IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
INITIAL SCHEDULING ORDER )
)
[Entered pursuant to the Standing Order )
Governing Civil Case Management Before )
the Honorable Frank D. Whitney, )
Misc. No. 3:07-MC-47 (Doc. No. 2)] )
THIS MATTER has been assigned to the docket of the Honorable Frank D. Whitney.
Pursuant to the Standing Order Governing Civil Case Management Before the Honorable Frank D.
Whitney, Misc. No. 3:07-MC-47 (Doc. No. 2), the Court hereby sets the following requirements and
deadlines for service, pleading and motions practice, conference activities, initial disclosures, and
submission of the parties’ certification and report of initial attorneys’ conference.
1. PRELIMINARY
a. Service. Plaintiff(s) (including defendants in the capacity of third-party plaintiffs)
shall be responsible for serving a copy of this Order on the defendants along with
service of the pleadings and summons. (In removed actions, the removing party shall
be responsible for the service of this Order along with the notice of removal.) If
service of the relevant pleading has already been obtained prior to the docketing of
this Order, a copy must be served on the required parties within the next five (5)
calendar days.
b. Scope. This Initial Scheduling Order is intended to apply to adversarial civil cases
in which all parties are represented by counsel and traditional discovery will be
sought. Cases involving review of a previously developed record, such as habeas
corpus, bankruptcy appeals, social security appeals, certain ERISA benefits cases, et
cetera, are not subject to this Order. If counsel believe that this Order was filed in
this case in error they should immediately notify the Court. In addition, no provision
of this Order is intended to supersede any contrary statute or rule applicable to certain
specialized forms of civil action (e.g., adequate notice and claim periods in in rem
suits; an automatic stay in certain securities and class/derivative actions, or where a
party is in bankruptcy, et cetera), and parties should promptly seek relief from, or
clarification of, any provision of this Order in the event that an apparent conflict
arises.
2. OUT OF STATE COUNSEL
a. Pro Hac Vice Admission. Out of state counsel may apply for admission pro hac vice
provided that out of state counsel are affiliated with a local attorney who is
responsible for signing documents filed with the Court. In so signing, local counsel
shall be held accountable for the substance of such submissions under Rule 11(b) of
the Federal Rules of Civil Procedure. Local counsel must attend all pre- and post-
trial hearings, but upon request may be excused by the Court from attendance at trial.
b. Special Admission. Special admission without affiliation of local counsel shall not
be allowed except upon a showing of exceptional hardship, or in cases where the
United States or one of its officers or agencies is a party.
3. PLEADING & PRELIMINARY MOTIONS
a. Pleading. Except as hereinafter provided, pleadings shall be served at such times
and under such circumstances as required by Rules 4 and 12-14 of the Federal Rules
of Civil Procedure. Extensions of time to serve pleadings shall not be granted except
2
by leave of court for good cause shown (consent of opposing counsel alone is not
sufficient). Absent extraordinary circumstances, no party shall receive more than one
extension of time to serve a pleading, with any such extension being no more than
twenty (20) days in duration.
b. Preliminary Motions – How Presented.
i. For purposes of the following paragraphs, “preliminary motion” means any
motion (dispositive or otherwise) made in advance of the start of discovery,
including motions made pursuant to Rule 12 of the Federal Rules of Civil
Procedure, motions to remand, motions for change of venue, and motions for
interim relief pursuant to Rule 65.
ii. Motions to dismiss based on any of the defenses set forth in Rule 12(b), if
contained in the answer, shall be construed by the Court as placeholders
which preserve the defense for future adjudication (e.g., at summary
judgment or trial). See (Proposed) Local Civil Rule 7.1(C)(1). If a defendant
desires preliminary adjudication of a Rule 12(b) defense, subject to the
limitations described below, a motion along with a supporting memorandum
of law must be filed separately from the answer.
iii. Every preliminary motion shall be made in writing and include, or be
accompanied by, a brief statement of the factual and legal grounds on which
the motion is based. A memorandum of law shall always state the “Bottom
Line Up Front” – that is, the introductory paragraph(s) shall: (i) identify with
particularity each issue in dispute; (ii) concisely (i.e., in one or two sentences)
3
state why the party should prevail on the issue, directing the Court’s attention
to what the party believes to be the controlling legal authority or critical fact
in contention; and (iii) if applicable, state the remedy or relief sought.
iv. Unless prior permission has been granted in compliance with the
requirements of Paragraph 3(b)(vi), memoranda of law in support of or in
opposition to any preliminary motion contemplated by this Order shall not
exceed 4,500 words, and reply memoranda shall not exceed 1,500 words.
