In The Matter Of: 

## SERVED: March 1, 2013 U.S. DEPARTMENT OF TRANSPORTATION

. OFFICE OF HEARINGS WASHINGTON, DC j**~** . -·- /""' :,: i i

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DocketNo. FMCSA-2011-0333 NORTHEAST ENVIRONMENTAL TRANSPORTATION SERVICES, INC. ) ) ) ) ) ) Case No. PA-2011-8018-US0222 Respondent



### ORDERSETTINGLITIGATIONDATES AND PROCEDURES On January 2, 2013, an Order Setting Rule 16 Litigation Scheduling Conference and Directing Rule 26(t) Planning and Submissionwas filed. On February 20, 2013, the FMCSA filed a Rule 26(t) Proposed Discovery Plan. In its Discovery Plan, the FMCSA noted that the parties had met onFebruary 11, 2013, and it was the FMCSA's beliefthatthe matters and dates included inthe Discovery Plan were agreedto by bothparties. However, despite three attempts, the FMCSAhadbeenunable to obtainthe Respondent's signature. On February 22, 2013, the Office ofHearings received ane-mail from the FMCSA. The e-mail explained that earlier onFebruary 22, 2013, the FMCSAreceived from the Respondent a signed copy ofthe February 20, 2013 Rule 26(t) Proposed Discovery Plan. The signed copy was attached to the e-mail. On February 28, 2013, the parties appeared bytelephone for a Rule 16 Litigation Scheduling Conference, and discussed their calendar availability, hearing dates, and other litigationprocedural matters. Pursuantto 49 C.P.R. §386.37; 49 C.P.R. §386.54; 49 C.F.R. §386.55; and Civ. R. 16, and after reviewing all relevant caselaw, regulation, statutory authority, and being fully advised;



### ItIs Hereby Ordered: A. The litigation dates andhearing dates are set as follows: 1. 

### March 11, 

### 2013: InitialDiscovery Disclosure Deadline. The last date for the parties to serve each other, without request, the initial discovery disclosure materials pursuantto Civ. R. 26(a)(1)(A).2. March 25, 2013: GeneralDiscovery StartDate. On orbefore March 25, 2013, the parties shall begin exchanging or serving all general discovery requests pursuant to 49 C.F.R. 

### §§ 386.37-386.48 and Civ. R. 26-Civ. R. 36. This includes, butis not limited to: propounding interrogatories; requests for production ofdocuments; and requests for admissions, sending notices ofdepositions; subpoenas duces tecum;, pursuantto Civ. R. 26(b), etc. 3. Service oflnterrogatories: Pursuantto 49 C.F.R. 

### § 386.42(b), a party shall not serve more thanthirty (30) interrogatories to each other, and each subpart ofan interrogatory shall be counted as a separate interrogatory. 4. Objections to and Motions regarding Interrogatories: Pursuantto 49 C.F.R. §386.42(c), any objection(s) to interrogatories shall be filed within ten (10) days after receipt ofthe interrogatories. Pursuantto 49 C.F.R. 

### § 386.45 and Paragraphs D and G infra, any Motions to Compel for deficit interrogatory response(s) shall be filed within ten (10) days after receipt ofthe objection or deficit answer. 5. April25, 2013: Deadline for the Claimant to serve the Respondent with its Expert Witness Disclosure and Reports pursuantto Civ. R. 26(a)(2)D). 6. May 15,2013: Deadline for the Respondent to serve the Claimant with its Expert Witness Disclosure and Reports pursuantto Civ. R. 26(a)(2)D). 7. June 25,2013: Deadline for Responses to General Discovery Requests. The last date for bothparties to finish responding and serving answers to all additional general discovery requests pursuantto Civ. R. 26-Civ. R. 36, 49 C.F.R. §§ 386.37(c), 386.42(c), and 386.46(5)(c). This includes the exchange ofExpert Witness Rebuttal Reports. 8. July 15, 2013: SupplementalDiscovery Deadline. The last date for bothparties to complete exchange ofall supplemental discovery requests, including but not limited to the exchange ofany remaining factual discovery, the notices and taking of supplemental depositions, and any other discovery matters pursuantto Civ. R. 26- Civ. R. 36 and 49 C.F.R. § 386.40. 9. August 1, 2013: Deadlines for Dispositive Motion(s). The last date for bothparties to file any/all pre-hearing dispositive motions, including DefaultMotions and/or SummaryJudgment Motions. a) August 15,2013: Deadline for filing Answerto Dispositive Motion(s); b) August 30, 2013: Deadline for filing Reply (ifany). 10. September 18,2013: ll:OOam -12:00pm ET. The Telephone Conference for Oral Argument on any Dispositive Motions. NB: Ifthe parties do not file dispositive motions, this Telephone Conference will be automatically converted and held as a Pre-Hearing Status Conference.

