Opinion
Civil Action Nos. 98-2777 D, 98-2968 D, 00-2245 D
January 9, 2001
CASE MANAGEMENT ORDER
This matter is before the Court on Plaintiffs' Motion For Entry of A Case Management Order relating to both of the above-captioned matters, due notice having been given to all parties, and the Court being fully advised,
IT IS HEREBY ORDERED:
1. That this Court finds these actions to involve complex issues of fact, law and administration; that the entry of a Case Management Order ("CMO") will promote the just, speedy, and efficient resolution of these actions; and that it is in the best interests of the Court and all parties that such an order be entered.
2. That all aspects of this litigation are hereby stayed except as otherwise specified in this CMO, pending further order of the Court.
3. That to effectively and cost-efficiently move these cases to resolution, this Court has determined that this litigation will be divided into two separate stages. Phase I, which will last for approximately nine (9) months, will relate to efforts under the supervision of a Special Master to settle the case. Phase II will consist of a standard pre-trial phase and will be devoted to discovery, motion practice and further settlement efforts, followed by the disposition of the case via dispositive motions and/or trial if necessary.
I. GENERAL ORDERS. 1. Expected Conduct of Attorneys.
Counsels' attention is drawn to the Guidelines for Professional Courtesy and Conduct of the Memphis Bar Association, as adopted by the District Court for the Western District of Tennessee. Failure to abide by these Guidelines may result in the imposition of sanctions. Counsel are expected to familiarize themselves with and follow the Rules of the United States District Court for the Western District of Tennessee ("Local Rules").
2. Informal Dispute Resolution.
Counsel shall make good faith efforts to resolve all disputes out of court and in an expeditious manner. Prior to submitting any matter to the Court, counsel must attempt to resolve the matter informally. Any matter submitted to the Court must contain a certificate indicating that counsel has informally attempted to resolve the dispute. The form of the certificate shall be as required under Local Rule 7.2(a)(1)(B). Efforts to informally resolve matters may be conducted in person or via telephone.
II. PLEADINGS AND MOTION PRACTICE. 1. Service of Process and Default.
Plaintiffs shall forthwith complete the issuance of summons to all defendants if that has not already been done, and shall effect service of process as promptly as possible. Plaintiffs shall comply with the service requirements of Fed.R.Civ.P. 4. Whenever it appears that a party is in default by failure to appear or to plead or defend as required by the Federal Rules of Civil Procedure or an order of this Court, Plaintiffs shall, within thirty (30) days of that default, move for a default in accordance with Fed.R.Civ.P. 55. Any such motion for default shall be accompanied by an appropriate form of order.
2. No Responsive Pleadings Required.
Until further Order of the Court, Defendants shall not file responsive pleadings (i.e., answers, counterclaims, cross-claims, third-party claims, etc.) directed to Plaintiffs' amended complaint herein. Nor shall Defendants file any motions under Fed.R.Civ.P. 12 directed to Plaintiffs' amended complaint. Rather, (a) all Defendants are hereby deemed by the Court to have timely asserted all available defenses to the claims asserted against them by Plaintiffs; (b) all Defendants are hereby deemed by the Court to have timely asserted any and all counterclaims and cross-claims that otherwise could have been raised in a responsive pleading directed to or otherwise related to Plaintiffs' amended complaint; (c) and all parties are hereby deemed by the Court to have timely asserted all defenses available to them with respect to all such counterclaims and/or cross-claims. Nothing contained herein shall be deemed or construed to create any conflict of interests that may serve as a basis to disqualify any counsel from accepting or continuing the representation of any party.
3. Adding Parties.
Any party adding an additional party after the date of entry of this CMO shall serve upon such party a copy of the most recent amended complaint, a copy of this CMO and any subsequent modification thereto, any confidentiality or protective order and the current service list. Any later-added party shall be bound by all such orders.