Headings, footnotes, quotations and citations do count toward the page and
word limitation. The case caption, table of contents, table of authorities, and
any certificates of counsel do not count toward the limitation. The
memorandum of law shall include a certificate by the attorney (or the party
if unrepresented), subject to Rule 11, that the submission complies with the
foregoing word limitation. Non-complying briefs will be stricken summarily
from the record.
v. The briefing schedule set forth in current Local Civil Rule 7.1(B) [(Proposed)
Local Civil Rule 7.1(E)] is hereby incorporated by reference and shall control
unless otherwise ordered by the Court. Upon request of a party or on its own
motion, however, the Court reserves the right to set abbreviated briefing
schedules in particular cases.
vi. Any motion to extend the foregoing time and/or word limitations shall be
filed immediately upon counsel learning of the need for the same and in any
event no fewer than three (3) business days in advance of the filing deadline
4
sought to be modified.1 The moving party must show consultation with
opposing counsel regarding the requested extension and must inform the
Court of the views of opposing counsel on the request. If a party fails to
make the requisite showing, the Court will summarily deny the request for
extension. Any motion for an extension must also be accompanied by a
separately submitted proposed form of order.2 Motions for extensions shall
not be granted except upon a showing of good cause (consent of opposing
counsel alone is not sufficient). Truly exceptional circumstances must exist
to modify deadlines that impact a scheduled motions hearing or trial date,
which extensions may only be granted by Order of the presiding district
judge.
c. Preliminary Motions – Effect Of Filing.
i. The filing of a pre-answer motion to dismiss for one or more of the reasons
set forth in Rule 12(b)(1), 12(b)(2), 12(b)(4), or 12(b)(5), or a motion for
more definite statement pursuant to Rule 12(e), will toll the time required to
plead responsively until ten (10) days following disposition of the motion.
See Fed. R. Civ. P. 12(a)(4). The time in which to hold a Rule 26(f) initial
attorneys’ conference and to commence with discovery will likewise be tolled
unless the party opposing the motion petitions the Court for limited fact
1
Any motion filed outside this deadline will be considered only upon a showing of excusable neglect
in addition to good cause.
2
Proposed orders shall be submitted to Chambers electronically, in WordPerfect (WPD) or Rich Text
(RTF) format, utilizing the CyberClerk feature of CM/ECF.
5
discovery and demonstrates that such discovery is necessary to adjudicate the
preliminary motion.
ii. The filing of any other preliminary motion – including motions made
pursuant to Rules 12(b)(3), 12(b)(6), and 12(b)(7) – will NOT presumptively
toll the time required to plead an answer, counterclaims, and/or third-party
complaint. Pursuant to Rule 12(d), the Court may elect to defer ruling on
issues raised in Rule 12 and similar motions until the close of discovery,3
consider evidence extrinsic to the pleadings, and dispose of the issues
presented as provided in Rule 56. Accordingly, a defendant who
contemplates filing a Rule 12(b)(6) motion must still serve and file a timely
responsive pleading and prepare to commence with discovery as provided
below. Such defendant may, however, file concurrent with its answer a Rule
12(b)(6) or 12(c) motion together with a request for preliminary hearing,
pursuant to Rude 12(d), for good cause shown. Examples of good cause
include, without limitation: (i) the claims set forth in the complaint are
facially frivolous; (ii) the claims are subject to preclusion or are otherwise
barred by the absence of a necessary condition precedent; (iii) the defendant
asserts the defense of immunity from suit; or (iv) the defendant asserts the
availability of a defense under the Federal Arbitration Act. An Order denying
3
While motions to remand and motions concerning venue typically will be decided as early in the
case as practicable, the Court includes them in the group of preliminary motions that do not stay the pleading
schedule and commencement of discovery in recognition of the fact that the litigation is likely to go forward
in some forum even if not the United States District Court for the Western District of North Carolina.
