Summary
upholding order for defendant to pay costs of plaintiff's counsel for out-of-state deposition
Summary of this case from In re Fosamax Products Liability LitigationOpinion
No. 99 Civ. 8745(LTS) (KNF)
January 24, 2001
PRE-TRIAL SCHEDULING ORDER
A pre-trial conference was last held in this matter on January 24, 2001. The Court hereby makes the following provisions for scheduling and trial in this matter. To the extent copies of this Order were not distributed to all parties in open court, Plaintiff's counsel shall serve a copy of this Pre-Trial Scheduling Order on counsel for each other party and on each unrepresented party within ten (10) days from the date hereof, and a copy of this Pre-Trial Scheduling Order shall be served with any subsequent process that brings in additional parties. Proof of such service shall be filed promptly with the Court.
As used in this Pre-Trial Scheduling Order, the term "counsel" shall, in the case of an individual party who is proceeding Pro-se, mean such party.
1. Amendments to Pleadings, Additional Parties
All applications to amend pleadings or amendments as of right shall be made, and any additional parties joined, by February 28, 2001.
2. Discovery
a. All non-expert witness discovery in this matter shall be completed by March 30, 2001.
b. Each party shall make expert witness disclosures described in Rule 26(a)(2) of the Federal Rules of Civil Procedure no later than February 28, 2001. Such disclosures shall be made in writing, signed and served, but shall not be filed with the Court.
c. Depositions, if any, of expert witnesses shall be completed by March 30, 2001.
3. Dispositive Pre-Trial Motions
Dispositive motions, if any, seeking resolution, in whole or in part, of the issues to be raised at trial shall be served and filed on or before April 16, 2001. No pre-motion conference is required. If the movant believes the motion, if granted, would obviate entirely the necessity of a trial in this matter, the movant shall so state in a separate document captioned APPLICATION FOR STAY OF PRE-TRIAL SCHEDULING ORDER and served and filed with the moving papers, and may in such Application request that the Court defer the remaining requirements of this Order pending its decision on the motion. Unless the Court grants such Application, the filing of a dispositive motion does not affect the parties' obligations under this Order.
4. Preliminary Conference
Counsel for the parties shall confer preliminarily at least forty-five (45) days before the date set forth in paragraph 9 below. At or prior to this preliminary conference, counsel shall provide copies of each proposed exhibit for inspection by opposing counsel and for waiver or noting of objection and shall make the disclosures required by Fed.R.Civ.P. 26(a)(3). At the preliminary conference, counsel shall discuss (a) settlement, any anticipated further motion practice, including motions in limine, and (c) the matters required to be addressed in their Joint Pre-Trial Statement, as set forth in paragraph 6 below.
5. Other Pre-Trial Motions
Other motions, including but not limited to motions in limine relating to evidentiary issues, must be filed and served no later than thirty (30) days before the date set forth in paragraph 9 below, unless otherwise allowed by the Court for good cause shown.
6. Joint Pre-Trial Statement
Counsel for all parties shall confer and shall prepare, execute and file with the Court no later than ten (10) days before the date set forth in paragraph 9 below, a single document captioned JOINT PRE-TRIAL STATEMENT, which shall include:
a. A concise statement of the legal issues to be decided.
b. A concise statement of the material facts not in dispute.
c. A witness list containing the names, addresses and a brief summary of the testimony of each witness each party will call. A person not identified on this list may not be called during a party's case in chief.
d. A final exhibit list containing a description of all exhibits to be offered at trial, with one star indicating exhibits to which no party objects on grounds of authenticity and two stars indicating exhibits to which no party objects on any ground. Exhibits not identified on this list may not be offered during a party's case in chief. Each exhibit shall be marked and the list shall identify the exhibits by their numbers or letters.
i. Plaintiff's exhibits shall be identified with numbers as follows: Plaintiffs' Exhibit 1; Plaintiff's Exhibit 2; etc.
ii. Defendant's exhibits shall be identified with letters as follows: Defendant's Exhibit A; Defendant's Exhibit B; etc.