III. PHASE I SETTLEMENT MEDIATION. 1. Issues Referred to Mediation.
The following issues raised by Plaintiffs' amended complaints as to each Defendant are hereby referred to mediation under the direction of a Special Master pursuant to Fed.R.Civ.P. 16(c)(8) and (9), Fed.R.Civ.P. 55 and Local Rule 16.1(e).
• Whether the Defendant at any time between January 1, 1959 and December 31, 1975 provided used motor oil or any other oil to Gurley Oil Company.
• Whether the Defendant is a successor in the context of CERCLA liability to another entity that provided used motor oil or other oil to Gurley Oil Company during the time period January 1, 1959 through December 31, 1975.
• During what portion of said time period did Gurley Oil obtain used oil from the Defendant or a predecessor of the Defendant.
• How much used oil was obtained by Gurley Oil from the Defendant or a predecessor of the Defendant during said time period.2. Appointment of a Special Master.
The Court hereby appoints William Hyatt to serve as the Special Master in this matter. Mr. Hyatt shall serve in this capacity as an officer of this Court, shall conduct the mediation in this matter pursuant to the terms and conditions established by this CMO and other pertinent orders and directives of this Court, and shall keep the Court regularly apprised of the status of the mediation by means of oral reports regarding material events and written reports to be filed with the Court and served upon the parties not less frequently than monthly.
3. Limit on Discovery During Phase I.
During Phase I, no discovery initiated by a party shall be permitted except that at any time, upon approval of the Court or the consent of the Plaintiffs and each Defendant whose interests would be affected by the testimony, a party may take the deposition of any witness. All parties are hereby relieved of the obligation to respond to any discovery requests heretofore directed to them by any other party until further order of the Court.
4. Advice As To Anticipated Fees.
On or before April 2, 2001 each party's counsel (if any) shall serve upon his/her client a statement of the costs and fees expected to be incurred in this action consisting of three estimates. First, the statement shall include an estimate of the costs and fees expected to be incurred through the Phase I settlement mediation period. Second, the statement shall contain an estimate of the expected costs and fees to take this case full-term, through trial.
5. Initial Meeting with Special Master.
On or before March 20, 2001, the Special Master shall conduct an initial meeting either in person or via telephone conference with the parties in order to familiarize them with the mediation process to be carried out under this CMO and to establish the procedures to be utilized by the Special Master in connection with this process to the extent not established by this CMO. Attendance at this meeting is mandatory for all parties.
6. Identification of Additional Parties.
On or before April 2, 2001, each party shall notify the Special Master of the identities of non-parties which that party reasonably believes should be made parties in the mediation process and shall provide a brief explanation as to why each such non-party should be made a party.
7. Adding of Additional Parties.
On or before April 16, 2001, the Special Master shall confer with the parties regarding the proposed additional parties. All non-parties which the Special Master determines to be sufficiently involved in the issues determined to be the subject of mediation shall be added as Defendants by Plaintiffs. Any other non-party may be added as a Defendant by Plaintiffs or as a Third-Party Defendant by any Defendant. All new parties must be added by April 30, 2001. All newly-added Defendants are subject the provisions of paragraph II.2. above. In addition, (a) Plaintiffs are hereby deemed by the Court to have timely asserted all available claims against all newly-added Third-Party Defendants; and (b) all newly-added Third-Party Defendants shall be deemed to constitute Defendants for the purposes of paragraph II.2. above and are subject to the provisions thereof.
8. Plaintiffs' Disclosure of "Gurley Oil Connection" Evidence.
On or before April 2, 2001, Plaintiffs shall provide the Special Master copies of the evidence developed to that point as to each Defendant that supports the proposition that the Defendant or a predecessor of the Defendant provided used motor oil or other oil to Gurley Oil Company during the period January 1, 1959 through December 31, 1975. At the same time, Plaintiffs shall provide each Defendant with copies of all such evidence provided to the Special Master if that evidence has not already been provided to the Defendant. Plaintiffs shall promptly provide the Special Master any additional evidence developed in this regard and shall at the same time provide copies of all such evidence to the Defendant to which the evidence relates.
