IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICIA BURKETT, Administratrix of the )

Estate of JEREMY BURKETT, deceased, )

)

Plaintiff, )

) 1:06-CV-00775-TFM

v. )

)

TIMOTHY EUGENE McCRAY, et al )

)

Defendants. )

)

ORDER

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

to set a schedule for the discovery and the filing of motions. After due consideration of the

Supplemental Report of Parties Rule 26(f) Meeting (Doc. 47, filed February 6, 2007), it is

ORDERED by this Court as follows:

SECTION 1. TRIAL DATE: The jury trial shall commence on October 1, 2007,

with jury selection at 10:00 a.m., in the Federal Building & United States Courthouse, 100

West Troy Street in Dothan, Alabama. Judge Susan Walker will preside over jury selection,

and Judge Terry Moorer will preside over the remaining proceedings.

As provided in Fed.R.Civ.P. 16(d), a final pretrial conference in this case, is set at

10:00 a.m., on August 20, 2007, in District Courtroom 4A, Frank M. Johnson, Jr. United

States Courthouse Complex, One Church Street, Montgomery, Alabama. This conference

shall be attended by at least one of the attorneys who will try the case for each of the parties

and by any party who is not represented by an attorney. The court will address the matters

provided for in Rule 16 (c). All motions which have not been submitted or ruled on will be

heard at this time. The parties are DIRECTED to prepare jointly a proposed pretrial

order consistent with the outline available on the court’s website. The plaintiff shall

ensure that the original of the proposed pretrial order is received by the court August 13,

2007; the order shall be transmitted in WordPerfect or Word format to

PropOrd_Moorer@almd.uscourts.gov.

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

summary judgment, shall be filed no later than ninety (90) days prior to the pretrial

conference (i.e. May 22, 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 considered by the court. The parties

are directed to comply with the GUIDELINES FOR DISPOSITIVE MOTIONS

attached to this Order.

SECTION 3. On or before August 3, 2007, counsel for all parties shall conduct a

face-to-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 less than FIVE (5) DAYS after this

conference (August 10, 2007), 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

no later than April 2, 2007.

SECTION 5. Any motion for class certification shall be filed no later than ninety

(90) days prior to the pretrial hearing (May 22, 2007). A brief discussing the factors

enumerated in Rule 23(a) and (b) of the Federal Rules of Civil Procedure shall be filed with

any such motion.

SECTION 6. Motions, Briefs, Proposed Orders

(A) The failure to file a response to any motion -- either dispositive or non-dispositive

-- within the time allowed by the court shall indicate that there is no opposition to the motion.

(B) 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.”

(C) 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

Case 1:06-cv-00775-TFM Document 49 Filed 02/08/2007 Page 2 of 9
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.

(D) 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 email message sent to <propord_moorer@almd.uscourts.gov>. For these purposes, the

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

format.

SECTION 7. All discovery shall be completed on or before July 31, 2007, except

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

SECTION 9 or whose names are not revealed with sufficient time for the other parties to take

a deposition prior to the pretrial conference, the opposing party shall have the time extended

in this paragraph to allow for deposing such witness.

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, and provide the

reports of retained experts or witnesses whose duties as an employee of the party regularly

involve giving expert testimony, required by Rule 26(a)(2) of the Federal Rules of Civil

Procedure.

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

disclosure of expert testimony.

SECTION 9. Pursuant to the provisions of Rule 26(a)(3) of the Federal Rules of

Civil Procedure, the parties shall 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

Paragraph 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.

From Plaintiff(s): August 31, 2007

From Defendant(s): August 31, 2007

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SECTION 10. 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 that a party expects to use

at trial. 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 not so listed,

with the exception of parts of depositions to be used solely for the purpose of impeachment.

Except to the extent written objections are served and filed within TEN (10) DAYS of the

service of final witness lists, each party shall be deemed to have agreed that one of the

conditions for admissibility under Rule 32 of the 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 11. 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. 

From Plaintiff(s): August 31, 2007

From Defendant(s): August 31, 2007

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 TEN (10) DAYS

after service of exhibit lists, 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 12. Except to the extent of any conflict with deadlines set out above, the

Discovery Plan contained in the Supplemental Report of Parties Rule 26(f) Meeting (Doc.

47, filed February 6, 2007), is adopted and incorporated herein.

SECTION 13. 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 THREE WEEKS 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

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j u r y quest i onnai r e is a v a i l a b l e o n t h e cour t 's w ebsi t e at

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

SECTION 14. In cases involving jury trials, the term TRIAL DATE as used in the

foregoing deadlines shall mean the date set for jury selection.

