Opinion
CIVIL ACTION NO. 08-523-CG-N.
November 5, 2009
ORDER
A hearing was held on November 4, 2009 before the undersigned on the following: Defendant, BAMACO's Motion to Quash interrogatories (doc. 43), and Plaintiff, Dustin Ray Rhodes' Motion to Extend Discovery. (Doc. 46) Present at the hearing were Henry Chase Dearman, Esq., counsel for plaintiff, plaintiff Dustin Ray Rhodes and Amelia T. Driscoll, Esq., counsel for defendant, BAMACO. At the conclusion of the hearing the undersigned made several rulings which are memorialized herein. As a result of those oral rulings, on November 5, 2009, defendant filed an unopposed motion to extend the remaining deadlines in this action (doc. 50) which will also be addressed in this order. Motion to Quash Interrogatories
Plaintiff's motion for an extension of time was incorporated in the response to defendant's motion to quash.
Defendant moves the Court for an order quashing plaintiff's discovery requests on the grounds that they are served too close to the discovery deadline of November 2, 2009. (Doc. 43) The docket sheet reflects that plaintiff filed a "Notice of Filing Interrogatories and Request for Production" on October 8, 2009 (Doc. 42). However, counsel for defendant has attached to its motion a copy of an e-mail transmission from plaintiff's counsel sending the interrogatories via e-mail on October 12, 2009. (Doc. 43, Exhibit 1) Regardless of the correct date, it is undisputed that the interrogatories were untimely under the Rules (ie., either 25 days prior to the end of discovery or 21 days prior to the end of discovery).
In a supplement to the Rule 26(f) Report, the parties agreed that service of discovery could be perfected by e-mail. ( See Doc. 21, p. 3, n. 1)
Rule 33 of the Federal Rules of Civil Procedure provides, in part as follows:
(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
Further, the Rule 16(b) entered in this action states that responses to discovery are due within thirty (30) days of service. ( See Doc. 20)
Counsel for plaintiff maintains that his co-counsel was lead counsel in this case and withdrew in June 2009 ( see docs. 29, 30) causing a delay in the progress of the case. Counsel further stated that the delay was due, in part, to the fact that plaintiff was incarcerated until August 2009 and counsel was unable to consult with him before propounding the discovery requests. Counsel for defendant contends that Mr. Dearman has been involved in this matter from its inception and discounts his arguments to the contrary. Upon consideration, the defendant's motion to quash is DENIED. Unopposed Motion to Extend Discovery Deadline
The court's ruling denying defendant's motion to quash necessitated the granting of the plaintiff's motion to extend the discovery deadline. At the hearing the court orally extended the deadline for one month (December 2, 2009) and ordered defendant's discovery responses due by that date.
The parties were advised at the hearing on November 4, 2009 that any extensions greater than those discussed would necessitate resetting the trial of this action. The dates proposed by the parties will not provide sufficient time for the District Judge to consider any dispositive motions prior to the pretrial conference. Defendant acknowledges this in the unopposed motion.
BAMACO now seeks a continuance of the oral deadlines imposed at the November 4, 2009 hearing on the grounds, in sum, that the defendant will be out of the country until November 16, 2009. Counsel represents that she has conferred with counsel for plaintiff, and he does not oppose the motion. Upon consideration, the defendant's unopposed motion for extension of the remaining deadlines is GRANTED, as the Rule 16(b) Scheduling Order (doc. 20) is hereby AMENDED as follows:
2. DISCOVERY COMPLETION DATE. All discovery is to be completed on or before January 29, 2010. Requests for extension will be viewed with great disfavor and will not be considered except upon a showing (1) that extraordinary circumstances require it and (2) that the parties have diligently pursued discovery. For all actions, "completed" means that all depositions have been taken; interrogatories, requests for admissions, and requests for production filed and responded to; physical inspections and testing concluded; physical and mental examinations concluded; and motions to compel filed.
6. PRETRIAL DISCLOSURES. The time for disclosing the information required by Fed.R.Civ.P. 26(a)(3) shall be April 16, 2010.
8. FINAL PRETRIAL CONFERENCE. This action shall be pretried by Chief Judge Callie V.S. Granade, on May 17, 2010 at 4:00 p.m. , in Mobile, Alabama. Requests for extending the convening of the pretrial conference will be granted only if good cause for the extension has been exhibited.
