Case 2:05-cv-00733-WMA

Document 1

Filed 04/07/2005

Page 1 of 5

FILED
2005 Apr-08 PM 03:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.,

)

)

Defendant.

)

)

CIVIL ACTION NO.
COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under the Age Discrimination in Employment Act to correct unlawful employment practices on the basis of age and to provide appropriate relief to L. B. Garrison, Beverly McCluskey, Robbie Scogin, and Sharon Tittle. The Commission alleges that, in December 2002, Wal-Mart Stores, Inc., terminated L. B. Garrison, age 57, Beverly McCluskey, age 49, Robbie Scogin, age 57, and Sharon Tittle, age 51, from their employment in Defendant’s receiving department because of their age.
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 626(b) (the "ADEA"), which incorporates by reference Section 16(c) and 17 of the Fair Labor Standards Act of 1938 (the "FLSA"), as amended, 29 U.S.C. §§ 216(c) and 271.

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2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Northern District of Alabama, Jasper Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (the "Commission"), is the agency of the United States of America charged with the administration, interpretation and enforcement of the ADEA and is expressly authorized to bring this action by Section 7(b) of the ADEA, 29 U.S.C. § 626(b), as amended by Section 2 of Reorganization Plan No. 1 of 1978, 92 Stat. 3781, and by Public Law 98-532 (1984), 98 Stat. 2705. 4. At all relevant times, Defendant, Wal-Mart Stores, Inc., (the "Employer"), has continuously been a Delaware corporation doing business in the State of Alabama in the County of Winston and the City of Haleyville, and has continuously had at least 20 employees. 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 11(b), (g) and (h) of the ADEA, 29 U.S.C. §§ 630(b), (g) and (h).
CONCILIATION 6. Prior to institution of this lawsuit, the Commission's representatives attempted to eliminate the unlawful employment practices alleged below and to effect voluntary compliance with the ADEA through informal methods of conciliation, conference and persuasion within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
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STATEMENT OF CLAIMS 7. In December 2002, the Defendant Employer engaged in unlawful employment practices at its Haleyville, Alabama, facility, in violation of § 4(a) of the ADEA, 29 U.S.C. § 623(a). The practices include discharging L. B. Garrison, Beverly McCluskey, Robbie Scogin, and Sharon Tittle because of their ages. 8. The effect of the practices complained of in paragraph 7 above has been to deprive L. B. Garrison, Beverly McCluskey, Robbie Scogin and Sharon Tittle of equal employment opportunities and otherwise adversely affect their status as employees, because of their age. 9. The unlawful employment practices complained of in paragraph 7 above were willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b).
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in the conduct alleged in paragraph 7 above and any other employment practice which discriminates on the basis of age against individuals 40 years of age and older. B. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for individuals 40 years of age and older, and which eradicate the effects of its past and present unlawful employment practices. C. Grant a judgment requiring Defendant Employer to pay appropriate back wages in an amount to be determined at trial, an equal sum as liquidated damages, and prejudgment interest to individuals whose wages are being unlawfully withheld as a result of the acts complained of
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above, including but not limited to L. B. Garrison, Beverly McCluskey, Robbie Scogin, and Sharon Tittle.
D. Order Defendant Employer to make whole all individuals adversely affected by the unlawful practices described above, by providing the affirmative relief necessary to eradicate the effects of its unlawful practices, including but not limited to the reinstatement of L. B. Garrison, Beverly McCluskey, Robbie Scogin, and Sharon Tittle.
E. Grant such further relief as the Court deems necessary and proper in the public interest.
F. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 “L” Street, N.W. Washington, D.C. 20507
\s\ Charles E. Guerrier Charles E. Guerrier (Ohio 0023546) Regional Attorney
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\s\ Mildred Byrd Mildred Byrd (LA 03741) Supervisory Trial Attorney \s\ Ermea J. Russell Ermea J. Russell (MS 5739) Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Birmingham District Office Ridge Park Place 1130 22nd Street South, Suite 2000 Birmingham, Alabama 35205 Tel: 205-212-2062
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 Case 2:05-cv-00733-WMA

Document 42

Filed 01/05/2007

Page 1 of 12

FILED

2007 Jan-05 PM 03:32 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

L.B. GARRISON, et al.,

}

}

Plaintiffs,

}

}

v.

}

}

WAL-MART STORES EAST, L.P., }

}

Defendant.

}

CIVIL ACTION NO. 05-AR-0714-S

CONSOLIDATED WITH

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

WAL-MART STORES EAST, L.P., }

}

Defendant.

}

CIVIL ACTION NO. 05-AR-0733-S

MEMORANDUM OPINION Before the court is the motion of defendant, Wal-Mart Stores East, L.P. (“Wal-Mart”) for summary judgment in both of the aboveentitled consolidated actions, one of which was brought by plaintiffs L.B. Garrison (“Garrison”), Sharon Tittle (“Tittle”), Robbie Scobin (“Scobin”), and Beverly McClusky (“McClusky”) (together, “plaintiffs”) under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”); and the other by the Equal Employment Opportunity Commission (“EEOC”) under the ADEA. For the reasons that follow, the court will deny Wal-Mart’s motion.

