Free Scheduling Order - District Court of Arizona - Arizona

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Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) 5330 East Valle Vista Road, Phoenix, AZ,) ) ) Defendant. ) ) United States of America,

No. CV-03-2305-PHX-LOA ORDER

This is the time set for the Rule 16(b), FED.R.CIV.P., scheduling conference. Plaintiff is represented by counsel, AUSA Lisa Roberts. Claimants Mohammed Abdeen and Ghadeer Ameerah are represented by counsel, Tonya J. Peterson. Court reporter is not present. All parties have heretofore consented to magistrate judge jurisdiction pursuant to 28 U.S.C. §636(c). (docket # 9 and # 13) Counsel stipulate and agree that this Order and all future orders and filings in this case are unsealed except as further ordered by the Court. Pursuant to the parties' discussions with the Court today and the various deadlines in their Rule 26(f) proposed Joint Case Management Plan (docket # unknown at this time), filed on February 13, 2007, the Court will set the various deadlines for the judicial

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management of this case. The Court orders that LRCiv 16.2 shall not apply to this case and hereby overrules the parties' recommended deadlines due to the significant age of this case.1 IT IS ORDERED that the parties, by and through their counsel, shall comply with the following deadlines. Stipulations extending the time for the doing of any act required by the Court or the Rules of Civil Procedure will be treated as a joint motion subject to Court approval. LRCiv. 7.3; Gestetner Corp. v. Case Equipment Company, 108 F.R.D. 138 (D. Maine 1985)(good cause not shown to amend scheduling order); Janicki Logging Co. v. Mateer, 42 F.3d 561, 566 (9th Cir.1994)("[] Federal Rule of Civil Procedure 16 is to be taken seriously. . . . "). Continuances of these deadlines may be granted only upon a showing of good cause and by leave of the assigned trial judge. Settlement negotiations do not constitute good cause. These deadlines are real. The parties are advised that the Court intends to enforce the deadlines set forth in this Order, and should plan their litigation activities accordingly. Hostnut.Com, Inc. v. Go Daddy Software, Inc., 2006 WL 2573201 *1 (D. Ariz. 2006). 1. Claimants Mohammed Abdeen and Ghadeer Ameerah shall file their Answer on or before March 5, 2007. In the event these Claimants fail to file a timely Answer, the Clerk is hereby directed to enter Claimants' default pursuant to Rule 55(a), FED.R.CIV.P. 2. If a timely Answer has been filed, the parties shall make their Rule 26(a) initial disclosures on or before March 19, 2007. 2. Filing motions to amend pleadings and motions to join additional parties by April 5, 2007.2

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The Complaint herein was filed on November 21, 2003.

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.1992) (once scheduling order is filed pursuant to Rule 16(b), the good cause standard controls over the Rule 15(a) standard). In Coleman v. Quaker Oats Company, 232 F.3d 1271, 1294 (9th Cir. 2000), the Ninth Circuit stated: Generally, Federal Rule of Civil Procedure 15(a) liberally allows for -2Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 2 of 8

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2. Because the Court believes that staggered expert disclosure is more fair and will less likely result in requests for a modification of these deadlines, Plaintiff's disclosure of expert testimony and reports required under Rule 26(a)(2)(B), Fed.R.Civ.P. shall be made by April 6, 2007. Claimants' disclosures of expert testimony and reports required under Rule 26(a)(2)(B), Fed.R.Civ.P., shall be made by April 23, 2007. Plaintiff's disclosure of true rebuttal expert testimony and reports solely to contradict or rebut evidence as required under Rule 26(a)(2)(C), Fed.R.Civ.P. shall be made by May 11, 2007. Each testifying expert witness (regardless of whether such expert witness has or has not been specifically retained for this case, such as, a treating physician, or if the expert is an employee of the calling party) shall provide a written report to the adverse party as required by Rule 26(a)(2)(B). Minnesota Mining and Manufacturing Co. v. Signtech USA, Ltd., 177 F.R.D. 459 (D. Minn. 1998). No expert witness not timely disclosed will be permitted to testify unless the party offering such witness demonstrates: (a) that the necessity of such expert witness could not have been reasonably anticipated at the time of the deadline for disclosing such expert witness; (b) the Court and opposing counsel or unrepresented party were promptly notified upon discovery of such expert witness; and (c) that such expert witness was promptly proffered for deposition. Wong v. Regents of the University of California, 379 F.3d. 1097 (9th Cir. 2004); Rule 37(c)(1), FED.R.CIV.P.

