Augustine v. Stay-Right Pre-Cast Concrete, Inc., et al
CASE MANAGEMENT ORDER and ORDER granting 8 Motion to Dismiss for Failure to State a Claim - Discovery due by 06/30/2012. Mediation deadline 07/20/2012. The parties shall provide joint letter with the court by 06/30/2012, identifying the mediator and the date set for mediation. Motions due by 07/31/2012. Jury trial set for a civil term commencing on or after January 1, 2013, once the court's calendar for 2013 is published. Counsel should review the attached order in its entirety for additional critical deadlines and information. Signed by District Judge Louise Wood Flanagan on 11/01/2011. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
JEFFREY L. AUGUSTINE,
STAY-RIGHT PRE-CAST CONCRETE,
INC., and LINDSAY CONCRETE
PRODUCTS, CO., INC.,
ORDER ON MOTION TO DISMISS
Pursuant to Federal Rule ofCivil Procedure 26(f), the parties conducted a pretrial conference
by telephone in this case on October 19, 2011, with plaintiff appearing through counsel James E.
Hairston, and defendants appearing through counsel Yash B. Dave. After reviewing the parties' joint
report and plan, filed October 21, 2011, the court orders the following:
The parties shall exchange by November 2, 2011, the information required by
Federal Rule of Civil Procedure 26(a)(l).
Discovery will be necessary subjects outlined by the parties in the joint report and
plan. Reference is made to pages two and three of the joint report.
All discovery shall be commenced or served in time to be completed by June 30,
The parties do not anticipate any issues involving electronically stored information
or protection or privilege of trial-preparation materials.
No party shall serve more than 25 interrogatories, including all discrete subparts, to
any other party. Responses are due 30 days after service of those interrogatories.
No party shall serve more than 25 requests for admissions to any other party.
Responses are due 30 days after service of those requests for admissions.
There shall be no more than 10 depositions by plaintiff and 10 by defendants.
Each deposition shall be limited to 7 hours, unless otherwise agreed by the parties.
Disclosures required by Federal Rule of Civil Procedure 26(a)(2), including reports
from retained experts, shall be served by plaintiff by April 30, 2012, and by
defendants by May 30, 2012. The parties shall serve any objections to such
disclosures, other than objections pursuant to Federal Rules of Evidence 702, 703,
or 705, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho
Tire Co. v. Carmichael, 526 U.S. 137 (1999) or similar case law, within fourteen
(14) days after service of the disclosures upon them. These objections should be
confined to technical objections related to the sufficiency of the written expert
whether all of the information required by Rule 26(a)(2) has been
provided, such as lists of prior testimony and publications). These objections need
not extend to the admissibility of the expert's proposed testimony. If such technical
objections are served, counsel shall confer or make a reasonable effort to confer
before filing any motion based on those objections.
Supplementations of disclosures under Federal Rule of Civil Procedure 26(e) shall
be served at such times and under such circumstances as required by that rule. In
addition, such supplemental disclosures shall be served by May 21, 2012. The
supplemental disclosures served forty (40) days before the deadline for completion
of all discovery must identify the universe of all witnesses and exhibits that probably
or even might be used at trial other than solely for impeachment. The rationale for
the mandatory supplemental disclosures forty (40) days before the discovery deadline
is to put opposing counsel in a realistic position to make strategic, tactical, and
economic judgments about whether to take a particular deposition (or pursue followup "written" discovery) concerning a witness or exhibit disclosed by another party
before the time allowed for discovery expires. Counsel should bear in mind that
seldom should anything be included in the final Rule 26(a)(3) pretrial disclosures that
has not previously appeared in the initial Rule 26(a)(l) disclosures or a timely Rule
26(e) supplement thereto; otherwise, the witness or exhibit probably will be excluded
at trial. See Fed. R. Civ. P. 37(c)(1).
To avoid the filing of unnecessary motions, the court encourages the parties to utilize
stipulations regarding discovery procedures.