A COPY OF CHIEF JUDGE GRANADE'S STANDING ORDER GOVERNING HER FINAL PRETRIAL CONFERENCES IS ATTACHED. NO ADDITIONAL NOTICES REGARDING THE FINAL PRETRIAL CONFERENCE WILL BE NECESSARY.
9. TRIAL DATE. This action will be set for jury selection on June 2, 2010 at 8:45 a.m. and for trial during the month of June 2010, in Mobile, Alabama, the specific date to be set once the total number of actions to be tried that month is determined. The parties have estimated that this action will require 3-4 trial days.
12. DISPOSITIVE MOTIONS. The Court considers dispositive motions, particularly summary judgment motions, to be appropriate methods for pretrial resolution of claims or defenses, or portions thereof, that do not contain disputed material facts, thus reducing the triable issues. In order to ensure that these issues are presented in sufficient time for the Court to reach a decision prior to trial, the parties shall identify those claims or defenses that do not require a trial in a properly-supported dispositive motion, filed not later than February 12, 2010.
15. SETTLEMENT/ADR. The parties are ORDERED to file a written assessment of the possibility of resolving the issues in this case through a recognized ADR procedure. The written assessment shall be filed as soon as possible during the discovery process but no later than the close of discovery on January 29, 2010. Rule 16(c)(9).
All other deadlines and instructions contained in the Rule 16(b) Scheduling Order (doc. 20) remain unaffected.
STANDING ORDER GOVERNING FINAL PRETRIAL CONFERENCE
It is ORDERED that the following requirements shall prevail for Fed.R.Civ.P. 16(d) Final Pretrial Conferences set before the Honorable Callie V. S. Granade:
1. Counsel shall confer and shall jointly prepare a single Joint Pretrial Document in the form attached, which must be filed with the Clerk of Court at least seven (7) calendar days before the Final Pretrial Conference. "Joint preparation" entails that counsel affirmatively and in good faith attempt to reach agreement on each of the matters required by this Standing Order to be addressed in the Joint Pretrial Document. Matters of good-faith disagreement should be so noted in the Joint Pretrial Document, and should be accompanied by a statement as to whether any specific rulings by the Court on those matters might facilitate the conduct of the trial or ongoing settlement negotiations.
2. Participation at the Final Pretrial Conference is mandatory. At least one attorney of record for each party (or, in the case of a pro se party, the party himself or herself) must be physically present at the conference, unless alternative arrangements are made and approved by the Court in advance. Additional counsel may attend, but are not required to do so unless otherwise ordered in a particular case.
3. Counsel shall confer and engage in meaningful settlement discussions within 30 days prior to the Final Pretrial Conference. Merely making a single settlement demand or offer, with no further discussions between the parties, is not sufficient. At the Final Pretrial Conference, counsel must be prepared to discuss with the Court the status of those settlement negotiations, and whether any method of Alternative Dispute Resolution may be beneficial to resolving the action before trial.
4. The Joint Pretrial Document shall contain each of the following:
A. Jurisdiction and Parties. A statement as to (1) the Court's jurisdiction over the subject matter and parties, (2) the propriety of parties, including correctness of identity of legal entities ( e.g., partnership, corporation, or individual d/b/a trade name), and (3) the necessity of appointment of guardian ad litem or other representative, and validity of appointment if already made.
B. Statement of the Case. A brief statement of the action (no more than one page), providing a broad overview of the basic facts and nature of the dispute. The Court will read this statement to the venire during jury selection to qualify prospective jurors as to the events giving rise to the lawsuit; therefore, it should be written so as to be understandable by a typical juror.
C. Triable Claims and Affirmative Defenses. For each claim or affirmative defense asserted: (1) a listing of its legal elements derived from the pattern jury instructions or applicable and controlling case law; (2) a statement of the agreed facts specifically related to that claim or defense; and (3) a statement of the disputed facts specifically related to the claim or defense. Parties should not submit a legal memorandum, but should instead present a simple statement of the legal elements, with citations to supporting authority.
D. Trial Time. An estimate of the number of trial days required, and a statement of the number of witnesses reasonably expected to testify on behalf of each party in its case in chief.
E. Type of Trial. A statement indicating whether the action is a jury or non-jury action. If a jury action, the parties should indicate whether the jury trial is applicable to all aspects of the dispute or only to certain issues, which shall be specified.