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Facts Some of the facts material to plaintiffs’ and the EEOC’s actions against Wal-Mart are disputed. The court will not identify every fact that the parties dispute, but will simply state the pertinent facts in the light most favorable to the non-movants. Garrison, Tittle, Scobin, and McClusky, all of whom were over 40 years of age when terminated by Wal-Mart, are former employees of Wal-Mart Store 409 (“Store 409”), located in Haleyville, Alabama. Garrison was hired in March 1991 to work in the Receiving Department of Store 409, where he unloaded trucks and stocked shelves. In or about 1995, Garrison was promoted to the position of Receiving Manager, where for aught appearing he was in charge of the nighttime stocking crew. Store 409 closed during nighttime hours before May 2002, but starting on or about May 18, 2002, it stayed open for business 24 hours per day. When Store 409 went 24 hours, Tittle, Scobin, and McClusky, and Stacy Warren (“Warren”) worked on Garrison’s night stocking crew. Mike Durham (“Durham”) was the Manager of Store 409 from October 1994 through January 2003. In December 2000, Tim Counce (“Counce”) transferred from a Wal-Mart store in Fulton, Mississippi to work as an Assistant Manager at Store 409. Counce was initially responsible for the entire night crew at Store 409, and he became the Night Assistant Manager when Store 409 went 24 hours in 2002. Wal-Mart has written corporate policies which govern employee
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breaks and meal periods. Under the break policy, employees are entitled to zero, one, or two 15-minute rest periods for each shift they work, depending on the length of the shift. Employees receive full compensation for these breaks (or “rest periods”) and are not required to clock out while taking them. Wal-Mart’s meal-period policy, as distinguished from its break-period policy, is as follows:

Length

Meal periods are a minimum of 30 minutes and, with the Supervisor’s agreement, may be up to 60 minutes.

Eligibility for Meal Period

Associates who work more than six (6) consecutive hours will be provided a meal period.

Compensation Hourly Associates must “clock out” at the start of their meal period and “clock in” when returning to work.

Associates generally do not receive compensation for meal periods.

Scheduling the Meal Period

Associates in positions requiring that they be “locked in” and not leave the facility during the meal period do not receive compensation for the meal period except where required by state law. States that require compensation for meal periods for Associates “locked in” are: California, Connecticut, Massachusetts, New Jersey, North Dakota, Washington, Wisconsin.
The Associate’s immediate Supervisor is responsible for scheduling meal periods.

