Axis Surplus Insurance Company v. Buckeye Fire Equipment Company

Filing 52

ORDER setting Final Pretrial Conference, ( Final Pretrial Conference set for 1/4/2021 09:30 AM in Courtroom 2-1, 401 W Trade St, Charlotte, NC 28202 before District Judge Frank D. Whitney.). Signed by District Judge Frank D. Whitney on 11/16/20. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-79-FDW-DCK
AXIS
SURPLUS
COMPANY,
Plaintiff,
vs.
BUCKEYE
COMPANY,

FIRE

Defendant.

INSURANCE )
)
)
)
)
)
)
EQUIPMENT )
)
)
)

NOTICE OF HEARING and ORDER

TAKE NOTICE that a pretrial conference will take place immediately following docket
call on Monday, January 4, 2021, at 9:30 a.m. in Courtroom #2-1 of the Charles R. Jonas Federal
Building, 401 W. Trade Street, Charlotte, North Carolina, 28202. The parties’ joint pretrial
submissions required below shall be due Friday, December 11, 2020.
PRETRIAL AND TRIAL PROCEDURES
a.

Trial. This case shall be tried with a jury.

b.

Final Pretrial Conference. The Court has noticed final pretrial conference herein.
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.

c.

Pretrial Submissions. The Court requires the following pretrial submissions to be
jointly drafted and submitted to Chambers by December 11, 2020:
i.

Jointly-Proposed Pretrial Order.

This jointly-prepared and jointly-

submitted document shall contain:

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(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):

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Exh.
No.

Description

Stipulation –
Authenticity

Stipulation –
Admissibility

Objections

1

Police Report

Yes

No

Hearsay

2

Draft of Contract

No

No

Identified
By

Foundation,
Relevance,

Admitted

Parol Evidence

(5)

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,

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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. In order to facilitate publishing exhibits electronically through the

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multimedia technology available in the courtroom, counsel shall submit to
Chambers a flash drive 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 flash drives are to be courtesy
copies for the Court’s personal use at trial. 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) shall be submitted to Chambers
electronically, in either WordPerfect (WPD) or Rich Text (RTF) format,
utilizing the CyberClerk feature of CM/ECF.
d.

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).

e.

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.

f.

De Bene Esse Depositions. De bene esse trial depositions may not be taken outside

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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.
g.

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.

h.

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

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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: November 16, 2020

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