Payne v. Coburn et al

Filing 68

TRIAL ORDER - Consent to the Exercise of Jurisdiction by a Magistrate Judge, if the parties so choose, shall be submitted to the court on or before 7/19/2018. Pretrial Submissions due by 4:00 p.m. on 7/23/2018, Final Pretrial Conference set for 8/6/2018 at 10:00 AM in Albany before Senior Judge Gary L. Sharpe. Jury Trial set for 8/13/2018 at 09:30 AM in Albany before Senior Judge Gary L. Sharpe. Signed by Senior Judge Gary L. Sharpe on 6/22/2018. (Copy served via regular mail)(jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BERTRAM PAYNE,
Plaintiff,

Civil No. 9:15-cv-392
(GLS/TWD)

v.
C.O. COBURN et al.,
Defendants.
FOR PLAINTIFF:
BERTRAM PAYNE
224 Woodbine Street
Apt #1
Brooklyn, New York 11221
THE KINDLON LAW FIRM, PLLC
Pro Bono Trial Counsel
52 James Street, 5th Floor
Albany, New York 12207

ANTHONY M. PASTEL, ESQ.
GENNARO D. CALABRESE,
ESQ.

FOR DEFENDANTS:
HON. BARBARA UNDERWOOD
New York Attorney General
The Capitol
Albany, New York 12224
Gary L. Sharpe
Senior District Judge

SHANNAN COLLIER
KRASNOKUTSKI
Assistant Attorney General

Trial Order
All relevant Uniform Pretrial Scheduling Order deadlines having
expired in the above captioned case, it is hereby designated “trial ready,”
and a jury term has been scheduled to begin on Monday, August 13,
2018. All parties shall be prepared to proceed according to the schedule
recited in this order and attachments unless on or before July 19, 2018,
all parties in a specific action file a Consent to the Exercise of Jurisdiction
by a Magistrate Judge. See General Order 25, 28 U.S.C. § 636(c), L.R.
72.2(b), and Attachment. In the latter event, the court will issue an Order
of Reference, the case will be removed from the trial ready list, and it will
be referred to a United States Magistrate Judge for all further proceedings,
including the scheduling of pretrial submissions and trial.
The parties are further advised that should a case be removed from
the trial ready list because of settlement or some other factor, on or after
Thursday, August 9, 2018, at 3:00 p.m., the court may impose sanctions
pursuant to L.R. 47.3.
PRETRIAL SUBMISSIONS1
1

To the extent that the requirements of this order and attachments are inconsistent with
any prior Uniform Pretrial Scheduling Order or other orders entered in this case, this order and
attachments control.

2

The pretrial submissions required by Attachment 1 shall be filed on
or before 4:00 p.m. on July 23, 2018 (approximately two weeks before the
final pretrial conference), or earlier in accordance with the generic
schedule recited in Attachment 1, as supplemented by the specific dates
set forth below:
1.

On or before 4:00 p.m. on July 23, 2018 (approximately two
weeks before the final pretrial conference), the parties shall
file:
(a)

Joint Pretrial Stipulation (See Attachment 1, ¶ 1);

(b)

Court Ordered Voire Dire (See Attachment 1, ¶ 2, and
Attachment 2);

(c)

Proposed Voire Dire (See Attachment 1, ¶ 3);

(d)

Witness List (See Attachment 1, ¶ 4);

(e)

Exhibit List (See Attachment 1, ¶ 5(4));

(f)

Trial Brief (See Attachment 1, ¶ 6);

(g)

Requests to Charge and Proposed Special Verdict Form
(See Attachment 1, ¶ 7);

(h)

Motions In Limine (See Attachment 1, ¶ 8); and,

(I)

Depositions (See Attachment 1, ¶ 9);
3

2.

On or before 4:00 p.m. on July 30, 2018 (approximately one
week before the final pretrial conference date), the parties shall
file:
(a)

Responses to Motions In Limine (See Attachment 1, ¶ 8);
and,

3.

On or before August 13, 2018 (trial date), the parties shall file:
(a)

Exhibit Copies (See Attachment 1, ¶ 5(1)).

Final Pretrial Conference
The attorneys for all parties in this action shall appear at this court’s
chambers, 445 Broadway, Albany, New York, Fourth Floor, for a final
pretrial conference on Monday, August 6, 2018 at 10:00 a.m.

Jury Selection and Trial
The attorneys and parties shall appear at Courtroom No. 1, 445
Broadway, Albany, New York, Fourth Floor, for the commencement jury
selection and trial on Monday, August 13, 2018 at 9:30 a.m.

