Owner Operator Independent Drivers Association Inc et al v. Comerica Bank

Filing 78

ORDER SETTING Bench Trial for 9/19/2011 09:00 AM in Courtroom 1 - Columbus before Judge Algenon L. Marbley, Final Pretrial Conference set for 9/9/2011 02:30 PM in Chambers before Judge Algenon L. Marbley. Signed by Judge Algenon L. Marbley on 6/28/2011. (Attachments: # 1 Exhibit A) (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

OWNER-OPERATOR INDEPENDENT
DRIVERS ASSOCIATION, CARL HARP
and MICHAEL WISE, as Representatives
of the Class and THE CERTIFIED CLASS
OF OWNER-OPERATORS, Case No.
C2-97-740 United States District Court
for the Southern District of Ohio,
Plaintiffs,
v.
COMERICA BANK,
Defendant.

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Case No. 05 -CV-0056
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

ORDER SETTING BENCH TRIAL DATE
AND SETTLEMENT CONFERENCE
This case is set for a bench trial on Monday, September 19, 2011 at 9:00 a.m. In
preparation for trial the Court has set the following schedule to which the parties are to adhere.
The Court has included a statement of pretrial and trial procedures which the parties are to
follow.
Summary:
July 18, 2011

Opening briefs are due by close of business 4:00 p.m.

August 1, 2011

Reply briefs are due by close of business 4:00 p.m.

August 15, 2011

Deadline for conducting a mediation of the case.

August 29, 2011

Motions in limine, pretrial motions, designation of deposition
portions, witness statements, stipulations, and exhibit lists.

September 5, 2011

Memoranda contra pretrial motions or motions in limine,
objections to deposition designations, and final pretrial order.

September 9, 2011

Final pretrial conference, submission of trial briefs.

September 19, 2011

Bench Trial - opening statements and presentation of evidence.
I. PRETRIAL PROCEDURE

Trial Date
This matter is set for a final pretrial conference on Friday, September 9, 2011 at 2:30
p.m. Trial shall begin on Monday, September 19, 2011 at 9:00 a.m. The Court will follow a
four day week trial schedule, conducting the trial of this case from Monday through Thursday of
each week until completion of the trial, and reserving Fridays for other matters.
The Court will not continue the trial date except upon written motion supported by an
affidavit demonstrating exceptional circumstances, made immediately upon the party's or
counsel's receipt of notice of the existence of the exceptional circumstances.
The Court uses a trailing docket, setting three to five civil cases to begin on the same day.
Cases are tried in the order they were filed. If a case set for the same day goes to trial, then the
parties and counsel in the next case shall remain prepared to go to trial on a standby basis for a
period of two weeks unless the Court orders otherwise.
Under the Speedy Trial Act, 18 U.S.C. § 3161-3174, and Fed. R. Crim. P. 50(a), the
Court will give preference to any criminal matters it has set to take place the same time as the
trial in this case. Fed. R. Civ. P. 40.
Counsel may call the Courtroom Deputy, Betty Clark, to obtain information about
whether other cases will go to trial before this case.
Briefing Schedule

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The parties are scheduled to submit the opening briefs on July 18, 2011. The opening
briefs should address two issues: (1) whether an extraordinary discovery exception should be
made to allow the Defendants to depose Plaintiffs’ counsel in support of their statute of
limitation defense; and (2) whether damages should be an issue at trial or if the summary
judgment proceedings disposed of this matter. The reply briefs are due on August 1, 2011. The
Court will decide both these issues on the briefs. No oral argument will be necessary.
Settlement Conference
This case is referred to the Court Mediator, Robert Kaiser, under Fed. R. Civ. P. 16(a)(5)
and Local Rule 16.3(a)(1), for mediation prior to August 15, 2011.
Counsel and the parties shall immediately contact Mr. Kaiser at [phone] to obtain
a date and shall adhere to the following with respect to the settlement conference:
(1)

The trial attorney for each party must attend the conference.

(2)

The parties or principals with settlement authority shall be present. 28 U.S.C.

