UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
)
)
Plaintiff, )
)
v. ) No.
) (Phillips)
)
)
Defendant. )
SCHEDULING ORDER
1. INTRODUCTION: This case having been filed on August 17, 2007, and the
parties having filed an answer(s) to the complaint, this matter is now ready for scheduling. The
Court has scheduled this case for trial and set the following deadlines.
2. JURISDICTION: In this case, the subject matter jurisdiction of the Court has been
invoked pursuant to 28 U.S.C. § 1332, and is not in dispute.
3. SETTLEMENT/ALTERNATIVE DISPUTE RESOLUTION:
(a) The possibility of settlement is unknown at this time.
(b) Is this case appropriate for ADR pursuant to Local Rule 16.4? Information
on ADR and about the court in general can be found on the Court’ s web page
www.tned.uscourts.gov.
4. DISCLOSURE AND DISCOVERY:
(a) Fed. R. Civ. P. 26(f) Meeting: The parties shall hold a discovery planning
meeting as required by Rule 26(f).
(b) Discovery Plan: The parties shall, if they have not already done so, file with
the court a discovery plan in accordance with Rule 26(f).
(c) Initial Disclosures: At the Rule 26(f) meeting or within ten (10) days
thereafter, the parties shall, if they have not already done so, make all disclosures required by
Rule 26(a)(1).
(d) Expert Testimony: Disclosure of any expert testimony in accordance with
Fed. R. Civ. P. 26(a)(2) shall be made on or before one hundred and fifty (150) days before trial
for plaintiff and one hundred twenty (120) days before trial for defendant. If the evidence is
intended solely to contradict or rebut evidence on the same subject matter identified by another
party under Fed. R. Civ. P. 26(a)(2)(B), such disclosure shall be made within thirty (30) days after
the disclosure made by the other party. The parties shall supplement these disclosures when
required under subdivision (e)(1). In the event that either party wishes to challenge the relevance
or the reliability of expert testimony, a motion for a Daubert hearing must be filed not later than
ninety (90) days before trial or they will be deemed waived.
(e) Computer-Generated Animation. If any party intends to offer a computer-
generated animation into evidence, the party shall disclose that intention at the time expert
disclosures are made pursuant to Fed. R. Civ. P. 26(a)(2). A copy of the animation shall be
furnished to all other parties no later than 45 days prior to the filing of pretrial disclosures
pursuant to Fed. R. Civ. P. 26(a)(3) [or the close of expert discovery, if that is earlier]. By
agreement of the parties, the date of delivery of the animation may be adjourned to no later than
the date on which the pretrial order is filed.
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(f) Evidence-Presentation Equipment. Parties are encouraged to become
familiar with and utilize the evidence presentation equipment which is available in each courtroom.
If either party intends to use electronic, mechanical or other equipment to display evidence at
trial, the parties shall confer in an effort to agree on the size, type and location of equipment to
be used in the courtroom. If the parties agree, they shall file their joint proposal on the date on
which the final pretrial order is due. If the parties cannot agree, each party shall file its proposal
on the date on which the pretrial order is due and may comment on the proposal filed by any other
party within two (2) business days thereafter. If one or more of the parties desire to use the
court’ s Digital Evidence Presentation System (DEPS) at trial or for any pretrial hearing, notice
must be given to Jason Huffaker (865) 329-4783 at least five (5) working days before the
hearing or trial. It is recommended that counsel reserve the equipment early and schedule training
on the equipment in order to effectively use the equipment during the trial or hearing and
additionally to test all forms of evidence, i.e. VHS, DVD, audio tapes, etc., prior to trial.
(g) Pretrial Disclosures: On or before sixty (60) days before trial, the parties
shall make all pretrial disclosures specified in Fed. R. Civ. P. 26(a)(3), except as to witnesses (see
6(f) and (g) below).
(h) All Discovery: All discovery, including the taking of depositions "for
evidence," shall be completed by sixty (60) days before trial. (Motions to compel must be filed
at least 30 days before this deadline.)
(i) Discovery Disputes: Discovery disputes shall be resolved in the following
manner:
(1) Parties shall first meet and/or confer in an attempt to resolve disputes
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between themselves, without judicial intervention; (2) if the parties are unable to resolve such
disputes informally, they shall attempt to resolve their disagreements by telephone conference with
the magistrate judge assigned to this case; (3) if, and only if, the parties are unable to resolve their
disputes after conference with the magistrate judge, they may file appropriate written motions with
the court, which may be referred to the magistrate judge. Any written motions regarding
discovery shall include the written certification required by Rule 37(a)(2)(A), if applicable.
