Brackett, et al v. Abex Corporation, et al
Filing
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ORDER granting 23 Motion Entry of Consent Scheduling Order. Signed by District Judge Martin Reidinger on 5/18/12. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
SHELBY DIVISION
CIVIL CASE NO. 4:94cv66
RAYMOND ROGER LEDFORD,
Administrator of the Estate of
William Newell Ledford, Deceased,
et al.,
Plaintiffs,
vs.
ABEX CORPORATION, et al.,
Defendants.
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ORDER
THIS MATTER is before the Court on the Defendant Pneumo Abex,
LLC’s Motion for Entry of Consent Scheduling Order. [Doc. 23]. All parties
have consented to the proposed schedule.
For good cause shown, the Defendant’s Motion [Doc. 23] is ALLOWED,
and the Court hereby enters the following Pretrial Order and Case
Management Plan in this matter.
DEADLINES AT A GLANCE
Supplemental Expert Designations:
May 25, 2012
Discovery Completion:
July 15, 2012
Daubert Objections:
July 15, 2012
Mediation:
July 31, 2012
Motions in Limine:
August 16, 2012
Final Pretrial Conference:
August 23, 2012
Deposition Page/Line Designations:
August 23, 2012
Exchange of Witness and Exhibit Lists:
August 30, 2012
Trial:
September 10, 2012 Term
I.
A.
DISCOVERY GUIDELINES: Each party may propound no
more than twenty (20) single part interrogatories; each
party may submit no more than twenty-five (25) requests
for admissions to any other party; each party may depose
no more than six (6) fact witnesses without prior approval
of the Court.
Parties may, however, by agreement,
increase the numbers set forth in this paragraph, and if
unable to agree, may then seek Court intervention by
motion.
B.
RESPONSES TO INTERROGATORIES AND REQUESTS
FOR ADMISSION: Every response to an interrogatory or
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request for admission, and every objection thereto, shall be
preceded by the original number and complete text of the
corresponding interrogatory or request for admission.
C.
THE MAINTENANCE OF DISCOVERY MATERIALS:
Discovery materials are NOT to be filed. All counsel are
advised to consult the local rule which provides that while
depositions, interrogatories, and requests for admission,
and responses thereto, must still be served on all parties,
they are no longer to be filed unless upon order of the
Court. The parties are responsible for the preservation of
any and all discovery materials they may generate.
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. If the
parties are unable to resolve such issues, they must be
raised in time to be addressed at the final pretrial
conference. Failure to do so will result in objections being
deemed to be waived.
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E.
PROTECTIVE ORDERS: Any objections made to discovery
requests shall be accompanied by a draft proposed
protective order if such order is, or will be, requested.
When counsel submit proposed protective orders, they shall
include a provision leaving the ultimate disposition of
protected materials subject to a final order of the Court on
the completion of litigation.
F.
DISCOVERY COMPLETION: All discovery must be
completed by July 15, 2012.
Counsel are directed to
initiate discovery requests and notice or subpoena
depositions sufficiently in advance of the discovery
completion deadline so as to comply with this Order.
Discovery requests that seek responses or schedule
depositions after the discovery completion deadline are not
enforceable except by order of the Court for good cause
shown.
The parties may consent to extensions of the
discovery completion deadline so long as any such
extension expires not later than ten (10) days prior to Trial
Date (as that term is defined in this Order).
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If a party
requests an extension of time to respond to discovery
requests or to extend the discovery deadline, the result of
consultation with opposing counsel must be stated in the
motion.
Depositions taken for the sole purpose of
preserving testimony for trial are not considered discovery
for the purposes of this section provided that 1) the witness
will be unavailable for trial for one of the reasons set forth in
Rule 32(a)(3) and 2) the reason for such unavailability is
that the witness resides outside the subpoena power of this
Court and the party seeking to take such deposition has
failed, after making a good faith effort, to obtain a
commitment from the witness to testify at trial voluntarily,
and 3) such deposition can be concluded no later than
fourteen (14) days prior to the Trial Date.
G.
EXPERT WITNESSES: Supplemental Expert Designations
are due no later than May 25, 2012. If any party (plaintiff or
defendant) believes that additional experts are necessary,
such party should serve an additional designation and
expert report and move the Court to allow such additional
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expert by May 25, 2012. Further, any Daubert objections
must be filed by July 15, 2012.
H.
DEPOSITION
DESIGNATIONS:
The
parties
shall
exchange page/line designations of depositions which they
intend to read at trial by August 23, 2012.
II.
A.
MOTIONS DEADLINE: Any motions in limine must be filed
by August 16, 2012. Parties may not extend this deadline
by agreement and stipulated extensions of the completion
of discovery do not extend the Motions Deadline.