§ 473 (b)(5); Fed. R. Civ. P. 16(c). Upon written motion and for good cause shown, the parties
or principals with settlement authority may satisfy the presence requirement by being available
by telephone. Such motion must be made at least one (1) week in advance of the settlement
conference. Failure to appear or failure to obtain the Court’s permission to appear by telephone
shall result in sanctions against the offending party.
(3)

Lack of discovery or settlement authority will not excuse active participation in

the conference.
(4)

Counsel and the parties shall follow Mr. Kaiser’s instructions regarding mediation

statements, which will be provided along with the scheduling notice.

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(5)

Before the conference counsel shall discuss with their clients whether this case

would be appropriate for a summary jury trial or some other form of alternative dispute
resolution. Fed. R. Civ. P. 16(b)(9); S.D. Ohio L.R. 53.1; see Judge Thomas D. Lambros, The
Summary Jury Trial and Other Alternative Methods of Dispute Resolution, 103 F.R.D. 461
(1984). This Court has seen excellent results in summary jury trials in a wide variety of cases.
The Court encourages the parties to consider seriously this option, which has consistently
resulted in significant savings over the cost of a full trial.
Any questions regarding the mediation conference should be addressed to Mr. Kaiser or
to the Court's Law Clerk, Annika Goldman at [phone].

Expert Witnesses
The parties shall comply fully with all of the requirements of Fed. R. Civ. P. 26(a)(2),
including the required disclosures at least ninety (90) days before the trial unless an earlier
date has been set by a scheduling order issued by the Magistrate Judge.

Statement of Witnesses
Pursuant to Fed. R. Civ. P. 26(a)(3)(A), on August 29, 2011, the parties shall submit to
the Court, and serve on opposing counsel, the names, addresses and occupations of all witnesses
they intend to call at trial, with a brief summary of the witness' testimony (two to three
sentences), the purpose of that testimony, and the major issue about which the witness will
testify. Failure to list a witness, except upon a showing of good cause, will preclude the use of
that witness at trial.

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The witness lists shall comport with all of the requirements of Rule 26(a)(3)(A).

Designation of Deposition Portions
Pursuant to Fed. R. Civ. P. 23(a)(3)(B), on August 29, 2011 the parties shall submit to
the Court, and serve on opposing counsel, the designations of any portions of depositions they
intend to offer as evidence at trial.1 Failure to make a designation, except upon a showing of
good cause, will preclude the use of the undesignated portion of a deposition at trial.
The designation of deposition portions shall comport with all of the requirements of
Fed. R. Civ. P. 26(a)(3)(B).

Exhibits
Counsel will assemble and mark all exhibits and deliver them to the courtroom deputy
prior to the commencement of trial. Plaintiff's exhibits will bear the letter prefix P followed by
Arabic numerals and Defendant's exhibits will bear the prefix D followed by Arabic numerals.
Pursuant to Fed. R. Civ. P. 26(a)(3)(C), on August 29, 2011, each party shall exchange
and file a list containing a brief description of each item of documentary or physical proof the
party intends to offer in evidence as an exhibit at trial.
Counsel should keep a list of all exhibits and should supply the Court, courtroom deputy
and opposing counsel with a copy of the same.
Counsel will not approach the witness to tender an exhibit. Each exhibit will be placed
before the witness by the courtroom deputy.

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Do not designate portions to be used for impeachment on cross-examination.
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In formulating a question to a witness dealing with an exhibit, counsel shall specify the
exhibit designation so that the record will be clear.
Each counsel is responsible for any exhibits secured from the courtroom deputy. At the
end of each trial session, all exhibits shall be returned to the courtroom deputy.
Counsel shall provide an exhibit list to the Court and opposing counsel prior to the
commencement of trial as set forth in the Court's scheduling order.
The parties shall use three-ring tabbed notebooks for their exhibits which will be
submitted two (2) days before the trial. At trial, the parties shall provide the witness through the
Courtroom Deputy the relevant volume(s) when the witness takes the stand. The parties shall
provide one (1) copy of their tabbed exhibit notebook(s) to opposing counsel, and three
(3) copies to the Court - one each for the Judge, the law clerk, and the courtroom deputy (for use
at the witness stand).
Exhibits which are produced for the first time during trial, as in the case of exhibits used
for impeachment, shall be tendered to the courtroom deputy for marking and then displayed to
opposing counsel.

