IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
[division] DIVISION
, )
)
Plaintiff, )
)
v. ) Case No.
)
, )
)
Defendant. )
PROPOSED SCHEDULING ORDER FOR CLASS CERTIFICATION AND
TRIAL ORDER
The Court, having reviewed the parties’ proposed litigation schedule and Federal
Rules of Civil Procedure 16(b) and 26(f), hereby establishes the following deadlines in this
matter. The parties shall adhere to these deadlines, absent an order from the Court
providing for any modification.
1. TRIAL: This matter is set for a telephone conference on [90 days from the
deadline to file reply suggestions in support of the motion for class certification] at
[proposed time] to schedule a trial date and related deadlines. The parties are asked to call
the Court’s conference line at 1-855-244-8681; Access code: 23171471357. Lead trial
counsel shall participate in this telephone conference.
2. MOTION FOR CLASS CERTIFICATION: Plaintiff shall file any motion
for class certification on or before [date].
3. MOTIONS TO AMEND PLEADINGS OR ADD PARTIES: The parties
shall amend all pleadings and add parties on or before [date].
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4. EXPERT WITNESS DESIGNATIONS: This paragraph applies to all
witnesses from whom expert opinions will be elicited, regardless of whether the witness is
specially retained to provide trial testimony. Plaintiff shall designate any class certification-
related expert witness on or before [before close of discovery]. Defendant shall designate
any certification-related expert witness on or before [30 days after plaintiff’s]. Any
rebuttal expert witness, if any, shall be designated on or before [date]. At the time of
designation, each party shall ensure compliance with Fed. R. Civ. P. 26(a)(2)(B).
5. DISCOVERY CLOSURE DEADLINE: All pretrial discovery authorized by
the Federal Rules of Civil Procedure and related to Class Discovery shall be completed on
or before [180 days from service of the complaint] (“Closure Date”). All Class Discovery
shall be completed, not simply submitted, on or before the Closure Date. Accordingly,
discovery requests shall be served and depositions shall be scheduled in a manner that
allows sufficient time for completion within the time specified by the Federal Rules of
Civil Procedure, the Local Court Rules, and/or orders of this Court. Class Discovery shall
not be conducted after the Closure Date, except by order of the Court for good cause shown.
Nothing contained herein shall excuse a party from the continuing obligation to update
responses to discovery or to respond to discovery requests made before the Closure Date.
6. CONTACT WITH COURT: A party seeking a telephone conference for any
purpose or information regarding practice in this division shall contact the Courtroom
Deputy at “
[email protected]” or (816)512-5376.
7. DISCOVERY DISPUTE PROCEDURE: Should any discovery dispute
arise, the parties are directed to comply with Local Rule 37.1. Absent full compliance with
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this rule, the Court will not entertain any discovery motion. A party seeking a telephone
conference for discovery purposes shall direct the inquiry to the Courtroom Deputy.
a. POSITION LETTER: At least three (3) days before any discovery
dispute conference or hearing, counsel for each party shall submit a Position
Letter by email to the Courtroom Deputy. All Position Letters will be kept
confidential.
i. The Position Letter must not exceed one (1) page and shall not
include any attachments or exhibits. The Position Letter should
be typed in 12-point Arial font and have one-inch margins.
ii. The Position Letter shall describe the underlying facts of the dispute,
the party’s arguments relative to the dispute, and a discussion of the
opposing party’s anticipated arguments.
b. To ensure candor, the Position Letter shall not be filed with the Court nor
shared with opposing counsel; rather, each letter shall be sent to the
Courtroom Deputy by PDF email attachment.
8. ORAL ARGUMENT: A party may request oral argument relative to a
motion, consistent with L.R. 7.0(e). The Court may grant such a request if the subject
motion relates to the case’s merits, and the Court’s calendar can accommodate a hearing.
In the event the Court grants a request for oral argument, the Court strongly encourages the
appearance of the attorney(s) who drafted the motion. As a matter of policy, the Court
strongly encourages the participation of associate-level attorneys in all court proceedings,
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provided such appearances maintain the highest professional standards and are supervised
by a more experienced attorney representing the same party.
9. MOTIONS FOR EXTENSION OF TIME: A motion for extension of time
should be filed at least three (3) days before the deadline established by the Federal Rules
of Civil Procedure or Local Rules.
a. The Court will NOT change the dispositive motion deadline, final pretrial
conference date, and/or trial date absent exigent circumstances. If parties
wish to move the dispositive motion deadline, final pretrial conference date,
and/or trial date, they MUST contact the Courtroom Deputy to request a
telephone conference with the Court. All other deadlines set forth in the
Court’s Scheduling Order may be changed by agreement of the parties, on
proper motion for extension of time, and approved by Court Order.
b. Any motion filed under Fed. R. Civ. P. 6, 31, 33, 34, 36 shall include:
i. the date when the pleading, response, or other action is/was first due;
ii. the number of previous extensions and the date the last extension
expires;
iii. the cause for the requested extension, including a statement as to why
the action due has not been completed in the allotted time; and
iv. whether opposing counsel consents or objects to the requested
extension. Note: lack of objection from opposing counsel is not
binding on the Court.
