Free Order on Stipulation - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs, vs. Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants. No. CV04-0424 PHX ROS SIXTH REVISED RULE 16 SCHEDULING ORDER

All parties shall comply with the deadlines established in this Order. A. All proceedings concerning this case shall be in accordance with the

Federal Rules of Civil Procedure. B. In light of the Court's September 6, 2006 decision granting

Plaintiffs' motion for class certification, the parties shall supplement their initial disclosures within 30 days of the date of this order with information learned as of that date. Additionally, the parties shall supplement their disclosures thereafter in accordance with the Federal Rules of Civil Procedure.

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C.

Procedural motions including Motions to Amend the Complaint or

Answer, and Motions to Join Additional Parties shall be filed no later than December 11, 2006. All Motions to Amend shall attach a copy of the proposed complaint or answer. D. In connection with the Partial Settlement reached in this case, the

parties may file a joint motion to certify the Settlement Class and class for the litigation of the Three Remaining Claims pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2) and if approved, to vacate the Court's September 6, 2007 Order certifying the Class under Fed. R. Civ. P. 23(b)(3) by no later than October 31, 2007. E. Plaintiffs have disclosed the identity of all persons who may be

used at trial of the Three Remaining Claims1 to present evidence under Federal Rules of Evidence (FRE) 701, 702, 703, 704, and 705. Plaintiffs may supplement their disclosures of all persons who may be used at trial of the Three Remaining Claims to present evidence under Federal Rules of Evidence (FRE) 701, 702, 703, 704, and 705 on or before June 16, 2008. The Defendants shall disclose the identity of all persons who may be used at trial to rebut Plaintiffs' expert no later than July 11, 2008. No deposition of any

expert witness shall occur before the disclosure concerning that expert witness, mandated by this Order, has been made. The disclosures of the identities of all persons who may be used at trial of
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For purposes of this Fifth Proposed Rule 16 Scheduling Order, "Three Remaining Claims" has the meaning set forth in the Partial Settlement Agreement.
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the Three Remaining Claims to present evidence under FRE 701, 702, 703, 704, or 705 shall also include all of the disclosures required by FRCP 26(a)(2)(B) if the witness is either (1) retained or specifically employed to provide expert testimony in the case, or (2) is an agent or employee of the party offering the testimony whose duties regularly involve giving expert testimony.2 F. All discovery on the Three Remaining Claims, including answers

to interrogatories, production of documents, depositions and requests to admit shall be completed within 60 days after the Court's ruling on Plaintiffs' pending motions to compel documents listed on Defendants' privilege logs. (Doc. 332, 451.) Until the Partial Settlement becomes Final, or until briefing by Defendants is closed in the Court of Appeals, if sooner, depositions and expert discovery, including the furnishing of expert reports, shall not take place. G. Plaintiffs have previously filed a motion to compel the disclosure of

documents that Defendants claim are privileged. (Docket entry nos. 169, 234.) These documents may be relevant to the Three Remaining Claims. In light of the Partial Settlement, Defendants will provide Plaintiffs with a revised privilege log on or before November 26, 2007. The parties will meet and confer regarding Defendants' revised privilege log on or before November 29, 2007 in a good faith effort to resolve any disputes concerning the revised privilege log. In the event the parties cannot resolve the dispute, Plaintiffs shall file a renewed and supplemented The parties are on notice that this Order requires disclosures different than that required by FRCP 26(a)(2).
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motion to compel the disclosure of documents that Defendants claim are privileged on or before December 4, 2007. Defendants shall file a response to Plaintiffs' motion on or before December 21, 2007 and Plaintiffs shall file a reply on or before January 7, 2008. Defendants have previously filed a motion with the Court seeking to enclose a class-wide Questionnaire with the Class Notice. (Docket entry no. 264.) Defendants have considered their position and may re-new the Questionnaire Motion. The parties have also advised the Court that a ruling on certain legal

issues may resolve issues related to Defendants' defense under the statute of limitations. The parties are directed to meet and confer on or before November

14, 2007 in a good faith effort to resolve these issues. If not resolved, either party may file a motion regarding these issues. If either party files such a motion, the parties must do so on or before December 10, 2007. Responses shall be due on or before January 11, 2008 and replies will be due on or before January 25, 2008. H. The parties shall finally supplement all discovery, including material

changes to expert witness opinions and material disclosures, pursuant to FRCP 26(a)(3), of all exhibits to be used and all witnesses to be called at trial of the Three Remaining Claims, on or before 30 days after the close of discovery under Paragraph F, above.3 The parties are on notice that this order supersedes the "30 days before trial" disclosure deadline contained in FRCP 26(a)(3). Therefore, failure to timely supplement pursuant to Rule 26(e), including attempts to include witnesses and exhibits in the Proposed Final Pretrial Order or at trial that were not previously disclosed in a timely manner may result in the exclusion of such evidence at trial
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I.

