Carlson v. United States Department of Energy

Filing 20

SCHEDULING ORDER by Magistrate Judge Gregory J. Fouratt. (kdj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ROLF ERIK CARLSON,
Plaintiff,
v.

Civ. No. 17-784 RB/GJF

UNITED STATES DEPARTMENT
OF ENERGY,
Defendant.
ORDER SETTING PRETRIAL DEADLINES
AND BRIEFING SCHEDULE
The Court held a second Rule 16 scheduling conference with the parties on March 5,
2018. Having conferred with the parties and considered their arguments, the Court now enters a
scheduling order tailored to the peculiar facts and procedural posture of this case.
During the scheduling conference, the United States indicated its intent to file an early
motion to dismiss based on what it contends is the deficient nature of Plaintiff’s complaint.
Given the threshold nature of such a motion, the possibility that it could be granted, and the
further possibility that Plaintiff could be ordered to file an amended complaint to cure any
deficiencies, the Court ORDERS the United States to file its motion not later than April 4,
2018. 1
The Court further ORDERS a 120-day discovery period to commence upon either of two
events: (1) the denial by the presiding judge of the United States’ motion to dismiss; or (2) the
filing by Plaintiff of an amended complaint that withstands any further motion(s) to dismiss.
In the event that the presiding judge authorizes or requires Plaintiff to file an amended
complaint, the deadline established by the presiding judge for doing so shall control. In the
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Plaintiff is reminded of his obligation to comply with all of the Court’s Local Rules, including Rules 7.4 and 7.5,
which govern the timing, length, and other restrictions of motions, responses, and replies.

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absence of any such deadline, however, the deadline for Plaintiff to amend his complaint to
include joining additional parties is June 1, 2018. The deadline for Defendant to amend its
answer and/or join additional parties is June 15, 2018.
During the 120-day discovery period, each side shall be limited to serving twenty-five
(25) interrogatories, twenty-five (25) requests for admission, and twenty-five (25) requests for
production on the other side. Responses shall be served within thirty (30) days. Depositions
shall be limited to four (4) per side. There shall be a four-hour limit on depositions, except for
parties, which shall be limited to seven hours. These time limits may be extended by agreement
of all parties.
All expert witnesses must be disclosed by the parties, even if the expert is not required to
submit an expert report. See Musser v. Gentiva Health Servs., 356 F.3d 751, 756-57 (7th Cir.
2004); FED. R. CIV. P. 26(a)(2)(B) & (C); D.N.M.LR-Civ. 26.3(b). Plaintiff shall identify to
Defendants in writing any expert witness to be used by Plaintiff at trial and provide expert
reports or other disclosures pursuant to Federal Rule of Civil Procedure 26(a)(2)(B) & (C) no
later than August 15, 2018. Defendants shall identify in writing any expert witness to be used at
trial and provide expert reports or other disclosures pursuant to Federal Rule of Civil Procedure
26(a)(2)(B) & (C) no later than September 4, 2018.
After the termination date of the 120-day discovery period, discovery shall not be
reopened, except by an order of the Court upon a showing of good cause. This deadline shall be
construed to require that discovery be completed on or before the above date. Service of
interrogatories or requests for production shall be considered timely only if the responses are due
prior to the deadline.

A notice to take deposition shall be considered timely only if the

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deposition takes place prior to the deadline. The pendency of dispositive motions shall not stay
discovery.
Motions relating to discovery (including, but not limited to, motions to compel and
motions for protective order) shall be filed with the Court and served on opposing parties by
fourteen (14) days after the close of discovery. Local Rule of Civil Procedure 7 provides
motion practice requirements and timing of responses and replies. This deadline shall not be
construed to extend the twenty-day time limit in Local Rule of Civil Procedure 26.6. 2
Pretrial motions, other than discovery motions, shall be filed with the Court and served
on opposing parties by twenty-eight (28) days after the close of discovery. Local Rule of Civil
Procedure 7 shall also control their form and timing. Any pretrial motions, other than discovery
motions, filed after the above dates may be considered untimely in the discretion of the Court.
If documents are attached as exhibits to motions, affidavits, or briefs, those parts of the
exhibits that counsel want to bring to the attention of the Court must be highlighted in
accordance with Local Rule of Civil Procedure 10.6.
Motion practice must be conducted in accordance with the local rules. In particular, the
Court would highlight Local Rule of Civil Procedure 7.4, which provides that response and reply
deadlines “may be extended by agreement of all parties. For each agreed extension, the party
requesting the extension must file a notice identifying the new deadline and the document
(response or reply) to be filed. If an extension of time is opposed, the party seeking the
extension must file a separate motion within the applicable fourteen (14) day period.”

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Of course, Federal Rules of Civil Procedure 26(c)(1) and 37(a)(1) require parties to “in good faith confer[] or
attempt to confer” prior to filing such motions. The mere imminence of the twenty-day time limit does not excuse
this obligation, so parties must initiate the attempts to confer promptly to ensure they have sufficient time to
adequately discuss the dispute. Nonetheless, if the parties are actively conferring on the matter, the Court will
liberally grant motions to extend the Local Rule 26.6 deadline.

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D.N.M.LR-Civ. 7.4(a).

Of course, any extension of briefing time must not interfere with the

case management deadlines established herein. Id.
Counsel are directed to submit a consolidated final pretrial order as follows: Plaintiff to
Defendant forty-five (45) days after the pretrial motion deadline; Defendant to Court sixty
(60) days after the pretrial motion deadline. Counsel are directed that the pretrial order will
provide that no witnesses except rebuttal witnesses, whose testimony cannot be anticipated, will
be permitted to testify unless the name of the witness is furnished to the Court and opposing
counsel no later than thirty (30) days prior to the time set for trial. Any exceptions thereto must
be upon order of the Court for good cause shown.
IT IS SO ORDERED.
____________ _____________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE

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