4

SO ORDERED.
June 22, 2018
Albany, New York

5

Attachment #1
Pretrial Submissions
N.B. Unless otherwise noted, all parties shall electronically file
and serve all pretrial submissions in accordance with General
Order #22, ¶ 5.
The following pretrial submissions shall be filed in accordance with
this order:
1.

Joint Pretrial Stipulation
A joint pretrial stipulation shall be subscribed by counsel for all
parties, and shall contain:
(1)
(2)

A list of all exhibits which can be stipulated into
evidence or which will be offered without objection
as to foundation;

(3)

2.

The basis of federal jurisdiction;

Relevant (a) facts not in dispute, (b)
facts in dispute, and (c) issues of law to
be considered and applied by the Court.

Court Ordered Voir Dire
See Attachment #2

3.

Proposed Voir Dire
Each party shall submit a numbered list of questions which the
court, in the exercise of its discretion, may use during jury
selection.

1

4.

Witnesses
(1)

Counsel shall file a witness list containing the
following information regarding the witnesses that
may be called to testify at trial other than solely for
impeachment purposes:
(a)

The name and, if not previously
provided, the address (city only) of each
witness, separately identifying those
whom the party expects to present and
those whom the party may call if the
need arises, as well as a brief summary
of the testimony to be offered by each
witness.
N.B.: Personal Privacy Protections
may apply to disclosure of this
information. See Local Rule 8.1;
General Order #22, ¶¶ 2.1.3, 11.1-11.2
and 12.2.

(b)

The designation of those witnesses
whose testimony is expected to be
presented by means of a deposition
(including video-taped deposition),
specifically identifying the pertinent
portions of the deposition testimony to
be offered.

(2) The unavailability of any witness, expert, or otherwise, will
not be grounds for a continuance. In order to avoid the
possibility of proceeding at trial without the testimony of an
unavailable witness, counsel, where appropriate, shall preserve
the testimony by written or video-taped deposition for possible
use at trial. (Please refer to the attached instruction sheet for
the use of video-taped depositions.)
2

5.

Exhibits
(1)

All exhibits shall be marked for identification in the
manner prescribed hereinafter. A complete set of copies
of the exhibits or, alternatively, a copy of a CD ROM
containing the exhibits shall be presented to Judge
Sharpe's Deputy Courtroom Clerk at the beginning of the
trial.

(2)

The exhibits shall have been inspected by the opposing
party and copied at their expense (unless waived), NO
LATER THAN ONE WEEK PRIOR TO THE FINAL
PRETRIAL CONFERENCE DATE. All documents and/or
papers intended as exhibits or to be used during the
course of trial, including but not limited to, documents,
photographs, charts, diagrams, etc., shall be assembled
in BINDERS AND/OR ON CD ROM with each document
properly marked at the lower right corner for identification
purposes as directed below. In voluminous cases,
consult with Judge Sharpe's Courtroom Clerk for the
proper procedure to follow.

(3)

During the course of trial the Deputy Courtroom Clerk
shall take charge of exhibits which are received into
evidence. At the conclusion of the trial, the Courtroom
Deputy Clerk will immediately return all of the exhibits to
the proper parties. It is the responsibility of the parties to
maintain the exhibits and to produce the exhibits for any
appeal.

(4)

On or before 4:00 p.m. on July 23, 2018 counsel
shall electronically file and serve an Exhibit List.
The exhibits shall be listed on the form prescribed
by the Court, a copy of which is attached to this
Order. Counsel are to supply all the requested
information with the exception of the two "Date
3

Boxes" which should remain blank.
(5)

Counsel shall fill in the appropriate markers leaving
the "File" and "Deputy Clerk" lines blank. All
exhibits shall be assigned numbers by using a
prefix of "P" for plaintiff, "D" for defendant, and "G"
for Government (U.S. Attorney).
Plaintiff's exhibits should be denoted as: P-l, P-2, P-3,
etc. Defendant's exhibits should be denoted as: D-l, D-2,
D-3, etc. Government's exhibits should be denoted as:
G-l, G-2, G-3, etc. In cases involving multiple
defendants, the exhibits shall be denoted with the initial of
the last name of the defendant and its numerical
identification number.
Stickers shall be affixed whenever possible to the lower
right-hand corner of the exhibit. If the exhibit marker is
going to cover any information on the exhibit, then affix
the marker to the reverse side of the exhibit.

6.

