Marsh v. Brundage
AMENDED ORDER SETTING FINAL SCHEDULE FOR PROGRESSION OF CASE - that the Joint Motion to Amend Final Progression Order (Filing No. 46 ) is granted. All depositions, whether or not they are intended to be used at trial, shall be completed by January 2 9, 2018. The Final Pretrial Conference with the undersigned magistrate judge is set for August 13, 2018, at 10:00 a.m. in my chambers, 111 South 18th Plaza, Suite 2210, Roman L. Hruska United States Courthouse, Omaha, Nebraska. A three (3) day jury t rial is set to commence, at the Court's call, during the week of August 27, 2018, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon, Senior United States District Judge. Unless otherwise ordered, jury selection shall be at the commencement of trial. Ordered by Magistrate Judge Michael D. Nelson. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELDON D. MARSH, and THE SCHWAN
AMENDED ORDER SETTING
FINAL SCHEDULE FOR
PROGRESSION OF CASE
This matter comes before the Court on the Joint Motion to Amend Final Progression
Order (Filing No. 46). Having reviewed the joint motion, and for good cause shown,
IT IS ORDERED that the Joint Motion to Amend Final Progression Order (Filing No.
46) is granted. The provisions of the Court’s earlier, initial progression order remain in effect,
and in addition to those provisions, the following shall apply:
Motions to Dismiss and Motions for Summary Judgment. Motions to Dismiss
and/or Motions for summary judgment shall be filed not later than February 26, 2018. See
NECivR 56.1 and NECivR 7.1.
a. Deposition Deadline. All depositions, whether or not they are intended to be
used at trial, shall be completed by January 29, 2018.
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 January 2, 2018. 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
c. Discovery Motions. Discovery motions shall be filed not later than
December 1, 2017, 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.
Disclosure of Expert Witnesses.1 Each plaintiff, counter-claimant, and crossclaimant shall identify expert witnesses and shall serve expert reports by November 27, 2017.
Each defendant, counter-defendant, and cross-defendant shall identify expert witnesses and shall
serve expert reports by January 2, 2018. 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 January 8, 2018, provided that the disclosing party
then provides all of the information described in Fed. R. Civ. P. 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.
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 July 30, 2018: The name, address and
telephone number2 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.
c. Trial Exhibits - On or before July 30, 2018: 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
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.
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 the case" so
as to require a written report under Fed. R. Civ. P. 26(a)(2)(B).
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.
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.
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 March 1, 2018, 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 August 6, 2018.
The Final Pretrial Conference with the undersigned magistrate judge is set for
August 13, 2018, at 10:00 a.m. in my chambers, 111 South 18th Plaza, Suite 2210, Roman L.
Hruska United States Courthouse, Omaha, Nebraska. The final pretrial conference shall be
attended by lead counsel for represented parties. Prior to the pretrial conference, counsel shall
complete 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
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.
All personal information should be redacted from the public version of the order and/or
attachments filed with the Clerk. See NECivR 5.3.
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.
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.
A three (3) day jury trial is set to commence, at the Court’s call, during the
week of August 27, 2018, in Omaha, Nebraska, before the Honorable Joseph F. Bataillon,
Senior United States District Judge. Unless otherwise ordered, jury selection shall be at the
commencement of trial.
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 5th day of October, 2017.
BY THE COURT:
s/ Michael D. Nelson
United States Magistrate Judge
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