Perritt et al v. The Cupcakery, et al

Filing 67

SCHEDULING ORDER: Final Pretrial Conference set for 3/5/2012 09:00 AM in Ctrm A01 (Sherman - Annex) before Judge Michael H. Schneider. Amended Pleadings due by 6/23/2011. Discovery due by 11/7/2011. Joinder of Parties due by 6/23/2011. Mediation Completion due by 11/14/2011. Motions due by 11/21/2011. Proposed Pretrial Order due by 2/6/2012. Signed by Magistrate Judge Amos L. Mazzant on 5/20/2011. (pad, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERM AN DIVISION

RICKY B. PERRITT, ET AL.

§
§
§
§
§

vs.
PAMELA F. JENKINS, ET AL.

Civil Action No. 4:11cv23
(Judge Schneider/Judge Mazzant)

SCHEDULING/DOCKET CONTROL ORDER
Based on a review of the case, and in accordance with the Defendants’ Proposed Rule
26(f) Scheduling Order, the Court enters this case specific order which controls disposition of
this action pending further order of the Court.
I. SUMMARY OF CRITICAL DATES
PRETRIAL EVENTS

DEADLINES

Deadline to add additional parties (¶ 2)

June 23, 2011

Deadline to amend pleadings (¶ 2)

June 23, 2011

Deadline to file motions to dismiss (¶ 3)

July 8, 2011

Exchange privilege logs (¶ 4)

August 8, 2011

Deadline to designate expert witnesses and reports on issues for which
the party bears the burden of proof (¶ 5)

September 7, 2011

Deadline to designate expert witnesses and reports on issues for which
the party does not bear the burden of proof (¶ 5)

October 7, 2011

Deadline to notify court of mediator (¶ 7)

August 1, 2011

Discovery deadline (¶ 6)

November 7, 2011

Deadline to complete required mediation (¶ 7)

November 14, 2011

Deadline for dispositive motions (¶ 8)

November 21, 2011

Deadline for pretrial disclosures (¶ 9)

January 6, 2012

Deadline to file pretrial materials (¶ 10)

February 6, 2012
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Pretrial conference and trial setting (¶ 12)

March 5, 2012, in
Sherman, Texas, at
9:00 a.m.

II. SCHEDULING INSTRUCTIONS
Pursuant to Rule 16(b) of the Federal Rules of Civil Procedure and the local rules of this
Court (except as modified herein), the Court, having considered the joint report submitted by the
parties, finds that the schedule set forth above should govern the disposition of this case.
Unless otherwise ordered or specified herein, all limitations and requirements of the Federal
Rules of Civil Procedure and the local rules of this Court must be observed.
Please note that to the extent possible the Court has attempted to
adhere to the schedule requested by the parties. In so doing, the
Court assumes that the parties thoroughly discussed scheduling
issues prior to submitting their joint report and that the parties
understand that the deadlines imposed in this order are firmly in
place, absent the few exceptions set forth below.
1.

Rule 26(a)(1) Disclosures: Without waiting for a request, the parties must
exchange a copy — or a description by category and location — of all
documents, electronically stored information, and tangible things that the
disclosing party has in its possession, custody or control and that is relevant
to the claim or defense of any party. Because documents relevant to any
claim or defense are to be produced, requests for production are unnecessary.
However, should a party believe that certain relevant documents have not
been produced, that party may request said documents by letter. The Court
will entertain a motion to compel documents without the necessity of a
movant propounding formal requests for production.
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2.

Joinder of Parties or Amendment of Pleadings: By June 23, 2011, all
joinder of additional parties or amendments of pleadings must be filed.
Fed.R.Civ.P. 16(b)(1).

3.

Motions to Dismiss: By July 8, 2011, all motions asserting defenses under
Rule 12(b)(6) must be filed. (Unless otherwise noted, all references to Rules
in this order refer to the Federal Rules of Civil Procedure.)

4.

Privilege Logs: By August 8, 2011, the parties must exchange privilege logs
indicating any material information otherwise discoverable that is being
withheld as privileged. Fed.R.Civ.P. 26(b)(5).

5.

Experts:
a.

Designation of Expert(s) and Report(s) by Party With the Burden
of Proof: Unless otherwise stipulated or directed by order, each party
must file a written designation of the name and address of each
expert witness who will testify at trial on each issue for which that
party bears the burden of proof. The party must also otherwise
comply with Rule 26(a)(2) — including disclosure of the expert
report(s) — on or before September 7, 2011.

b.