9. Deadline for Submission of Questionnaire.
On or before April 2, 2001, Plaintiffs shall submit to the Special Master copies of each questionnaire response submitted to Advanced Analytical Solutions, Inc. by a Plaintiff as part of the Gurley-Related Sites PRP Group's internal allocation process. Each other party shall complete and submit to the Special Master the questionnaire that constitutes Attachment A hereto. Each Defendant also shall serve Plaintiffs with a copy of its completed questionnaire. Each party may obtain a copy of any other party's completed questionnaire from the Special Master. The Special Master is hereby authorized to take such steps as he deems to be reasonably necessary to satisfy himself that each party's questionnaire response has been prepared in good faith and is based upon all information that is reasonably available to the party.
10. Deadline for Submission of Additional Evidence.
In addition to the information to be provided to the Special Master by the questionnaire responses under paragraphs III.9 and 10 above, each party may on or before April 2, 2001 submit to the Special Master additional evidence relevant to the issues referred for mediation under paragraph III.1 above as to itself and/or any other party.
11. Deadline for Initial Position Papers.
On or before April 16, 2001, each of the parties shall submit to the Special Master an initial position paper setting forth that party's position regarding each of the issues subject to mediation. This submission shall not exceed ten (10) pages, except that Plaintiffs' submission may include additional comments regarding matters specific to each Defendant, not to exceed two (2) pages per Defendant. A copy of this submission shall be served upon each party whose interests with respect to the issues subject to mediation are addressed in the submission.
12. Deadline for Response to Initial Position Papers.
On or before May 7, 2001, each of the parties may submit to the Special Master a response to any other party's initial position paper. These responses shall not exceed five (5) pages. A copy of the response shall be served upon any party whose interests with respect to the issues subject to mediation are addressed in the response.
13. Special Master's Preliminary Report.
On or before July 5, 2001, the Special Master shall issue his preliminary report setting forth his initial findings as to each party with respect to the issues subject to mediation.
14. Deadline for Second Round Position Papers.
On or before July 26, 2001, each party may submit to the Special Master a second round position paper setting forth that party's position regarding any disagreements that party has with the Special Master's initial findings regarding that party or any other party with respect to the issues subject to mediation. A copy of a party's second round position paper shall be served upon any other party whose interests with respect to the issues subject to mediation are addressed in that second round position paper.
15. Deadline for Response to Second Round Position Papers.
On or before August 9, 2001, each party whose interests with respect to an issue subject to mediation have been addressed by another party's second round position paper may submit to the Special Master a final response setting forth that party's position regarding each of the issues subject to mediation addressed by another party's second round position paper. A copy of a party's final response also shall be served upon each party whose second round position paper is addressed in that final response.
16. Special Master's Final Report.
On or before October 9, 2001, the Special Master shall issue his final report setting forth his final determinations regarding each of the issues subject to mediation as to each party.
17. Mediation Sessions.
The Special Master shall schedule one or more meetings with the parties ("Mediation Session") in an effort to resolve the issues that are the subject of mediation. The first Mediation Session shall take place on or before October 24, 2001. The final Mediation Session shall take place on or before December 10, 2001.
18. Persons Required to Attend Mediation.
At each Mediation Session, each Defendant shall be represented (a) either by a person who has the authority to agree to a resolution of an issue on behalf of that party or a person who can directly make recommendations regarding a proposed resolution of such issues to the person or persons who possess the final authority to make decisions with respect to all such issues on behalf of that party, (b) and by at least one of the attorneys then expected to try this case if a trial proves necessary.
19. Plaintiffs' Representatives at Mediation.
At each Mediation Session, Plaintiffs shall be represented (a) either by not fewer than three (3) members of the Gurley-Related Sites Group Steering Committee who can directly make recommendations regarding a proposed resolution of such issues to Plaintiffs or by other persons who possess the final authority to make decisions with respect to all such issues on behalf of Plaintiffs, (b) and by at least one of the attorneys for Plaintiffs then expected to actively participate in the trial of this case if a trial is necessary.