Stipulations
Counsel for the parties shall confer and reduce to writing all stipulations. Fed. R. Civ. P.
16(c)(3). The parties shall file any stipulations on August 29, 2011.

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Pretrial Motions
Any pretrial motions or motions in limine, shall be filed on August 29, 2011. A party's
motions in limine and memoranda in support shall not exceed a total of fifteen (15) pages in
length. The memoranda contra any motions in limine shall be filed on September 5, 2011. The
memorandum contra shall not exceed a total of fifteen (15) pages in length. The Court will not
accept any reply memoranda.

Motions to Amend/Motions for Reconsideration
Motions to Amend Judgment pursuant to Fed. R. Civ. P. 59(e) and Motions for
Reconsideration serve a limited purpose and should be granted for one of three reasons: (1) an
intervening change in controlling law; (2) evidence not previously available has become
available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice.
Motions based on the first or second criteria, while extremely rare in practice, are welltaken. The Court cautions counsel, however, to make these motions based on “clear error of
law” with an abundance of caution. The purpose of these motions is not to reiterate or
reorganize arguments previously made in dispositive motions; the court thoroughly considers
each argument put before it. Nor should these motions raise new arguments or legal theories that
should have been presented in the dispositive motions. If counsel believes that this Court erred
as a matter of law, the Sixth Circuit is the proper venue to reargue his case. Any party filing a
Motion to Amend or a Motion for Reconsideration that merely restates arguments previously
made in a dispositive motion may be subject to sua sponte sanctions from this Court under Fed.
R. Civ. P. 11.

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Final Pretrial Order
The parties shall submit a joint proposed final pretrial order, using the attached form, on
or before September 5, 2011.

Trial Briefs
The parties are to file trial briefs on or before September 9, 2011. All briefs shall
comply with S.D. Ohio L. R. 5.1, with citations and references conforming to S.D. Ohio L. R.
7.2(b). Counsel should use their trial briefs to instruct the Court in advance of trial in any area of
law upon which counsel will rely at trial. Therefore, the briefs should contain arguments, with
citations to legal authority, in support of any evidentiary or other legal questions which may
reasonably be anticipated to arise at trial.

Computer Disks
The Court encourages the parties to submit on three and one-half inch computer disks:
(1) all potentially case-dispositive motions, as well as the memoranda in support of and in
opposition to such motions; and (2) any memoranda that exceeds five pages in length. The
parties may submit such disks directly to chambers in care of the Court's law clerks.2

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The Court uses WordPerfect for Windows 6.1 with an IBM compatible system.
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II. TRIAL PROCEDURE
Counsel Tables
Plaintiff will occupy counsel table next to the jury box. Defendant will occupy counsel
table across from Plaintiff.

Appearances
Counsel will enter their appearance with the Court Reporter and the Courtroom Deputy
Clerk before the start of the opening session of the trial.

Court Sessions
Trials will be held Monday through Thursday of each week.
Friday sessions are not held because the Court regularly schedules final pretrial
conferences, criminal matters, and other motion hearings on that day.
Morning session begins at 9:00 a.m. and will recess at approximately 10:30 a.m. for 15
minutes.
Noon recess will be at approximately 12:00.
Afternoon session begins at 1:00 p.m. and will recess at approximately 3:30 for 15
minutes.
Court will adjourn at approximately 5:00 p.m.

Addresses By Counsel
Counsel will address the Court in the following manner:

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(a)

Opening statements and closing arguments will be conducted from the
lectern facing the jury box.

(b)

All addresses to the Court will be made from the lectern facing the Court.

(c)

Counsel shall stand when addressing the Court for any reason.

