Opinion
CIVIL ACTION No: 00-2395-GTV
April 20, 2001
Amy S. Lemley, Shannon D. Wead, FOULSTON SIEFKIN L.L.P., for DEFENDANTS THE GALICHIA MEDICAL GROUP, P.A., AND J.E. VAL-MEJIAS, M.D.,
Mr. James E. Puga, Ms. Natalie Brown Leventhal Brown, P.C, Denver, CO, -and- Mr. Jeff Zimmerman, Law Firm of Jeff Zimmerman, Shawnee, KS, for PLAINTIFF
Mr. Timothy M. Aylward, Horn Aylward Bandy LLC, Kansas City, MO, for DEFENDANT DEMOSTENIS KLONIS, D.O.
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for More Definite Statement by Defendants The Galichia Medical Group, P.A., and J.E. Val-Mejias, M D. (doc. 12).
A party may tile a motion for more definite statement when the pleading to which the party is required to respond "is so vague or ambiguous" that the party "cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). The decision whether to grant or deny such a motion lies within the sound discretion of the court. Graham v. Prudential Home Mortgage Co., Inc., 186 F.R.D. 601, 653 (D Kan 1999) (citations omitted). Such motions are generally not favored by the courts. Classic Communications, Inc. v. Rural Tel Serv. Co., Inc., 956 F. Supp. 910, 923 (D. Kan. 1997) (citing Resolution Trust Corp. v. Thomas, 837 F. Supp. 354, 356 (D. Kan. 1993)).
Specifically. Rule 12(e) provides in pertinent part: "If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading."
Applying these standards, the Court concludes that the motion should be denied. Both Defendants have filed a joint answer to the complaint. See doc. 14. In addition. Defendant The Galchia Medical Group, P.A., has filed a motion to dismiss. See doc, 23. It thus appears that the complaint is
ORDER EXTENDING TIME TO RESPOND TO DEFENDANT GALICHIA MEDICAL GROUP P.A.'S MOTION TO DISMISS AND FOR RULE 11 SANCTIONS
NOW, 19 on this day of April, 2001, Plaintiff is granted ten (10) additional days to respond to Defendant Galichia Medical Group, P.A.'s Motion to Dismiss and For Rule 11 Sanctions. Plaintiff shall have until the 27th day of April, 2001 within which to file his response. J.E. VAL-MEJIAS, M.D.'S AND THE GALICHIA MEDICAL GROUP, P.A.'S RESPONSE TO PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO REPLY TO DEFENDANT GALICHIA MEDICAL GROUP, P.A.'S MOTION TO DISMISS AND FOR SANCTIONS COME NOW defendants Galichia Medical Group, P.A. and J.E. Val-Mejias, M.D. and in response to plaintiff's Motion for Extension of Time to Respond to Defendant Galichia Medical Group, P.A.'s Motion to Dismiss and for Rule 11 Sanctions, aver and state as follows:1. Counsel for defendants was contacted by co-counsel for plaintiff, Jim Puga, and the letter attached as Exhibit "A" was famished to plaintiff's counsel, confirming that defense counsel agreed to a one week extension of time in which plaintiff might respond to Galichia's Motion to Dismiss.
2. That counsel for plaintiff apparently was unaware of the provisions of F.R.C.P. 11, and apparently did not talk to each other about the status of the defendant's Rule 11 Motion before filing plaintiff'sMotion for Extension of Time to Reply to Defendant Galichia Medical Group, P.A.'s Motion to Dismiss and for Sanctions. Defense counsel's letter (Exhibit "A") points out that Rule 11 requires notice of intent to file.
3. That the defendant's Rule 11 Motion was not filed with the Court until after the 21 day notice provided for in F.R.C.P. 11 had elapsed. That on April 17, 2001, the Rule 11 Motion was filed, and that the date (without extension) for plaintiff to respond to the Court is May 7, 2001.
4. That the ten days requested by plaintiff in the Motion for Extension of Time filed with the Court on April 16, 2001 was not discussed with defense counsel prior to the filing of the Motion with the Court (seven days was discussed, not ten), but that defense counsel does not object to ten days instead of seven.
April 10, 2001
James E. Puga Via Facsimile: (303) 759-9692 Leventhal Brown, P.C. 950 S. Cherry St., Ste. 600 Denver, CO 80246
Re: Bradley v. Val-Mejias, M.D., et al.
Case No. 00-2395-GTV
Our File No. 13212-3
Dear Mr. Puga:
This is to acknowledge receipt of your fax dated April 9, 2001, requesting a one week of additional time in which to respond to defendants' Motion to Dismiss. I spoke to your secretary by telephone and agreed to the one week extension, making your response due April 16, 2001. I also advised your secretary that the letter you sent to me spoke of "motions" in the plural. There is only one motion actually pending, and that is the Motion to Dismiss. You and the other recipients of the draft Rule 11 Motion have a certain amount of time to communicate with me regarding the Rule 11 Motion before it is actually filed with the court.
