For the sake of convenience, the court will refer to the defendants/counter-plaintiffs as the “defendants.” 1

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE MCNAIR, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-695-WKW

)

RICHARD ALLEN, et al., )

)

Defendants/Counter-Plaintiffs. )

____________________________________

)

JAMES CALLAHAN, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-919-WKW

)

RICHARD ALLEN, et al., )

)

Defendants/Counter-Plaintiffs. )

ORDER

A status conference was held in these cases on November 28, 2006. The court addressed

three issues with the parties: joinder and consolidation, a proposed scheduling order, and a proposed

protective order.

Prior to the initiation of the Callahan lawsuit, the defendants in McNair filed a counterclaim 1

for declaratory judgment against both Willie McNair and James Callahan. The parties now agree

that the joinder of James Callahan in McNair is unnecessary in light of the Callahan lawsuit, in

which the defendants also filed a counterclaim for declaratory judgment against James Callahan.

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Accordingly, pursuant to Rule 21 of the Federal Rules of Civil Procedure, it is ORDERED that

James Callahan be removed as a Counter-Defendant in McNair v. Allen, Case No. 2:06-cv-695.

The defendants filed a Motion to Consolidate and for Speedy Hearing in McNair (Doc. # 15),

seeking consolidation of McNair and Callahan. The plaintiffs are not opposed to consolidation. 

The cases share common questions of law and fact, identical defendants, and much of the same

evidence. Accordingly, pursuant to Rule 42 of the Federal Rules of Civil Procedure, it is ORDERED

that the motion, to the extent it seeks consolidation, is GRANTED. The above-referenced cases are

consolidated for all purposes until further order of the court. The lead case shall be McNair v. Allen,

et al., Case No. 2:06-cv-00695. The Clerk of the Court is DIRECTED to docket this Order in the

above-referenced cases.

In light of the representations of the parties, to the extent that the defendants’ motion

(Doc. # 15) seeks a speedy hearing, it is ORDERED that the motion is DENIED as MOOT. A

separate scheduling order, reflecting the parties’ suggested dates and deadlines, will be entered.

The defendants also filed a Motion for Protective Order (Doc. # 16). Although the plaintiffs

challenge the defendants to show “good cause” for such a protective order, they have been amenable

to the joint development of a proposed protective order regarding the confidentiality of certain

information in the execution protocol. Indeed, the parties represented that they have reached an

agreement on most items and will be able to soon file the proposed protective order with the court.

Therefore, it is ORDERED that the parties shall jointly file a proposed protective order on or before

December 5, 2006.

It is further ORDERED that, within ten days of the court’s entry of a protective order, the

defendantsshall file an amended answer and counterclaim. In their amended answer, the defendants

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shall admit or deny each averment, or otherwise state that they are without knowledge or information

sufficient to form a belief as to the truth of each averment, rather than invoking the confidentiality

of the execution protocol. The defendants shall also file a copy of the execution protocol when they

file their amended answer. To the extent that the execution protocol, in full or in part, is confidential

pursuant to the terms of the proposed protective order, the defendants shall file the document under

seal in accordance with the procedure set forth in the proposed protective order.

It is further ORDERED that, within ten days of the filing of the amended answer, the

plaintiffs shall file a reply to the amended counterclaim. The reply shall fully address each and every

averment made in the counterclaim, particularly those averments related to jurisdiction in paragraphs

33 and 39 in McNair.

Done this 28th day of November, 2006.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00695-WKW-CSC Document 26 Filed 11/28/2006 Page 3 of 3