HEARING AND ORDER ON MOTIONS
JOSEPH C. WILKINSON, Jr., Magistrate Judge.
APPEARANCES: By telephone: Hope Harper, representing plaintiff; Christine White, representing defendant
MOTIONS: (1) Plaintiff's Motion for Extension of Time to Complete Discovery, Record Doc. No. 14
(2) Plaintiff's Motion to Continue Trial and Extend Discovery Deadlines, Record Doc. No. 17
(3) Defendant's Motion for Summary Judgment, Record Doc. No. 12
ORDERED:
(1), (2): GRANTED. Motions to continue trial are directed to the broad discretion of the court. Clinton v. Jones, 520 U.S. 681, 706-07 (1997); In re FEMA Trailer Formaldahyde [sic] Prods. Liab. Litig., 628 F.3d 157, 161 (5th Cir. 2010) (citing United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009); United States v. German, 486 F.3d 849, 854 (5th Cir. 2007); Streber v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000)). In deciding such motions, courts evaluate the totality of the circumstances, including such factors as the amount of time available, the moving party's role in shortening the time needed, the likelihood of prejudice from denial of the motion, the facts of the particular case, the complexity of the case, and all of the demands on counsel's time and the court's. Stalnaker, 571 F.3d at 439; Streber, 221 F.3d at 736 (citing HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 549-50 (5th Cir. 2000)).
In addition, a trial date set in a Rule 16 scheduling order, Record Doc. No. 9, may be modified only upon a showing of "good cause," Fed. R. Civ. P. 16(b)(4), involving the evaluation of four factors; i.e., the explanation for the requested extension, its importance, prejudice resulting to the opposing party and the availability of a continuance to cure the prejudice. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008); Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir. 2003); S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003).
Applying the foregoing standards in this case weighs in favor of a finding of Rule 16 "good cause" and granting the requested continuance of the trial and a limited extension of the discovery deadline. As to the first factor, plaintiff's counsel's explanation offered during the oral hearing is not persuasive. Counsel's busy schedule and lack of diligence are not good reasons to extend a deadline. Robinson v. Babin, No. 12-00629-BAJ, 2014 WL 897421, at *3 (M.D. La. Mar. 6, 2014); Estate of Newton ex rel. Newton v. Grandstaff, 3:10-CV-809-L, 2014 WL 1499354, at *7 (N.D. Tex. Apr. 12, 2013). This factor weighs against granting plaintiff's motions.
The second factor weighs in favor of plaintiff's motions. Defendant's pending motion for summary judgment, Record Doc. No. 12, is supported by voluminous exhibits and has a current submission date only two weeks before the final pretrial conference. It is important to the parties and the court to allow plaintiff a full opportunity to defend against a summary judgment motion that may well be dispositive of the case and to allow the court to rule on the motion based on a fully developed record.
As to the third and fourth factors, this case has been pending for only about nine months, and no prior continuance of the trial date has previously been requested. A continuance and extension of the discovery deadline would prejudice defendant, who complied with the court's scheduling order, filed a summary judgment motion expecting a decision on the existing record, and will incur additional costs if plaintiff's motions are granted. However, I see no undue prejudice to defendant in granting the requested continuance of the trial, final pretrial conference and discovery deadline. Although a continuance will not cure the additional expense, the additional, but limited, discovery will benefit the parties and the court in ensuring that defendant's motion for summary judgment will be properly determined on a full record.
Accordingly, the final pretrial conference and trial dates and the discovery and motions deadlines are continued, as set forth below. All other pretrial deadlines set by the previous scheduling order have lapsed and are specifically not continued.
IT IS ORDERED that plaintiff is granted leave to conduct only that discovery listed as items 1 through 6 in her Motion to Continue Trial and Extend Discovery Deadlines, Record Doc. No. 17 at p. 2, and to take the deposition of Patrick Rhodes. No other discovery may be instituted except on motion and order for good cause shown. The deadline for plaintiff to propound her written discovery requests is March 6, 2015.