After Store 409 went 24 hours, Counce scheduled the night stocking crew’s meal periods. If Counce was not on duty on a particular night, Garrison scheduled the meal period. On some
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nights, members of the night stocking crew would take a meal period without clocking out, and on other nights they would substitute a 15-minute break for the meal period or would simply not take a meal period at all. Whenever Garrison took a meal period without clocking out, he did so under the specific direction of Counce. Whenever Scogin, Tittle, or McClusky took a meal period without clocking out, they did so under the specific direction of a supervisor – presumably Counce, Garrison, or occasionally Durham. Moreover, Counce told the night stocking crew that on nights in which they did not intend to work at least 6 hours, they should not take a meal period; Counce and Durham gave Garrison the authority to determine whether he thought the crew would be finished with their work in less than 6 hours and would thus not need to take a meal period. Additionally, there were occasions when Durham specifically told members of the night stocking crew not to clock out for a meal period, or gave them the option to forgo their meal period in order to get their work done faster.
On December 7, 2002, Durham went to Store 409 to review the Timeclock Archive Report, which appears to be a printout summary of the hours worked by each employee at Store 409. While reviewing the report, Durham noticed that the members of the night stocking crew were working overtime but were not clocking out for meal periods. He called District Manager Mike Hawkins (“Hawkins”) to inform him of the issue, and Hawkins told Durham that the members
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of the night stocking crew should be terminated if an investigation revealed that they were taking meal periods without clocking out. Durham also discussed the issue with Counce, and Counce then reviewed the Timeclock Archive Report and footage from various security cameras. After conducting his review, Counce wrote a statement saying that his investigation revealed that Garrison, Tittle, McClusky, Scogin, and Warren had taken meal periods of between 8.5 and 13 hours without clocking out over a nine-week period, and concluded by accusing them of “gross misconduct” and “theft of company time.”
Counce then provided the Timeclock Archive Report, videotapes, and his summary to Lee Jeffreys, the District Loss-Prevention Supervisor of six Wal-Mart stores including Store 409. Durham told Jeffreys that if the members of the night stocking crew did not give a justifiable reason for not clocking out for meal periods, then they should be discharged. Jeffreys interviewed each member of the night stocking crew on December 19, 2002. Wal-Mart says that none of the plaintiffs told Jeffreys that they were instructed or advised not to clock out for certain meal periods by a supervisor, but plaintiffs dispute this assertion. At the conclusion of the interviews, all five members of the night stocking crew were terminated. On December 19, 2002, Garrison, Tittle, Scobin, McClusky, and Warren were 57, 51, 55, 49, and 39 years old, respectively.
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Before Wal-Mart fired the members of the night stocking crew, Counce made frequent comments regarding Garrison’s age. At least once per week on average, Counce told Garrison that if he had his way he would fire the whole night stocking crew and get a crew of younger people. Counce told Garrison that he wanted to fire the crew because “younger people learn easier, and I can teach them to do what I want done better.” Warren also heard Counce say that he would like to replace the crew with younger people because they could work faster. Additionally, Counce nicknamed Garrison “Uncle,” because Garrison was “the oldest.” Counce called Garrison “Uncle” more than once, and one time he announced over the P.A. system, “Uncle L.B., will you come to the front.” Garrison reported Counce’s comments to Durham, but there appears to be no evidence to suggest that Durham took any action in response.
In addition to Counce’s age-related statements, Durham told Garrison when Garrison applied for a different job within Store 409 that “I’m your friend, you will be better off where you are at. And besides, you don’t have a lot of good years left. You would be better off where you are at for the years that you have left.” When Garrison was passed up for a promotion, Durham told him that the reason was that the person who got the promotion had more experience on the floor in dealing with customers. Counce later told Garrison “that’s just an easy way to keep from hurting your feelings. It’s because of your age.”
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Summary Judgment Standard In considering a Rule 56 motion, the court must construe the evidence and make factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). The court may enter summary judgment only if it is shown “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). At this stage, the court does not “weigh the evidence and determine the truth of the matter,” but solely “determine[s] whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242-43 (1986) (citations omitted). This determination involves applying substantive law to the relevant facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence. See id. at 248; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).
Analysis Plaintiffs contend that Wal-Mart discriminated against them because of their age in violation of the ADEA when Wal-Mart fired them. In order to succeed, plaintiffs must establish a prima facie case through direct, circumstantial, or statistical evidence. Early v. Champion Int’l Corp, 907 F.2d 1077, 1081 (11th Cir. 1990). If Wal-Mart is able to counter plaintiffs’ prima facie showing with
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a legitimate, non-discriminatory reason for the terminations, the burden shifts back to plaintiffs to show that Wal-Mart’s stated reason was a pretext for unlawful age-based discrimination. Id.
I. Plaintiff’s Prima Facie Case Plaintiffs attempt to support their claim using both direct and circumstantial evidence. Wal-Mart contends that plaintiffs’ prima facie case fails based on the undisputed evidence, and that it is entitled to summary judgment. A. Direct Evidence Direct evidence is “evidence which, if believed, would prove the existence of a fact in issue without inference or presumption.” Id. (citaions omitted). Plaintiffs contend that Counce’s frequent statements to the effect that he would have liked to have gotten rid of the entire crew and replace them with younger employees constitutes direct evidence of discrimination. Wal-Mart does not deny that such statements could amount to direct evidence had they come from the persons who fired plaintiffs. It contends, however, that Counce was not the decisionmaker, and that his statements cannot evince improper motive on behalf of Wal-Mart. Plaintiffs counter that although Jeffreys and Durham issued the firings, Counce influenced their decision to terminate plaintiffs such that he was, in effect, also a decisionmaker. See, e.g., Lewis v. Y.M.C.A., 53 F.Supp.2d 1253, 1260 (N.D. Ala. 1999). The court concludes that there is sufficient evidence for a
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reasonable factfinder to conclude that Counce was a de facto decisionmaker with respect to plaintiffs’ terminations. In addition to his age-related comments, Counce conducted the investigation that led to the discharge of the members of the night stocking crew, and he provided Durham with a signed statement in which he concluded that plaintiffs had engaged in gross misconduct and had stolen company time. Notably, Counce never told Durham or Jeffreys that he had instructed the members of the night stocking crew to not clock out for certain meal periods – and it is undisputed that Counce did not include this alleged fact in his statement. The court cannot conclude as a matter of law that Counce did not “recommend” that Wal-Mart fire plaintiffs or that he did not take part in the ultimate decision to do so. Cf. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998) (ultimate decision maker was not the “cat’s paw” of the harassing employee because there was no evidence that decision maker approved of or accepted the decision or recommendation of the harasser). B. Circumstantial Evidence
Plaintiffs can also establish a prima face case of age discrimination under the familiar McDonnell Douglas framework. Under that approach, plaintiffs must show with respect to each of them that (i) at the time he was fired, he was a member of the class protected by the ADEA (“individuals who are at least 40 years
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of age,” 29 U.S.C. § 631(a)), (ii) he was otherwise qualified for the position, (iii) he was discharged, and (iv) defendant hired persons outside the protected class. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 152 (2000). Wal-Mart does not attempt to discredit plaintiffs’ assertion that there exists sufficient evidence for all four plaintiffs to establish each of elements (i) through (iv) above. Thus, the court cannot rule as a matter of law that there is insufficient evidence for plaintiffs to establish their respective circumstantial prima facie cases of age discrimination in violation of the ADEA.
II. Pretext Wal-Mart contends that if plaintiffs can establish a prima facie case of age discrimination, it is nevertheless entitled to summary judgment because it has offered a legitimate, nondiscriminatory reason for firing them, namely, that all four plaintiffs stole company time by not clocking out for meal periods. Wal-Mart bolsters the credibility of its stated reason by emphasizing that Wal-Mart fired every member of the night stocking crew – including 39 year-old Warren – not just those individuals who were members of the class protected by the ADEA. Plaintiffs counter that Wal-Mart’s articulated reason is pretextual, contending, inter alia, that: • In each instance in which plaintiffs did not clock out, it was due to instructions by Counce, Durham, or Garrison.
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• Durham said that if plaintiffs were merely following instructions in not clocking out for meal periods, they would not have been terminated.
• Counce made statements directed at plaintiffs which evinced his age bias, and he took part in the decision to terminate plaintiffs.
• Durham told Garrison that “you don’t have a lot of good years left. You would be better off where you are at for the years that you have left.” Plaintiffs offer other evidence and characterize it as
potential proof that Wal-Mart’s stated reason for firing them was a pretext for unlawful discrimination. The court is not entirely convinced that any of this other evidence could demonstrate pretext. However, the court does believe that the three pieces of evidence listed above, if proven, could serve as circumstantial or direct evidence that Wal-Mart’s stated reason for firing plaintiffs was not its actual reason. Although Wal-Mart’s jury case is strengthened by the fact that it fired all members of the night stocking crew, including a person under 40, this fact alone would not preclude a reasonable jury from finding Wal-Mart’s stated reason for firing plaintiffs to be pretextual. Resolving all inferences in favor of the non-moving plaintiffs, the court will deny Wal-Mart’s motion for summary judgment by separate order.
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Case 2:05-cv-00733-WMA Document 42 Filed 01/05/2007 Page 12 of 12 DONE this 5th day of January, 2007. _____________________________ WILLIAM M. ACKER, JR. UNITED STATES DISTRICT JUDGE
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 Case 2:05-cv-00733-WMA