Page 2 of511. October30, 2013: The last date for the parties to Exchange Lists ofWitnesses and Exhibits: The last date for each party to serve and file the following: a) A list ofthe witnesses the party intends to call; b) A short statement ofthe testimony expected from each such witness; c) The resume ofeach witness who will be offered as an expert; and d) The documents the party intends to offer in evidence (pre-marked as noted in Paragraph E, infra). 12. November 8, 2013: Motions in limine or Stipulations. The deadline for the parties to file any written motions in limine and/or stipulations. 13. November 19, 2013 and November 20,2013: Hearing dates. The parties agree that the hearing will take two (2) days. The two (2) day hearing will begin onTuesday, November 19,2013 (9:00am-5:00pm) and conclude on Wednesday, November 20, 2013 (9:00am-5:00pm). The specific location ofthe hearing in Allentown, Pennsylvania will be provided to the parties priorto the hearing. B. Requests for modification ofthe litigation dates set forth inparagraph A may be made by written Motion. Before filing such a Motion, however, the party seekingthe modification shall contactthe opposing party and seekto arrive at mutually convenient alternative date(s). A report on the result ofthis discussion shall be included by the movant inthe Motion. A party filing a Motion for Reliefshall also set up a telephone conference, pursuant to Paragraph G infra. C. Discoveryrequests or documents complying with discoveryrequests need not be filed in this case with the Office ofHearings, except as part ofa motion regarding disputed discovery, or as part ofa motionto compel discovery. D. Any Motions regarding discovery, including a Motionto Compel Discovery, mustbe filed within ten (10) calendar days after service ofa deficient response or after the response to the discovery is due, whichever occurs first. Motions to Compel and other discovery motions must be accompanied bythe discovery requests and responses, and a declaration by the moving party, pursuantto Civ. R. 37(a)(l), that the movant has conferred or attempted to confer in good faith withthe party alleged to have failed to make discovery ordisclosure. The Civ. R. 37(a)(l) declaration shall specifically indicate the efforts made bythe movant to resolve the dispute and identify which discovery matters remain in dispute. Statements in oppositionto discovery motions must be filed within ten (10) calendar days after service ofthe motion. The failure to timely file objections to discovery may result inthe objections being deemed waived. Belated service ofburdensome discovery requests may also be grounds for denial ofa motion to compel compliance with suchrequests. E. Each party mustbring to the hearing at leastthree copies ofany documents it intends to offer in evidence as exhibits (one for the Judge and two for the official reporter). The exhibits should be pre-marked. Complainant's exhibits should be marked "C-1," "C-2," "C-3," etc. Respondent's exhibits should be marked "R-1," "R-2," "R-3," etc.

Page 3 of5F. At the hearing, there will be the opportunity for direct examination, cross-examination, redirect examination, and re-cross-examination ofeach witness. Only one representative ofa party may cross-examine a witness onbehalfofthatparty. Pursuantto 49 C.F.R. §386.56(c), the Federal Rules ofEvidence will be utilized as a guideline in determiningthe admission ofall evidence. G. Priorto the hearing dates, ifaparty wishes to schedule oral argument on any motion, or set up any type oftelephone conference onthe Judge's calendar, the party shall first confer with opposing counsel about mutually agreeable alternate dates, and then contactthe Office of Hearings (202-366-6941) as soon as possible, with at leastthree (3) mutually-agreed, proposed alternate dates/times for the Judge's consideration. The movant shall be responsible for contacting the Office ofHearings. H. Stipulation(s): The following agreement(s) ofthe parties are hereby confirmed and adopted: (1) the venue location for the Hearing is Allentown, Pennsylvania. I. For clarifications ofthis order or questions withregard to the procedures to be followed in this case, please contact Attorney-Advisor Mr. Cody L. Smith at (202) 366-6941 at the Office ofHearings.

Attachment: Service List

Page 4 of 5SERVICE LIST ORIGINAL & ONE COPY U.S. Department ofTransportation Docket Operations, M-30 West Building Ground Floor Room W12-140 1200NewJersey Avenue, S.E. Washington, DC 20590

Mr. John C. Bell, Esq. Claimant's Counsel ONE COPY

Trial Attorney, Office ofChiefCounsel (MC-CCE) Eastern Service Center Federal Motor Carrier Safety Administration 802 Cromwell ParkDrive, Suite N Glen Burnie, MD 21061 TEL: 443-703-2249 FAX: 443-703-2253 Mr. Bernard A. Dutz, President Northeast Environmental Transportation Services, Inc., Respondent 326 South Church Street Hazelton, PA 18201 TEL: 570-459-2301 FAX: 570-459-2302 Judge J. E. Sullivan US. Administrative LawJudge U.S. Department ofTransportation Office ofHearings, M-20 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2132 FAX: 202-366-7536 DocketNo. FMCSA-2011-0333

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