Trial Brief
On or before 4:00 p.m. on July 23, 2018, counsel shall
electronically file and serve a trial brief containing argument
and citations on any and all disputed issues of law, citing the
applicable rules of evidence and case law. Trial briefs should
also include any evidentiary issues that are expected to arise.

7.

Requests to Charge and Proposed Special Verdict Form
On or before 4:00 p.m. on July 23, 2018, counsel shall
traditionally file with the Clerk's Office and serve upon
opposing counsel a request to charge and a proposed Special
Verdict Questionnaire on by email to [e-mail],
preferably in WordPerfect or Microsoft Word format. The
request to charge need only include instructions that are
4

specific to the law in this case regarding liability, damages, and
any unusual issues. The Court has usual boilerplate
instructions.
8.

Motions in Limine
On or before 4:00 p.m. on July 23, 2018, counsel shall
electronically file and serve any motions in limine, citing the
applicable rules of evidence and case law. Counsel shall file
any response to a motion in limine no later than 4:00 p.m. on
July 30, 2018, approximately one week before the Final
Pretrial Conference date. MOTIONS IN LIMINE MAY NOT
OTHERWISE BE FILED WITHOUT LEAVE OF THE COURT.

9.

Depositions
(1)

On or before 4:00 p.m. on July 23, 2018, counsel shall
electronically file all non-video taped depositions to be
used at trial. Counsel shall traditionally file all videotaped depositions to be used at trial. (See General Order
#22, ¶¶ 1.2, unnumbered paragraph foll. 2.1.6). To the
extent possible, objections are to be resolved between
the parties. Areas of unresolved disagreement shall be
presented to the Court for ruling at the Final Pretrial
Conference. (See attached instruction sheet for use of
video-taped depositions.)

June 22, 2018
Albany, New York

5

ATTACHMENT #(2)
COURT ORDERED VOIR DIRE
TO BE USED BY THE JUDGE AT TRIAL
CASE TITLE: Payne v. C.O. Coburn et al.
CIVIL ACTION NO.: 9:15-cv-392 (GLS/TWD)
ASSIGNED JUDGE OR MAGISTRATE JUDGE: Gary L Sharpe/Thérèse
Wiley Dancks
Each attorney is required to submit the following information on behalf of
his/her client for use by the Court during Voir Dire and must be filed with
the Court one week in advance of the trial ready date.
NAMES AND ADDRESSES OF ALL PARTIES TO THE LAWSUIT:

(use additional page if necessary)
YOUR NAME, FIRM NAME, ADDRESS AND THE NAME OF ANY
PARTNER OR ASSOCIATE WHO MAY BE AT COUNSEL TABLE
DURING THE COURSE OF THE TRIAL.

(use additional page if necessary)
SET FORTH THE DATE OF THE OCCURRENCE, THE PLACE OF THE
OCCURRENCE AND A BRIEF STATEMENT OF THE EVENTS CENTRAL
TO THE LITIGATION.

1

(use additional page if necessary)

2

SET FORTH THE NAMES AND ADDRESSES OF ALL LAY WITNESSES
TO BE CALLED.

(use additional page if necessary)
SET FORTH THE NAMES AND ADDRESSES OF ALL EXPERT
WITNESSES TO BE CALLED GIVING A BRIEF DESCRIPTION OF
THEIR AREAS OF EXPERTISE.

3

(use additional page if necessary)

4

SET FORTH A BRIEF DESCRIPTION OF EACH AND EVERY CAUSE OF
ACTION IN THE COMPLAINT.

(use additional page if necessary)
SET FORTH A BRIEF DESCRIPTION OF EACH AND EVERY
AFFIRMATIVE DEFENSE ASSERTED AS WELL AS A STATEMENT
ADDRESSING ANY COUNTERCLAIMS RAISED IN THE ANSWER.

(use additional page if necessary)
-------------------------------PLEASE TAKE NOTICE that any delay in jury selection occasioned by the
failure to provide this information will be explained to the jury as to the
extent of the delay and the attorney causing same and if the delay causes
a one (1) day or more postponement of this trial, appropriate monetary
sanctions will be imposed by the Court.
Submitted by:
Date:
5