Document 46

Filed 03/28/2007

Page 1 of 2

FILED

2007 Mar-28 PM 03:19 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

L.B. GARRISON, et al., Plaintiffs,
v. WAL-MART STORES, INC.,
Defendant.

}

}

}

}

CIVIL ACTION NO.

}

05-AR-0714-S

}

}

}

}

CONSOLIDATED WITH

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

WAL-MART STORES, INC.,

}

}

Defendant.

}

CIVIL ACTION NO. 05-AR-0733-S

ORDER The court having been advised that the above-entitled actions have been successfully mediated, both said actions are hereby DISMISSED WITH PREJUDICE, except that within fourteen (14) days the cases can be reinstated for the limited purpose of submitting a stipulated substitute form of final judgment. The parties are to bear their own respective costs.

Case 2:05-cv-00733-WMA Document 46 Filed 03/28/2007 Page 2 of 2
DONE this 28th day of March, 2007.
_____________________________ WILLIAM M. ACKER, JR. UNITED STATES DISTRICT JUDGE

 
 Case 2:05-cv-00733-WMA

Document 18

Filed 05/12/2006

Page 1 of 4

FILED

2006 May-12 AM 10:27 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

L.B. GARRISON, et al., Plaintiffs,
v. WAL-MART STORES, INC.,
Defendant.

}

}

}

}

CIVIL ACTION NO.

}

05-AR-0714-S

}

}

}

}

CONSOLIDATED WITH

EQUAL EMPLOYMENT OPPORTUNITY }

COMMISSION,

}

}

Plaintiff,

}

}

v.

}

}

WAL-MART STORES, INC.,

}

}

Defendant.

}

CIVIL ACTION NO. 05-AR-0733-J

PROTECTIVE ORDER Before the court is the motion of defendant, Wal-Mart Stores, Inc. (“Wal-Mart”) for a protective order. The proposed protective order that was attached to Wal-Mart’s motion is consented to by plaintiffs L.B. Garrison, Sharon Tittle, Robbie Scogin, and Beverly McCluskey in CV-05-AR-0714-S, but opposed in some respects by EEOC in CV-05-AR-0733-J. The motion is GRANTED, but with the understanding that EEOC may retain any documents obtained during discovery in accordance with its internal document retention policies and that EEOC may move this court to be relieved of any