Designation of Expert(s) and Report(s) on Issues on Which the
Party Does Not Bear the Burden of Proof: Each party must file a
written designation of the name and address of each expert witness
who will testify at trial on each issue for which that party does not
bear the burden of proof. The party must also otherwise comply with
Rule 26(a)(2) — including disclosure of the expert report(s) — on or
before October 7, 2011.

c.

Rebuttal Expert(s): If the evidence is intended solely to contradict
or rebut evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B), the disclosures required under Rule
26(a)(2) must be made within 30 days after the disclosure made by
the other party. Fed.R.Civ.P. 16(b)(1).

d.

Challenges to Experts: The parties are directed to file any objections
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to, or motions to strike or exclude expert testimony no later than
November 21, 2011. See ¶ 8.
6.

Completion of Discovery:

By November 7, 2011, all discovery —

including discovery concerning expert witnesses — must be completed. The
parties may agree to extend this discovery deadline, provided (i) the extension
does not affect the trial setting, dispositive motions deadline, challenges to
experts deadline, or pretrial submission dates; and (ii) written notice of the
extension is given to the Court.
7.

Mediation: The parties must file a Joint Report informing the Court of their
choice of an agreed-upon mediator by August 1, 2011. In the event the
parties are unable to agree upon a mediator, the parties must file a notice
indicating the deadlock. The parties will be required to mediate their case
pursuant to the Court-Annexed Mediation Plan by November 14, 2011.
Local Rule App. H.

8.

Dispositive Motions: By November 21, 2011, all motions that would
dispose of all or any part of this case (including motions for summary
judgment and Daubert motions) must be filed.

9.

Pretrial Disclosures and Objections: Unless otherwise directed by order,
the parties must make the disclosures required by Rule 26(a)(3)(A) by
January 6, 2012. With respect to the identification of witnesses who will be
called by deposition, the parties must also identify the portions of the
deposition transcript that they intend to use. Within 14 days thereafter, a

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party must serve a list disclosing any objections, together with the grounds
therefor, to: (i) the use under Rule 32(a) of a deposition designated by another
party under Rule 26(a)(3)(B); (ii) the admissibility of materials identified
under Rule 26(a)(3)(c)); and (iii) the use of any witnesses (except for expert
objections) identified under Rule 26(a)(3)(A)1, if any. Objections not so
disclosed, other than objections under Rules 402 and 403 of the Federal Rules
of Evidence, are waived unless excused by the court for good cause.
10.

Pretrial Materials: By February 6, 2012, all pretrial materials must be
filed. Specifically, by this date:
a.

Pretrial Order: A joint proposed pretrial order must be submitted
by Plaintiff’s attorney. See Local Rule App. D. If an attorney for
either party does not participate in the preparation of the joint pretrial
order, the opposing attorney must submit a separate pretrial order with
an explanation of why a joint order was not submitted (so that the
court can impose sanctions, if appropriate). Each party may present
its version of any disputed matter in the joint pretrial order; therefore,
failure to agree upon content or language is not an excuse for
submitting separate pretrial orders. When the joint pretrial order
is approved by the Court, it will control all subsequent proceedings in
this case.

b.

Witness List: A list of witnesses must be filed by each party (a
sample form is available on the Court’s website,
www.txed.uscourts.gov). The list must divide the persons listed into
groups of “will call,” “may call,” and “may, but probably not call”
and which provides:
(i)

the names and addresses of each witness;

1

Requiring parties to file objections to witnesses disclosed under Rule 26(a)(3)(A) is a
modification of the requirements of Rule 26(a)(3)(A), which only requires that the parties file
objections to deposition designations (Rule 26(a)(3)(B)) and exhibits (Rule 26(a)(3)(C)).
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(ii)
(iii)

whether the witness has been deposed; and

(iv)

c.

a brief narrative summary of the testimony;

the expected duration of direct and crossexamination of the witness.

Exhibit List and Deposition Testimony Designation: A list of
exhibits (including demonstrative exhibits) and a designation of
portions of depositions to be offered at trial must be filed by each
party. The list of exhibits must describe with specificity the
documents or things in numbered sequence. Exhibits must be
numbered numerically and in succession, and must be marked with
the case number. They must be marked before trial with official
exhibit stickers. If there are multiple parties, exhibit numbers must be
followed by the party’s last name, i.e., “1-Jones” or “1-Miller.”
WHENEVER A MULTI-PAGE-EXHIBIT IS USED, EACH
PAGE OF AN EXHIBIT MUST BE SEPARATELY
NUMBERED. FOR EXAMPLE, IF PLAINTIFF’S EXHIBIT 1
IS A THREE-PAGE DOCUMENT, THE FIRST PAGE
SHOULD BE MARKED AS “1-1," THE SECOND PAGE
MARKED AS “1-2,” AND THE THIRD PAGE MARKED AS “13."
Each party’s exhibit list must be accompanied by a written statement,
signed by counsel for each party and state that, as to each exhibit
shown on the list,
(i)

the parties agree to the admissibility of the exhibits; or

(ii)

the admissibility of the exhibit is objected to,
identifying the nature and legal basis of any objection
to admissibility, and the name(s) of the party or parties
urging the objection.

