IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
, )
)
Plaintiff, )
)
v. ) Case No.: **-****-CV-W-GAF
)
, )
)
Defendant. )
SCHEDULING AND JURY TRIAL ORDER
Pursuant to Rules 16(b) and 26(f) of the Federal Rules of Civil Procedure, and upon
consideration of the parties= views in the matter, the following schedule is hereby established:
1. Any motion to join additional parties shall be filed on or before __________.
2. Any motion to amend the pleadings shall be filed on or before ____________.
3. All discovery motions relating to fact discovery shall be filed on or before
_________________.
4. All pretrial fact discovery authorized by the Federal Rules of Civil Procedure shall
be completed on or before __________________. This means that all discovery shall be
completed, not simply submitted, on the date specified by this paragraph. Accordingly, all
discovery requests and depositions shall be submitted and/or scheduled prior to the date specified
in this paragraph and shall allow 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. The Court
reserves the right to exercise control over the taking of depositions.
The Court will not entertain any discovery motion absent full compliance with Local Rule
37.1. Any discovery motion filed without complying with Local Rule 37.1 will be denied. In the
event that a teleconference is needed, my Judicial Assistant/Courtroom Deputy may be reached at
816-512-5660. All teleconference requests should be directed to her. A description of the
discovery dispute, not to exceed one page in length, should be emailed to my Judicial
Assistant/Courtroom Deputy at
[email protected] and my law clerk at
[email protected] by movant within twenty-four (24) hours of the
teleconference.
5. Teleconferences by cell phone are discouraged. Counsel must have a clear
connection without interference from background noise. Otherwise, counsel may be disconnected
and considered as having failed to appear.
6. Plaintiff shall designate any expert witnesses he/she intends to call at trial on or
before ____________. Defendant shall designate any expert witnesses he/she intends to call at
trial on or before ________________. This paragraph applies to all witnesses from whom expert
opinions will be elicited, regardless of whether the witness was specially retained to provide trial
testimony.
7. Along with each party=s designation of expert witnesses, each party shall provide
the other parties with an affidavit from each expert witness designated pursuant to paragraph 6
above. The affidavit shall include a complete statement of all opinions to be expressed and the
basis and reasons therefor, the data or other information considered by the witness in forming the
opinions, any exhibits to be used as a summary of or support for the opinions, the qualifications of
the witness (including a list of all publications authored by the witness within the preceding ten
years), the compensation to be paid for the study and testimony, and a listing of any other cases in
which the witness has testified as an expert at trial or by deposition within the preceding four years.
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Expert witnesses may testify only as to matters contained in the affidavit described above unless
leave of Court is granted upon good cause shown.
8. With respect to treating physicians who will testify as to treatment provided, the
requirements of paragraph 7 of this Order may be satisfied by providing a copy of all the treating
physician=s files, records and notes relating to the treating physician=s patient to the opposing party.
For the purpose of this paragraph, a Atreating physician@ is a doctor (including psychiatrist, dentist
or other practitioner of the healing arts) retained by a party prior to retaining counsel in this matter.
A treating physician will not be allowed to give expert testimony beyond the treatment provided
by said physician unless designated as an expert as required under paragraph 6 of this Order. A
treating physician who will provide expert testimony beyond the treatment provided by said
physician must further comply with the requirements of paragraph 7 of this Order.
9. All dispositive motions, except those under Rule 12(h)(2) or (3), shall be filed on
or before ____________. All dispositive motions shall have a separate section wherein each
statement of fact is individually numbered so that any party opposing such motion may refer
specifically to a genuine issue of material fact. Suggestions in opposition to a dispositive motion
shall begin with a concise listing of material facts as to which the party contends a genuine dispute
exists. All motions for summary judgment shall comply with Local Rules 7.1 and 56.1.
10. All motions for extension of time pursuant to Rule 6(b) or Rules 31, 33, 34 and 36
must state:
a. The date when the pleading, response or other action is/was first due;
b. The number of previous extensions and the date the last extension expires;
c. The cause for the requested extension, including a statement as to why the
action due has not been completed in the allotted time; and
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d. Whether the requested extension is jointly agreed to and if so, a motion
signed by ALL parties should be filed or a separate response of opposing
counsel agreeing to the motion should be filed. The motion WILL NOT be
ruled prior to the expiration of the response time without opposing counsel’s
signature on the motion or a separate consent having been filed.
(Agreement by counsel of a requested extension is not binding on the
Court).
11. This case is scheduled for a jury trial, commencing at 9:00 a.m., on ___________,
United States District Courthouse in Kansas City, Missouri.
12. A final pretrial conference in this case will be held at a.m./p.m., on
______________, via telephone conference initiated by plaintiff's /defendant’s counsel; the
Court’s telephone number is 816-512-5660. Lead trial counsel shall participate in this conference.
The agenda for this conference will include:
a. Identification of facts not in dispute to which the parties will stipulate, in
order to save trial time;
b. Identification of legal and factual issues to be tried;
c. Disposition of pending motions;
d. Discussion of any legal questions which must be resolved prior to trial;
e. Discussion of any suggestions by counsel to simplify and expedite the trial;
and
f. Discussion of the status and likely success of settlement negotiations.