During the hearing, defendant agreed to provide plaintiff with the last known address of Patrick Rhodes, who no longer works for defendant. Defendant must do so by March 6, 2015. The deadline to complete all discovery permitted by this order is June 19, 2015.
All pretrial motions, except motions in limine, must be filed and served no later than July 20, 2015. Memoranda in opposition to any motion filed on that date must be filed and served no later than August 4, 2015. Defendant may file a memorandum in reply to plaintiff's opposition to defendant's motion for summary judgment no later than August 14, 2015. The parties may request oral argument in accordance with the court's Local Rules, which will be set by the court after August 14, 2015. Motions in limine may be filed up to the time of trial or as otherwise ordered by the court.
The Final Pretrial Conference will be held September 24, 2015 at 4:00 p.m. before the Magistrate Judge. Counsel must be prepared in accordance with the final Pretrial Notice that was attached to the court's prior scheduling order.
Trial commences on October 5, 2015 at 10:00 a.m. before the Magistrate Judge without a jury. Attorneys must report for trial no later than 30 minutes before this time. Trial is estimated to last two (2) days.
If both parties agree that a settlement conference would be beneficial, they may jointly request that I arrange for such a conference with another Magistrate Judge, and I will do so.
No further continuances will be granted.
(3): DISMISSED WITHOUT PREJUDICE. Defendant's motion for summary judgment is hereby DISMISSED WITHOUT PREJUDICE. Defendant may refile a motion for summary judgment, attaching all related evidence and revising the motion, if the need arises after additional discovery, pursuant to the new schedule set out above.
THIS PRETRIAL NOTICE CONTAINS NEW MATERIAL. REVISED SEPTEMBER, 2007
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PRE-TRIAL NOTICE
IT IS ORDERED that a pre-trial conference will be held in chambers before Judge IVAN L.R. LEMELLE, Section "B", in the cases shown on the attached list on the dates and the times there indicated.
The purpose of the pre-trial conference is to secure a just and speedy determination of the issues. If the type of pre-trial order set forth below does not appear calculated to achieve these ends in this case, please arrange a conference with the Judge and opposing counsel immediately so that alternative possibilities may be discussed.
The procedure necessary for the preparation of the formal pre-trial order that will be reviewed and entered at this conference is as follows:
I.
The proposed pre-trial order must be electronically filed with the Court by 4:30 p.m. on a day that allows two full work days prior to the conference, excluding Saturdays, Sundays and holidays (i.e., if the conference is set for 10:00 a.m. Friday, it must be filed by 4:30 p.m. Tuesday; if the conference is set on Monday, the pre-trial order must be filed by 4:30 p.m. Wednesday). The pre-trial order need not be delivered to Chambers on paper. The proposed pre-trial order shall bear electronic signatures of all counsel at the time it is electronically filed with the Court. Following the pre-trial conference, the Court will issue a minute entry which, inter alia, will APPROVE and ADOPT the pre-trial order, either in its entirety or with specified modifications.
II.
Counsel for all parties shall confer in person (face to face) or by telephone at their earliest convenience for the purpose of arriving at all possible stipulations and for the exchange of copies of documents that will be offered in evidence at the trial. It shall be the duty of counsel for plaintiff to initiate this conference, and the duty of other counsel to respond. If, after reasonable effort, any party cannot obtain the cooperation of other counsel, it shall be that party's duty to communicate immediately with the Court. The conference of counsel shall be held at least ten days prior to the date of the scheduled pre-trial conference in order that counsel for all parties can furnish each other with a statement of the real issues each party will offer evidence to support, eliminating any issues that might appear in the pleadings about which there is no real controversy, and including in such statement issues of law as well as ultimate issues of fact from the standpoint of each party. Counsel for plaintiff then will prepare a proposed pre-trial order and submit it to opposing counsel. Once any necessary changes are made, counsel for plaintiff shall electronically file the final proposed pre-trial order with the Court.