All parties must cooperate in causing such statement to be prepared
in a timely manner for filing with the exhibit lists. Counsel for the
party proposing to offer an exhibit will be responsible for
coordinating activities related to preparation of such a statement as to
the exhibit the party proposes to offer. The Court may exclude any
exhibit offered at trial unless such a statement regarding the exhibit
has been filed in a timely manner.

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d.

e.

Proposed Findings of Fact and Conclusions of law: In a non-jury
case, proposed findings of fact and conclusions of law must be
filed by each party. Counsel should draft proposed findings in neutral
language, avoiding argument, and identifying the evidence expected
to establish each finding. Counsel should set forth the proposed
findings of fact and conclusions of law in separate sections composed
of concise and separately numbered paragraphs.

f.

Limited Number of Motions in Limine: Motions in Limine should
not be filed as a matter of course. Parties may file motions in limine
on no more than TEN discrete topics (no subparts) that are actually
in dispute. (Good faith compliance with the conference requirements
of Local Rule CV-7(h) will help to narrow issues that are actually in
dispute.) The Court will strike all motions in limine that contain
boilerplate requests, that exceed ten topics, or that cover undisputed
issues. The moving party must promptly notify the Court in the event
the parties resolve any of the motions in limine.

g.

Voir Dire: The parties must file any proposed voir dire questions
which the Court is requested to ask during its examination of the jury
panel.

h.

11.

Jury Instructions: Proposed jury instructions and verdict forms must
be filed jointly. If the parties disagree on a proposed instruction,
Plaintiffs should italicize their proposed language, and Defendants
should underline their proposed language. The basis for and legal
authority supporting each party’s proposed language should be set
forth in footnotes.

Trial Briefs: Trial briefs may be filed by each party. In the absence
of a specific order of the Court, trial briefs are not required, but are
welcomed. The briefing should utilize Fifth Circuit and/or Supreme
Court authority or relevant state authority to address the issues the
parties anticipate will arise at trial.

Exchange of Exhibits: No later than three business days before the
pretrial conference, counsel for each party intending to offer exhibits must
exchange a complete set of marked exhibits (including demonstrative
exhibits) with opposing counsel. Parties must submit two copies of marked

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exhibits to the Court at the pretrial conference.
12.

Pretrial Conference: A pretrial conference in the case is set for March 5,
2012, at 9:00 a.m. in Sherman, Texas. Lead counsel for each party must
attend, or, if the party is proceeding pro se, the party must attend.
Fed.R.Civ.P.16 (c),(d). Lead counsel and pro se parties must have the
authority to enter into stipulations and admissions that would facilitate the
admission of evidence and reduce the time and expense of trial. Id. All
pretrial motions not previously decided will be addressed at that time, and
procedures for trial will be discussed. At the final pretrial conference, the
parties will be assigned a specific trial date beginning within four weeks of
the pretrial conference. Parties should be prepared to conduct jury selection
at any time after the pretrial conference.

13.

Modification of Scheduling Order: As addressed above, this order will
control the disposition of this case unless it is modified by the Court upon a
showing of good cause and by leave of court. Fed.R.Civ.P. 16(b). Any
request that the trial date of this case be modified must be made in writing
to the Court before the deadline for completion of discovery.

14.

Sanctions: Should any party or counsel fail to cooperate in doing anything
required by this order, such party or counsel or both may be subject to
sanctions. If the plaintiff does not timely file the required pretrial material, the
case will be dismissed. If the defendant/third party does not timely file the
required (or other) pretrial material, a default will be entered or the
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defendant/third party will not be permitted to present witnesses or exhibits at
trial. Fines or other sanctions, if appropriate, may also be imposed under Rule
16(f). Failure to list a witness, exhibit, or deposition excerpt as required
by this order will be grounds for exclusion of that evidence. This does not
apply to testimony, exhibits, or deposition excerpts offered for impeachment;

.

further, the use of unlisted witnesses, exhibits, or deposition excerpts for
rebuttal will be permitted if the attorneys could not have reasonably
anticipated their need for that evidence.
IT IS SO ORDERED.

SIGNED this 20th day of May, 2011.

___________________________________
AMOS L. MAZZANT
UNITED STATES MAGISTRATE JUDGE

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