Hernandez Reyes v. Rodriguez

Filing 12

CASE MANAGEMENT ORDER. Certified Administrative Record filed by 2/17/17 (Defendant). Motions related to contents of Certified Administrative Record filed by 3/3/17 (Plaintiff). Motion to Set Aside Final Agency Action filed b y 3/10/17(Plaintiff). Motion for Judgment on the Record filed by 4/7/17 (Defendant). Plaintiff's response due by 4/14/17. Defendant's response due by 4/21/17. Trial scheduled for 7/3/17 trial term.. Signed by Chief Judge Frank D. Whitney on 2/14/16. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:15-CV-00749-FDW-DCK
6
MARIELA HERNANDEZ REYES,

)
)
Plaintiff,
)
)
vs.
)
)
LEON RODRIGUEZ, Director, United )
States Citizenship and Immigration )
Services,
)
)
Defendant.
)

CASE MANAGEMENT ORDER

THIS MATTER, upon assignment to the Honorable Frank D. Whitney, and following
conference of counsel, shall be governed by the following Case Management Order.

DEADLINES AT A GLANCE
Initial Disclosures:
Certified Administrative Record filed:
Motion Related to Contents of
Certified Administrative Record:
Motion to Set Aside Final
Agency Action:
Motion for Judgment on the Record:
Plaintiff’s Response:
Defendant’s Response:
Trial:

Exempt under Fed. R. Civ. P.
26(a)(1)(B)(i)
February 17, 2017 (Defendant)
March 3, 2017 (Plaintiff)
March 10, 2017 (Plaintiff)
April 7, 2017 (Defendant)
April 14, 2017 (Plaintiff)
April 21, 2017 (Defendant)
July 3, 2017

I.

DISCOVERY: Discovery in this case is already completed.
a. Disclosures and Supplementation. The parties are exempt from initial disclosures
under Fed. R. Civ. Pr. 26(a)(1)(B)(i).
b. Certified Administrative Record. Defendant shall file the certified administrative
record from the agency proceedings with the Court by February 17, 2017.
c. Protective Orders; Filings Under Seal. In order to avoid unnecessary delay in
responding to discovery requests, the Court has adopted a standing protective order
that is applicable to each case before the undersigned, subject to supplementation,
modification, or vacatur, as the need may arise, upon motion of a party. See
Standing Protective Order for Civil Cases Before the Honorable Frank D. Whitney,
Miscellaneous No. 3:07-MC-47 (Doc. No. 3). Even with a protective order
governing confidential documents in place, however, Court filings may be kept
under seal only upon written motion of a party satisfying the requirements of Stone
v. University of Maryland Medical System Corp., 855 F.2d 178, 180-81 (4th Cir.
1988) and Local Civil Rule 6.1. Specifically, any motion to seal shall set forth: (i)
a non-confidential description of the material sought to be sealed; (ii) a statement
of reasons sufficient to overcome the public’s presumptive right of access; (iii) a
statement as to why sealing is necessary (i.e., why there are no adequate alternatives
to filing under seal); (iv) a statement as to the period of time the party seeks to have
the material maintained under seal and as to how the matter is to be handled upon
unsealing; and (v) supporting statutes, case law, or other authority.
d. Motions to Compel. Consistent with the spirit, purpose, and explicit directives of
the Federal Rules of Civil Procedure and this District’s Local Rules, the Court

expects all parties (and counsel) to attempt in good faith to resolve discovery
disputes without the necessity of court intervention. Failing this, the parties are
required, within fourteen (14) calendar days after a discovery dispute arises, 1 to
schedule and submit to an informal telephonic conference before the referral
magistrate judge (or the presiding district judge, if the magistrate judge is
unavailable prior to the expiration of the 14 days). The judicial officer presiding
over such a teleconference shall have jurisdiction to: (i) mediate the parties’ own
resolution of the dispute; (ii) make a summary legal determination on the merits of
the dispute, if appropriate; (iii) require the aggrieved party to file a written motion
to compel and/or set an abbreviated briefing schedule, if appropriate; and (iv) award
appropriate sanctions pursuant to Rule 37.
II.

ALTERNATIVE DISPUTE RESOLUTION: The method of ADR to be utilized in
this case is in the parties’ discretion. The timing for completing ADR and filing a report
on the results is also in the parties’ discretion. However, at least two full weeks prior
to trial, counsel for all parties shall discuss the possibility of a settlement. If at any time
a settlement is reached it shall be reported immediately to the Court, in writing, together
with a realistic target date by which the parties can have a formal stipulation of
dismissal filed.

Upon notification of settlement, the Court will enter an Order

nominally dismissing the case without prejudice to the right of any party to reopen it
should the settlement not be consummated as contemplated.
III.

