Local Rule Civil Rule 16.1: Pretrial and Setting for Trial

Civil Rule 16.1 Pretrial and Setting for Trial a. Application of this Rule. 1. Pretrial proceedings and setting of cases for trial must be governed by Fed. R. Civ. P. 16 and this rule, and by such orders as are issued pursuant thereto. The timing of the Federal Rule 16(b) scheduling order is adjusted to accommodate the Early Neutral Evaluation Conference, as allowed under Fed. R. Civ. P. 1. 2. All civil and admiralty cases must be pre-tried unless pre-trial is waived by order of the Court. b. Counsels Duty of Diligence. All counsel and parties, if they are proceeding pro se, must proceed with diligence to take all steps necessary to bring an action to readiness for trial. In doing so they should be mindful of the requirements of Rule 16(c), Fed. R. Civ. P., following subparagraph (11) thereto, and the sanctions contained in Rule 16(f), Fed. R. Civ. P., for failure to prepare for and participate in good faith in the pretrial conference process. c. Early Neutral Evaluation ("ENE") Conference. 1. Within forty-five (45) days of the filing of an answer, counsel and the parties must appear before the assigned judge for an early neutral evaluation conference; this appearance must be made with complete authority to discuss and enter into settlement. At any time after the filing of a complaint and before an answer has been filed, counsel for any party may make a request in writing to the judge in the case to hold an ENE conference, discovery conference or status/case management conference. Copies of the request must be sent to counsel for the parties and the parties whose addresses are known to the requesting counsel. Upon receiving such request, the judge will examine the circumstances of the case and the reasons for the request and determine whether any such conference would assist in the reduction of expense and delay in the case. The judge will hold such conferences as he or she deems appropriate. a) At the ENE conference, the judge and the parties will discuss the claims and defenses and seek to settle the case. b) The ENE conference will be informal, off the record, privileged, and confidential. c) Attendance may be excused only for good cause shown and by permission of the judge. Sanctions may be appropriate for an unexcused failure to attend. d) The judge conducting the ENE may conduct the proceeding by video conference, in their discretion. 2. If no settlement is reached at the ENE conference, the judge may do one of the following: a) Discuss the parties' willingness to agree to non-binding arbitration or mediation within forty-five (45) days (1) in any case where the judge believes arbitration or mediation might result in a cost-effective resolution of the lawsuit, or (2) in any case where the parties have indicated an interest in arbitration or mediation. Additionally, a case management conference will be set in these cases approximately sixty (60) days after the ENE conference. b) Where no arbitration or mediation is agreed upon, the judge must hold a case management conference within thirty (30) days after the ENE conference. The case management conference may be held at the conclusion of the ENE conference. d. Case Management Conference. The parties who have responsibility over the litigation and the counsel who is responsible for the case, will be present at the case management conference. The judicial officer may approve attendance of a party or counsel by telephonic conference call. At a reasonable time before this conference, all counsel will discuss discovery and endeavor to resolve any disputes. 1. At the conference, the judge will (1) discuss the complexity of the case; (2) encourage a cooperative discovery schedule; (3) discuss the likelihood for further motions; (4) discuss the number of anticipated percipient and expert witnesses; (5) evaluate the case and the need for early supervision of settlement discussions; (6) discuss the availability of ADR alternatives; and (7) discuss any other special factors applicable to the progress of the case. 2. At the end of the conference the judge must prepare a case management order which will: a) Include a discovery schedule. b) Set a time for a further case management conference, if necessary. c) If appropriate, set a time for the proponent of each issue to identify expert witnesses; set a time for the responding party to identify expert witnesses in reply; set a time for the depositions of experts; set a time for the supplementation of such expert designation depending on the circumstances. d) Set a deadline for filing pretrial motions. e) Set a date for a pretrial hearing before the district judge who will try the case. The date for such hearing will be approved by the trial judge. 3. Setting of Dates. a) At the case management or pre-trial conference, a trial date will be set by the magistrate judge if directed by the district judge assigned to the case. b) Senior district judges who have not referred the case to a magistrate judge will set all dates themselves. c) The trial date must be firm and all requests for continuances of trial and motions dates will be granted only for good cause shown. d) No trial date will be continued except by written order approved by the trial judge. 