UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PENNY RUMSEY, individually and on behalf 

of all others similarly situated, 

Plaintiffs, 

Case No. 14-12700

Honorable Gershwin A. Drain 

v. 

BIRCH COMMUNICATIONS, INC., 

d/b/a LIGHTYEAR WIRELESS, a Georgia

Corporation, 

 Defendant. 

____________________________/

SCHEDULING ORDER

YOU WILL RECEIVE NO FURTHER NOTICE OF THESE DATES

Initial Disclosures due: December 15, 2014 

Deadline for Amendment of Pleadings or Join

Parties: 

March 2, 2015 

Pre-Certification Discovery cutoff: April 2, 2015

Plaintiff’s Motion to Certify Class due: April 23, 2015 

Defendant’s Response in Opposition due: May 18, 2015 

Plaintiff’s Reply in Support of Class

Certification due:

June 5, 2015 

Hearing on Plaintiff’s Motion for Class

Certification: 

June 30, 2015 at 2:00 p.m. 

Final Witness Lists Exchanged By: August 19, 2015 

Discovery Cutoff (with the exception of

Plaintiffs’ and Defendant’s experts):

September 30, 2015 

Plaintiffs’ Expert Report due: October 30, 2015 

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Defendant’s Expert Report due: November 30, 2015 

Dispositive Motion Cutoff: December 28, 2015 

Case Evaluation:1 February of 2016 

Settlement Conference before Magistrate

Judge R. Steven Whalen:

April of 2016 

Motions in Limine due: April 18, 2016 

Final Pretrial Order due: May 16, 2016 

Final Pretrial Conference: May 23, 2016 at 10:00 a.m. 

Trial Date: June 7, 2016 at 9:00 a.m. 

Jury Demand 

Anticipated Length of Trial: 5-8 days 

I. TIME. Computation of time under this order and under any notice of any scheduling order

or notice in this case shall be in conformity and accordance with Federal Rule of Civil

Procedure 6(a).

II. DISCOVERY. The court will not order discovery to take place subsequent to the discovery

cutoff date. The discovery deadline may be extended by filing a stipulation with the court

only if the extension of time does not affect the final pretrial conference or trial dates. 

Extensions or adjournments of all other dates will only be considered upon the filing of a

timely written motion for good cause shown. Local Rule 26.2 generally prohibits filing

discovery materials with the Clerk. Violation of this rule may result in sanctions. 

III. FINAL PRETRIAL CONFERENCE AND FINAL PRETRIAL ORDER. The Final

Pretrial Order must be submitted through the document utilities function of the CM/ECF on

or before the date set by this order. All witnesses must be listed in the Final Pretrial Order. 

Witnesses may only be added to the Final Pretrial Order by stipulation of the parties and

leave of court. Counsel shall follow the procedure outlined below to prepare for the final

pretrial conference and the Final Pretrial Order:

1

 The parties may submit the case to facilitation in lieu of case evaluation. A proposed

stipulated order referring case to facilitation shall be submitted to the Court via the utilities

function on CM/ECF no later than December 1, 2015. The proposed order must identify the

facilitator and the date set for facilitation. Facilitation must occur no later than February 29,

2016.

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A. Counsel for all parties are directed to confer in person (face to face) at their earliest

convenience in order to (1) reach any possible stipulations narrowing the issues of

law and fact, (2) deal with non-stipulated issues in the manner stated in this

paragraph, and (3) exchange documents that will be offered in evidence at trial. It

shall be the duty of counsel for plaintiff to initiate that meeting and the duty of

opposing counsel to respond to plaintiff’s counsel and to offer full cooperation and

assistance. If, after reasonable effort, any party cannot obtain the cooperation of

opposing counsel, it shall be his or her duty to communicate with the court. The

Final Pretrial Order shall fulfill the parties’ disclosure obligations under Federal Rule

of Civil Procedure 26(a)(3), unless the Judge orders otherwise. All objections

specified in Rule 26(a)(3) shall be made in this order. Counsel for plaintiff shall

prepare a draft Final Pretrial Order and submit it to opposing counsel, after which all

counsel will jointly submit the proposed order. The Final Pretrial Order should

provide for the signature of the court, which, when signed, will become an Order of

the court. The proposed Final Pretrial Order shall strictly comply with the

requirements of Local Rule 16.2. 

* Pursuant to Local Rule 16.2(b)(9), any objection based on foundation or 

authenticity will be deemed waived if not raised before trial. 

B. The following persons shall personally attend the final pretrial conference:

1) Trial counsel for each party;

2) All parties who are natural persons;

3) A representative on behalf of any other party;

4) A representative of any insurance carrier that has undertaken the prosecution or 

defense of the case and has contractually reserved to itself the ability to settle the 

action.