MOTIONS

1

This time limitation may only be extended with leave of Court for good cause shown, and failure to timely
submit to this procedure will result in the objection being deemed waived.

a. Motions Deadlines. Plaintiff shall file any motion related to the contents of the
certified administrative record by March 3, 2017. The briefing schedule shall be
suspended until the dispute over the certified administrative record is resolved.
Plaintiff shall file a motion to set aside a final agency action on or before March
10, 2017. Defendant shall file a motion for judgment on the record on or before
April 7, 2017. Plaintiff’s Response is due by April 14, 2017, and Defendant’s
Response is due by April 21, 2017. Parties may not extend these deadlines by
agreement and stipulated extensions of the deadline for completion of all discovery
will not alter the motions deadline.
b. Memoranda of Law
i. Requirements. Every motion shall include, or be accompanied by, a brief
written statement setting forth the facts, the procedural history of the case,
the standard of review, a statement of the law, including citations of
authority and the grounds on which the motion is based, arguments
addressing each issue presented for review, and a brief conclusion and
statement of the specific relief requested. Motions not in compliance with
this Order are subject to summary denial.
ii. Word limits:
iii. Unless prior permission has been granted, memoranda of law in support of
or in opposition to any discovery or evidentiary motion shall not exceed
3,000 words, and reply memoranda will not be permitted in discovery or
evidentiary disputes.
iv. Unless prior permission has been granted, memoranda of law in support of

or in opposition to any dispositive motion shall not exceed 4,500 words, and
reply memoranda shall not exceed 1,500 words
c. Exhibits. A copy of all exhibits upon which a party relies in support of or in
opposition to a motion shall be included as an “Appendix” or “Attachment” thereto
and filed with the Court.
d. Enlargement of Time. If counsel need additional time to file motions or responses
to motions, a motion for extension of time shall be filed, accompanied by a
proposed order. The moving party must show consultation with opposing counsel
regarding the requested extension and must notify the Court of the views of
opposing counsel on the request. If a party fails to make the requisite showing, the
Court may summarily deny the request for extension.
e. Hearings. This matter shall be decided on the motion for judgment on the record
and the responses thereto (if applicable), the briefs submitted in support, and review
of the administrative record. Oral arguments are not anticipated or allowed unless
otherwise ordered by the Court. All motions requiring a hearing will be heard as
soon as is practical. Deputy Clerk Candace Cochran (Tel: [phone]) will assist
the Court and counsel in setting a specific time and date during the designated week
and should be counsel’s point of contact for that purpose.
f. Local Rules. In all other respects not specifically covered by this Order, all briefs
shall comply with the Local Rules for the Western District of North Carolina,
including but not limited to, the font size and page limitations set forth in Local
Rule 7.1(D).
IV.

TRIAL

a. Trial. Should a trial be necessary in this case, counsel should be prepared to
proceed to trial at the first available mixed term of court commencing on or after
July 3, 2017.
a.

Final Pretrial Conference. The Court shall determine the date of the final pretrial
conference at the time it rules on the motion for judgment on the record. On or
before the date of the final pretrial conference, counsel shall seriously revisit the
possibility of settlement and be prepared at conference to inform the Court of the
parties’ efforts.

b.

Pretrial Submissions. The Court requires the following pretrial submissions to be
jointly drafted and submitted to Chambers at least seven (7) calendar days prior to
the final pretrial conference:
i.

Jointly-Proposed Pretrial Order.

This jointly-prepared and jointly-

submitted document shall contain:
(1)

A joint statement of the case, the purpose of which is to acquaint the
jury with the nature of the case. Unless the case is extremely
complex, this statement should not ordinarily exceed one page.

(2)

Stipulations as to all issues of law or fact to which the parties can
agree for purposes of streamlining trial. If a party fails to stipulate
to a fact (e.g., the authenticity of a document) without articulating
a good faith basis for disputing it, the Court shall assess against that
party the opposing party’s costs (including the cost of subpoena
service, witness travel costs and fees, and reasonable attorney’s
fees) incurred in proving the fact at trial. See Fed. R. Civ. P.

37(c)(2).
(3)

A brief synopsis (no argument) of the legal or factual contentions
about which the parties have been unable to stipulate. Any advocacy
should be reserved for a trial brief which may be submitted as
provided in Paragraph 4(d) below.

(4)

A list of exhibits that each party may offer at trial (except those
offered solely for impeachment or cross-examination), numbered
sequentially; a brief description of the exhibit; any stipulations as to
authenticity or admissibility; and the basis for any objections. This
information shall be entered into a table in substantially the
following format (the last two columns should be left blank to be
completed by the courtroom clerk at trial):

Exh.
No.

Description

Stipulation –
Authenticity

Stipulation –
Admissibility

Objections

1

Police Report

Yes

No

Hearsay

2

Draft of Contract

No

No

Foundation,
Relevance,
Parol Evidence

(5)

Identified
By

Admitted

Designations by volume, page and line of all portions of pleadings
and discovery materials, including depositions, interrogatories, and
requests for admission, that each party may offer at trial (except
those offered solely for impeachment or cross-examination); crossdesignations; a brief description of the substance of the designation;
and the basis for any objections. This information should be entered

into a similar table format as the exhibit list.
(6)

A list of the names and addresses of all witnesses each party may
offer at trial, together with a brief statement of what counsel
proposes to establish by their testimony.

(7)

A statement of the qualifications of any expert witness a party may
offer at trial, unless the parties have stipulated to the qualifications
of the expert witness as provided above.

ii.