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10. MOTIONS TO EXCEED THE PAGE LIMIT: The Court does not
commonly grant motions to exceed the page limit set forth in the L.R. 7.0. If a party
believes it requires more than the allotted number of pages established by Local Rule, the
party should contact the Courtroom Deputy to request a telephone conference with the
Court at least three (3) days before the filing deadline established by rule or Court order.
11. FINAL PRETRIAL CONFERENCE PREPARATION: The final
pretrial conference will include discussion of the disposition of any pending motion, any
legal question requiring resolution before trial, the trial schedule and duration, voir dire
procedure, the size of the jury panel, any special equipment, any suggestions to simplify or
expedite the trial, and the status and likelihood of settlement.
a. Each party shall complete the following at least ten (10) business days
before the Final Pretrial Conference:
i. File any motion in limine;
ii. File and serve witness list; and
a. Failure to list a witness may preclude that witness’s testimony
for any purpose other than unanticipated rebuttal or
impeachment.
iii. Serve deposition designations on the opposing party.
a. An asserting party that intends to use any deposition at trial
shall identify and serve a designation by line and page number
to the opposing party using a distinctive highlighting color.
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b. Each party shall complete the following at least five (5) business days
before the Final Pretrial Conference:
i. Serve counter deposition designations and objections on the asserting
party. Counter-designations shall be identified by contrasting
highlighting color. Objections to the asserting party’s designations
shall be identified by a third highlighting color.
c. Each party shall complete the following at least three (3) business days
before the Final Pretrial Conference:
i. Provide copies of the deposition designations, counter-designations,
and objections to the Court printed, tabbed and bound;
ii. File any response to a motion in limine;
iii. File a joint stipulation of uncontroverted facts;
a. If there are none, the parties shall file a joint statement to that
effect.
iv. File and serve list of all exhibits which might be offered at trial;
a. Each exhibit shall be designated as “Plaintiff’s” or
“Defendant’s,” numbered with an Arabic numeral, and
described. Each party shall number their exhibits in
chronological order. Each party’s numbering scheme shall be
distinct from that of the opposing party, i.e. Plaintiff’s Exhibit
1; Defendant’s Exhibit 501. If an exhibit is listed, it must be
marked.
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b. If an exhibit is more than one page or part, that should be noted
in the description. It is not necessary to list exhibits that will
be used only for impeachment or rebuttal purposes.
c. No exhibit will be received in evidence which is not listed by
the counsel offering the exhibit, except by leave of Court for
good cause shown.
v. File a stipulation setting forth those exhibits for which the identity
and authenticity is not contested; and
vi. Provide an exhibit index to the Courtroom Deputy on the form
provided by the Clerk’s Office.
12. JURY TRIAL PREPARATION: Court convenes at 8:30 a.m. Counsel
shall be in the courtroom on the first day of trial not later than 8:00 a.m. The parties
may expect morning, lunch, and afternoon breaks at appropriate times as determined by
the Court.
a. The parties shall complete the following at least ten (10) business days
before trial:
i. Submit, to the Courtroom Deputy by email, and file a joint set of
proposed jury instructions with annotations including:
a. Proposed instructions shall be in Word format, in 13-
point Arial font, double-spaced with one-inch margins.
b. Each proposed instruction shall be separated by a
“page-break”.
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b. The authority on which the instruction is based;
c. Any alteration or deviation from the applicable pattern
instruction, if any, including clear demarcation of the
suggested change; and
d. Proposed language for filling in / removing any
necessary bracket parenthetical in the text of the pattern
instruction.
ii. File a Notice of Instruction Conference, certifying the parties’
efforts to meet, confer, and draft the joint proposed jury instructions
and providing:
a. Which party objects to which instruction;
b. The legal basis for the objection;
c. The objecting parties’ alternative instruction (on a
separate page); and
d. Any other instruction either party would like included,
not otherwise agreed; and
iii. File a list of proposed questions or topics counsel wants included in
the voir dire examination conducted by the Court.
b. At least five (5) business days before trial:
i. A party seeking to do so may file a trial brief setting forth the factual
and legal contentions upon which the party’s case theory is based.
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ii. The parties shall provide to the Courtroom Deputy an agreed
statement to be read to the jury panel before voir dire, setting forth
the background of the case and the claims to be asserted.
iii. A party with any objection to the opposing party’s proposed voir dire
questions or topics shall file an indication of that objection.