You have not responded to several recent inquiries by me regarding this case, including whether you agree we can proceed with written discovery, whether you will (as requested) involve your Kansas counsel in this case, when you will get the draft of the Report of the Parties' Planning Meeting out to defense counsel for approval, etc. etc. etc.; do you have any intention of responding to these communications? If so, when do you think you might respond? It is very difficult to plan the necessary activities in this file when you do not respond to my inquiries with the information I need.
Sincerely,
Amy S. Lemley ASL/cw cc: Tim Aylward
SCHEDULING ORDER
On April 17, 2001, the Court conducted a scheduling conference in this case pursuant to Fed.R.Civ.P. 16(b). Plaintiff appeared through counsel Jeffrey D. Zimmerman and James E. Puga. Defendants appeared through counsel Any S. Lemley and Timothy M, Aylward. After consultation with the parties, the Court now enters the following Scheduling Order in this case:I. Alternative Dispute Resolution
II. Discovery
a. By June 1, 2001, plaintiffs shall submit to defendants a good-faith proposal to settle the case. By June 15, 2001, defendants shall make a good-faith response to plaintiffs' proposal, either accepting the proposal or submitting its own good-faith proposal to settle the case. By June 22, 2001, the parties shall submit independently, to the Magistrate Judge but not to the District Judge, their confidential statements concerning settlement efforts, current evaluations of the case, and views concerning future settlement negotiations. These reports need not be served upon opposing parties and shall not be filed with the Clerk's Office. The Court may thereafter order participation in an alternative dispute resolution process.
b. Settlement may be enhanced by use of mediation. Counsel shall provide the name of an agreed-upon mediator or other neutral to the Court no later than June 22, 2001. If they are unable to reach an agreement on this issue, each shall suggest a mediator and the court will select a mediator. The mediation shall be held no later than July 31, 2001.
a. The parties shall exchange by April 30, 2001 the information required by Fed.R.Civ.P. 26(a)(1).
b. All discovery shall be commenced or served in time to be completed by September 14, 2001.
c. No party shall serve more than 40 interrogatories, including all discrete subparts, to any other party.
d. No party shall serve more than 30 requests for admission to any other party.
e. No party shall serve more than 30 requests for production to any other party.
f. There shall be no more than 12 depositions by plaintiff and 10 by each defendant.
g. Each deposition shall be limited to 4 hours, except for the parties and expert witnesses, which shall be limited to 7 hours each.
h. Disclosures required by Fed.R.Civ.P. 26(a)(2), including reports from retained experts, are due from plaintiff by June 28, 2001 and from defendant by August 10, 2001. Disclosures and reports by any rebuttal experts are due by August 31, 2001. The parties shall file any objections (other than Daubert/Kumho Tire objections) to such disclosures within 30 days after service of the disclosures upon them. The Court shall deem waived any objection not timely asserted, unless excused by the Court for good cause shown.
i. The parties shall complete any Fed.R.Civ.P. 35 physical or mental examinations by August 10, 2001.
j. Supplementations under Fed.R.Civ.P. 26(e) are due every 60 days.
a. Any motion for leave to join additional parties or to otherwise amend the pleadings shall be filed by May 28, 2001.
b. Any motions to dismiss for lack of personal jurisdiction, venue, or propriety of the parties or for failure to state a claim upon which relief may be granted shall be filed by June 15, 2001
c. All other potentially dispositive motions shall be filed by October 26, 2001.
a. The parties shall file preliminary witness and exhibit lists by June 1, 2001. The parties shall file final witness and exhibit lists by August 31, 2001. All witness and exhibit lists shall be in the form prescribed by D. Kan. Rule 16.2(e).
b. By June 15, 2001, any party asserting comparative fault shall identify all persons or entities whose fault is to be compared.
c. Pursuant to Fed.R.Civ.P. 16(d), a final conference is scheduled for October 9, 2001 at 2:30 p.m. in #219 at 500 State Avenue, Kansas City, Kansas. Unless otherwise notified, Magistrate Judge David J. Waxse will conduct the conference, The parties shall prepare one proposed final pretrial order, in accordance with D.
Kan. Rule 16.2(a). No later than October 2, 2001, defendant(s) shall submit to the Judge who will conduct the conference (but not file with the Clerk's Office) both a printed copy of the proposed pretrial order and a computer diskette (WordPerfect 9.0, or earlier version, 3.5 inch format, labeled with case name and number) containing the proposed pretrial order. The proposed pretrial order shall be in the form attached hereto and signed by counsel and all unrepresented parties.
d. The parties expect the trial of this case to take approximately 3 weeks. The Court has set the case for trial on a trial calendar that will begin on The trial setting may be changed only by order of the Judge presiding over the trial.
The schedule adopted in this Order shall not be modified except by leave of court upon a showing of good cause.
IT IS SO ORDERED.
NOTICE OF SERVICE OF DISCOVERY
Defendants J.E. Val-Mejias and Galichia Medical Group, P. A. hereby notify the Court that they have submitted written discovery to be answered within thirty (30) days pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure:
1. Interrogatories to Plaintiff, numbered 1 through 20; and
2. Request for Production of Documents, numbered 1 through 4.