Jointly-Proposed Voir Dire. The general procedures governing voir dire are
set forth in the Court’s Standing Order Governing Jury Selection and
Instruction in Civil Cases Before the Honorable Frank D. Whitney,
Miscellaneous No. 3:07-MC-47 (Doc. No. 5). In addition to the Court’s
standard voir dire, counsel may prepare and jointly submit a single
compilation of voir dire questions sought to be asked, also noting the
agreement or objection of other parties to each proposed question. Pursuant
to Rule 47(a), the Court will ask prospective jurors only such of the
proposed voir dire as it deems proper.

iii.

Jointly-Proposed Jury Instructions. The general procedures governing jury
instruction are set forth in the Court’s Standing Order Governing Jury
Selection and Instruction in Civil Cases Before the Honorable Frank D.
Whitney, Miscellaneous No. 3:07-MC-47 (Doc. No. 5). Any objections to,
or requests for modification or supplementation of, the Court’s pattern jury
instructions must be made at this time or may be deemed waived. In
addition to the Court’s generally-applicable pattern jury instructions,

counsel should prepare and jointly submit a single compilation of proposed
jury instructions that are narrowly tailored to the anticipated issues arising
at trial (e.g., the elements of the claims and defenses at issue), subject to
supplementation at the close of evidence, as necessary, as contemplated by
Rule 51. Counsel shall identify and index each proposed instruction by
number and heading, and support each proposed instruction with adequate
legal authority. Where there is disagreement as to any instruction, this
jointly prepared submission shall disclose the basis for a party’s objection
and (if applicable) provide a proposed alternate instruction.
iv.

Exhibits.

All proffered documentary exhibits (including designated

portions of discovery materials), shall be electronically published through
the multimedia technology available in the courtroom.

Accordingly,

immediately after submitting the jointly-proposed pretrial order, counsel
shall submit to Chambers a CD-ROM containing the pertinent files (in
JPEG or PDF format for documents and images and MPEG format for
audio/video), named according to the corresponding exhibit number
assigned to the exhibit in the proposed pretrial order. These exhibit CDROMs are to be courtesy copies for the Court. Counsel should be aware
that each party will bear sole responsibility for maintaining the actual
exhibits offered by that party and admitted at trial.
All working drafts of documents (e.g., the proposed pretrial order, voir dire, jury
instructions) shall be submitted to Chambers electronically, in either Microsoft
Word or Rich Text (RTF) format, utilizing the CyberClerk feature of CM/ECF.

Submissions required to be made in a tangible medium (e.g., hard copies of papers
and exhibits) must be sent so as to ensure their receipt in Chambers by the deadlines
set forth herein.
c.

Motions In Limine and Trial Briefs. To the extent that contested issues of law
and evidentiary objections can be anticipated in advance of trial, trial briefs and/or
motions in limine, if appropriate, shall be filed on the Monday prior to the first day
of the trial term during which the case has been calendared. Written responses shall
be due on the Thursday prior to the first day of the trial term. Word limits for
motions in limine shall be governed by Paragraph 3(c)(i) and word limits for trial
briefs shall be governed by Paragraph 3(c)(ii).

d.

Video Depositions. If video depositions are taken and counsel intend to use them
at trial, counsel are directed to resolve any objections and edit the video accordingly
so that the video may be shown without interruption. Failure to do this prior to trial
will result in objections being deemed to be waived.

e.

De Bene Esse Depositions. De bene esse trial depositions may not be taken outside
of the discovery period without consent of all parties or leave of court upon a
showing: (i) that the deponent will be unavailable at trial for one of the reasons set
forth in Rule 32(a)(3) and, if the reason for unavailability is that the witness resides
outside of the Court’s subpoena power, that the party desiring the testimony has
first made a good faith effort to obtain the voluntary attendance of the witness at
trial; (ii) that the witness had not previously been deposed in a discovery deposition,
or that exigent facts exist that would justify reopening the deposition; (iii) that the
deposition can be scheduled at least fourteen (14) calendar days before the first day

of the trial term during which the case has been calendared; and (iv) that no
substantial and irremediable prejudice will result to an adverse party on account of
the taking of the deposition.
f.

Trial Subpoenas. Counsel must subpoena all witnesses at least fourteen (14)
calendar days before the first day of the trial term during which the case has been
calendared. The Court may elect not to enforce subpoenas that have not been issued
in compliance with this deadline or, if requested, may quash subpoenas that have
not been issued in compliance with this deadline.

g.

Assessment of Jury Costs. Whenever a civil action scheduled for a jury trial is
settled or otherwise disposed of in advance of the actual trial, the Court may assess
all jurors’ costs (including Marshal’s fees, mileage reimbursement, and per diem
fees) equally against the parties or otherwise may determine appropriate
assessments, unless the Clerk’s office is notified at least one (1) full business day
prior to the date on which the action is scheduled for trial or the parties establish
good cause why the Court should not assess jury costs against them. When any
civil trial is settled at trial in advance of a verdict, the Court likewise may make the
same assessments unless the parties establish good cause why the Court should not
do so.

IT IS SO ORDERED.
Signed: February 14, 2017