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obligation or limitation arising under the protective order as to particular documents or pieces of information provided by Wal-Mart if a motion for relief is filed within five (5) calendar days of receipt of an item by EEOC.
It is hereby ORDERED, subject to the limitations requested by the EEOC and granted above, that the documents and other information, including the substance and content thereof, designated by the Defendant as confidential and proprietary, and produced by the Defendant in response to any formal or informal requests for discovery in this litigation, shall be subject to the terms of this Protective Order as set forth below:
For purposes of this Order, "Confidential Proprietary Information" means: any such designated documents or materials, including personnel files of present and former Defendant employees, which are produced to the opposing party in this matter.
The Plaintiffs and their attorneys shall not give, show or otherwise divulge or disclose the substance of the documents or other information designated as Confidential Proprietary Information, or any copies, prints, negatives or summaries thereof, to any entity or person with the exception of deponents and/or witnesses, experts and consultants employed by the parties, and the parties’ attorneys, so long as that divulgence or disclosure is in connection with the preparation and trial of this action. The
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Plaintiffs and their attorneys shall make a good faith determination of what constitutes a "summary".
Before any such Confidential Proprietary Information, or substance or summary thereof, shall be disclosed to experts or consultants retained by the Plaintiffs, the Plaintiffs’ attorneys are hereby Ordered to tender a copy of this Order to each such expert and/or consultant in order that each such entity or person to whom such disclosure of Confidential Proprietary Information is made shall be on notice and fully informed that the existence and substance of this Protective Order is, and is intended to be, equally binding upon it, him or her, as well as upon the parties and their counsel.
Nothing in this Order shall be deemed a waiver of Plaintiffs’ right to (a) oppose discovery on grounds other than that the documents and information sought constitute or contain Confidential Proprietary Information; or (b) object on any ground to the admission in evidence, at trial of this action, of any Confidential Proprietary Information.
All materials designated as confidential shall be treated as confidential pursuant to the terms of this Protective Order until further Order of this Court. Either party may challenge the designation of any material as confidential or otherwise apply to the Court by motion at any time during the pendency of this case
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for a ruling upon good cause shown that materials not be treated as confidential.
Nothing herein shall prevent the parties from using the Confidential Proprietary Information in connection with any court filings, trial, hearing or other public proceeding in this matter or from seeking further protection with respect to the use of any such Confidential Proprietary Information in connection with such court filings, trial, hearing or other public proceeding in this matter.
Upon the completion of the trial and appeals, if any, in this action, or at the satisfaction of any judgment, or upon conclusion of any settlement, if any, the Plaintiffs and their attorneys shall return upon request the documents designated as confidential and any and all copies, prints and negatives thereof within their possession, custody or control.
DONE this 12th day of May, 2006.
_____________________________ WILLIAM M. ACKER, JR. UNITED STATES DISTRICT JUDGE
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 CM/ECF - U.S. District Court Northern District of Alabama - Docket R... https://ecf.alnd.uscourts.gov/cgi-bin/DktRpt.pl?123914766639214-L_9...

U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:05-cv-00733-WMA

CLOSED

Equal Employment Opportunity Commission v. Wal-Mart Stores, Inc. Assigned to: Judge William M Acker, Jr Cause: 29:621 Job Discrimination (Age)

Date Filed: 04/07/2005 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Defendant

Plaintiff
Equal Employment Opportunity Commission

represented by Charles Guerrier EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2044 Fax: 205-212-2041 Email: charles.guerrier@eeoc.gov TERMINATED: 05/11/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ermea Jackson Russell EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 212-2062 Fax: 212-2063 Email: ermea.russell@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julie Lee EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1122 22nd Street South, Suite 2000 Birmingham, AL 35205 205-212-2076 Fax: 205-212-2041 Email: julie.lee@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mildred Byrd

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4/4/2007 2:38 PM

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V. Defendant Wal-Mart Stores, Inc.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street South Birmingham, AL 35205 205-212-2054 Fax: 205-212-2041 Email: Mildred.Byrd@eeoc.gov TERMINATED: 10/24/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prisca M DeLeonardo EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ridge Park Place, Suite 2000 1130 22nd Street, South Birmingham, AL 35205 205-212-2048 Fax: 205-212-2041 Email: prisca.deleonardo@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles A Powell, IV BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC SouthTrust Tower, Suite 1600 420 North 20th Street Birmingham, AL 35203-5202 328-0480 Email: cpowell@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fern H Singer BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC 1600 Wachovia Tower 420 North 20th Street Birmingham, AL 35203-5202 205-244-3801 Fax: 205-488-3801 Email: fsinger@bakerdonelson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Date Filed 04/07/2005 06/07/2005 06/13/2005 06/13/2005 07/19/2005 07/21/2005
08/03/2005 08/15/2005 08/18/2005
10/12/2005 12/15/2005 04/19/2006
04/20/2006