(1) Jury Size. In view of Fed.R.Civ.P. 48, which allows not fewer than six (6) and not more than twelve (12) jurors, the parties shall include a statement of their position with regard to the number of jurors they request be selected. If the parties are unable to agree, the Court will cause a jury of eight (8) to be selected.
(2) Voir Dire Questions. Proposed voir dire questions and objections to questions shall be included in the Joint Pretrial Document. Each party shall be limited to twenty (20) questions. In preparing their lists, counsel may find it helpful to review this District Court's form juror questionnaire (which is available from the Clerk's Office upon request), so as not to ask questions that are redundant of those posed in that questionnaire. Also, counsel need not include questions concerning whether prospective jurors know any of the parties, witnesses or lawyers in the case, or know anything about the case, as those questions will be asked by the Court during voir dire as a matter of course. Lawyer voir dire will be permitted using court-approved questions from the lists submitted.
(3) Jury Instructions and Special Verdict Form. No later than seven (7) calendar days prior to trial, the parties shall submit to chambers by e-mail a jointly prepared set of agreed jury instructions. This document should include a single, comprehensive, organized, jointly-approved set of jury instructions, rather than multiple variations of the same charge to which neither side objects. For any instructions as to which the parties have been unable in good faith to agree, the parties may file separate instructions designated accordingly ( e.g., "Plaintiff's proposed jury instruction number _____"). It is anticipated that the incidence of instructions as to which the parties are unable to agree in good faith will be an infrequent occurrence in most cases. If the parties desire to submit special interrogatories to the jury, a jointly prepared proposed verdict form must be submitted to chambers by e-mail contemporaneously with the proposed jury instructions. If the parties cannot agree on the need for or form of the special verdict form, the parties may file separate proposed jury interrogatories designated accordingly.
F. Motions. A list and description of any motions (including motions in limine) pending or contemplated. It is not sufficient for a party simply to state that it plans to file unspecified motions in limine. The Court will set deadlines for filing and briefing motions in limine at the Final Pretrial Conference. Because of the tight time frames involved, it is expected that counsel will have their motions in limine researched, drafted and in substantially final form by the time of the conference. All challenges to expert witnesses, including Daubert motions, must be filed not later than two weeks prior to the Final Pretrial Conference.
G. Depositions. A list designating by page and line those relevant portions of depositions which any party wishes read at trial, not including excerpts whose sole purpose is impeachment. All objections to any such testimony shall be made in writing and submitted with the Joint Pretrial Document. Failure to either designate portions of depositions to be read, or to object to the portions so designated, shall constitute a waiver of the right to present the testimony by deposition, or a waiver of any such objection.
H. Witnesses. A list of the names and addresses of all witnesses who will or may testify at the trial. The number of witnesses shall be kept to a reasonable minimum. Additional witnesses may be added only in accordance with Fed.R.Civ.P. 16(e). The parties shall attach to the Joint Pretrial Document a curriculum vita of each expert witness, and a brief statement of the opinion(s) which counsel expects to elicit from such expert. Any objections to the designation of a witness (whether lay or expert) shall be submitted with the Joint Pretrial Document. Failure to comply shall constitute a waiver of any such objection.
I. Damages. A list describing the amount and type of damages sought. Whenever possible, the parties shall stipulate to the amount and type of damages which a prevailing party shall be entitled to recover. If the parties are unable to agree, then the plaintiff shall state with specificity the amount and category of damages ( e.g., doctor and hospital bills $____; lost wages $____; pain and suffering $____; etc.). It is not sufficient simply to state that the plaintiff seeks compensatory damages in an amount to be determined at trial. The listing of stipulated damages shall not constitute an agreement as to the recoverability of same unless so stated.
J. Exhibits. A list of all exhibits which are to be offered in evidence, submitted on this Court's exhibit form or a substantially similar form. Additional exhibits may be added only in accordance with Fed.R.Civ.P. 16(e). Each party shall furnish opposing counsel, for copying and inspection, all exhibits which are to be offered in evidence, no later than 14 days before the Final Pretrial Conference.
(1) Objections. Objections to exhibits shall be noted in the Joint Pretrial Document, setting forth the nature of the objection. All exhibits to which there is no objection shall be deemed admitted.
(2) Marking Exhibits. Markers obtained from the Clerk shall be attached to all exhibits, and such exhibits shall be delivered to the Clerk immediately prior to the commencement of trial.