INSTRUCTIONS FOR THE USE OF VIDEO TAPED DEPOSITIONS
COUNSEL ARE TO VIEW ALL VIDEOTAPES WHICH MAY BE OFFERED INTO EVIDENCE AT THE
TIME OF TRIAL. ALL VIDEO-TAPED DEPOSITIONS TO BE USED AT TRIAL SHALL BE FILED
WITH THE CLERK’S OFFICE AT LEAST ONE WEEK BEFORE THE TRIAL READY DATE. NOT
EARLIER THAN ONE WEEK AND NOT LESS THAN FOUR DAYS PRIOR TO THE TRIAL READY
DATE, EACH PARTY SHALL INDICATE TO THE OTHER PARTY THE PORTION OF THE
DEPOSITION TO BE OFFERED. TO THE EXTENT POSSIBLE, OBJECTIONS ARE TO BE
RESOLVED BETWEEN THE PARTIES. COUNSEL SHALL SUBMIT ALL OBJECTIONS IN WRITING
TO THE COURT FOR RULING PRIOR TO THE TRIAL READY DATE.
-------------------------------------------------------------------------------THE CLERKS OFFICE HAS AVAILABLE A VHS FORMAT VIDEO CASSETTE PLAYER AND
TELEVISION FOR USE AT TRIAL. PLEASE BE ADVISED THAT YOU MUST PROVIDE A PERSON
TO RUN THE EQUIPMENT DURING THE COURSE OF THE TRIAL.

--------------------------------------------------------------------------------

ELECTRONIC VISUAL EVIDENCE PRESENTER
IN ADDITION TO THE VIDEO EQUIPMENT NOTED ABOVE, THE COURT HAS AVAILABLE A
VISUAL EVIDENCE PRESENTER WHICH WILL ALLOW COUNSEL TO DISPLAY PHOTOS
(NEGATIVES OR POSITIVES), DOCUMENTS, X-RAYS, AND 3-D OBJECTS , WITHOUT WIRES,
ON TELEVISIONS PLACED THROUGHOUT THE COURTROOM. THIS EQUIPMENT IS
AVAILABLE AT THE COURTHOUSES IN ALBANY, SYRACUSE, UTICA AND BINGHAMTON. USE
OF THE VISUAL PRESENTER MAY BE REQUIRED BY THE TRIAL JUDGE PRESIDING OVER
YOUR CASE. FOR FURTHER INFORMATION ON THE USE OF THIS EQUIPMENT, PLEASE
CONTACT THE COURTROOM DEPUTY CLERK FOR THE ASSIGNED TRIAL JUDGE.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________
PLAINTIFF EXHIBIT NO. __________
DATE ENTERED __________

CASE NO. _______________
DEFENDANT EXHIBIT NO. __________
DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________
PLAINTIFF EXHIBIT NO. __________
DATE ENTERED __________

CASE NO. _______________
DEFENDANT EXHIBIT NO. __________
DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________
PLAINTIFF EXHIBIT NO. __________
DATE ENTERED __________

CASE NO. _______________
DEFENDANT EXHIBIT NO. __________
DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

LAWRENCE K. BAERMAN, CLERK
BY: ______________________________
DEPUTY CLERK

Page 1 of ___
United States District Court
For The Northern District Of New York
Case No. ____________________
Date: ____________________
Presiding Judge: _____________________
( ) Plaintiff
Exhibit
No.

( ) Defendant
Marked for
Identification

Admitted Into
Evidence

Remarks

Exhibits Returned To Counsel (Date):______________
Signature:_________________________

( ) Court
Witness

Exhibit Description

Page __ of __

Exhibit
No.

Marked for
Identification

Admitted Into
Evidence

Remarks

Exhibits Returned To Counsel (Date):______________
Signature:_________________________

Witness

Exhibit Description

AO 85 (Rev. 01/09) Notice, Consent, and Reference of a Civil Action to a Magistrate Judge

UNITED STATES DISTRICT COURT
for the
Northern District of New York
Bertram Payne
Plaintiff

v.
C.O. Coburn et al.
Defendant

)
)
)
)
)

Civil Action No. 9:15-cv-392 (GLS/TWD)

NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Notice of a magistrate judge’s availability. A United States magistrate judge of this court is available to conduct all
proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may
then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may
exercise this authority only if all parties voluntarily consent.

You may consent to have your case referred to a magistrate judge, or you may withhold your consent without adverse
substantive consequences. The name of any party withholding consent will not be revealed to any judge who may otherwise
be involved with your case.
Consent to a magistrate judge’s authority. The following parties consent to have a United States magistrate judge
conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings.
Parties’ printed names

Signatures of parties or attorneys

Dates

Reference Order
IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and
order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Date:
District Judge’s signature

Gary L. Sharpe, Senior District Judge
Printed name and title

Note:

Return this form to the clerk of court only if you are consenting to the exercise of jurisdiction by a United States
magistrate judge. Do not return this form to a judge.

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