13. TRIAL RULES AND PROCEDURE:
a. Counsel table – Only attorneys and participants sitting at counsel table at
the beginning of voir dire will be permitted to sit at counsel table at any
point throughout the trial.
b. Decorum – Except under extraordinary circumstances, counsel and others
shall stand as Court is opened, recessed, or adjourned; as the jury enters and
retires from the courtroom; as he or she addresses the Court or is addressed
by the Court; and as he or she examines a witness. (L.R. 83.3). Counsel shall
not lean into or otherwise encroach on the jury’s space and shall not place
papers or his or her hands on the railing of the jury box. All counsel and
parties appearing shall be dressed appropriately. No food or drink is allowed
in the courtroom, except for water in the cups provided.
c. Professionalism – Counsel shall address all remarks, with the exception of
witness examination, to the Court and not to opposing counsel, and shall
avoid any disparaging remarks, especially those of a personal nature.
Counsel shall treat adverse witnesses and parties with fairness and
consideration. No abusive language or offensive personal references will be
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tolerated. Visible physical reactions to witness’s testimony, counsel’s
presentation, or Court rulings are inappropriate. Counsel shall not converse
among each other or with a client in a manner that may be overheard.
d. Voir dire - The Court will conduct voir dire with reference to the parties’
proposed questions and topics. Thereafter, counsel may be afforded an
opportunity to pose follow-up or clarifying questions to the panel. Counsel
for plaintiff is allotted 45 minutes for follow-up questions. Counsel for
defendant is allotted 30 minutes for follow-up questions. After questioning,
the panel will be excused and each side may move to strike for cause.
e. Opening / Closing Statements - Absent good cause shown, any opening
statement shall not exceed thirty (30) minutes. The duration of closing
arguments will be established during the jury instruction conference after
the presentation of evidence. Instructions will be read to the jury before
closing arguments.
f. Objections - When making an objection, counsel should say only
“objection,” plus the legal reason for the objection (i.e., leading, hearsay,
etc.). If objecting counsel seeks to explain the objection or if opposing
counsel seeks to defend against the objection, counsel shall request leave to
approach the bench. Objections to evidence should be made only by counsel
handling the witness. Objections during opening statements or closing
arguments should be made only by counsel making the opening statement
or closing argument.
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g. Witness Testimony - Witness interrogation shall consist of: (1) direct
examination; (2) cross-examination; (3) redirect examination; and (4)
recross-examination. No further questioning will be permitted, except by
leave of Court in extraordinary circumstances.
i. Only one counsel per side may examine a witness.
ii. Counsel shall request permission from the Court to approach a
witness for a legitimate purpose. Once permission is granted, counsel
may approach the witness without requesting subsequent specific
permission.
iii. Counsel may, but is not required to, use the podium provided when
questioning a witness. In the event counsel declines to use the
podium, a witness will be questioned only from a reasonable
distance.
iv. After counsel questions an expert witness about his or her
qualifications, counsel shall not ask the Court to declare the witness
an expert.
v. Witnesses will remain in the witness chair for the duration of his or
her testimony, unless leave of Court is granted. To the extent
necessary and appropriate, the Court may permit a witness to
temporarily stand to reference an exhibit, but in general, a witness
will not be permitted to testify while standing in front of the jury.
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vi. Witnesses who will be testifying from exhibits or about exhibits will
be expected to have reviewed them before their testimony so as to
avoid the need for the witness to take Court time to review the
exhibit.
vii. Testimony will not be interrupted to deal with evidentiary matters
that could have been heard in advance of trial. The Court will
consider those matters during recess, at noon break, or at the end of
the day.
h. Exhibits – Any exhibits for which admission is sought shall be marked and
accurately reflected and described in the Exhibit Index.
i. All exhibits used at trial as part of a party’s presentation of evidence,
regardless whether the exhibit has been admitted, must remain
available for use by other parties for the remainder of the trial.
ii. Exhibits will rarely be circulated to jurors. If counsel wants the jury
to see an admitted exhibit during trial, such exhibit should be
displayed in such a fashion that all jurors may view the exhibit at the
same time (i.e., by projector).
iii. After the jury retires to consider its verdict, counsel for each party
shall assemble all of their exhibits and keep them available.
iv. After the jury is dismissed, counsel for each party must take
possession of his or her exhibits from the Courtroom Deputy and sign
the receipt at the bottom of the Exhibit List.
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i. Deliberations – Each juror will be provided with a copy of the jury
instructions for use during deliberations. Counsel and the parties should
remain in the courthouse and advise the Courtroom Deputy where they will
be located while the jury is deliberating. After the jury returns its verdict,
counsel should be prepared to indicate whether they would like the jury
polled.
IT IS SO ORDERED.
DATED: date /s/ Brian C. Wimes
BRIAN C. WIMES, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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