4. At the case management conference, the judge will set a date for a mandatory settlement conference unless it is determined that such a conference should be excused. e. Cases in which Early Neutral Evaluation (ENE) and Case Management Conferences are not Required. At the discretion of a judge assigned to the case, ENE and case management conferences need not be set in the following categories of cases: 1. Habeas Corpus cases 2. Cases reviewing administrative rulings 3. Social Security Cases 4. Default proceedings 5. Cases in which a substantial number of defendants have not answered 6. Actions to enforce judgments 7. Bankruptcy appeals f. Pretrial. 1. Postponement of Pretrial Proceeding. a) By Stipulation. If additional time is required in which to comply with this rule, the parties may contact the Court's staff and submit a timely stipulation which sets forth the reasons for their request for a continuance. b) By Motion. If counsel is unable to obtain the stipulation provided by the Civil Local Rule 7.2 a motion to continue or to be relieved from compliance with any requirement of Civil Local Rule 7.1.g.1 may, upon seven (7) days written notice, be presented on the Court's motion calendar. 2. Memorandum of Contentions of Fact and Law. a) General. Unless the Court specifies otherwise, no later than 5:00 p.m. twenty-eight (28) days prior to the pretrial hearing, each party must serve on each other party and file with the Clerk a "Memorandum of Contentions of Fact and Law" which contains a concise statement of the material facts and the points of law claimed by such party and cites the authorities upon which the party intends to rely at trial. b) Abandoned Issues. Each party must set forth a statement of any issues raised by the pleadings which have been abandoned. c) Exhibits. Each party must set forth a list of all exhibits such party expects to offer at the trial other than those to be used for impeachment with a description of each exhibit sufficient for identification, the list being substantially in the following form: Case Title_________________________________Case No______________ List of Exhibits NUMBER DATE MARKED DATE ADMITTED DESCRIPTION Each party must place the case caption at the top as shown, and show "Plaintiff's" or "Defendant's" before the word "Exhibits" and, below that, only the spaces labeled "Number" and "Description" are required to be filled in prior to trial. Plaintiff must number plaintiff's exhibits numerically and defendant's by alphabetic letters as follows: A to Z; then AA to AZ; then BA to BZ, etc. So far as is possible, exhibits must be numbered in the order in which they will be presented and offered at trial. The parties are to consult the judge's courtroom clerk concerning problems as to the numbering of exhibits. d) Witnesses. Each party must set forth the names and addresses of all prospective witnesses, except impeaching witnesses, and, in the case of expert witnesses, a brief narrative statement of qualifications of such witness and the substance of the testimony which such witness is expected to give. Only witnesses so listed will be permitted to testify at the trial except for good cause shown. 3. Memorandum of Contentions of Fact and Law: Specific Situations. In negligence, wrongful death, contract, eminent domain and patent cases the memorandum must particularize items set forth below. a) Negligence Cases. The plaintiff must set forth: acts of negligence claimed, specific laws and regulations alleged to have been violated, a statement as to whether the doctrine of res ipsa loquitur is relied upon, and the basis for such reliance, a detailed list of personal injuries claimed, a detailed list of permanent personal injuries claimed including the nature and extent thereof, the age of the plaintiff, the life and work expectancy of the plaintiff if permanent injury is claimed, an itemized statement of all special damages to date, such as medical, hospital, nursing, etc., expenses, with the amount and to whom paid, a detailed statement of loss of earnings claimed and a detailed list of any property damage. The defendant must set forth any acts of comparative or contributory negligence claimed in addition to any other defense he intends to interpose. b) Wrongful Death Cases. In addition to the information required by Civil Local Rule 16.1.f.3.a., the plaintiff must set forth further information as follows: decedent's date of birth, marital status, including age of surviving spouse; employment for five years before date of death; work expectancy; reasonable probability of promotion; rate of earnings for five years before date of death; life expectancy under the mortality tables; general physical condition immediately prior to date of death; the names, dates of birth, and relationship of decedent's children and relatives; a detailed list of injuries claimed by said relatives and children; a list of decedent's dependents; the amounts of monetary