However, this does not apply to
extensions of time that interfere with the deadlines to complete all discovery, for the
briefing or hearing of a motion, or for trial. See Fed. R. Civ. P. 29. Nor does this
apply to modifying the requirements of Federal Rule of Civil Procedure 26(a)(2)
concerning experts' reports.
Any motion requesting relief shall be accompanied at time of filing with a proposed
form of order, stating its requested relief.
Any motion for leave to join additional parties or to otherwise amend the pleadings
shall be filed by December 15, 2011.
Defendants' motion to dismiss, to which plaintiffhas failed to respond, filed October
3,2011 (DE # 8), wherein defendants urge Count III of the complaint fails to state
a claim upon which reliefcan be granted and should be dismissed, comes now before
the court. After careful consideration, for certain reasons advanced by defendants,
the claim is now dismissed, where under the facts alleged, taken as true, plaintiff has
failed to state a claim for negligent infliction of emotional distress. Defendant's
motion is ALLOWED.
All other potentially dispositive motions shall be filed by July 31, 2012. All motions
to exclude testimony of expert witnesses pursuant to Federal Rules ofEvidence 702,
703, or 705, Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993),
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case law, shall be
filed by the deadline set for dispositive motions.
Any motion to compel discovery shall be filed and served within 30 days of the act
or omission in discovery complained of, after good faith effort between the parties
to resolve the matter, unless the time for filing such a motion is extended for good
cause shown. Prior to any filing, the complaining party shall convene a conference
among the parties and this court by telephone through the office ofthe case manager,
at (252) 638-8534. In the event of a discovery dispute of or relating to written
discovery, the party convening the conference shall send via facsimile transmittal
directed to the case manager at (252) 638-1529, the submissions in discovery most
directly bearing on the particular dispute, for the court's review in advance of
telephonic conference. Motions to compel filed after the deadline and/or without
advance conference with the court, absent extenuating circumstances, summarily will
be denied. Disputes in discovery which are reduced to writing, timely filed, and
where conference with this court in advance offiling has been unable to resolve said
dispute, ordinarily will be referred to a magistrate judge for ruling.
Any motion to continue must conform with the requirements set forth in Local Civil
Rule 6.1, and also include a detailed statement as to the reason for the requested
continuance or extension of time together with the proposed order. Continuances
will be granted only upon showing of good cause, particularly focusing upon the
evidence of diligence by the party seeking delay and of prejudice that may result if
the continuance is denied.
III. Alternative Dispute Resolution ("ADR")
A settlement procedure is required in virtually every case, to be conducted before the
close of discovery if the case is automatically selected for mediation pursuant to
Local Civil Rule 101.1 a(b), or before the final pretrial conference ifnot automatically
This case has been automatically selected for mediation. Reference is made to Local
Civil Rule 101.1 et. seq. The parties agree to complete mediation by July 20,2012.
The parties shall provide joint letter with the court by June 30, 2012, identifying the
mediator and the date set for mediation.
If at any time a settlement is reached, it shall be reported immediately to this court.
The parties shall refer to Local Civil Rule 101.1 e for their specific obligations.
IV. Other Matters
The court notes the possible scheduling issue raised by counsel for defendants, for
V. Pretrial and Trial
This case is set for a jury trial during a civil term commencing on or after January 1,
2013, once the court's calendar for 2013 is published. The parties did not provide
the anticipated length of trial.
Pursuant to Federal Rule of Civil Procedure 16(e), a final pretrial conference will be
scheduled before the undersigned at the United States Courthouse, New Bern, North
Carolina at a date and time approximately two weeks in advance of trial pursuant to
notice of the clerk of court which shall issue approximately two months prior to the
trial term. Each party appearing in this action shall be represented by the attorney
who is to have charge of the conduct of the trial on behalf of such party.
At the final pretrial conference the court will:
Rule upon any dispute concerning the contents of the final pretrial order.
Local Civil Rule 16.I(d)(l).
Rule upon any dispute where video depositions are to be used and the parties
have been unable to reach agreement on editing. Local Civil Rule 16.1 (b)(2).
