 2020.
5. Class notice shall be issued by March 17, 2020.
6. Motions in Limine.
a. Motions in limine challenging the admissibility of expert testimony at trial
under Fed. R. Evid. 702, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137
(1999), and Daubert v. Merrell-Dow Pharmaceuticals, 509 U.S. 579 (1993),
shall be filed by July 22, 2020, and 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 December 28, 2020.
7.
Pretrial Disclosures. 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:
a. Nonexpert Witnesses - On or before December 7, 2020: The name, address
and telephone number1 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
at this time.
1

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, telephone
numbers, and other personally identifying information of witnesses, but shall serve an unredacted version
on opposing parties. See NECivR 5.3.

c. Trial Exhibits - On or before December 7, 2020: 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.
8.
The Final Pretrial Conference with the assigned magistrate judge is set for
January 4, 2021, at 11:00 a.m. in chambers, 111 South 18th Plaza, Suite 2271, Roman L. Hruska
United States Courthouse, Omaha, Nebraska. The final pretrial conference shall be attended by
lead counsel for represented parties. Counsel shall complete prior to the pretrial conference, all
items as directed in NECivR 16.2.2 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.
9.

Mediation and Settlement:
a. If the parties intend to mediate their dispute, notice of the mediation shall be
given to the staff of the assigned 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.
b. Not later than two weeks prior to trial, plaintiff or plaintiff's counsel shall
serve on Defendant or Defendant's counsel a written, updated settlement
proposal. Defendant or Defendant's counsel shall respond in writing to such
proposal not later than one week before trial.

2

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

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. For purposes of this
paragraph, a jury is considered summoned for a trial at noon the business day
prior to the designated date of trial.
10.
A 14-day jury trial is set to commence, at the Court's call, during the week of
January 25, 2021, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon, United States
Senior District Judge. Unless otherwise ordered, jury selection shall be at the commencement of
trial.
11.
Motions to Alter Dates. All requests for changes of deadlines or settings
established herein shall be directed to the assigned 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 4th day of October, 2018.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge