IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

HAROLD KELLY MURPHY, )

)

Plaintiff, )

v. ) CASE NO. 2:06-cv-618-MEF

)

SOUTHERN ENERGY HOMES, INC., )

)

Defendant. )

UNIFORM SCHEDULING ORDER

The court has adopted a new scheduling order in light of the amendments to the

Federal Rules of Civil Procedure which became effective on December 1, 2000. Please

read this order carefully. These deadlines and responsibilities may not be changed

without leave of the court. All parties are expected to comply with each and every

provision of this order in a timely manner, and extensions will be granted in only

extraordinary unforeseeable circumstances. The parties are also expected to comply

with the Middle District's Local Rules and the Middle District's Guidelines to Civil

Discovery Practice, both of which can be found at http://www.almd.uscourts.gov/.

NOTE: Section 9 is NEW.

Under Rule 16, Federal Rules of Civil Procedure, as amended, the Court is required

to set a schedule for discovery and the filing of motions. Accordingly, it is ORDERED by

this Court as follows:

SECTION 1. A pretrial conference of this case is scheduled for August 16, 2007,

in the Chambers of United States District Judge Mark E. Fuller, United States Courthouse,

One Church Street, A-300, Montgomery, Alabama, and this cause is set for trial during the

term of court commencing on September 17, 2007, in Montgomery, Alabama.

SECTION 2. Any dispositive motions, i.e., motions to dismiss or motions for

summary judgment, shall be filed no later than May 18, 2007. A brief and all supporting

evidence shall be filed with any such motion. In all briefs filed by any party relating to the

motion, the discussion of the evidence in the brief must be accompanied by a specific

reference, by page and line, to where the evidence can be found in a supporting deposition

or document. Failure to make such specific reference will result in the evidence not being

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 1 of 9
2

considered by the court.

SECTION 3. On or before June 8, 2007, counsel for all parties shall conduct a faceto-face settlement conference at which counsel shall engage in good faith settlement

negotiations. If settlement cannot be reached, counsel shall also discuss whether mediation

will assist the parties in reaching settlement. Not more than FIVE (5) DAYS after this

conference, counsel for the plaintiff shall file a pleading titled "Notice Concerning

Settlement Conference and Mediation". This pleading shall indicate whether settlement was

reached and, if not, whether the parties believe mediation will assist them in resolving this

case short of trial. Information about mediation is attached to this order.

SECTION 4. Any motions to amend the pleadings and to add parties shall be filed

on or before November 6, 2006.

SECTION 5. Any motion for class certification shall be filed on or before November

21, 2006. A brief discussing the factors enumerated in Rule 23(a), (b) and (g) of the Federal

Rules of Civil Procedure shall be filed with any such motion.

SECTION 6. The failure to file a response to any motion -- either dispositive or nondispositive -- within the time allowed by the court shall indicate that there is no opposition

to the motion.

SECTION 7. All discovery shall be completed on or before August 2, 2007, except

that, as to any witnesses whose names are not revealed until the last day allowed under

SECTION 10, the opposing party shall have the time extended in this paragraph to allow for

deposing such witnesses.

SECTION 8. The parties shall disclose to each other the identity of ANY person who

may be used at trial to present evidence under Rules 701, 702, 703, or 705 of the Federal

Rules of Evidence, and provide the reports of retained experts or witnesses whose duties as

an employee of the party regularly involved giving expert testimony, required by Rule

26(a)(2) of the Federal Rules of Civil Procedure, as follows:

From the plaintiff(s) – May 18, 2007.

From the defendant(s) – June 18, 2007.

The parties shall comply fully with all requirements of Rule 26(a)(2) in regard to

disclosure of expert testimony.

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 2 of 9
3

SECTION 9. General Provisions:

(a) All briefs on any matter before the court must be formal in format and filed with

the court. The court does not accept "letter briefs" or "letter reports."

(b) A request or motion for extension of a deadline in any court order (i) must be in

writing; (ii) must indicate that movant has, in a timely manner, previously contacted counsel

for all other parties; and (iii), based on that contact, must state whether counsel for all other

parties agree to or oppose the extension request or motion. A request or motion that fails to

meet this requirement will be denied outright, unless the movant offers a credible explanation

in the request or motion why this requirement has not been met. Absent stated unforeseen

and unavoidable circumstances beyond the control of the movant, oral extension requests and

motions are not allowed, and "eleventh hour" extension requests and motions will be denied

outright.

(c) Any proposed order that a party desires the court to enter should be submitted to

the court in both (a) an Adobe Acrobat PDF format attachment to the motion and (b) by

transmitting an electronic copy of the proposed pretrial order to the court as an attachment

to an e:mail message sent to propord_fuller@almd.uscourts.gov. For these purposes, the

electronic copy should be in WordPerfect or Word format and not in Adobe Acrobat PDF

format.

