IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
, )
)
Plaintiff, )
)
v. ) Case No.: **-****-CV-W-GAF
)
, )
)
Defendant. )
SCHEDULING AND BENCH 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 XX.
2. Any motion to amend the pleadings shall be filed on or before XX
3. All discovery motions relating to fact discovery shall be filed on or before XX
4. All pretrial discovery authorized by the Federal Rules of Civil Procedure shall be
completed on or before XX. 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] within three hours of the teleconference. The
movant is responsible for initiating the call.
5. The plaintiff shall designate any expert witnesses he/she intends to call at trial on
or before XX, and the defendant shall designate any expert witnesses he/she intends to call at trial
on or before XX. 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.
6. 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 5
above. The affidavit shall include a complete statement of all opinions to be expressed and the
bases 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.
Expert witnesses may testify only as to matters contained in the affidavit described above unless
leave of Court is granted upon good cause shown.
7. With respect to treating physicians who will testify as to treatment provided, the
requirements of paragraph 6 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.
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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 5 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 6 of this Order.
8. All dispositive motions, except those under Rule 12(h)(2) or (3), shall be filed on
or before XX. 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 or .2 and 56.1.
9. 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
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).
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10. This case is scheduled for a bench trial, commencing at 9:00 a.m., on
______________, at the United States District Courthouse in Kansas City, Missouri.
11. 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.
12. A final pretrial conference in this case will be held at a.m./p.m., on ___________,
via telephone conference initiated by __________ 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. Prior to the pretrial conference, the following documents shall be filed:
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
subject matter or personal 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
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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 expire, 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 provided
by the clerk=s office. 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.
g. At least five (5) days before the date the pretrial conference is to be held,
each party defending against an affirmative claim for relief shall file and
serve:
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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 pretrial conference, each party shall serve, file and deliver
to all other parties its objections to any deposition testimony designated
pursuant to subparagraph g. ii. and iii. above.
14. The following documents shall be filed prior to trial:
a. 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.
b. At least five (5) days prior to the date of trial, counsel for each party are
required to file proposed findings of fact and conclusions of law. Parties
shall also submit computer disks containing their proposed findings of fact
and conclusions of law. A courtesy copy of the proposed findings of fact
and conclusions of law shall be emailed to my Judicial Assistant/Courtroom
Deputy,
[email protected] and my law clerk,
[email protected] in Microsoft Word or compatible
software format at the time of filing.
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;
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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.
GARY A. FENNER, JUDGE
UNITED STATES DISTRICT COURT
DATED:
NOTE: This is an example of what Judge Fenner’s Scheduling and Bench 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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