contributions or their equivalent made to each of such dependents by decedent for a five-year period prior to date of death; a statement of the decedent's personal expenses and a fair allocation of the usual family expenses for decedent's living expenses for a period of at least three years prior to the date of death; and the amount claimed for care, advice, nurture, guidance, training, etc., by the deceased, if a parent, during the minority of any dependent. The defendant must set forth any acts of comparative or contributory negligence claimed, in addition to any other defenses the defendant intends to interpose. c) Contract Cases. The parties must set forth: whether the contract relied on was oral or in writing, specifying the writing, the date thereof and the parties thereto, the terms of the contract which are relied on by the party, any collateral oral agreement, if claimed, and the terms thereof, any specific breach of contract claimed, any misrepresentations of fact alleged, an itemized statement of damages claimed to have resulted from any alleged breach, the source of such information, how computed, and any books or records available to sustain such damage claim, whether modification of the contract or waiver of covenant is claimed, and if so, what modification or waiver and how accomplished. d) Eminent Domain Cases. Disclosure in addition to that contained within Civil Local Rule 16.1.f.2 must be made as follows: Not later than seven (7) days in advance of pretrial hearing, each party appearing must file with the trial judge in camera a summary "Statement of Comparable Transactions" which contains: relevant facts as to each sale or other transaction to be relied upon as comparable to the taking, including the alleged date of such transaction, the names of all of the parties to the transaction, the consideration paid and the date of recordation, and the book, page or other identification of any record of such transaction. Such statements must be in a form and content suitable to be presented to the jury as a summary of evidence on the subject. The judge may, thereafter, release the list of comparables to opposing counsel. At least seven (7) days prior to trial each party appearing must serve and file a "Statement as to Just Compensation" setting forth a brief schedule of contentions as to the fair market value in cash, at the time of taking, of the estate or interest taken, the maximum amount of any benefit proximately resulting from the taking, and the amount of any claimed damage proximately resulting from severance. e) Patent Cases. The parties and attorneys must comply with the following: 1. Each party must set forth a short specific statement of the party's contentions as to the teaching of the claims in the patents where it is contended the patent or patents are invalid. 2. The party asserting the validity of the patent must set forth a short specific statement of plaintiff's contentions as to how the patent or patents are infringed. 3. The party contesting the validity of the patent must set forth a short specific statement of defendant's contentions as to why the patent or patents are not infringed. 4. Meetings of Counsel. a) Timing and Purpose of Meeting. At least twenty-one (21) days in advance of the pretrial hearing, and after each party has filed and served its memorandum of contentions of fact and law, the attorneys for the parties must convene at a suitable time and place. The purpose of the meeting is to arrive at stipulations and agreements resulting in simplification of the triable issues and to confer concerning the content of the pretrial order. Counsel for the plaintiff has the duty of arranging for meetings and for preparation of the Pretrial Order mandated by Civil Local Rule 16.1.f.6.c. b) Exchanges Between Counsel. At the meeting, all exhibits other than those to be used for impeachment must be displayed or exchanged. c) Content of Exhibits Exchanged. Each photograph, map, drawing and the like must contain a legend on its face or reverse side. The legend must state by date the relevant matters of fact as to what the party offering such an exhibit claims is fairly duplicate. d) Failure to Display and/or Exchange Exhibits. Failure to display and/or exchange exhibits to or with opposing counsel will permit the Court to decline admission of same into evidence. 5. Conduct of the Pretrial Hearing. At the pretrial hearing the Court will consider: a) Pleadings and Other Documents. The pleadings, proposed amendments to the pleadings and papers and exhibits then on file including stipulations, statements and memoranda filed pursuant to Civil Local Rule 16.1.f.2 and f.3 and all matters referred to in Fed. R. Civ. P. 16. b) Motions. All motions and other proceedings then pending. c) Settlement and Simplification. The possibilities for settlement of the case and other matters which may be presented concerning parties, process, pleading or proof with a view to simplifying issues and bringing about a just, speedy and inexpensive determination of the matter. d) Future Proceedings. Future and additional pretrial meetings where required and, upon termination of the final pretrial hearing, the date upon which the case will be set for trial. e) Consent to a Magistrate Judge. Whether the parties will consent to a magistrate judge to conduct the trial. 