amendments to pleadings. In this case, however, the district court correctly found that it should address the issue under Federal Rule of Civil Procedure 16 because it had filed a pretrial scheduling order that established a timetable for amending the pleadings, and the deadline had expired before [plaintiffs] moved to amend. -3Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 3 of 8

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3. Disclosure of all known witnesses, exhibits and other matters under Rule 26(a)(3), Fed.R.Civ. P. and supplementation of all discovery pursuant to Rule 26(e), Fed.R.Civ. P. by May 31, 2007.3 4. Completion of all discovery: June 29, 2007. 5. Filing dispositive motion(s) on or before July 20, 2007. A Cross-motion for summary judgment may be filed within 30 days of the adverse party's dispositive motion; provided, however, such motion is solely related to the specific issue(s) directly raised in the initial dispositive motion(s). Absent express prior leave of the Court, each side shall be entitled to file only one motion for summary judgment that complies in all respects to the Local Rules. Pursuant to stipulation and good cause appearing, Pursuant to Rule 5(b)(2)(D), FED.R.CIV.P. and this Court's adoption of rules regarding electronic filing, the parties consent and agree that service under Rule 5(a) may be obtained on the other party by delivering a copy of the document by electronic means. Service by electronic means is complete upon transmission. Counsel also advise the Court that they are registered and will comply with the District Court's Case Management/Electronic Case Filing ("CM/ECF") Administrative Policies and Procedures Manual. See the District Court's internet site (www.azd.uscourts.gov) and click onto the CM/ECF link for the details of the District Court's electronic filing system. The Court and counsel also generally discuss issues relating to the preservation, production and privilege of electronically stored information, including the form or forms in which it should be produced. See amendments to Fed. Civil Rules of Proc. 16(b)(5), 26(f)(3),

The parties are on notice that this order supercedes the "30 day 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 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. -4Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 4 of 8

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33, 34, 37 and 45, effective December 1, 2006; Dawn M. Bergin, New Federal Rules on EDiscovery - Help or Hindrance?, Arizona Attorney, December, 2006, pp. 22 - 28; Anthony J. Battaglia, Dealing With Electronically Stored Information: Preservation, Production And Privilege, The Federal lawyer, May, 2006, pp. 26 - 31. Counsel expressly indicate no concerns about any such issues at this time. Counsel are hereby advised that the Court has various audio/visual equipment available for use at an evidentiary hearing or trial at no cost to the Bar. This equipment includes an evidence presentation system, which consists of a document camera, digital projector, and screen. The projector may be used to display images which originate from a variety of sources, including television, VCR, and personal computer. The document camera may be used to display documents, photographs, charts, transparencies, and small objects. For further information please contact the Court's A/V Specialist, Brian Lalley at (602) 322-7131. IT IS FURTHER ORDERED that the attorneys who will be responsible for

15 the trial of the lawsuit shall prepare and sign a Proposed Joint Final Pretrial Order and 16 submit it to the Court no later than 5:00 p.m. on Tuesday, September 4, 2007, counsel 17 shall exchange drafts of the proposed Joint Pretrial Order no later than ten (10) days 18 before the submission deadline. 19 IT IS FURTHER ORDERED that the parties shall file and serve all

20 motions in limine4 no later than 5:00 p. m. on Tuesday, September 4, 2007. Each motion 21 22 23 24 25 26 27 28 -5Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 5 of 8

A motion in limine has been defined by the U.S. Supreme Court as "in a broad sense...any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered. Luce v. United States, 469 U.S. 38, 40 n. 2 (1984); State v. Superior Court, 108 Ariz. 396, 499 P.2d 152, 153 (1972)("The primary purpose of a motion in limine is to avoid disclosing to the jury prejudicial matters which may compel a mistrial. It should not, except upon a clear showing of non-admissibility, be used to reject evidence").

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1 in limine5 shall include the legal basis supporting it. Responses to motions in limine are 2 due by 5:00 p.m. on Thursday, September 13, 2007. No replies will be permitted. The 3 attorneys for all parties shall come to the Final Pretrial Conference prepared to address and 4 argue the merits of all such motions. Redundant objections to a motion in limine shall not 5 be made during trial.6 6 IT IS FURTHER ORDERED that the attorneys for each party who will be

7 responsible for trial of this lawsuit shall appear and participate in a Final Pretrial 8 Conference on Monday, September 24, 2007 at 10:00 a.m. in Courtroom 302 on the third 9 floor of the Sandra Day O'Connor U.S. Courthouse, 401 E. Washington, Phoenix, Arizona, 10 85003-2120. 11 IT IS FURTHER ORDERED directing the parties to complete the