5. PRETRIAL ORDERS AND PRETRIAL CONFERENCES:
Unless counsel are otherwise directed by the court, the following shall govern with
regard to pretrial orders and conferences in this particular case.
Thirty (30) days before trial, an agreed pretrial order shall be filed with the Clerk of Court
and also forwarded to chambers via e-mail as an attachment in WordPerfect format at
[email protected] . The order shall contain the following recitals:
(a) Jurisdiction.
(b) That the pleadings are amended to conform to the pretrial order.
(c) Short summary of plaintiff’ s theory.
(d) Short summary of defendant’ s theory.
(e) The issues to be submitted to the trial judge or jury.
(f) Stipulations of fact.
(g) Novel or unusual questions of law or evidence.
(h) Estimated length of trial (in working days).
(i) Possibility of settlement.
(j) Miscellaneous matters that may contribute to the just, speedy, and
inexpensive determination of the case.
Forty-five (45) days before trial (47 days if service by mail), plaintiff’ s counsel shall serve
opposing counsel with a proposed pretrial order containing the above items except for the theory
of defendant. Within five (5) working days after receipt thereof, opposing counsel shall furnish
plaintiff’ s counsel with defendant’ s theory and advise of any disagreement as to the issues or
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other matters in the proposed pretrial order. The parties shall make diligent, good faith efforts
to reconcile any differences promptly and without the necessity of the court' s intercession. If the
parties cannot agree on a pretrial order, plaintiff’ s attorney shall notify the undersigned' s office
at least thirty-one (31) days before trial that the parties have, in a face-to-face conference, been
unsuccessful, after a good faith effort, to agree upon a pretrial order. Thereafter, the undersigned
may enter a pretrial order or hold a pretrial conference. Counsel will receive specific written
instructions on pretrial conference procedures if a pretrial hearing is to take place before the
undersigned to prepare a pretrial order. Any pretrial conference for that purpose will be held
fourteen (14) to twenty-five (25) days prior to trial. Amendments to a pretrial order entered ex
parte by a judge or magistrate judge may be sought by motion filed five (5) working days
following entry of the order. Notwithstanding the filing of an agreed pretrial order, a final pretrial
conference shall be held shortly before trial to address matters which need to be discussed before
the time of trial (See No. 7 below).
Failure to file an agreed pretrial order or to notify the undersigned' s office that one cannot
be agreed upon as required herein may be deemed a failure to prosecute the action. See Rule
41(b), Fed. R. Civ. P.
6. OTHER SCHEDULING MATTERS:
(a) Amendment of Pleadings/Joinder of Parties: At least one hundred and
eighty (180) days before trial of this matter all motions for leave to amend the pleadings and add
parties must be filed.
(b) Dispositive Motions: All dispositive motions under Fed. R. Civ. P. 12 and
all motions for summary judgment pursuant to Fed. R. Civ. P. 56 shall be filed as soon as
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possible, but no later than one hundred and twenty (120) days prior to trial. The failure to timely
file such motions will be grounds to summarily deny them. Motions seeking a Daubert hearing
are governed by paragraph 4(d) set forth above. Upon filing any dispositive motion, or any other
motion (or responsive pleading) which exceeds twenty-five (25) pages (including attachments), a
courtesy hard copy shall be mailed or hand delivered to chambers.
(i) Special Instructions for Motions for Summary Judgment: Any
motion for summary judgment shall be accompanied by a separate concise statement of the
material facts as to which the moving party contends there is no genuine issue for trial. Each such
fact shall be set forth in a separate, numbered paragraph, and shall be supported by no more than
two citations to the record.
(ii) The party opposing the motion for summary judgment shall file,
contemporaneously with his/her brief in opposition, opposing affidavits, etc., a separate pleading
that responds to each fact set forth by the movant that either (1) agrees that the fact is undisputed,
(2) agrees that the fact is undisputed for purposes of ruling on the motion for summary judgment
only, or (3) demonstrates that the fact is disputed, in which event there must be a specific citation
to the record. Further, the non-movant’ s response may contain a concise statement of any
additional facts that the non-movant contends are material and disputed; each such disputed fact
shall be set forth in a separate, numbered paragraph with specific citations to the record.
(iii) The parties are advised that these pleadings are not to be used for
argument, which is the proper role of their briefs. If either party fails to file the pleading
required of him/her as set forth herein, the Court may strike that party’ s motion or opposition,
as the case may be.