Rule upon motions relating to admissibility of evidence, to the extent
possible in advance of trial. Where the evidentiary question or issue can be
anticipated before the final pretrial conference, motion contemplated by Local
Civil Rule 39.l(a), shall be filed fourteen (14) days prior to the final pretrial
conference, thereby permitting sufficient time for any written response in
advance of conference. Where the question or issue bearing on admissibility
of evidence cannot reasonably be contemplated in advance of the final
pretrial conference, any motion in limine must be filed not later than seven
days prior to the start of the trial session. Local Civil Rule 39.1(a).
Where trial of a matter involves a bench trial, discuss generally the nature of
the parties' anticipated proposed findings of fact and conclusions oflaw, to
discern areas of agreement which may obviate necessity for proof, and those
matters in dispute. Proposed findings of fact and conclusions of law are
required to be filed after the conference, seven days prior to the start of the
trial session. Local Civil Rule 52.1. Counsel also shall submit an electronic
copy of said proposed findings of fact and conclusions of law to chambers,
in WordPerfect format, at the following email address:
Where trial of a matter involves a jury trial, discuss generally the nature of
the parties' anticipated proposed jury instructions, to discern areas of
agreement and disagreement. Proposed instructions are required to be filed
after the conference, seven days prior to the start of the trial session. Local
Civil Rule 51.1. Counsel also shall submit an electronic copy of said
proposed jury instructions to chambers, in WordPerfect format, at the
following email address:
Where trial of a matter involves a jury trial, consider proposed verdict form
jointly required to be submitted by counsel to chambers (but not filed),
together with the parties' pretrial order referenced in paragraph D below,
seven days prior to the final pretrial conference, and where there is
disagreement as to form, this jointly prepared submission shall disclose the
basis for a party's objection and a proposed alternative verdict form. Counsel
shall also submit an electronic copy of said documents to chambers, in
WordPerfect format, at the following email address:
Where this conference presents the final opportunity to prevent wasting trial
time on pointless or undisputed matters, endeavor to streamline the trial,
including but not limited to, where applicable, consideration of: bifurcation;
presentation ofnon-critical testimony by deposition excerpts; stipulations as
to the content oftestimony; submission at bench trial ofwitnesses' testimony
as narrative written statements, which can be received at trial in lieu ofdirect
testimony subject to objections and cross-examination of witnesses; and
qualification of experts by admitted resumes; and
Explore once more the opportunities for settlement.
Not later than seven days prior to the final pretrial conference, counsel shall submit
to chambers (but not file) the parties' proposed pretrial order. Local Civil Rule
16.1(b). This submission shall comply with the form specified in Local Civil Rule
16.1(c). Pursuantto Local Civil Rule 16.1(c)(3), and Federal Rule ofCivil Procedure
26(a)(3), objections not disclosed in the pre-trial order are waived unless excused by
the court for good cause. The parties shall submit at the beginning of the trial copies
of all exhibits. Local Civil Rule 39.1(b).
In jury cases, the court will conduct the examination ofjurors. Not later than seven
days prior to the start of the trial session, counsel shall file a list of any voir dire
questions counsel desires to ask the jury. Local Civil Rule 47.1(b). Failure to timely
file proposed questions will be deemed a waiver of any supplemental inquiry.
Injury cases, ajoint statement ofthe case will be read by the court to the prospective
panel of jurors before commencement of voir dire. Counsel shall file a joint
statement of the case not later than seven days prior to the start of the trial session.
Unless the case is extremely complex, this statement, the purpose of which is to
acquaint the jury with the nature of the case and to provide a basis for certain voir
dire questions, should not exceed one paragraph.
Counsel are required to receive training on the evidence presentation system in the
courtroom in advance ofinitial use. Counsel should review all related documentation
appearing on the court's website, including information concerning formatting of
evidentiary DVDs. Procedures are described for scheduling training in advance, as
required, on system use generally, and for verifying compatibility of evidentiary
DVDs in advance of presentation at hearing or trial.
This case management order shall not be modified except by leave of court upon a showing
of good cause, and all requirements set forth in the court's Local Civil Rules governing pretrial and
trial procedures not altered herein shall be strictly observed.
SO ORDERED, this the.t...:...=- day of November, 2011.
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