20. Deadline for Concluding Phase II Mediations.
On or before December 20, 2001, the Special Master shall notify the Court and all parties as to all settlements or resolutions reached in the course of the Phase I mediation process. Plaintiffs are directed to tender to the Court on or before January 2, 2002 an appropriate motion, supporting memorandum and proposed order that provides for the resolution of all claims asserted or deemed asserted against any Defendant with which Plaintiffs have reached a settlement during the course of the Phase I mediation process. All objections to any such settlement must be filed by January 17, 2002. All responses to such objections must be filed by January 28, 2002.
21. Assessment of Special Master Fees.
The Special Master's fees and all other costs of mediation shall be assessed to the parties on a per capita basis. Each party shall immediately pay to the Special Master an initial assessment of $1,000, to be maintained in trust by the Special Master until such time as expenditures of those funds are approved by the Court. Requests by the Special Master for the expenditure of funds to satisfy the Special Master's fees and other expenses shall be submitted to the Court for review and possible approval not more frequently than monthly. The Special Master shall notify the Court if, in the Special Master's judgment, additional assessments of the parties are necessary.
22. Court Notification of Failure to Pay.
The Special Master shall promptly notify the Court if any party fails to timely pay either its initial assessment or any subsequent assessment. Each such party may file with the Court a response to the Special Master's notice within ten (10) days thereof.
23. Modification of CMO
This CMO may be modified pursuant to good cause shown by any party pursuant to a written motion. If the Special Master determines on his own initiative or pursuant to the request of party that a modification to this CMO is desirable, he shall request one of the parties to move the Court for such modification and the party so requested shall promptly file a motion with the Court seeking modification as sought by the Special Master, setting forth the Special Master's reasons therefore. If the Special Master seeks modification of the CMO more than once, the Special Master shall request a different party to submit the appropriate motion in each instance that a modification is sought.
24. Extension of CMO Deadlines.
The Special Master shall not have the authority to extend any of the deadlines or waive any of the page limits for written submissions established by this CMO. Requests for relief as to these matters must be directed to the Court and based upon a showing of good cause. All other procedural aspects of the mediation shall be determined by the Special Master in a manner not inconsistent with any terms or conditions of the mediation established by this CMO.
25. Submissions to Special Master Not Admissible.
All written submissions to the Special Master, oral statements, and other conduct by the parties in connection with the mediation process established hereby constitute material not admissible at any trial of this action or any other action, pursuant to Rule 408 of the Federal Rules of Evidence.
26. No Effect on Pilot Allocation.
Neither the issuance of this CMO nor the participation in the mediation process established hereby shall in any way affect the ongoing Pilot Allocation Project undertaken by the U.S. Environmental Protection Agency with respect to the South 8th Street Landfill Superfund Site that (among other things) provides for several (but not joint) liability for liable parties at that Site and agency funding for orphan shares.
IV. PHASE II LITIGATION. 1. Commencement of Phase II.
Phase II shall begin on December 20, 2001, the deadline for the Special Master to notify the Court and all parties as to all settlements or resolutions reached in the course of the Phase I mediation process under paragraph III.20 above.
2. Phase II Deadlines.
On January 21, 2002, the parties shall make their initial disclosures required by Fed.R.Civ.P. 26(a)(1). The parties are exempt from conducting a planning meeting within the meaning of Fed.R.Civ.P. 26(f). On or after February 20, 2002, written discovery on liability, damages and allocation will be allowed and shall continue for a period of six (6) months. Responses to such written discovery shall be made within sixty (60) days after receipt of service. Follow-up written discovery, if any is required, shall be served only if the response date is not more than thirty (30) days after the written discovery cut-off date. Written discovery must be completed on or before June 17, 2002. Any party that stipulates to liability in this cause shall be relieved of the obligations to respond to Phase II discovery, unless otherwise ordered by the Court.