Discovery by interrogatory shall be governed by the national

uniform requirements set forth in FRCP 33. J. Depositions shall be limited by the national uniform requirements set

forth in Rules 30, 31, and 32 of the FRCP. The parties have advised the Court that they may to seek leave to exceed the limitation on the number of depositions. The parties are instructed to file such motions by no later than thirty days (30) after Final Approval of the Partial Settlement. K. Motions on discovery matters are strongly discouraged. Parties are

directed to Local Rule of Civil Procedure (LRCiv) 7.2(j), which prohibits filing discovery motions unless parties have first met to resolve any discovery difficulties. If the parties cannot reach a resolution, they are directed to jointly arrange with the Court a conference call to resolve the matter orally in court in lieu of filing a formal motion. Once the call is arranged, the Court will provide further directions concerning preparations for the conference call. L. This Order contemplates that each party will conduct discovery to Any discovery which results in

permit completion within the deadline.

insufficient time to undertake necessary additional discovery and which requires an extension of the discovery deadline will be met with disfavor, will only be granted for good cause or only to prevent manifest injustice pursuant to FRCP 16(b) and (e), and may result in denial of an extension, exclusion of evidence, or the imposition of other serious sanctions pursuant to FRCP 37(b), (c), (d). M. All dispositive motions on the Three Remaining Claims shall be

filed no later than 60 days after the close of discovery under Paragraph F. above. Unless permitted by Order of the Court, only one dispositive motion relating to the or the imposition of other sanctions including dismissal and the imposition of default pursuant to FRCP 37, the Local Rules of Civil Procedure of the District Court, and the inherent power of the Court.
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Three Remaining Claims is allowed to be filed by each party. Oppositions to dispositive motions shall be filed within 45 days after the date the motion is filed, and reply briefs shall be filed within 60 days after the date the motion is filed. N. All parties are specifically admonished that pursuant to LRCiv.

7.2(i), "[i]f a motion does not conform in all substantial respects with the requirements of this Rule, or if the opposing party does not serve and file the required answering memoranda, or if counsel for any party fails to appear at the time and place for oral argument, such non-compliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily." O. The parties shall keep the Court apprised of settlement negotiations

and the progress of discovery to the extent consistent with the non-jury status of this case. A joint letter to the Court concerning the status of settlement

discussions (containing no specific settlement terms or offers) and the progress of discovery shall be submitted by April 15, 2007 and initially labeled `FIRST NOTICE OF DISCOVERY AND SETTLEMENT," and shall be subsequently submitted every FOUR (4) months thereafter. If settlement is reached the parties shall file a Notice of Settlement with the Clerk of the Court with a copy to Judge Silver's Chambers. The parties have provided Notice of Partial Settlement. In accordance with the Partial Settlement, the Parties shall file a Joint Motion for Preliminary Approval of the Partial Settlement by no later than October 26, 2007.4 The Joint Motion for Preliminary Approval shall be heard by the Court on November 2, Although the Joint Motion for Preliminary Approval of Partial Settlement shall include a request for certification of the Settlement Class pursuant to FRCP 23(b)(1) and (b)(2), such Joint Motion will not affect Defendants' right to object to the Court's previous Order granting class certification under FRCP 23(b)(3) in the event the Partial Settlement does not become Final.
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2007, at 11:00 a.m. In light of the foregoing, the Court orders that, the Court's calendar permitting, the dates for Fairness Hearing and the dates leading up to the Fairness Hearing will be as follows:

Hearing Date for the Joint Motion for Preliminary Approval of the Partial Settlement Deadline for Plaintiffs to mail the Class Notice

November 2, 2007, at 11:00 a.m. PDT November 29, 2007 January 24, 2008

Deadline for Plaintiffs (or parties jointly) to file motion for final approval of the proposed Partial Settlement. Deadline for class members to file objections

January 24, 2008

Deadline for parties to respond to class members' objections (if applicable) Fairness Hearing on the parties' Partial Class Action Settlement Agreement

January 31, 2008

February 7, 2008 at 9:00 a.m.

Upon Final Approval of the Partial Settlement, the only claims remaining in this case shall be the Three Remaining Claims. P. A Joint Proposed Pretrial Order, all Motions in Limine and a Joint

Statement of the Case relating to the Three Remaining Claims shall be lodged and filed by 120 days after the close of discovery under Paragraph F. above. If dispositive motions have been filed, the Joint Proposed Pretrial Order and Motions in Limine and other pretrial documents shall be due either on the above date or 60 days following resolution of the dispositive motions, whichever is later. The content of the Joint Proposed Pretrial Order is that prescribed in the Court's form of Joint Proposed Pretrial Order. [See Court's website: www.azd.uscourts.gov
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under "Judges and Courtrooms/Order, Forms & Procedures"].

Responses to

Motions in Limine are due 15 days after the Motions are filed, and no Replies are permitted unless specifically ordered by the Court. Q. Because the case of the Three Remaining Claims will be tried to the

Court, rather than to a jury, in addition to filing a Joint Proposed Pretrial Order, each party shall file Proposed Findings of Fact and Conclusions of Law on the same date the Joint Proposed Pretrial Order is due. R. The attorneys who will be trying the case for each of the parties shall

appear at the Final Pretrial Conference that will be scheduled as promptly as possible after the filing of the Joint Proposed Pretrial Order. The attorneys

appearing at the conferences shall be prepared to address the merits of all issues raised in the Joint Proposed Pretrial Order and fully briefed Motions in Limine. Unless one has already been established, the Court will set a firm trial date at the Pretrial Conference, and will sign the Final Pretrial Order with any additional instructions for trial preparation. S. Any other final pretrial matters required pursuant to FRCP 26(a)(3)

are due in accordance with this Order prior to the preparation and filing of the Joint Proposed Pretrial Order. This Court views compliance with the provisions of this Order as critical to its case management responsibilities and the responsibilities of the parties under FRCP 1. Dated this 10th day of June, 2008.

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