Representatives must posses full authority to engage in settlement discussions and 

to agree upon a full and final settlement. “Personal attendance” by each party is 

not satisfied by (1) trial counsel professing to have full authority on behalf of the 

client or (2) a party being available by telephone. 

IV. At least ONE WEEK prior to the beginning of trial, counsel shall furnish to the court the

following:

A. In jury cases, any requests for VOIR DIRE, proposed JOINT JURY

INSTRUCTIONS and the VERDICT FORM. The parties shall file with the court

a single set of proposed, stipulated jury instructions and a single, proposed verdict

form. The instructions are to be typewritten and double spaced and shall contain

references to authority (e.g., “Devitt and Blackmar, Section 11.08"). Additionally,

each party shall separately file any additional proposed instructions to which any

other party objects. The parties must make a concerted, good faith effort to narrow

the areas of dispute and to discuss each instruction with a view to reaching an

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agreement as to an acceptable form. 

B. In a non-jury case, proposed FINDINGS OF FACT and CONCLUSIONS OF LAW.

C. A statement of claims or defenses, no longer than two pages, suitable to be read to

the jury during opening instructions. 

V. EXHIBITS. Counsel are required to mark all proposed exhibits in advance of trial. 

Plaintiff’s exhibits shall use numbers and Defendant’s exhibits shall use letters. A

consecutive number and lettering system should be used by each party. The parties are

required to exchange marked exhibits three days prior to the start of trial. Counsel are also

required to maintain a record of all admitted exhibits during trial. See attached exhibit form. 

Counsel for each party must keep custody of that party’s admitted exhibits during trial. A

party who objects to this provision must file a written objection prior to jury selection. 

VI. JUDGE’S COPIES. A paper copy of electronically filed motions, briefs, attachments,

responses, replies, proposed Final Pretrial Order, and proposed Joint Jury Instructions (with

disc) MUST be delivered directly to the Judge’s chambers and labeled Judge’s copy. 

VII. The court will not allow counsel not admitted in the Eastern District to practice upon a

special motion. All inquiries regarding admission to this district must be directed to the

Clerk’s office at (313) 234-5005. 

VIII. LOCAL COUNSEL. An attorney admitted to practice in the Eastern District of Michigan

who appears as attorney of record and is not an active member of the State Bar of Michigan

must specify local counsel with an office in this district. Local counsel must enter an

appearance and otherwise comply with Local Rule 83.20(f). 

SO ORDERED. 

Dated: December 2, 2014 /s/Gershwin A Drain

 GERSHWIN A. DRAIN

 United States District Judge 

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

December 2, 2014, by electronic and/or ordinary mail.

/s/ Tanya Bankston 

Deputy Clerk

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HONORABLE GERSHWIN A. DRAIN

UNITED STATES DISTRICT JUDGE

231 W. LAFAYETTE #1013

DETROIT, MI 48226 

PHONE: (313) 234-5215 FAX: (313) 234-5219

CASE MANAGER: Tanya Bankston 

CONFERENCES Scheduling conferences held after answer filed and scheduling order issued. 

Status conference held as needed or requested. Settlement conference held

upon request and at final pretrial conference. 

MOTIONS Hearings held on most motions. Proposed orders shall be attached to the

motion, as well as submitted through the document utilities function of the

CM/ECF. Strict compliance required with Local Rules 7.1 and 65.1. 

DISCOVERY Discovery shall be completed on or before the date set forth in the scheduling

order. Discovery motions frequently referred to the magistrate judge

assigned to the case. 

MEDIATION Civil cases referred after discovery cut-off and parties are encouraged to

stipulate in writing to be bound by mediation sanctions. It is not necessary,

however, that sanctions be included in the stipulation. 

PRETRIAL Final Pretrial Order (1) generally due one week before final pretrial

conference. Witnesses may only be added to the final pretrial order by

stipulation of the parties and leave of court. Final pretrial conference usually

held two weeks prior to trial, parties and/or persons with settlement authority

must be present.

TRIAL Attorneys are responsible to ascertain the status of the trial date. Marked

exhibits are to be exchanged three (3) days prior to trial. 

Benchbook of exhibits is required. If trial briefs are required by the court,

they

must be filed one (1) week prior to trial. File motions in limine no later than 

four (4) weeks prior to the final pretrial conference. Trial is usually held 9:00 

a.m. to 4:00 p.m. daily. 

NON-JURY Submit proposed findings of fact/conclusions of law, one (1) week prior to

trial. 

JURY Voir dire by court. Submit proposed voir dire one (1) week prior to trial. 

Proposed joint jury instructions and verdict form due one (1) week prior to

trial. Judge’s courtesy copy and disc required. 

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PLAINTIFF’S EXHIBITS

DEFENDANT’S EXHIBITS

EXHIBIT

NO.

DESCRIPTION DATE

OFFERED

OBJECTED

TO

RECEIVED

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