III.
At their meeting, counsel must consider the following:
A. Jurisdiction. Since jurisdiction may not ever be conferred by consent and since prescription or statutes of limitations may bar a new action if the case or any ancillary demand is dismissed for lack of jurisdiction, counsel should make reasonable effort to ascertain that the Court has jurisdiction.
B. Parties. Correctness of identity of legal entities; necessity for appointment of tutor, guardian, administrator, executor, etc., and validity of appointment if already made; correctness of designation of party as partnership, corporation or individual d/b/a trade name.
C. Joinder. Questions of misjoinder or nonjoinder of parties.
IV.
At the pre-trial conference counsel must be fully authorized and prepared to discuss settlement possibilities with the Court. Counsel are urged to discuss the possibility of settlement with each other thoroughly before undertaking the extensive labor of preparing the proposed pre-trial order. Save your time, the Court's time, and the client's time and money.
V.
The pre-trial conference must be attended by the attorneys who will try the case, unless prior to the conference the Court grants permission for other counsel to attend. These attorneys will familiarize themselves with the pre-trial rules and will come to the conference with full authority to accomplish the purposes of Rule 16 of the Federal Rules of Civil Procedure.
VI.
Pre-trial conferences will not be continued except for good cause shown in a written motion presented sufficiently in advance of the conference for opposing counsel to be notified.
VII.
Failure on the part of counsel to appear at the conference may result in sanctions, including but not limited to sua sponte dismissal of the suit, assessment of costs and attorney fees, default or other appropriate sanctions.
VIII.
All pending motions and all special issues or defenses raised in the pleadings must be called to the Court's attention in the proposed pre-trial order.
IX.
The proposed pre-trial order shall set forth the following information:
1. The date of the pre-trial conference.
2. The appearance of counsel identifying the party(s) represented.
3. A description of the parties, and in cases of insurance carriers, their insured must be identified. The legal relationships of all parties with reference to the claims, counterclaims, third-party claims and cross claims, etc.
4. a. With respect to jurisdiction, a brief summary of the factual basis supporting each claim asserted, whether original claim, counterclaim or third-party claim, etc., and, the legal and jurisdictional basis for each such claim, or if contested, the jurisdictional questions;
b. In diversity damage suits, there is authority for dismissing the action, either before or after trial, where it appears that the damages reasonably could not come within the jurisdictional limitation. Therefore, the proposed pre-trial order in such cases shall contain either a stipulation that $75,000 is involved or a summary of the evidence supporting the claim that such sum reasonably could be awarded.
5. A list and description of any motions pending or contemplated and any special issues appropriate for determination in advance of trial on the merits. If the Court at any prior hearing has indicated that it would decide certain matters at the time of pre-trial conference, a brief summary of those matters and the position of each party with respect thereto should be included in the pre-trial order.
6. A brief summary of the material facts claimed by:
a. Plaintiff
b. Defendant
c. Other parties.
7. A single listing of all uncontested material facts.
8. A single listing of the contested issues of fact. (This does not mean that counsel must concur in a statement of the issues; it simply means that they must list in a single list all issues of fact.) Where applicable, particularities concerning the following fact issues shall be set forth:
a. Whenever there is in issue the seaworthiness of a vessel or an alleged unsafe condition of property, the material facts and circumstances relied upon to establish the claimed unseaworthy or unsafe condition shall be specified with particularity;
b. Whenever there is in issue negligence of the defendant or contributory or comparative negligence of the plaintiff, the material facts and a circumstances relied upon to establish the claimed negligence shall be specified with particularity;
c. Whenever personal injuries are at issue, the nature and extent of the injuries and of any alleged disability shall be specified with particularity;
d. Whenever the alleged breach of a contractual obligation is in issue, the act or omissions relied upon as constituting the claimed breach shall be specified with particularity;
e. Whenever the meaning of a contract or other writing is in issue, all facts and circumstances surrounding execution and subsequent to execution, both those admitted and those in issue, which each party contends serve to aid interpretation, shall be specified with particularity;
f. Whenever duress or fraud or mistake is in issue, and set forth in the pleadings, the facts and circumstances relied upon as constituting the claimed duress or fraud or mistake (see Fed. R. Civ. P. 9(b)) shall also be set forth in the pre-trial order;
g. If special damages are sought, they shall be itemized with particularity. (See Fed. R. Civ. P. 9(g));
h. If a conspiracy is charged, the details of facts constituting the conspiracy shall be particularized.