#

Docket Text

1 COMPLAINT against Wal-Mart Stores, Inc. , filed by Equal Employment Opportunity Commission.(BST, ) (Entered: 04/08/2005)
2 WAIVER OF SERVICE Returned Executed by Wal-Mart Stores, Inc.. Wal-Mart Stores, Inc. waiver sent on 5/10/2005, answer due 7/11/2005. (BST, ) (Entered: 06/09/2005)
3 ANSWER to Complaint by Wal-Mart Stores, Inc..(Singer, Fern) (Entered: 06/13/2005)
4 INITIAL ORDER governing all further proceedings. Signed by Judge L Scott Coogler on 06/13/05. (LIB, ) (Entered: 06/13/2005)
5 NOTICE by Wal-Mart Stores, Inc. of Pendency of Other Action (Powell, Charles) (Entered: 07/19/2005)
6 ORDER -Case consolidated with CV05-AR-714-S and transferred from Jasper Division to the Southern Division, Case reassigned to Judge William M Acker, Jr for all further proceedings. Judge L Scott Coogler no longer assigned to case,hereinafter CV05-CO-733-J shall be designated CV05-AR-733-S, Cases associated.. Signed by Judge William M Acker Jr on 7/21/05. (MAA, ) (Entered: 07/21/2005)
Set/Reset Deadlines: Rule 26 Meeting Report due by 8/15/2005. (KWC) (Entered: 08/03/2005)
7 REPORT of Rule 26(f) Planning Meeting. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 08/15/2005)
8 SCHEDULING ORDER that certain time limits apply as set out; Discovery due by 4/28/2006; Motions due by 5/31/2006. Signed by Judge William M Acker Jr on 8/18/05. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 08/18/2005)
9 Corporate Disclosure Statement by Wal-Mart Stores Inc. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/12/2005)
10 NOTICE of Appearance by Prisca M DeLeonardo on behalf of Equal Employment Opportunity Commission (DeLeonardo, Prisca) (Entered: 12/15/2005)
11 MOTION for Protective Order by Wal-Mart Stores Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 04/19/2006)
12 ORDER dfts motion for protective order in 05-AR-714-S and the joint motion for entry of stipulated protective order in 05-AR-733-S both filed on 4/19/06 will be heard at this courts regular motion docket at 9:00 am 4/21/06. Signed by Judge

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04/21/2006 04/25/2006 04/25/2006 04/28/2006 04/28/2006 05/02/2006 05/03/2006 05/09/2006 05/11/2006
05/11/2006 05/12/2006

William M Acker Jr on 4/20/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 04/20/2006)
Minute Entry for proceedings held before Judge William M Acker Jr: Motion Hearing held on 4/21/2006 re 14 MOTION for Protective Order; written order to be entered by court (Court Reporter Teresa Roberson.) Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(ADF) (Entered: 04/21/2006)
13 Joint MOTION for Extension of Time by Beverly McCluskey, Wal-Mart Stores Inc, L B Garrison, Sharon Tittle, Robbie Scogin. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Singer, Fern) (Entered: 04/25/2006)
ORDER granting 16 Motion for Extension of Time. Granting a 45 day extension to complete outstanding discovery and depositions. Signed by Judge William M Acker Jr on 04/25/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(SKB, ) (Entered: 04/25/2006)
14 RESPONSE in Opposition re 11 MOTION for Protective Order filed by Equal Employment Opportunity Commission. (Barrett, Mason) (Entered: 04/28/2006)
15 RESPONSE in Opposition re 14 MOTION for Protective Order filed by Equal Employment Opportunity Commission. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Russell, Ermea) (Entered: 04/28/2006)
Reset Scheduling Order Deadlines: Discovery due by 6/12/2006. Dispositive Motions due by 7/17/2006. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 05/02/2006)
16 ORDER Setting Hearing on Motion 14 MOTION for Protective Order: Motion Hearing set for 5/11/2006 09:00 AM before Judge William M Acker Jr.. Signed by Judge William M Acker Jr on 5/2/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 05/03/2006)
17 MOTION to Substitute Attorney by Equal Employment Opportunity Commission. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Russell, Ermea) (Entered: 05/09/2006)
Minute Entry for proceedings held before Judge William M Acker Jr: Motion Hearing held on 5/11/2006 re 14 MOTION for Protective Order filed by Wal-Mart Stores Inc,, 19 MOTION to Substitute Attorney filed by Equal Employment Opportunity Commission, written order to be entered. (Court Reporter Julie Martin) Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 05/11/2006)
ORDER granting 19 Motion to Substitute Attorney. . Signed by Judge William M Acker Jr on 5/11/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(SOD, 5/11/06) (Entered: 05/11/2006)
18 ORDER -granting dft's motion for protective order with limitations and conditions as set out in order, Motions terminated: 14 MOTION for Protective Order . Signed by Judge William M Acker Jr on 5/12/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(MAA, ) (Entered: 05/12/2006)

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06/12/2006 06/13/2006 06/13/2006 09/26/2006 09/26/2006 09/26/2006 09/26/2006 10/10/2006 10/10/2006 10/10/2006
10/10/2006