6. Pretrial Order. a) Responsibility of Plaintiff's Counsel. Counsel for the plaintiff will be responsible for preparing the pretrial order and arranging the meetings of counsel pursuant to this rule. Not less than fourteen (14) days in advance of the pretrial hearing, plaintiff's counsel must provide opposing counsel with the proposed pretrial order for review and approval. Opposing counsel must communicate promptly with plaintiff's attorney concerning any objections to form or content of the pretrial order, and both parties should attempt promptly to resolve their differences, if any, concerning the order. b) Lodging with the Judge's Chambers. No later than seven (7) days prior to the pretrial hearing, plaintiff will lodge a Pretrial Order with the judge's chambers. c) Format. Attorneys for all parties appearing in the case must have approved the Pretrial Order as to form and substance. The Pretrial Order will contain the following unless the Court orders otherwise: 1. A statement to be read to the jury, not in excess of one (1) page, of the nature of the case and the claims and defenses. 2. A list of the causes of action to be tried, referenced to the Complaint [and Counterclaim if applicable]. For each cause of action, the order must succinctly list the elements of the claim, damages and any defenses. A cause of action in the Complaint [and/or Counterclaim] which is not listed will be dismissed with prejudice. 3. (a) A list of each witness counsel actually expects to call at trial with a brief statement, not exceeding four (4) sentences, of the substance of the witnesses' testimony.

(b) A list of each expert witness counsel actually expects to call at trial with a brief statement, not exceeding four (4) sentences, of the substance of the expert witnesses' testimony.

(c) A list of additional witnesses, including experts, counsel do not expect to call at this time but reserve the right to call along with a brief statement, not exceeding four (4) sentences, of the substance of the witnesses' testimony. 4. (a) A list of all exhibits that counsel actually expects to offer at trial with a one-sentence description of the exhibit.

(b) A list of all other exhibits that counsel do not expect to offer at this time but reserve the right to offer if necessary at trial with a one-sentence description of the exhibit. 5. A statement of all facts to which the parties stipulate. This statement must be on a separate page and will be read to and provided to the jury. The parties are directed to meet with the assigned magistrate judge to work out as many stipulations of fact as possible. 6. A list of all deposition transcripts by page and line, or videotape depositions by section that will be offered at trial. 7. In addition to filing proposed jury instructions in accordance with Fed. R. Civ. P. 51 and CivLR 51.1, the parties must e-mail the proposed instructions in Word or WordPerfect form to Chambers. If a party disagrees with a particular instruction, the party must submit an alternate instruction. 8. This case will be tried by (jury) (by the Court without a jury). 9. Time estimated for trial is ( ) days. 7. Trial Counsel to be Present. Unless otherwise ordered by the Court, counsel who will conduct the trial will appear at the pretrial hearing. 8. Penalties; Pretrial. Failure of counsel for any party to appear before the Court at pretrial proceedings or to complete the necessary preparations therefor may be considered an abandonment or failure to prosecute or defend diligently, and judgment may be entered against the defaulting party either with respect to a specific issue or on the entire case. 9. Preparations for Trial. Unless otherwise ordered, the parties must, not less than seven (7) calendar days prior to the date on which the trial is scheduled to commence: a) Serve and file briefs on all significant disputed issues of the law, including foreseeable procedural and evidentiary issues, setting forth briefly the party's position and the supporting arguments and authorities. b) In jury cases, serve and file proposed voir dire questions, jury instructions and forms of verdict which must conform to Civil Local Rule 51.1; and in court cases, serve and file proposed findings of fact and conclusions of law. c) Exchange copies of all exhibits to be offered that were not already provided under Civil Local Rule 16.1.f.4.b and all schedules, summaries, diagrams and charts to be used at the trial other than for impeachment or rebuttal. Each proposed exhibit must be pre-marked for identification in a manner clearly distinguishing plaintiff's from defendant's exhibits. Upon request, a party must make the original or the underlying documents of any exhibit available for inspection and copying. Nothing in this rule will excuse a failure to comply in good faith with the time for exchanging exhibits under Civil Local Rule 16.1.f.4.b.