9. A single listing of the contested issues of law. (See explanation in 8 above.)
10. For each party, a list and description of exhibits intended to be introduced at the trial. Prior to the confection of the proposed pre-trial order, the parties shall meet, exchange copies of all exhibits, and agree as to their authenticity and relevancy. As to any exhibits to which the parties cannot agree, memoranda shall be electronically filed on or before five working days prior to trial.
a. Each list of exhibits first should describe those that are to be admitted without objection, and then those to which there will be objection, noting by whom the objection is made (if there are multiple adverse parties), and the nature of the objection. Markers identifying each exhibit should be attached to the exhibits at the time they are shown to opposing counsel during preparation of the pretrial order;
b. If a party considers he has good cause not to disclose exhibits to be used solely for the purpose of impeachment, he may ex parte request a conference with the Court and make his position known to the Court in camera.
c. Where appropriate to preserve trade secrets or privileges, the listing of exhibits may be made subject to a protective order or in such other fashion as the Court may direct. If there are such exhibits, the pre-trial order will state: The parties will discuss exhibits alleged to be privileged (or to contain trade secrets, etc.) at the pre-trial conference.
d. In addition to the formal list of exhibits submitted by each side, counsel shall meet and prepare copies of a joint bench book of tabbed exhibits to be delivered to the Court five working days before the start of the trial. If the trial is a jury trial and counsel desires to display exhibits to the members of the jury, then sufficient copies of such exhibits must be available so as to provide each juror with a copy. Alternatively, the courtroom is equipped with an Electronic Evidence Presentation Cart which consists of a document camera, vcr/dvd player, input for multiple laptop computers, and a data projector, all of which may be used to display exhibits. The courtroom is also equipped with a large pull-down screen, counsel monitors with the ability for annotation at the witness and attorney stations, and two large plasma screens for the jury's use. Counsel are instructed to contact the Case Manager at 504-589-7747 to schedule a brief training session on the use of this equipment during the week immediately prior to trial.
e. Unless otherwise ordered by the Court, only exhibits included on the exhibit list and/or for which memoranda have been submitted shall be included for use at trial.
f. Each counsel shall submit to the Court on the day of trial a list of exhibits properly marked for identification which he or she desires to use at trial.
11. a. A list of all deposition testimony to be offered into evidence. The parties shall, prior to trial, meet and agree as to the elimination of all irrelevant and repetitive matter and all colloquy between counsel. In addition, the parties shall, in good faith, attempt to resolve all objections to testimony so that the Court will be required to rule only on those objections to which they cannot reach an agreement as to their merit. As to all objections to the testimony which cannot be amicably resolved, unless otherwise ordered by the Court, the parties shall electronically file, not less than three days prior to trial, a statement identifying the portions objected to, and the grounds therefor. Proponents and opponents shall furnish the Court appropriate statements of authorities in support of their positions as to the proposed testimony.
b. In non-jury trials, the parties shall, at least five days prior to trial, submit to the Court:
A summary of what each party intends to prove and convey to the Court by the deposition testimony, including, where appropriate, particular page and line reference to said depositions. The parties shall indicate to the Court by page and line numbers, those parts of the deposition which each party intends to use, and upon which each party shall rely, in proving their respective cases. Any objections to the proposed deposition testimony should be handled in the form and fashion described above.