6
a defendant a preliminary hearing on a Rule 12 defense will in no way
prejudice the party from raising the same arguments at summary judgment.
d. Preliminary Motions – Disposition.
i. Pursuant to 28 U.S.C. § 636(b) and the Court’s Standing Order governing
Referrals to Magistrate Judges, Misc. No. 3:06-MC-83, preliminary motions
may be referred to a United States Magistrate Judge for recommended
disposition by memorandum and recommendation (M&R), or, if appropriate,
for full disposition by memorandum and order (M&O).
ii. Any party aggrieved by the magistrate judge’s decision on any motion may,
within ten (10) days thereafter, appeal to the district judge for de novo review
of a M&R, or for clear error review of a M&O, by filing specific objections.
Unless prior permission has been granted, the objections (inclusive of any
memorandum of law) shall not exceed 2,000 words, stating with particularity
those aspects of the decision asserted to be erroneous and a perspicuous
factual or legal basis supporting that position. Within ten (10) days after
service of the objections or motion, a response not to exceed 2,000 words
may be filed. Unless otherwise ordered by the Court, no further briefing will
be allowed and district court review will be conducted on the record as
developed more fully before the magistrate judge.
4. INITIAL ATTORNEYS’ CONFERENCE
a. Within fourteen (14) calendar days following joinder of the issues (as defined
herein), the parties or their counsel shall confer as provided by Rule 26(f) and
7
conduct an Initial Attorneys’ Conference (“IAC”). “Joinder of the issues” occurs
when the last responsive pleading is filed, as set forth in Paragraph 3(c), regardless
of whether a preliminary motion is pending.
b. Protocol for Discovery of Electronically Stored Information. In order to assist the
parties in preparing for and conducting discovery of electronically stored information
(“ESI”), the Court has issued the Standing Order on Protocol for Discovery of
Electronically Stored Information in Civil Cases Before the Honorable Frank D.
Whitney, which is available for reference at Misc. No. 3:07-MC-47 (Doc. No. 4).
The purpose of the Protocol is to facilitate the just, speedy, and inexpensive conduct
of discovery involving ESI in civil cases, and to promote, whenever possible, the
resolution of disputes regarding the discovery of ESI without Court intervention. The
parties shall review the Protocol, carefully consider its immediate impact on initial
disclosures, the joint proposed discovery plan, and the retention of data, and follow
its guidelines accordingly.
c. Within five (5) calendar days after the IAC, the parties shall file a Certification of
Initial Attorneys’ Conference (“CIAC”) and a joint proposed discovery plan
conforming to the requirements set forth below. The template CIAC and Discovery
Plan provided by the Clerk’s office shall be disregarded to the extent that it is
inconsistent with the mandates of this Order.
d. Within fourteen (14) calendar days after the IAC, the parties must exchange initial
disclosures required by Rule 26(a)(1). If the parties choose to stipulate out of or
object to the mandatory initial disclosure procedure, they must so indicate in their
8
proposed discovery plan.
5. CASE MANAGEMENT TRACKS
a. Civil cases will be assigned to one of three case management tracks: Simple/Fast
Track; Standard Track; or Complex/Extended Track. Cases involving pro se
litigants presumptively will be assigned to the Simple/Fast Track, and all other
cases presumptively will be assigned to the Standard Track, unless the parties
demonstrate to the satisfaction of the judicial officer presiding over the initial
scheduling conference that a different case management track is more appropriate for
just and expedient adjudication of the case.