3. Limitations of Rules 30(a)(2) and 33(a) Inapplicable.
The limitations set forth in Fed.R.Civ.P. 30(a)(2) (relating to the number of depositions allowed to be taken) and Fed.R.Civ.P. 33(a) (relating to the number of interrogatories allowed) shall not apply. The parties are not precluded from seeking a protective order under Fed.R.Civ.P. 26(c) and Local Rule 26.1(b)(1)(A) as to unduly burdensome or otherwise objectionable discovery.
4. Discovery Guidelines.
The parties shall cooperate, to the extent feasible, in all matters relating to discovery, and shall use their best efforts to avoid duplicative discovery. Parties and their attorneys shall not use any form of discovery scheduling as a means of harassment or in any way that imposes undue burden or expense. Nothing in this section shall be interpreted as limiting the right of counsel for any party to independently represent such party's interests in matters of discovery, briefing or motion practice.
5. Motions to Compel.
Any motions to compel shall be filed in accordance with the Fed.R.Civ.P. 37 and Local Rule 26(b)(1)(A).
6. Dispositive Motions Deadline.
On or before October 18, 2001, all dispositive motions which are apparent to the parties and which do not require discovery shall be filed. To the greatest extent possible. the parties shall collaborate and submit joint motions.
7. Depositions.
On or after June 17, 2002 and before September 16, 2002, the parties may conduct depositions of any party or witness.
8. Deadline for Expert Disclosures.
On or before November 14, 2002, the parties shall make their expert disclosures under Fed.R.Civ.P. 26(a)(2). Depositions of experts may be taken between December 16, 2002 and February 17, 2003. Counsel shall collaborate regarding the scheduling and taking of depositions in such a way that, when feasible, deponents shall not be deposed more than once.
9. Pre-Trial Conference Date.
A pre-trial conference will be held on March 17, 2003. The pretrial conference will include a mandatory settlement conference.
10. Other Dispositive Motions.
Dispositive motions shall be filed as soon as practicable, but no later than April 21, 2003. Responses to dispositive motions regarding liability filed pursuant to this Paragraph shall be filed within 25 days after service of the motion. Replies shall be filed within 17 days after service of the response.
11. Final Pre-Trial Conference.
A final pre-trial conference will be held in June 2003. Trial is tentatively set for August 2003. This schedule may be enlarged or reduced given future events.
V. OTHER MATTERS. 1. Appearances Required.
All parties who have not previously done so must appear by counsel on or before on or before March 20, 2001. Each attorney appearing on behalf of a party (a) shall file with the Court a paper setting forth the name of each party represented, the attorney's name, registration or license number for the jurisdiction in which the attorney's principal practice is located and for the State of Tennessee (if applicable), firm name (if any), mailing address, business telephone number, business telephone number for facsimile transmissions, and e-mail address (if any), and (b) shall serve a copy of said appearance paper upon counsel for Plaintiffs and all other parties in both of these actions in accordance with the service list attached hereto. Each party failing to comply with the requirements of this paragraph shall be deemed in default for purposes of paragraph II.1. above.
2. Motions To Appear Pro Hac Vice Not Required.
In view of the number of parties involved in this action, the appearance and participation of local counsel on behalf of the parties shall not be required. Attorneys who are admitted to practice in any District Court of the United States and are familiar with the Rules of the United States District Court for the Western District of Tennessee may appear on behalf of a party in this action and will be deemed admitted pro hac vice to practice before this Court in this proceeding.
3. Service List.
Counsel for Plaintiffs shall maintain an up-to-date service list and distribute a copy of the dated Official Service List to the Court and Defendants on a monthly basis unless no changes have been made during a particular month. Whenever a party files any document with the Court, it shall be required for that party to certify service in an abbreviated form. Where service is made on all parties, that fact may be recited by an incorporation by reference of the Official Service List of a specified date. Counsel shall not attach copies of the Official Service List to such filings.
4. Modifications for Good Cause.
The time periods provided for herein may be modified for good cause shown.
VI. MATTERS NOT COVERED IN ORDER.
Matters which have not been addressed by or stayed in accordance with this CMO shall be handled in accordance with the Federal Rules of Civil Procedure and the Rules of the United States District Court for the Western District of Tennessee.