12. a. A list and brief description of any charts, graphs, models, schematic diagrams, and similar objects which, although not to be offered in evidence, respective counsel intend to use in opening statements or closing arguments;
b. Either a stipulation that the parties have no objection to the use of the listed objects for such purpose, or a statement of the objections to their use; and a statement that if other such objects are to be used by any party, they will be submitted to opposing counsel at least three days prior to trial and, if there is then opposition to their use, the dispute will be submitted to the Court at least one day prior to trial.
13. a. A list of witnesses for all parties, including the names, addresses and statement of the general subject matter of their testimony (it is not sufficient to designate the witness simply "fact," "medical" or "expert"), and an indication in good faith of those who will be called in the absence of reasonable notice to opposing counsel to the contrary;
b. A statement that the witness list was filed in accordance with prior court orders. witnesses shall be allowed unless agreeable to all parties and their addition does not affect the trial date. This restriction will not apply to rebuttal witnesses or documents whose necessity cannot be reasonably anticipated. Furthermore, in the case of expert witnesses, counsel shall certify that they have exchanged expert reports in accordance with prior court orders. Expert witnesses whose reports have not been furnished opposing counsel shall not be permitted to testify nor shall experts be permitted to testify to opinions not included in the reports timely furnished;
c. Except for good cause shown, the Court will not permit any witness to testify unless with respect to such witness there has been complete compliance with all provisions of the pre-trial order and prior court orders;
d. Counsel shall not be allowed to ask questions on cross-examination of an economic expert which would require the witness to make mathematical calculations in order to frame a response unless the factual elements of such questions shall have been submitted to that expert witness not less than three full working days before trial.
14. A statement indicating whether the case is a jury or nonjury case.
a. If the case is a jury case, then indicate whether the jury trial is applicable to all aspects of the case or only to certain issues, which issues shall be specified. In jury cases, add the following provisions:
"Proposed jury instructions, special jury interrogatories, trial memoranda, and any special questions that the Court is asked to put to prospective jurors on voir dire shall be electronically filed with the Court not later than five working days prior to the trial date, unless specific leave to the contrary is granted by the Court."
b. In a non-jury case, suggested findings of fact and conclusions of law and a separate trial memorandum are required, unless the Court enters an order that such is not required. Same are to be electronically filed not less than five full working days prior to trial.
c. In a jury case, a trial memorandum shall be required only when and to the extent ordered by the Court. However, any party may in any event file such memoranda not less than five working days prior to trial and should accomplish this with respect to any anticipated evidentiary problems which require briefing and jury instructions requiring explanation beyond mere citation to authority.
15. In cases where damages are sought, include a statement for completion by the Court, that "The issue of liability (will or will not) be tried separately from that of quantum." It is the policy of this Court in appropriate cases to try issues of liability and quantum separately. Accordingly, counsel should be prepared to discuss at the pre-trial conference the feasibility of separating such issues. Counsel likewise should consider the feasibility and desirability of separate trials as to other issues.
16. A statement describing any other matters that might expedite a disposition of the case.
17. A statement that trial shall commence on ____________, ___ at ___ a.m./p.m. and a realistic estimate of the number of trial days required. Where counsel cannot agree upon the number of trial days required, the estimate of each side should be given.
18. The statement that "This pre-trial order has been formulated after conference at which counsel for the respective parties have appeared in person. Reasonable opportunity has been afforded counsel for corrections, or additions, prior to signing. Hereafter, this order will control the course of the trial and may not be amended except by consent of the parties and the Court, or by order of the Court to prevent manifest injustice."
19. The statement that "Possibility of settlement of this case was considered."
20. The proposed pre-trial order must contain appropriate signature spaces for counsel for all parties.
IT IS FURTHER ORDERED that the foregoing pre-trial notice be mailed to counsel of record for all parties to these cases, and that counsel will comply with the directions set forth herein.