b. With due regard given to the fact that not every case will fall cleanly into a pre-
defined category, the following general deadlines and limitations (or close
approximations thereof, subject to modification by leave of court for good cause
shown) will apply depending on which case management track the case is assigned:
9
Simple/ Standard Complex/
Fast Track Track Extended Track4
Initial Disclosures ( á ) 14 days after IAC 14 days after IAC 14 days after IAC
M otion to Amend the
Pleadings Deadline 4 weeks after á 6 weeks after á 8 weeks after á
Completion of Discovery
Deadline ( ä ) 12 weeks after á 24 weeks after á 36 weeks after á
Discovery Guidelines
W ritten discovery requests
allowed (per party per method
of written discovery): 20 25 30
Total hours of oral
deposition allowed (per party,
excluding experts): 20 30 50
Expert Reports
Plaintiff: 3 weeks before ä 8 weeks before ä 10 weeks before ä
Defendant: 3 weeks before ä 4 weeks before ä 6 weeks before ä
Rebuttal: None anticipated Any time before ä 2 weeks before ä
ADR Deadline 14 days after ä 14 days after ä 14 days after ä
Dispositive M otions
Deadline 28 days after ä 28 days after ä 28 days after ä
W ord Limits (Briefs on
Dispositive M otions)
Memo in support or
opposition: 4,500 words 6,000 words 9,000 words
Reply Memo: 1,500 words 2,000 words 3,000 words
c. Irrespective of the case management track to which this matter ultimately is assigned,
counsel should expect that oral arguments on dispositive motions will be heard on
the first available motions calendar after dispositive motions are expected to ripen,
and counsel should be ready for trial during the next available trial calendar
following a motions hearing. The Court’s Standing Order Governing the
4
In cases complex enough to warrant bifurcation of discovery, the parties may propose, instead of
a single 36-week discovery period, separate phases (e.g., of 12- and 24-weeks), with or without an
intermediate motions deadline.
10
Calendaring of Hearings and Trials Before the Honorable Frank D. Whitney is
available for reference at Misc. No. 3:07-MC-47 (Doc. No. 1).
d. Case management tracks and corresponding discovery limits will be determined and
assigned primarily with regard to the anticipated nature and complexity of the case.
However, where counsel anticipate extended conflicts of time during the period in
which the case will be litigated (e.g., due to personal or professional obligations,
family or medical leave, or vacation that has been secured in advance, et cetera), the
deadlines may be extended by a period of not more than eight (8) weeks beyond that
which otherwise would be justified based solely on the nature and complexity of the
case.
6. JOINT SUBMISSION OF A PROPOSED DISCOVERY PLAN
a. Pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, the parties shall
submit a CIAC and joint proposed discovery plan, which will guide the Court in
issuing a case management order as provided by Rule 16(b). The parties are required
to follow the guidelines set forth below and may not merely follow the template
provided by the Clerk’s office.
b. The parties’ joint proposed discovery plan shall contain:
i. A thorough discussion of the anticipated nature and complexity of the case;
ii. The parties’ preference as to which case management track the case should
be assigned, along with adequate justification if the parties seek permission
to opt out of the default case management track (see Paragraph 5(a)). Where
there is disagreement the parties shall state the basis of such disagreement,
11
with the burden being principally on the party seeking more expansive
discovery limits to justify the need for the same;
iii. Any requests for specific modifications from the suggested deadlines and
limitations set forth in the above table, along with adequate justification for
the proposed modification. For example, an ADR deadline of fourteen (14)
days after the deadline for completion of discovery is typically the latest date
that the Court will consider allowing the parties to submit to ADR. However,
if the parties believe that the case would benefit from early mediation, an
earlier deadline may be proposed in the parties’ joint discovery plan;
iv. Whether or not there is unanimous and voluntary consent of all parties to the
exercise of jurisdiction by a United States magistrate judge pursuant to 28
U.S.C. § 636(c);
v. Whether or not the parties request that an initial pretrial conference be held
prior to the entry of a comprehensive Case Management Order. Initial
pretrial conferences (and subsequent oversight of discovery) typically will be
conducted by a magistrate judge except in more complex cases (e.g., patent,
MDL, class and derivative actions).
7. COMPUTATION OF TIME
a. The time periods prescribed by Court Order or Local Rule shall be computed as
provided in Rule 6 of the Federal Rules of Civil Procedure, unless otherwise directed
by the Court.
b. If an Order of the Court specifies a time period in terms of “calendar days:”
12
i. Intervening weekends and holidays shall be counted in the computation even
if the specified time period is shorter than eleven (11) days in duration; and
ii. The time period prescribed by the Court shall be deemed to be inclusive of
any additional three (3) day allowance for service provided by Fed. R. Civ.
P. 6(e) and (Proposed) Local Civil Rule 7.1(E).
IT IS SO ORDERED.
13