12 following tasks by the time of the filing of the Proposed Joint Final Pretrial Order if they 13 intend to try the case before a jury: 14 15 (1) The parties shall jointly file a description of the case to be read to the jury. (2) The parties shall jointly file a proposed set of voir dire questions that each

16 counsel intends to ask the jury. The voir dire questions shall be drafted in a neutral manner. 17 To the extent possible, the parties shall stipulate to the proposed voir dire questions. If the 18 19 20 21 22 23 24 25 26 27 28 Motions in limine may consist of two principal forms. First, a party may seek to preclude the opponent from either (1) mentioning or referring to unduly prejudicial, inflammatory, or otherwise inadmissible evidence in an opening statement or (2) eliciting such evidence from one or more witnesses. This is sometimes referred to as a "prohibitive" motion. An additional, more proactive form is used affirmatively to secure a favorable pretrial ruling regarding the admissibility of evidence. This is referred to as a "permissive" motion. See, 21 Charles Wright & Kenneth Graham Jr., Federal Practice and Procedure: Evidence §5037 (1977); Rosengart, The Motion In Limine: The Hidden Arrow in the Federal Litigator's Quiver, The Federal lawyer (June, 2001). Like Arizona, the Ninth Circuit has held that a properly made motion in limine will preserve the appellant's objection on appeal without the need for further objection at trial if it contains specific grounds for the objection. Palmerin v. City of Riverside, 794 F.2d 1409, 1413 (9th Cir. 1986); Stroud v. Dorr-Oliver, 112 Ariz. 574, 544 P.2d 1089 (1976). Also see, Rule 103(a), Fed. Rules of Evid. -6Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 6 of 8
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1 parties have any disagreement about a particular question, the party or parties objecting 2 shall state the reason for their objection below the particular objectionable question. 3 (3) The parties shall file a proposed set of stipulated jury instructions. The

4 instructions shall be accompanied by citations to legal authority. If a party believes that a 5 proposed instruction is a correct statement of the law, but the facts will not warrant the 6 giving of the instructions, the party shall so state. The party who believes that the facts will 7 not warrant the particular instruction shall provide an alternative instruction with 8 appropriate citations to legal authority. 9 (4) Each party shall submit a form(s) of verdict(s) to be given to the jury at the end

10 of the trial. 11 (5) Whether any Daubert hearings are necessary and, if so, on what issues, the

12 anticipated time such a hearing will take, and the most appropriate time to schedule and 13 conduct such a hearing. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 14 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 15 IT IS FURTHER ORDERED setting the Trial of this matter to a jury,

16 beginning on Tuesday, September 25, 2007 through Friday, September 28, 2007 (four 17 trial days) in Courtroom 302 on the third floor of the Sandra Day O'Connor U.S. 18 Courthouse, 401 E. Washington, Phoenix, Arizona. Unless otherwise ordered, time for 19 each trial day shall be from 9:30 a.m. to 12:00 noon and from 1:30 p.m. to 4:30 p.m. 20 Counsel shall be at the Courthouse every day by 9:15 a.m. 21 IT IS FURTHER ORDERED that the parties shall keep the Court apprised

22 of the possibility of settlement and should settlement be reached, the parties shall 23 immediately file a Notice of Settlement with the Clerk of the Court with a copy to this 24 Court's chambers. LRCiv 40.2(d). This Court views compliance with the provisions of this 25 Order as critical to its case management responsibilities and the responsibilities of the 26 parties under Rule 1 of the Federal Rules of Civil Procedure. 27 The parties are advised that when sufficient information has been disclosed

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1 claims and defenses alleged in this case, a settlement conference before another U.S. 2 magistrate judge may be requested. Delay in requesting, scheduling or concluding a 3 settlement conference or settlement negotiations do not constitute good cause to continue or 4 extend the deadlines set herein. 5 IT IS FURTHER ORDERED that this Court views compliance with the

6 provisions of this Order as critical to its case management responsibilities and the 7 responsibilities of the parties under Rule 1 of the Federal Rules of Civil Procedure. 8 9 Pursuant to oral stipulation and good cause appearing, IT IS FURTHER ORDERED that all future orders, proceedings and filings

10 in this case shall be UNSEALED except as further ordered by the Court. All previous 11 sealed proceedings, filings and orders prior to today's date shall remain sealed. 12 13 14 15 16 17 18 cc: 19 20 21 22 23 24 25 26 27 28 -8Case 2:03-cv-02305-LOA Document 47 Filed 02/20/2007 Page 8 of 8

Dated this 15th day of February, 2007.

Lisa Roberts, AUSA Tonya Peterson, Counsel for Claimants Abdeen/Ameerah