Examination of Witnesses
Counsel shall conduct their examination from the lectern.
In advance of trial, counsel will instruct his or her witnesses to answer questions with
courtesy. Evasive answers, answering a question with a question or disrespect to opposing
counsel will not be permitted.
Counsel are expected to extend equal courtesy to all witnesses. Counsel will wait until
the witness has finished an answer before asking the next question. Multiple questions and
repetitious questions will not be permitted. Counsel may not by any action, inflection or
expression indicate disbelief of any witness's answer. Counsel shall admonish their clients and
witnesses to desist from such conduct.
Witness shall be treated with fairness and consideration. They shall not be shouted at,
ridiculed or otherwise abused. The untruthful or hostile witness can be examined firmly and
extensively without abuse.
When a party has more than one attorney, only one may conduct the direct or cross
examination of a given witness.
Counsel shall not approach a witness without asking the permission of the Court. When
permission is granted for the purpose of working with an exhibit, counsel should resume the
examination from the lectern when finished with the exhibit.
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Counsel are responsible for witnesses speaking so that their testimony will be easily
heard by all members of the Court.
Upon completing his or her examination of the witness, counsel shall advise the Court,
after which the Court will advise opposing counsel to proceed.
During examination of a witness, counsel will first obtain permission of the Court if
he/she wishes to confer with co-counsel.

Objections
Counsel will stand when making an objection and will make the objection directly and
only to the Court.
When objecting, state only that you are objecting and if requested by the Court, state the
grounds. Objections shall not be used for the purpose of making speeches, repeating testimony,
or to attempt to guide a witness or influence the Court.
Argument upon an objection will not be heard unless permission is given or argument is
requested by the Court. Either counsel may request a bench conference.

Decorum
Colloquy, or argument between counsel will not be permitted. All remarks shall be
addressed to the Court.
Counsel shall maintain a professional and dignified atmosphere throughout the trial.
Appearance, mannerisms, or habits that are designed to arouse the sympathy or prejudice
of the Court are an impediment to an impartial trial and will not be permitted.

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During a trial, counsel shall not exhibit familiarity with witnesses, opposing counsel and
shall avoid the use of first names.
During opening statements and final arguments, all persons at counsel table shall remain
seated and be respectful so as not to divert the attention of the Court.
Do not ask the Court Reporter to mark testimony. All requests for re-reading of
questions or answers shall be addressed to the Court.

Depositions
Counsel will confer in advance of trial and attempt to resolve objections by agreement. If
any objections remain for ruling, counsel shall jointly prepare a list of objections identifying the
page number and line(s) of the deposition where the objection will be found and stating in one
sentence the grounds for the objection. This procedure applies to both written and video tape
depositions. Thus video tape depositions which contain objections must be accompanied by a
full or partial transcript. The jointly prepared list of objections and grounds for the same shall be
delivered to the Court on September 5, 2011.
Video tape presentation must include all equipment and a method for editing the sound to
delete testimony as to which the Court has sustained an objection.

Demonstrative Evidence
If any sketches, models, diagrams, or other demonstrative evidence of any kind will be
used during the trial, they must be exhibited to opposing counsel one week prior to trial.
Objections to the same must be submitted to the Court prior to the commencement of trial.

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Demonstrative evidence prepared solely for the purpose of final argument shall be displayed to
opposing counsel at the earliest possible time but in no event later than one-half hour before the
commencement of the arguments.
Counsel must supply his/her own easel, flip charts, etc. for trial.

Sanctions
The parties and counsel shall comply fully and literally with this pre-trial order. The
Court will consider the imposition of appropriate sanctions in the event of non-compliance,
including monetary sanctions, the dismissal of claims or defenses, or the exclusion of evidence.
Fed. R. Civ. P. 16(f).

Other Matters
The Court will consider adopting any other pre-trial and trial management procedures
upon which the parties agree. Fed. R. Civ. P. 16(c).
This order supersedes all previous orders in this case to the extent previous orders are
inconsistent with this order.
The parties shall address questions about this order to the Court's Law Clerk, Annika
Goldman, at 614-719-3262, by way of a telephone conference with counsel for all parties
participating, or with fewer than all counsel participating with express permission of nonparticipating counsel.
IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: June 28, 2011
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