SECTION 10. On or before August 8, 2007, each party shall, pursuant to the

provisions of Rule 26(a)(3) of the Federal Rules of Civil Procedure, exchange the names,

addresses and telephone numbers of all witnesses, except witnesses solely for impeachment

purposes, separately identifying those whom the party expects to present and those whom the

party may call if the need arises. The witness list should include the names of any witnesses

required to be disclosed under Section 8. Unless specifically agreed between the parties or

allowed by the Court for good cause shown, the parties shall be precluded from calling any

witness not so identified.

SECTION 11. On or before August 8, 2007, the parties shall, pursuant to the

provisions of Rule 26(a)(3) of the Federal Rules of Civil Procedure, identify any part of a

deposition or other document that a party expects to use at trial. Adverse parties shall within

ONE WEEK THEREAFTER identify any responsive parts of depositions expected to be

used, and a party shall within THREE DAYS of the designation of such responsive parts

designate any part which is desired as a rebuttal thereto. Unless specifically agreed between

the parties or allowed by the Court for good cause shown, the parties shall be precluded from

using any part of a deposition or other document not so listed, with the exception of parts of

depositions or documents to be used solely for the purpose of impeachment. Except to the

extent written objections are served and filed 15 days prior to the trial date, each party shall

be deemed to have agreed that one of the conditions for admissibility under Rule 32 of the

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 3 of 9
4

Federal Rules of Civil Procedure is satisfied with respect to any such deposition and that

there is no objection to the testimony so designated. 

SECTION 12. On or before August 8, 2007, the parties shall, pursuant to the

provisions of Rule 26(a)(3) of the Federal Rules of Civil Procedure, furnish opposing counsel

for copying and inspection all exhibits or tangible evidence to be used at the trial, and

proffering counsel shall have such evidence marked for identification prior to trial. Unless

specifically agreed between the parties or allowed by the Court for good cause shown, the

parties shall be precluded from offering such evidence not so furnished and identified, with

the exception of evidence to be used solely for the purpose of impeachment. Except to the

extent written objections are served and filed no later than 15 days prior to the trial date,

the evidence shall be deemed genuine and admissible in evidence. The written objections

shall set forth the grounds and legal authorities. All trial exhibits must be premarked prior

to trial.

SECTION 13. Except to the extent of any conflict with deadlines set out above, the

Discovery Plan contained in the Report of Parties' Planning Meeting, filed on August 15,

2006, is adopted and incorporated herein.

SECTION 14: If a jury trial: The parties shall file any requested voir dire questions,

motions in limine fully briefed, and any proposed jury instructions, together with citations

of law thereon, ON OR BEFORE 15 DAYS PRIOR TO THE TRIAL DATE UNLESS

SAID TIME IS SHORTENED BY THE COURT ON MOTION OF EITHER PARTY.

Trial counsel are DIRECTED to review the jury questionnaire used in this court and to avoid

any duplication of matters addressed therein in their voir dire questions. The jury

ques t i onnai r e i s avai l abl e on t he cour t ' s w e b s i t e at

http://www.almd.uscourts.gov/juryinfo.htm.

SECTION 15. In cases involving jury trials, the term TRIAL DATE as used in the

foregoing deadlines shall mean the date set for jury selection.

SECTION 16. If any party has an objection to these deadlines, the party should

inform the Court within 14 days from the date of this Order; otherwise, the Court will assume

that the deadlines are agreeable to all parties. Unless this Order be modified by subsequent

Order of the Court, the provisions hereinabove set out are binding on the parties.

DONE this 22nd day of August, 2006.

 /s/ Mark E. Fuller 

CHIEF UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 4 of 9
IN THE DISTRICT COURT OF THE UNITED STATES

MIDDLE DISTRICT OF ALABAMA

PROGRAM OF VOLUNTARY MEDIATION

This court has established a program of voluntary mediation to assist litigants in resolving

their disputes prior to trial. The court stresses that mediation is completely voluntary and

confidential. The court strictly enforces the confidentiality of mediation.

The court encourages litigants to consider the salutary benefits of resolving at an early stage

their dispute through voluntary mediation. Mediation is a process of confidential negotiation through

which parties may often achieve results which could not be gained through submission of their case

to a jury. Successful mediation saves the substantial time and expense involved with a trial.

Successful mediation allows parties to alleviate the risk of trial and, at the same time, permits the

parties to play an active role in the final decision about their case. The mediation process generally

involves a joint meeting with all parties and counsel to discuss the case and each side's position.

After this meeting the mediator will meet with each side individually for a full discussion of that

side's case. Throughout the process the goal of the mediator is to assist the parties in negotiating a

settlement. Often the mediator will provide to the parties a frank, honest opinion about the strengths

and weaknesses of their case. Often an objective viewpoint assists parties in making good decisions

about settlement. 