SECTION 15. If any party has an objection to these deadlines, the party should

inform the Court within fourteen (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 8th day of February, 2007.

/s/Terry F. Moorer

 TERRY F. MOORER

UNITED STATES MAGISTRATE JUDGE

Case 1:06-cv-00775-TFM Document 49 Filed 02/08/2007 Page 5 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 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 1:06-cv-00775-TFM Document 49 Filed 02/08/2007 Page 6 of 9
The Rule 16 Scheduling Order does establish a dispositive motion deadline before 1

the end of the period allowed for discovery for the following reason published in the

“Frequently Asked Questions” section of this court’s website 

Litigants before the Court are entitled to careful consideration of the issues

by the Court. In order to give non-movants a reasonable time to respond and

movants time to reply, final submission is approximately a month after the

dispositive motion is filed. The Court must have sufficient time to fully and

properly consider issues raised on a motion for summary judgment. The

deadlines established in the Court’s scheduling order insure achievement of

these purposes. The judges try to resolve summary judgment motions in

advance of pretrial hearings. Neither moving the summary judgment

UNITED STATES DISTRICT COURT for the MIDDLE DISTRICT OF ALABAMA

###

TERRY F. MOORER

UNITED STATES MAGISTRATE JUDGE

GUIDELINES FOR DISPOSITIVE MOTIONS

1. Deadlines in Scheduling Order 

The Uniform Scheduling Order adopted for the Middle District of Alabama includes

the following provision:

 Any dispositive motions, i.e., motions to dismiss or motions for summary

judgment, shall be filed no later than [NINETY (90) DAYS prior to the

pretrial hearing]. 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 considered by the court.

All dispositive motions must be filed on or before that deadline set in the scheduling

order. Absent a showing of good cause, the deadline will not be extended. Upon

consideration of the parties’ discovery plan filed pursuant to Rule 26(f), Federal Rules of

Civil Procedure, the Scheduling Order will provide ample time for discovery; thus, the court

generally does not consider as “good cause” for extending the dispositive motion deadline

either failure to conduct needed discovery or counsel’s busy schedules. 

1

Case 1:06-cv-00775-TFM Document 49 Filed 02/08/2007 Page 7 of 9
deadline to the cutoff of discovery nor cutting off discovery at the earlier

summary judgment deadline would be appropriate. Any attorney viewing a

case as one appropriate for summary judgment should schedule discovery to

allow the deadline to be met.

Setting the dispositive motion deadline prior to the end of discovery also

recognizes the realities of litigation. Often factual issues which should be

developed for trial are not necessary for resolution of summary judgment

issues. If summary judgment is denied, a discovery cut-off after the time for

filing dispositive motions allows discovery to proceed without the necessity

of a motion to reopen discovery. The court encourages lawyers to conduct

discovery in a manner consistent with "just, speedy and inexpensive"

procedures. See Fed. R. Civ. P. 1.

The movant may not include in the reply brief any new evidentiary material without 2

prior leave of court.

2. Briefing Schedules and Oral Arguments

Unless warranted otherwise by a specific case, supporting and opposing briefs and

evidentiary submissions will be submitted as follows:

• moving party: simultaneously with the motion;

• opponent: not later than 21 days thereafter;

• movant’s reply: not later than 11 calendar days thereafter . 2

Oral argument will not be scheduled absent a party’s request – to be filed not later

than the deadline for the movant’s reply – or the court’s determination that argument is

necessary or may be helpful.

3. Content and format for Briefs and Evidentiary Submissions

a. Disputed and Undisputed Facts

 Briefs must contain a statement of facts which includes specific references to the

record. To facilitate the court’s necessary determination of whether there exists a genuine

issue of material facts, the factual statement should distinguish – to the extent possible –

disputed facts and undisputed facts, and the parties are encouraged to confer for any

consensus possible on the uncontested material facts.

b. Evidentiary Appendix

The evidence upon which the parties rely shall be organized in an indexed appendix

which should also include the relevant text of any statutory or regulatory authority cited.

Any discussion of evidence in a brief must include the specific reference (by page and line)

Case 1:06-cv-00775-TFM Document 49 Filed 02/08/2007 Page 8 of 9
to the deposition or other evidence included in the appendix or to a pertinent court order,

pleading, or other filing.

DONE this 8th day of February, 2007.

/s/Terry F. Moorer

 TERRY F. MOORER

UNITED STATES MAGISTRATE JUDGE

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