Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA No. CV2003-2262-PHX-ROS

KAYE HUTTON, as an individual and as representative of a class consisting of others 9 similarly situated,
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Plaintiff, v. BANK OF AMERICA, N.A., Defendant.

FOURTH AMENDED RULE 16 SCHEDULING ORDER

1.

Pursuant to the terms of the Case Management Plan, the November 1,

2004 Order of Referral, and the representations made by the parties at the Rule 16 Scheduling Conference, all parties shall comply with the deadlines established in this Order. 1 A. The Federal Rules of Civil Procedure as amended and made effective

December 1, 2002 by the Supreme Court of the United States shall apply to all proceedings concerning this case. The Parties are reminded of the new Local Rules of Practice for the District Court, effective December 1, 2004. B. All Initial Disclosures as defined in FRCP 26(a)(1), if not already

disclosed prior to the Scheduling Conference, shall be made:
1

The deadlines are set with the understanding that this action will remain stayed until the District 26 Court Judge addresses the pending Collective Action Motion and has the opportunity to enter her Order with respect to the stay.
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Initial Disclosures are due within twenty (20) days of the Court's ruling on Plaintiff's Motion to Proceed C. To satisfy the requirements of FRCP 26(a)(1), the parties shall file with

the Clerk of the Court a Notice of Initial Disclosure, rather than copies of the actual disclosures. D. Procedural motions including Motions to Amend the Complaint or

Answer, and Motions to Join Additional Parties shall be filed no later than 80 days from the date of the Court's ruling on the Collective Action Motion. E. The Plaintiff(s) shall disclose the identity of all persons who may be

used at trial to present evidence under Federal Rules of Evidence (FRE) 701, 702, 703, 704, and 705 no later than June 1, 2005. The Defendant(s) shall disclose the identity of all persons who may be used at trial to present evidence under FRE 701, 702, 703, 704, or 705 no later than July 20, 2005 (collective action only). No deposition of any expert witness shall occur before the disclosures concerning expert witnesses mandated by this Order have been made. Rebuttal experts shall be

disclosed no later than August 22, 2005, provided however, Plaintiff's Rebuttal to Defendant's Supplement to Expert Report of Brian T. Farrington dated October 20, 2005 shall be disclosed no later than December 20, 2005; provided further the parties' experts may opine on the issue of willfulness in accordance with the record of the Court dated November 9, 2005, and accordingly, the defendant's expert may opine on the issue of willfulness no later than December 20, 2005 and plaintiff's expert may opine on the issue of willfulness no later than January 20, 2006. The disclosures of the identities of all persons who may be used at trial 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
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employee of the party offering the testimony whose duties regularly involve giving expert testimony.**footnote 1 The parties are on notice that this Order requires disclosure different than that required by FRCP 26(a)(2). F. All discovery, including answers to interrogatories, production of

documents, depositions and requests to admit shall be completed by March 28, 2006. G. The parties shall finally supplement all discovery, including material

changes in expert witness opinions on or before February 10, 2006, and including material disclosures pursuant to FRCP 26(a)(3) of all exhibits to be used and all nonexpert witnesses to be called at trial. *** footnote 2 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 or the imposition of other sanctions including dismissal and the imposition of default pursuant to FRCP 37, the Local Rules of the District Court, and the inherent power of the Court.*** H. Discovery by interrogatory shall be governed by the national uniform

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

forth in Rules 30, 31, and 32 of the FRCP. J. Motions on discovery matters are strongly discouraged. Parties are

directed to Local Rule 1.10(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
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made, the Court will provide further directions concerning preparations for the conference call. K. This Order contemplates that each party will conduct discovery to

permit completion within the deadline. Any discovery which results in 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). L. All dispositive motions on all issues other than damages shall be filed

no later than June 26, 2006. Unless permitted by Order of the Court, only one dispositive motion is allowed to be filed by each party. 2 M. All parties are specifically admonished that pursuant to Local Rule

1.10(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 noncompliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily." N. The parties shall keep the Court apprized of settlement negotiations and

the progress of discovery. 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 March 11, 2005 and labeled 'FIRST

In light of Defendant's request that consideration of dispositive motions be phased and liability and damages issues be presented separately, the Court will not at this time set a dispositive motion 26 deadline for damages issues, but will reserve that decision until the Court's ruling on dispositive motions pertaining to liability issues or as otherwise ordered by the Court.

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NOTICE OF DISCOVERY AND SETTLEMENT," and then 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.

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O.

A Joint Proposed Pretrial Order and all Motions in Limine shall be

lodged and filed by July 26, 2006 or 60 days after resolution of the last pending dispositive motion, whichever is later. The content of the Joint Proposed Pretrial Order shall include, but not be limited to, that prescribed in the Form of Joint Proposed Pretrial Order. Statements made shall not be in the form of a question, but should be a concise narrative statement of each party's contention regarding each uncontested and contested issue. 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. P. If the case will be tried to the Court, rather than to a jury, in addition to

filing a Joint Proposed Pretrial Order, each party shall also submit Proposed Findings of Fact and Conclusions of Law on the same date the Joint Proposed Pretrial Order is due. Q. The attorneys who will be trying the case for all the parties shall appear at the Final Pretrial Conference, that will be scheduled reasonably promptly after the filing of the Joint Proposed Pretrial Order, and the attorneys appearing at the conference 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 establish a firm trial date at the Pretrial Conference, and will issue the Final Pretrial Order with any additional instructions for trial preparation. R. following: (1) A joint stipulated Statement of the Case to be read to the jury The parties shall file with the Joint Proposed Pretrial Order the

and included in the jury questionnaire. If the parties have any disagreement about the statement, the party proposing the statement will set it forth in the joint pleading and
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the party objecting shall set forth the reason for the objection below the statement and offer an alternative statement. (2) A joint stipulated set of voir dire questions to be added to the

Court's standard questionnaire and/or to be given by the Court. The parties are to designate whether the proposed questions are to be added to the questionnaire or are to be asked by the Court orally in court. The voir dire questions shall be drafted in a neutral manner. If the parties have any disagreements about a particular question, the party proposing the question shall set it forth in the joint pleading and the party objecting shall set forth the reason for their objection below the question and offer alternative questions. (3) Joint stipulated jury instructions. The instructions shall be

accompanied by citations to legal authority. If the parties have any disagreement about particular instructions, the party proposing the instruction will set it forth in the joint pleading and the party objecting shall set forth the reason for the objection and offer an alternate instruction. (4) A joint stipulated form of verdict. If the parties have any

disagreement about the form of verdict, the party proposing the form will set it forth in the joint pleading and the party objecting shall set forth the reason for the objection and offer an alternative form of verdict. (5) A Trial Memorandum of Law for each party. The memorandum

shall be brief but must address all questions of law, including evidentiary issues that the party anticipates will arise at trial. (6) Motions in Limine in anticipation of the evidentiary issues to be

raised at the trial. Responses are due within fifteen days and no Replies are allowed unless ordered by the Court.

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(7)

Any other final pretrial matters required pursuant to FRCP 26(a)(3) are

due in accordance with this Order prior to the preparation and submission of the Joint Proposed Pretrial Order. (8) The parties shall submit their proposed voir dire questionnaire and

questions, statement of the case, jury instructions, and form of verdict on a 1.44K high density IBM-PC compatible computer disk in WordPerfect 9.0 format in addition to other written materials filed with the Clerk of the Court. *** 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 May, 2006.

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