19 MOTION for Extension of Time of Deadlines by Beverly McCluskey, Wal-Mart Stores Inc, L B Garrison, Sharon Tittle, Robbie Scogin. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 06/12/2006)
ORDER granting 19 Motion for Extension of Time. Discover deadline - 8/31/06; dispositive motion deadline - 9/29/06. Signed by Judge William M Acker Jr on 06/13/06. (SKB, ) (Entered: 06/13/2006)
Reset Scheduling Order Deadlines: Discovery due by 8/21/2006. Dispositive Motions due by 9/29/2006. (KWC) (Entered: 06/13/2006)
20 MOTION TO MODIFY THE SCHEDULING ORDER (UNOPPOSED) re Set/Reset Scheduling Order Deadlines by Wal-Mart Stores Inc. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 09/26/2006)
ORDER granting and ordering accordingly 22 Motion to modify scheduling order . Signed by Judge William M Acker Jr on 09/26/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(SKB, ) (Entered: 09/26/2006)
ORDER granting and ordering accordingly 20 Motion to modfy the scheduling order . Signed by Judge William M Acker Jr on 09/26/06. (SKB, ) (Entered: 09/26/2006)
Reset Scheduling Order Deadlines: Dispositive Motions due by 10/10/2006. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 09/26/2006)
21 MOTION for Summary Judgment by Wal-Mart Stores Inc. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)
22 Brief re23 MOTION for Summary Judgment. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)
23 NOTICE by Wal-Mart Stores Inc re 23 MOTION for Summary Judgment of Filing Evidentiary Materials in Support of its Motion for Summary Judgment (First) (Attachments: # 1 L.B. Garrison's depo with exhibits# 2 Sharon Tittle's depo with exhibit# 3 Robbie Scogin's depo with exhibits# 4 Beverly McCluskey's depo with exhibits)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)
24 NOTICE by Wal-Mart Stores Inc re 23 MOTION for Summary Judgment of Filing Evidentiary Materials in Support of its Motion for Summary Judgment (Second) (Attachments: # 1 Mike Durham's depo with exhibits part 1# 2 Mike Durham's depo with exhibits part 2# 3 Mike Durham's depo with exhibits part 3# 4 Mike Hawkins depo with exhibits)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)

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10/10/2006 10/10/2006
10/10/2006
10/11/2006 10/13/2006 10/23/2006 10/24/2006 11/03/2006 11/03/2006

25 NOTICE by Wal-Mart Stores Inc re 23 MOTION for Summary Judgment of Filing Evidentiary Materials in Support of its Motion for Summary Judgment (Third) (Attachments: # 1 Tim Counce's depo with exhibits part 1# 2 Tim Counce's depo with exhibits part 2# 3 Tim Counce's depo with exhibits part 3)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)
26 NOTICE by Wal-Mart Stores Inc re 23 MOTION for Summary Judgment of Filing Evidentiary Materials in Support of its Motion for Summary Judgment (Fourth) (Attachments: # 1 Larry Jeffreys' depo with exhibits part 1# 2 Larry Jeffreys' depo with exhibits part 2# 3 Larry Jeffreys' depo with exhibits part 3# 4 Larry Jeffreys' depo with exhibits part 4# 5 Larry Jeffreys' depo with exhibits part 5# 6 Larry Jeffreys' depo with exhibits part 6)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)
27 NOTICE by Wal-Mart Stores Inc re 23 MOTION for Summary Judgment of Filing Evidentiary Materials in Support of its Motion for Summary Judgment (Fifth) (Attachments: # 1 Haleyville Store Roster 01-02 - 01-06 Part 1# 2 Haleyville Store Roster 01-02 - 01-06 Part 2# 3 Exit Interview Form for Stacy Warren# 4 Declaration of Larry Jeffreys# 5 Declaration of Luvenia Garrison)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 10/10/2006)
28 SUBMISSION ORDER that the motion for summary judgment is submitted to the court; responsive briefs due by 4:30 pm on 10/24/06; reply briefs due by 4:30 pm on 10/31/06 . Signed by Judge William M Acker Jr on 10/11/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 10/11/2006)
29 MOTION for Extension of Time to File Response/Reply Response to Summary Judgment (UNOPPOSED) by L B Garrison. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Calamusa, Rocco) (Entered: 10/13/2006)
30 MOTION to Substitute Attorney by Equal Employment Opportunity Commission. (Attachments: # 1 Text of Proposed Order Substition of Counsel)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Russell, Ermea) (Entered: 10/23/2006)
ORDER granting 32 Motion to Substitute Attorney. . Signed by Judge William M Acker Jr on 10/24/06. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(SKB, ) (Entered: 10/24/2006)
31 NOTICE of Appearance by Richard J Ebbinghouse on behalf of Beverly McCluskey, L B Garrison, Sharon Tittle, Robbie Scogin Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Ebbinghouse, Richard) (Entered: 11/03/2006)
32 NOTICE by Beverly McCluskey, L B Garrison, Sharon Tittle, Robbie Scogin of Filing of Exhibits in Opposition to Summary Judgment (Attachments: # 1 Exhibit Px. 1, EEOC Determination in Favor of L.B. Garrison# 2 Exhibit x. 2, EEOC Determination in Favor of Beverly McCluskey# 3 Exhibit Px. 3, EEOC

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11/03/2006 11/03/2006 11/03/2006 11/04/2006 11/17/2006 11/27/2006
12/01/2006 12/01/2006 12/13/2006

