Free Order - District Court of Colorado - Colorado

Case 1:03-cv-01959-MSK-PAC

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Filed 07/19/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 03-cv-01959-MSK-PAC AHMED M. AJAJ, Plaintiff, v. UNITED STATES OF AMERICA, ROBERT A. HOOD, JAMES BURRELL, DAVID DUNCAN, C. CHESTER, and J.C. ZUERCHER, Defendants.

ORDER DIRECTING SUBMISSION OF FINAL PRE-TRIAL ORDER AND REVISED WITNESS AND EXHIBIT LISTS

THIS MATTER came before the Court for a final pre-trial conference on July 19, 2006. As stated by the Court at the hearing, the purpose of trial is to resolve disputed facts after which the law is then applied to the material facts. For this case to be ready for trial, the parties must have made final determinations as to which claims and affirmative defenses must be tried, the elements of the claims and affirmative defenses, and whether the element will be established by stipulation or by evidence pertinent to disputed facts. Counsel shall meet and confer to jointly develop a Proposed Pre-Trial Order conforming to the following requirements:

Case 1:03-cv-01959-MSK-PAC

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1. Format Except as specifically modified herein, parties should use the format of Appendix G of this Court' Local Civil Rules for the Proposed Pre-Trial Order, available at the Court' website. See s s www.co.uscourts.gov/forms/fin_pre_ord_new.pdf. Such format shall be modified as follows: Section 3: Claims and Defenses ­Parties are encouraged to omit a narrative summary of the claims, defenses, facts, and legal theories. If a party includes a narrative summary, such summary shall not exceed one page in length. Regardless of whether a narrative is included, this section MUST include a separate enumeration of each claim and affirmative defense to be tried. For each claim and affirmative defense, the parties shall designate: 1) which party has the burden of proof; 2) the standard of proof; 3) if governed by state law, the applicable state law; and 4) each element, separately stated. For each element, the parties should state whether it is stipulated. If not, the party with the burden of proof must state the fact(s) referring specifically to each witness and exhibit which will be presented to establish such facts. Each witness'testimony must be stated with particularity. For example, witness Jones will testify that: he treated the Plaintiff, he diagnosed the Plaintiff as having this condition, he prescribed the following medical treatment, and he gave the following medical prognosis. Any claims or affirmative defenses not specifically identified and supported as required above will be deemed waived.

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Example:

Claim 1: Breach of contract under Colorado law Plaintiff has burden of proof by a preponderance of the evidence Elements: (1)-(3) offer, acceptance, consideration (a) the parties stipulate that these elements are satisfied (4) performance by the plaintiff (a) On March 3, 2004, Peter Plaintiff delivered one crate of widgets to Widget Packers, Inc. (Testimony of Peter Plaintiff; Don Defendant; Exhibits 1, 4) (b) The widgets conformed to the specifications in the contract. (Testimony of Peter Plaintiff; Exhibit 2) (c) The widgets were delivered on the date set by the contract. (Exhibit 2) (5) non-performance by the defendant (a) Widget Packers, Inc. failed to remit payment on the terms set by the contract. (Testimony of Barry Bookkeeper; Exhibit 2) (b) Peter Plaintiff has made several written demands for payment. (Peter Plaintiff; Exhibits 3, 5, 7) (6) damages (a) Peter Plaintiff has been damaged in the contract amount of $10,000. (Testimony of Peter Plaintiff; Exhibit 2).

Claim 2: Unjust Enrichment under Colorado law Plaintiff has burden of proof on all elements by a preponderance of the evidence Elements: (1) Defendant has received a benefit (a) On March 3, 2004, Peter Plaintiff delivered one crate of widgets to Widget Packers, Inc. pursuant to a contractual agreement. (Testimony of Peter Plaintiff; Don Defendant; Exhibits 1, 2, 4). (2) the benefit is at the Plaintiff' expense s (a) Widget Packers, Inc. failed to remit payment on the terms set by the contract. (Testimony of Barry Bookkeeper, Exhibit 2) (3) justice requires that Defendant reimburse the Plaintiff for the benefit received (a) The widgets have a market value of $15,000. (Testimony of Peter Plaintiff) (b) Don Defendant is in breach of the contract. (Testimony of Peter Plaintiff)

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Affirmative Defense to Claim 2: Failure to mitigate under Colorado law Defendant has burden of proof on all elements by a preponderance of the evidence Elements: (1) Plaintiff had a reasonable opportunity to avoid injury (a) On March 5, 2004, Don Defendant left a message on Peter Plaintiff' voice mail offering to return the crate of s widgets unopened. (Testimony of Don Defendant; Peter Plaintiff) (b) On March 8, 2004, Don Defendant wrote to Peter Plaintiff, offering to assign the contract for the purchase of widgets to WidgetCo. (Don Defendant; Warren Widget; Exhibit 6) (2) Plaintiff unreasonably failed to avail itself of opportunities to avoid injury (a) Peter Plaintiff did not respond to the March 5, 2004 message. (Don Defendant) (b) Peter Plaintiff did not respond to the March 8, 2004 letter. (Don Defendant)

Section 4: Stipulations of fact ­The purpose of trial is to resolve only disputed facts. A party who refuses to stipulate to particular facts should be prepared to identify and produce specific items of contradictory evidence, or to identify the anticipated source of such evidence and demonstrate why such evidence could not previously have been obtained. Fed. R. Civ. P. 11(b)(4). Section 5: Pending motions ­In addition to the information required in Appendix G, parties shall also identify all motions either party anticipates making prior to trial, including the relief to be requested. Section 6: Witnesses ­In lieu of the designations required in Appendix G, the parties shall attach a single joint list of all witnesses a party intends to call. The form is found at: www.co.uscourts.gov/judges/msk_witness.pdf. There should be no designation as " may call"or " call." Unless the parties stipulate that a certain witness shall be present, the party desiring will

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the witness' attendance must secure it. Include the maximum estimated length of time necessary for direct and cross-examination. Direct examination should include redirect examination. Witnesses who will be called in both the Plaintiff' and Defendant' case can be listed once, with s s the amount of time estimated for Plaintiff' direct examination, Defendant' direct examination, s s Plaintiff' cross-examination, and Defendant' cross-examination separately listed in the s s appropriate columns. Section 7: Exhibits ­The listing of exhibits shall be on a single joint exhibit list using the form available at www.co.uscourts.gov/judges/msk_exhibit.pdf. Exhibits shall be sequentially numbered. The provisions of subsection (b) of Appendix G regarding the filing of objections to exhibits are waived. All objections are reserved for trial. 2. Submission Counsel shall submit the joint Proposed Pre-Trial Order to the Court via e-mail to [email protected], on or before August 23, 2006. The format must be in WordPerfect or Microsoft Word.1 The e-mail subject line should contain the full case name (an abbreviated form is permitted for longer case names) and docket number. The body of the e-mail shall also contain the submitting attorney' name, address, telephone number, and e-mail address s and/or fax number.

Counsel should be aware that some internet service providers (particularly America OnLine) and some e-mail programs automatically compress or otherwise manipulate attachments to e-mail messages. The Court will not accept submissions received in compressed format. Counsel should contact their service providers and/or technical support for their e-mail programs to ensure that attachments are not automatically compressed or modified, or should plan to submit documents on disk rather than by e-mail. 5

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Case 1:03-cv-01959-MSK-PAC

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Dated this 19th day of July, 2006 BY THE COURT:

Marcia S. Krieger United States District Judge

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