K. Attorneys. A list of all attorneys in any represented law frm, or an attached copy of the firm's letterhead.
It is not necessary for the parties to set forth every possible variation of every factual dispute involved in the case for fear that they may waive the presentation of some evidence at trial. The Court is interested in a concise statement of the facts that are disputed and undisputed, specifically related to the legal claims and defenses that are to be litigated.
The e-mail address for sending a copy of proposed jury instructions is e-file_granade@alsd.uscourts.gov. This e-mail address is not to be used to communicate with the Court unless otherwise permitted or when communications are solicited by the Court.
5. Counsel are reminded that the action is to be ready for trial at the time of the Final Pretrial Conference. Submission of the Joint Pretrial Document should mark the conclusion, not the commencement, of the parties' trial preparations. Once adopted by the Court as part of the Pretrial Order, the Joint Pretrial Document shall constitute the final statement of the claims, affirmative defenses and relief at issue; shall govern the conduct of the trial; and shall constitute the basis for any relief afforded by the Court. The Pretrial Order may be amended at any time by the Court or on motion of a party only in accordance with Fed.R.Civ.P. 16(e).
6. Failure to comply with the provisions of this Order or to attend the Final Pretrial Conference may result in the following sanctions pursuant to Fed.R.Civ.P. 16(f): (a) dismissal of the action for failure to prosecute, if such failure occurs on the part of the plaintiff; (b) entry of default judgment if such failure occurs on the part of the defendant, or (c) any other action as deemed appropriate by the Court.
DONE and ORDERED.
STYLE OF ACTION
(Do not use " et al." — list all remaining Plaintiffs and Defendants)
JOINT PRETRIAL DOCUMENT A. JURISDICTION AND PARTIES
There is no contest as to the jurisdiction of this Court or as to the correctness of the named defendant(s) or the named plaintiff(s).
B. STATEMENT OF THE CASE (See Paragraph 4.B. of Standing Order.) C. TRIABLE CLAIMS AND AFFIRMATIVE DEFENSES
1. (Statement of first legal claim to be tried, e.g., Title VII, Jones Act, negligence, breach of contract, etc.)
a. LEGAL ELEMENTS (See Paragraph 4.C.1. of Standing Order).
b. AGREED FACTS (as to this legal claim) (See Paragraph 4.C.2. of Standing Order).
c. DISPUTED FACTS (as to this legal claim) (See Paragraph 4.C.3. of Standing Order).
2. (Statement of second legal claim to be tried)
1. LEGAL ELEMENTS.
2. AGREED FACTS.
3. DISPUTED FACTS.
3. (Statement of first affirmative defense to be tried, e.g., contributory negligence, statute of limitations, etc.)
1. LEGAL ELEMENTS.
2. AGREED FACTS.
3. DISPUTED FACTS.
D. TRIAL TIME
It is estimated that this action will take _____ days to try, exclusive of jury selection time. The plaintiff expects to call ____ witnesses, and the defendant expects to call _____ witnesses.E. TYPE OF TRIAL JURY NON-JURY
The parties request a jury of __________.
The parties' proposed voir dire questions (and objections) are attached.
F. MOTIONS
(List and describe any pending or contemplated motions, as per Paragraph 4.F. of the Standing Order.)G. DEPOSITIONS
(List those portions of depositions to be used at trial. State any objections. See Paragraph 4.G. of the Standing Order.)
H. WITNESSES
(List the name and address of each witness expected to testify at trial, including separate "will call" and "may call" lists for each party. All expert witnesses listed should be identified as such, and the additional information required by Paragraph 4.H. of the Standing Order should be provided. Objections to any witnesses, whether lay or expert, should also be set forth.)
I. DAMAGES (See Paragraph 4.I. of Standing Order.)
The parties agree that, if the plaintiff prevails as to liability, he/she is entitled to an award of lost wages in the amount of _________ and medical bills in the amount of _______. Plaintiff also seeks an award for pain and suffering in the amount of __________; however, defendant disputes that plaintiff is entitled to this type and amount of damages even if plaintiff prevails as to liability.
J. EXHIBITS
(List exhibits numerically with a brief description of each exhibit. All exhibits shall be marked to correspond with the exhibit list. See Paragraph 4.J. of the Standing Order. Objections to any witnesses should also be set forth.)
K. ATTORNEYS
(List names of attorneys in any represented law firm or attach copy of the firm's letterhead. See Paragraph 4.K. of the Standing Order.)
______________________________________ Attorney for Plaintiff ______________________________________ Attorney for Defendant