Determination in Favor of Robbie Scogin# 4 Exhibit Px. 4, EEOC Determination in Favor of Sharon Tittle# 5 Exhibit Wal-Mart Corporate Policy on Breaks# 6 Exhibit Px. 6, Stacey Warren Declaration# 7 Exhibit Px. 7, Gary Sutherland Affidavit# 8 Exhibit Px. 8, Defendant?s Position Statement to EEOC# 9 Exhibit Px. 9, Documents relating to Jason Dill# 10 Exhibit Px. 10, Documents relating to Tiffany Rose Ray# 11 Exhibit Px. 11, Documents relating to Ashley Mitchell# 12 Exhibit Px. 12, Documents relating to Martin Wheeles)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Ebbinghouse, Richard) (Entered: 11/03/2006)
33 Brief In Opposition to Defendant's Motion for Summary Judgment filed by Beverly McCluskey, L B Garrison, Sharon Tittle, Robbie Scogin. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Ebbinghouse, Richard) (Entered: 11/03/2006)
34 NOTICE by Beverly McCluskey, L B Garrison, Sharon Tittle, Robbie Scogin of adoption of disputed facts and material facts and arguments of the EEOC Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Ebbinghouse, Richard) (Entered: 11/03/2006)
35 RESPONSE in Opposition re 23 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Russell, Ermea) (Entered: 11/03/2006)
36 RESPONSE to Defendant Motion for Summary Judgment Notice of Adoption filed by Equal Employment Opportunity Commission. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Russell, Ermea) (Entered: 11/04/2006)
37 REPLY to Response to Motion re 23 MOTION for Summary Judgment filed by Wal-Mart Stores Inc. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 11/17/2006)
38 MOTION to Strike 39 Reply to Response to Motion For Summary Judgment by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support of Motion to Strike# 2 Text of Proposed Order Granting Plaintiff Motion to Strike)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Russell, Ermea) (Entered: 11/27/2006)
39 NOTICE of Hearing on Motion 41 MOTION to Strike 39 Reply to Response to Motion For Summary Judgment: Motion Hearing set for 12/15/2006 09:00 AM before Judge William M Acker Jr. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 12/01/2006)
Set Hearings: Docket Call set for 12/15/2006 09:00 AM in CV 05-AR-714-S before Judge William M Acker Jr. (KWC) (Entered: 12/01/2006)
40 RESPONSE to Motion re 41 MOTION to Strike 39 Reply to Response to Motion For Summary Judgment, 40 MOTION to Strike 39 Reply to Response to Motion For Summary Judgment filed by Wal-Mart Stores Inc. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(Powell, Charles) (Entered: 12/13/2006)

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12/15/2006 12/15/2006 12/15/2006 01/05/2007 01/05/2007 01/17/2007 01/17/2007 01/18/2007 02/14/2007
03/28/2007

Minute Entry for proceedings held before Judge William M Acker Jr: Motion Hearing held on 12/15/2006 re 41 40; written order to be entered. (Court Reporter Virginia Flowers) Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 12/15/2006)
Motion Hearing held 12/15/2006 - see notes filed in lead case 2:05-cv-714-WMA. (KWC) (Entered: 12/15/2006)
41 ORDER denying 40 Motion to Strike, denying 41 Motion to Strike, the court will treat plas responses to dfts motion for summary judgment as timely filed and will consider them as such Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 12/15/2006)
42 MEMORANDUM OPINION. Signed by Judge William M Acker Jr on 1/5/07. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 01/05/2007)
43 ORDER in accordance with the memorandum opinion, dfts motion for summary judgment 23 is DENIED; Pretrial Conference set for 1/17/2007 09:30 AM before Judge William M Acker Jr.. Signed by Judge William M Acker Jr on 1/5/07. (Attachments: # 1 Exhibit Pretrial Instructions)Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 01/05/2007)
Minute Entry for proceedings held before Judge William M Acker Jr: Final Pretrial Conference held on 1/17/2007. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 01/17/2007)
Set Trial Management Order Deadlines: Jury Trial set for 4/2/2007 09:30 AM before Judge William M Acker Jr. Damage List, Exhibit List, and Witness List due by 3/16/2007. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KWC) (Entered: 01/17/2007)
44 PRETRIAL ORDER a pretrial conference was held, wherein, or as a result of which the following proceedings were held and action taken as set out, trial set for 4/2/2007 at 09:30 AM . Signed by Judge William M Acker Jr on 1/17/2007. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KSS, ) (Entered: 01/18/2007)
45 ORDER that this matter is SET for mediation on 3/1/07 at 10:00 am in the chambers of the undersigned magistrate judge, Hugo L Black Federal Courthouse, Birmingham, AL; counsel for each party will be required to attend along with the party; additional information the parties would like to submit in confidence must be submitted by close of business on 2/27/07 and marked "Confidential" and submitted in chambers. Signed by Judge John E Ott on 2/14/07. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 02/14/2007)
46 ORDER the court having been advised that the actions have been successfully mediated, both actions are DISMISSED W/PREJ, except that within 14 days the cases can be reinstated for the limited purpose of submitting a stipulated substitute form of final judgment; the parties are to bear their own respective costs. Signed by Judge William M Acker Jr on 3/28/07. Associated Cases: 2:05-cv-00714-WMA,2:05-cv-00733-WMA(KGE, ) (Entered: 03/28/2007)

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