 

The scheduling order entered in this case requires that not less than 14 days after the date for

filing dispositive motions, counsel for the parties shall personally meet and attempt to reach

settlement of the case. If counsel in good faith cannot reach settlement, counsel are also required

to consider whether mediation will assist the parties in resolving this case. Within five days after

this conference counsel are to notify the trial judge in writing whether they have settled the case and,

if not, whether they believe mediation will assist the parties in resolving the case. Upon such

notification, the trial judge may assign a mediator to schedule a mediation conference. However,

a judge of this court may assign a mediator at any time.

Except in extraordinary circumstances the mediator will be a judicial officer. Under the

existing internal operating understandings of this court, a nonjudicial mediator will not be assigned

to a case without the knowledge and concurrence of the parties.

The court also encourages parties to consider settlement negotiations and mediation well

before the time when a settlement conference is required. At any time while a case is pending, the

parties may seek assistance in settling their dispute through mediation.

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 5 of 9
6

NOTICE! NOTICE! NOTICE! NOTICE!

There are advantages to consenting to a trial before a magistrate judge. The principal

advantage is that the magistrate judge does not have a docket such as do the district judges

and is very flexible on giving you a time to try your case. The court assures you that all four

of our magistrate judges are extremely competent and knowledgeable of the law and the

procedures necessary to try any civil case. As you know, the dockets of the district judges

are very congested. As the magistrate judge will be conducting the discovery proceedings

in the case, he or she will be more familiar with the case than will the district judge.

Remember, however, that if you elect to mediate before the magistrate judge to whom the

case is assigned, that magistrate judge may not then try your case but the case may be

assigned to another magistrate judge if you elect for a magistrate judge to try your case. If

you do elect to proceed to trial before a magistrate judge, you should notify the district judge

to whom your case is assigned so that he, as a matter of courtesy, may telephone the

magistrate judge and inform him or her that you desire to try your case before him or her.

The parties are encouraged to consider this as an alternative in order to speed up the judicial

process. The form and notice of availability of a magistrate judge are attached.

The parties are advised that they are free to withhold their consent without adverse

consequences.

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 6 of 9
7

OAO 85 (Rev. 8/98) Notice, Consent, and Order of Reference — Exercise of Jurisdiction by a United States Magistrate Judge

UNITED STATES DISTRICT COURT

MIDDLE District of ALABAMA

NOTICE, CONSENT, AND ORDER OF REFERENCE —

EXERCISE OF JURISDICTION BY A UNITED STATES

Plaintiff MAGISTRATE JUDGE

V.

Case Number:

Defendant

NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE

TO EXERCISE JURISDICTION

In accordance with the provisions of 28 U.S.C. §636(c), and Fed.R.Civ.P. 73, you are notified that a United States

magistrate judge of this district court is available to conduct any or all proceedings in this case including a jury or nonjury trial,

and to order the entry of a final judgment. Exercise of this jurisdiction by a magistrate judge is, however, permitted only if all

parties voluntarily consent.

You may, without adverse substantive consequences, withhold your consent, but this will prevent the court’s jurisdiction

from being exercised by a magistrate judge. If any party withholds consent, the identity of the parties consenting or withholding

consent will not be communicated to any magistrate judge or to the district judge to whom the case has been assigned.

An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States court of appeals for

this judicial circuit in the same manner as an appeal from any other judgment of this district court.

CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

In accordance with provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United

States magistrate judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and

conduct all post-judgment proceedings.

Party Represented Signatures Date

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 7 of 9
8

ORDER OF REFERENCE

IT IS ORDERED that this case be referred to

United States Magistrate Judge, to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C.

§636(c) and Fed.R.Civ.P. 73.

Date United States District Judge

NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED 

ON THIS FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 8 of 9
9

NOTICE OF AVAILABILITY OF A MAGISTRATE JUDGE TO EXERCISE

JURISDICTION AND APPEAL OPTION

In accordance with the provisions of Title 28, U.S.C. 636(c), and Fed.R.Civ.P. 73, you are hereby notified

that a United States Magistrate Judge of this district court is available to exercise the court’s jurisdiction

and to conduct any or all proceedings in this case including a jury or nonjury trial, and entry of a final

judgment. Exercise of this jurisdiction by a Magistrate Judge is, however, permitted only if all parties

voluntarily consent.

You may, without adverse substantive consequences, withhold your consent, but this will prevent the

court’s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity

of the parties consenting or withholding consent will not be communicated to any magistrate judge or to

the district judge to whom the case has been assigned.

An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States Court

of Appeals for this judicial circuit in the same manner as an appeal from any other judgment of a district

court.

Copies of the Form for the “Consent to Exercise of Jurisdiction by a United States Magistrate Judge and

Order of Reference” are available from the clerk of the court.

It is the responsibility of defense counsel to forward this form to the plaintiff or plaintiff’s counsel if the

defendant elects to consent to proceed before a United States Magistrate Judge. If plaintiff elects to

proceed then, and only then, should the form be filed with the clerk’s office.

Case 2:06-cv-00618-MEF-SRW Document 11 Filed 08/22/2006 Page 9 of 9