If there is more than one plaintiff or defendant, the parties shall confer so as to avoid duplication of exhibit identification.
e. A list of the depositions, if any, to be offered at trial.
f. Stipulations, if any, as to the admissibility of exhibits and depositions.
g. A brief explanation of the objections, if any, to the exhibits to be offered at trial, including citation to the relevant legal authority.
h. A brief explanation of the objections, if any, to the depositions to be offered at trial, including citation to the relevant legal authority.
i. Each party's statement as to whether the case is to tried before a jury.
j. A statement as to whether or not all parties consent to trial of the case by a magistrate judge (without identifying which parties have or have not so consented).
k. Each party's estimate of the time required for presentation of its case.
The following documents must be annexed to, or filed concurrently with, the Joint Pre-Trial Statement:
One copy of each documentary exhibit to be offered at trial. Such exhibits must be pre-marked. In the event that a party intends to offer more than 15 documentary exhibits at the trial, the exhibits should be tabbed or included in a binder for easy reference. Counsel shall bring on the day of trial additional pre-marked copies for use by witnesses, the court reporter, opposing parties and (if applicable) the jury.
7. Proposed Voir Dire and Requests to Charge
In a case to be tried before a jury, each party shall serve on each other party and file with the Court no later than five (5) business days before the Final Pre-Trial Conference date set forth in paragraph 9 below, its proposed voir dire and requests to charge. Prior to service and filing of the proposed voir dire and requests to charge, counsel shall provide copies of their proposed voir dire and requests to charge for inspection by opposing counsel and for noting of objection. Stipulations, if any, as to the agreed proposed requests to charge and a brief explanation of the objections, if any, to any disputed requests to charge, including citations to the relevant legal authority shall be included with the submissions made pursuant to this paragraph. When feasible, proposed voir dire and requests to charge should also be submitted on a CD-Rom or 3.5" diskette in WordPerfect version 5.1 or higher format.
8. Proposed Findings of Fact and Conclusions of Law
If the case is not to be tried before a jury, each party shall serve on each other party and file with the Court its proposed findings of fact and conclusions of law, which shall be broken down into separately enumerated paragraphs, no later than five (5) business days before the Final Pre-Trial Conference date set forth in the following paragraph. When feasible, the proposed findings of fact and conclusions of law should also be submitted on a CD-Rom or 3.5" diskette in WordPerfect version 5.1 or higher format.
9. Final Pre-Trial Conference
The parties are directed to appear before the undersigned in Courtroom No. 444, 40 Foley Square, New York, N.Y. 10007, for a final pre-trial conference on June 8, 2001, at 11:30 a.m. The purpose of the conference is to explore the possibility of settlement, schedule the trial (which shall, court calendar permitting, commence within two weeks after the conference) if necessary, to review the issues to be tried and the proof to be offered in connection therewith, and to resolve any remaining pre-trial issues.
The counsel who plan to try the case must appear at such conference. Counsel attending the conference shall seek settlement authority from their respective clients prior to such conference. If counsel is not granted such authority, the client must be present in person or available by telephone so that a settlement can be consummated if possible. "Settlement authority," as used in this order, includes the power to enter into stipulations and make admissions regarding all matters that the parties may reasonably anticipate discussing at the pre-trial conference including, but not limited to, the matters enumerated in this Pre-Trial Scheduling Order.
The Court will not adjourn the final pre-trial conference or excuse the appearance of a party or its counsel unless a stipulation of settlement is on file prior to the pre-trial conference date set forth in this paragraph 9.
10. No Adjournment of Deadlines
The deadlines set forth in this Pre-Trial Scheduling Order will not be adjourned except in the Court's discretion upon good cause as shown in a written application signed by both counsel and counsel's client and served upon all parties. "Good cause," as used in this paragraph, does not include circumstances within the control of counsel or the client.
11. Non-Compliance with This Order
In the event that any party fails to comply with this Pre-Trial Scheduling Order, or is not prepared to go forward with trial on the date scheduled, the Court may impose sanctions or take other action as appropriate. Such sanctions and action may include assessing costs and attorney's fees, precluding evidence or defenses, dismissing the action, granting judgment by default, and/or other appropriate penalties.
In particular, the parties are advised that the Court may, without further hearing, render judgment in favor of the adverse party if a party is not prepared to proceed to trial within two weeks of the scheduled final pre-trial conference date.
12. Other Matters
The parties' joint pre-conference statement shall be filed by February 2, 2001.
Defendant shall make a settlement counteroffer by February 5, 2001.
The parties shall commence meeting with Judge Fox regarding settlement within the first two weeks of February 2001, Judge Fox's calendar permitting.
IT IS SO ORDERED.