B.
MOTIONS HEARINGS: Hearings on motions in limine
ordinarily will be conducted only when the Rules require a
hearing, or when the papers filed in support of and in
opposition to the motion do not provide an adequate basis
for decision.
If the Court determines that a hearing is
necessary on any motions in limine, such hearing shall be
conducted at the time of the Final Pretrial Conference.
C.
MEMORANDA IN SUPPORT OF MOTIONS: Every motion
shall include, or be accompanied by, a brief written
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statement of the facts, a statement of the law, including
citations of authority and the grounds on which the motion
is based. No brief may exceed 25 pages without Court
approval. Briefs must be double spaced and in at least 14
point type. Motions not in compliance with this order are
subject to summary denial. No memorandum, however,
need accompany those motions exempted from this
provision under LR 7.2 and simple consent motions,
motions to continue, and motions to withdraw as counsel
provided that such motions contain an adequate statement
of the basis for the relief sought.
D.
RESPONSES TO MOTIONS: Responses to motions in
limine, if any, must be filed within seven (7) days of the date
on which the certificate of service is signed. The Court
deems a motion ripe for determination upon the timely filing
of the response. Where a motion is not responded to within
the time provided, the Court may grant the relief requested,
if good cause is shown in such motion. The filing of a reply
brief is allowed only if the response raises new matters.
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The reply shall be limited to a discussion of such newly
raised matters. Such reply should be filed no later than
seven (7) days after the filing of the response, shall not
exceed ten (10) pages in length, and shall be double
spaced and in at least 14 point type.
E.
EXTENSIONS OF TIME TO RESPOND: If counsel need
more than seven (7) days to file a response, they shall file
a motion for extension of time to respond. The moving
party must state within the motion what actions have been
undertaken to consult with opposing counselregarding the
requested extension and must notify the Court of the views
of opposing counsel regarding the request. If the party fails
to make the requisite showing, the Court may summarily
deny the request.
Such motions for extension will be
granted only upon a showing of cause and should be the
exception rather than the rule.
F.
MOTIONS TO COMPEL: A motion to compel must include
a statement by the movant that the parties have conferred
in good faith in an attempt to resolve the dispute and are
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unable to do so. After reviewing the merits of a motion and
the response thereto, the Court may order the parties to
confer again in a good faith attempt to resolve the dispute
or to narrow the issues. Consistent with the spirit, purpose,
and explicit directives of the Federal Rules of Civil
Procedure, the Court expects all parties to attempt in good
faith to resolve discovery disputes without the necessity of
Court intervention.
Failure to do so may result in
appropriate sanctions.
III. ALTERNATIVE DISPUTE RESOLUTION
A.
Mediation IS ordered in this case.
B.
Mediation shall be completed by July 31, 2012.
C.
Within twenty-one (21) days of the entry of this Order the
parties shall select and agree upon a mediator and shall file
with the Court a report stating the identity of the mediator
selected. If the parties are unable to agree upon a mediator
they shall, within twenty-one (21) days of the entry of this
Order, file with the Court a report stating that they have
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been unable to agree upon a mediator and the reasons for
such inability.
D.
Within seven (7) days of the completion of the mediation
there shall be filed with the Court a Mediation Report which
states whether all, a portion or none of the case has settled.
The Mediation Report shall be filed with the Court
electronically in such a form as to be docketed by the Clerk.
It shall be the responsibility of the mediator to file the
Mediation Report with the Court, except that if the mediator
does not have an electronic case filing (ecf) account with
the Clerk, then it shall be the responsibility of the
Defendant(s) to file the Mediation Report for the mediator.
It is the responsibility of the Defendant(s) to determine
whether the mediator has an ecf account with the Clerk.
E.
If this case is resolved by a settlement of the parties,
whether at mediation or otherwise, the parties shall file all
such documents with the Court so as to effectuate the
closing of the Court file within thirty (30) days of reaching
such agreement, or within thirty (30) days of the mediation,
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whichever is sooner, unless additional time is sought and
granted by the Court.
IV. TRIAL PROCEDURES
A.
TRIAL SUBPOENAS: Counsel must subpoena all witnesses
at least ten (10) days before the day on which the Clerk of
Court has set the case for trial (Trial Date). 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.
B.