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(c) All anticipated exhibits will be labeled and numbered prior to trial. At the
inception of trial, counsel will furnish the court with two (2) copies of their exhibit lists, as
amended/supplemented, so numbered.
(d) Forty-five (45) days before trial, the parties shall file their final witness and
exhibit lists covering the information specified in Rule 26(a)(3).
(e) Counsel shall also provide the Court, on the first day of trial, with two (2)
sets of their exhibits, hole-punched and in a three-ring binder for use during trial.
(f) Within five (5) working days after service of a final witness list as specified
in (d) above, such list may be supplemented.
(g) At least seven (7) working days before trial, the parties must file trial briefs
concerning any novel or unusual questions of law that have been highlighted in the pretrial order.
(h) In the event that a party files an objection within the time specified by Rule
26(a) to the use under Rule 32(a) of a deposition designated by another party under subparagraph
(B) of Rule 26(a)(3), or any objection, together with the grounds therefor, that may be made to
the admissibility of materials identified under subparagraph (C) of Rule 26(a)(3), and desires the
court to consider such objection or objections to be in the nature of a motion in limine, such
objections shall be accompanied by a brief in support of such objection/motion in limine. Should
a hearing be directed by the court regarding such motions in limine, the parties shall be notified
of the date and time thereof. Counsel are reminded that objections not so disclosed, other than
objections under Rules 402 and 403, Federal Rules of Evidence, shall be deemed waived unless
excused by the court for good cause shown.
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7. Proposed Findings of Fact and Conclusions of Law for Nonjury Trial: The
parties shall submit to the court proposed findings of fact and conclusions of law, which shall be
supported by citations of authority in accordance with Local Rule 52.1, no later than thirty (30)
days after conclusion of the trial in this case. These findings of fact and conclusions of law should
be submitted electronically to chambers via e-mail at
[email protected] as an
attachment in Word Perfect format. Proposed findings of fact shall contain a jurisdictional
statement, identity of the parties, and set out the facts in the chronological order the particular
party proved at trial. Conclusions of law shall be concise with appropriate citations of authority
pursuant to Local Rule 7.4. Conclusions of law should not be argumentative.
8. FINAL PRETRIAL CONFERENCE: A final pretrial conference has not been
scheduled at this time. Should the Court determine that such a hearing is necessary, they will be
notified by separate notice.
9. TRIAL: The trial of this case will be held before the undersigned without a jury
beginning on April 14, 2009. Counsel are instructed to contact the Court regarding their estimated
length of trial by calling Rachel Kiser at (865) 545-4234 ext. 2220.
If there are any preliminary matters, counsel shall be present at 8:30 a.m. to take
up any such matters which may require the Court' s attention. The parties shall be prepared to
commence trial at 9:00 a.m. on the date which has been assigned. If this case is not heard
immediately, it will be held in line until the following day or anytime during the week of the
scheduled trial date.
10. MISCELLANEOUS: The Court has implemented Electronic Case Filing which
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allows counsel to file and docket pleadings directly from their office via the internet and to be
served with filings from other parties and the Court via e-mail. Information concerning the ECF
system, registration for training and/or registration to file electronically can be found on the
Court’ s website at www.tned.uscourts.gov or by calling my courtroom deputy, Rachel Kiser at
(865) 545-4234, ext 2220. Counsel who are not registered users are encouraged to register or
explain their failure to do so. See E.D. TN LR 5.2(b). Parties filing pleadings either electronically
or manually on the day of a hearing or trial should notify chambers and/or the courtroom deputy
either by e-mail or phone of the late filing.
You are also reminded that United States magistrate judges in this District have authority
to try civil cases, both jury and nonjury, upon consent of the parties. You are reminded that
magistrate judges may on stipulation hear and determine dispositive motions. If you desire to
have your case tried upon consent by a magistrate judge, or if you wish to allow a magistrate to
decide any dispositive motions, contact my courtroom deputy, Rachel Kiser at (865) 545-4234,
ext. 2220.
NOTE: FAILURE TO COMPLY WITH THIS ORDER SHALL RESULT IN THE
EXCLUSION OF DAMAGES, WITNESSES, EXHIBITS, DEPOSITIONS, AND/OR
VIDEOTAPES FROM EVIDENCE AT TRIAL.
IT IS SO ORDERED.
ENTER:
s/ Thomas W. Phillips
UNITED STATES DISTRICT JUDGE
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