13. The following documents shall be filed prior to the pretrial conference:
a. Motions in limine shall be filed at least ten (10) days prior to the pretrial
conference. Responses to motions in limine shall be filed at least three (3)
days prior to the pretrial conference.
b. At least three (3) days prior to the date the pretrial conference is to be held,
the parties shall file a stipulation of any uncontroverted facts. If no
stipulated facts can be agreed upon, including facts related to the Court=s
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subject matter jurisdiction, the parties shall file a joint statement to that
effect. Notwithstanding the fact that the time for discovery will have closed,
a request to stipulate, if preserved in the record, will constitute a request for
admission under Rule 36 and failure to stipulate may be subject to sanctions
under Rule 37(c).
c. At least three (3) days prior to the date the pretrial conference is to be held,
the parties shall file a stipulation as to the admissibility of evidence, when
the identification and foundation of the exhibit is not to be contested.
Notwithstanding the fact that the time for discovery will have closed, a
request to stipulate, if preserved in the record, will constitute a request for
admission under Rule 36 and failure to stipulate may be subject to sanctions
under Rule 37(c).
d. At least three (3) days prior to the date the pretrial conference is to be held,
each party shall file and serve a list of all witnesses who may be called at
trial. If a witness is not listed by a party, that witness will not be permitted
to testify absent leave of Court and then only for the purpose of
unanticipated rebuttal or impeachment. After the time for filing lists of
witnesses has expired, no supplemental or amended list will be filed without
leave of Court and for good cause.
e. At least three (3) days prior to the date the pretrial conference is to be held,
that party will file and serve a list of all exhibits which may be offered at
trial. The parties shall additionally prepare and provide to the courtroom
deputy an exhibit index, with said index being prepared on a form that is
available on the Court’s website at
https://www.mow.uscourts.gov/forms/district. Each exhibit will be
designated as either APlaintiff=s@ or ADefendant=s,@ numbered with an Arabic
numeral and described following the enumeration. If an exhibit consists of
more than one (1) page or part, the number of pages or parts shall be
included in the description. The exhibit number must be marked on each
exhibit at the time of listing. It is not necessary to list exhibits to be used
only for rebuttal purposes. Except by leave of Court for good cause, no
exhibit will be received in evidence which is not listed by the counsel
offering the exhibit. After the time for filing lists of exhibits has expired,
no supplemental or amended list of exhibits will be filed without leave of
Court for good cause.
f. Ten (10) days before the date the pretrial conference is to be held, each party
asserting an affirmative claim or claims for relief (plaintiff, third-party
plaintiff, counterclaiming defendant, etc.), shall file and serve a designation,
by page and line number, of any deposition testimony to be offered in
evidence as a part of that party=s case.
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g. At least five (5) days prior to the date the pretrial conference is to be held,
each party defending against an affirmative claim for relief shall file and
serve:
i. Any objections to proposed deposition testimony designated by any
other party;
ii. A designation, by page and line number, of any deposition testimony
to be offered as cross-examination to deposition testimony
designated by other parties; and
iii. A designation, by page and line number, of any deposition testimony
to be offered in evidence as part of that party=s case-in-chief in
connection with such defense.
h. On or before the date the pretrial conference is to be held, each party shall
serve, file and deliver to all other parties its objections to any deposition
testimony designated pursuant to subparagraphs g. ii. and iii. above.
14. The following documents shall be filed prior to trial:
a. Two (2) weeks prior to trial, the parties shall jointly file on CM/ECF an
original (without sources) and an annotated (with sources) set of proposed
jury instructions. Proposed annotated instructions shall reflect the
authorities upon which the instruction is based and should be taken from or
drawn in the manner of Model Civil Jury Instructions for the District of
Courts of the Eighth Circuit and/or Missouri Approved Instructions (MAI)
where available and appropriate. All instructions shall be designated as
"Instruction No. ___" without indicating which party proposed the
instruction. Parties shall also email to my Judicial Assistant/Courtroom
Deputy at
[email protected] and to my law clerk at
[email protected], in MS Word format both the
original and annotated copies of the instructions, in separate
documents.
The Court prefers to receive joint instructions from the parties. Separate
instructions are appropriate only when the parties cannot agree upon a
specific instruction. In that instance, counsel shall state in writing the
reason for the objection with authority cited as well as an alternative
instruction. The deadline for submitting objections and alternative
proposed instructions is one (1) week before the date of trial.
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b. At least five (5) days prior to the date of trial, counsel for each party may
file a trial brief stating the factual and legal contentions for the party for
whom the trial brief is filed.
c. At least ten (10) days prior to the date of trial, counsel for each party is
requested to file a list of questions or topics for voir dire examination
desired to be propounded by the Court. Objections to opposing party=s voir
dire questions shall be filed at least five (5) days prior to trial.
15. The Court may place time limits on opening statements, and direct and cross-
examination of all witnesses. You should be prepared to support your representations as to the
length of trial.
16. In order to ensure the efficient use of time during trial, the following rules of Court
will be imposed:
a. All legal issues must be raised in advance of trial by written motions and in
accordance with the scheduling order of this Court;
b. Motions will not be heard during trial without a strong showing that counsel
could not, by due diligence, have raised them sooner;
c. 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. Counsel should be
prepared with written authority for their positions; and
d. Witnesses who will be testifying from exhibits or about exhibits should
review them immediately prior to their testimony.
IT IS SO ORDERED.
s/
GARY A. FENNER, JUDGE
UNITED STATES DISTRICT COURT
DATED:
NOTE: This is an example of what Judge Fenner’s Scheduling and Jury Trial Order will
look like when entered. The Proposed Scheduling Order filed by the parties should NOT
contain a signature line for Judge Fenner but should be signed by the parties.
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