COUNSEL’S DUTIES PRIOR TO TRIAL: Either one week
before the Trial Date or at the Final Pretrial Conference,
whichever is earlier, counsel for all parties shall:
(1)
Discuss the possibility of a settlement;
(2)
Exchange copies of exhibits or permit inspection if
copying is impractical;
(3)
Number and become acquainted with all exhibits;
(4)
Agree upon the issues, reduce them to writing and file
them with the Court. If counsel cannot agree upon
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the issues, each party is directed to write his/her own
version and file it with the Court;
(5)
Agree upon stipulations of fact and file them with the
Court. The parties are encouraged to stipulate to as
many facts a possible to facilitate the trial of the case;
C.
PROPOSED JURY INSTRUCTIONS: If a jury trial has been
requested,
all
counsel
shall
submit
proposed
jury
instructions no later than the day of the final pretrial
conference.
Additional instructions may be submitted
during the trial as circumstances may require. Counsel
should number each proposed instruction and shall submit
each proposed instruction on a separate page.
Each
proposed instruction must contain a supporting citation(s)
as a footnote. A proposed instruction without a supporting
citation will not be considered.
Boilerplate introductory
instructions are not required to be submitted.
D.
COUNSEL’S PRE-TRIAL FILINGS: The parties are to file
the following with the Court:
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(1)
No later than one (1) week before the first day of the
term of Court in which this matter is set for trial (the
Trial Date), or the
Final Pretrial
Conference,
whichever is earlier, the parties shall file with the
Court
(a)
The issues and stipulations as called for above;
and
(b)
A trial brief addressing all questions of law and
any anticipated evidentiary issues. Such trial
brief shall not exceed 25 pages and shall be
double spaced and in at least 14 point type.
(2)
No later than the morning of the day on which jury
selection is scheduled to begin (the Trial Date),
counsel for each party shall file the following
documents with the Clerk of Court and provide a hard
copy to the presiding judge or his courtroom clerk:
(a)
A witness list containing the name of every
proposed witness;
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(b)
A statement of the education, experience, and
qualifications of each expert witness, unless the
parties have stipulated to the qualifications of
each expert witness;
(c)
Stipulations concerning the authenticity and
admissibility of as many proposed exhibits as
possible; and
(d)
E.
An exhibit list.
EXHIBIT NOTEBOOKS: If counsel for any party intends to
tender more than fifteen (15) documentary exhibits, counsel
for that party shall prepare two (2) identical exhibit
notebooks, or sets of exhibit notebooks.
Each exhibit
notebook, or set of exhibit notebooks, shall contain an index
of the exhibits and a copy of each exhibit. Counsel shall tab
each exhibit and shall numerically arrange each exhibit
notebook, or set of exhibit notebooks. Two (2) identical
exhibit notebooks, or sets of exhibit notebooks, are
necessary so that the witness and the Court each have an
exhibit notebook, or set of exhibit notebooks.
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F.
FORMAT FOR EXHIBIT LIST: In preparing the exhibit list,
counsel separately shall identify and number each exhibit,
shall arrange the list numerically by exhibit number, and
shall place the following headings on the exhibit list:
Exhibit #
Description
Stipulation of Authenticity
Stipulation of Admissibility
Objection
Identified by
Admitted
It is not necessary for counsel to make entries in either the
“Identified by” column or the “Admitted” column. Counsel
should only enter “Yes” or “No” for each exhibit in the
columns regarding the stipulations of authenticity and
admissibility.
G.
JURY VOIR DIRE: Following initial voir dire by the Court,
counsel will be given a limited opportunity to conduct
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additional voir dire, subject to the Court’s supervision for
reasonableness and relevance.
H.
SANCTIONS FOR COUNSEL’S FAILURE TO MEET
DEADLINE FOR FILING: If any party fails to comply timely,
the Court may impose sanctions, including but not limited
to, a $50.00 per day fine assessed against counsel.
I.
ASSESSMENT OF JURY COST: 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
the parties. When any civil jury trial is settled at trial in
advance of the verdict, the Court likewise may make the
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same assessments unless the parties establish good cause
why the Court should not do so.
V.
A.
FINAL PRETRIAL CONFERENCE:
A Final Pretrial
Conference will be held on August 23, 2012.
B.
TRIAL DATE: Trial is scheduled to commence WITH a jury
during the first civil trial term beginning on or after
September 10, 2012. The term “Trial Date” has been used
throughout this Order to refer to the first day of the term in
which this case is ultimately set for trial, that also being the
date on which jury selection is scheduled to begin for this
case.
C.
LENGTH OF TRIAL: Trial is anticipated to last 10 days.
D.
A district judge or magistrate may convene a settlement
conference at any time.
VI.
To the extent that any provision of the local rules conflict with this
Order, this Order shall govern.
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This Order is subject to
modification only by Order of this Court and may not be modified
by agreements among the parties.
IT IS SO ORDERED.
Signed: May 18, 2012
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