IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

JOYCE R. MONGER : CIVIL ACTION

V. : NO. 02-2757

SALOMON J. BERENHOLZ :

SCHEDULING ORDER

 

AND NOW, this 16th day of August, 2002, IT IS ORDERED as

follows:

1. Counsel are encouraged to request a voluntary

settlement conference as early in the discovery process as they

feel it will be productive. A settlement conference will be

scheduled upon agreement of all counsel. Unless the court

authorizes an exception, such agreement constitutes counsel's

certification that there is a reasonable possibility of settlement

and that the party represented by counsel will engage in good faith

negotiations to resolve the litigation. All settlement conferences

in non-jury cases will be conducted by Magistrate Judge Charles B.

Smith.

If a settlement conference has not been previously

requested, plaintiff's counsel is directed to contact Magistrate

Judge Charles B. Smith in the week prior to the close of discovery

to schedule a mandatory settlement conference which will be held

within the two (2) weeks after the close of discovery. All

settlement conferences in prisoner pro se cases will be conducted

by telephone.

At any settlement conference, counsel shall have

his/her client or a person authorized by his/her client with

unlimited authority to settle at the conference or available by

telephone during the entire conference.

Discovery

2. All discovery shall proceed forthwith and continue in

such manner as will assure that all requests for, and responses to,

discovery will be noticed, served and completed by December 2,

2002. Discovery may take place thereafter by agreement of the

parties without court approval, so long as the trial will not be

delayed and trial preparation will not unreasonably be disrupted.

No discovery may take place during the trial unless directed by the

court. 

In all pro se cases, the defendant shall, within

thirty (30) days from the date of this order, take the oral

deposition of the pro se plaintiff, unless the court excuses such

discovery upon motion made and good cause shown by any defendant

governed by this requirement. The taking of this preliminary

deposition of a pro se plaintiff shall not preclude a defendant

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from taking a later deposition if it is otherwise permissible under

the Federal Rules of Civil Procedure.

3. Plaintiff shall comply with the requirements of

Fed.R.Civ.Proc. 26(a)(2) for disclosure of expert testimony forty

(40) days prior to the close of the discovery period.

4. Defendant shall comply with the requirements of

Fed.R.Civ.Proc. 26(a)(2) for disclosure of expert testimony twenty

(20) days prior to the close of the discovery period.

5. All parties shall file with the Clerk of Court and

opposing counsel the pretrial disclosure required by

Fed.R.Civ.Proc. 26(a)(3)(A) and (C) by the close of the discovery

period. No witness, expert or fact, not listed may be called to

testify during the party's case in chief.

Motions

6. All motions to amend the complaint, join or add

additional defendants or name John Doe defendants shall be filed

within 60 days of the date of this order. All motions for summary

judgment or partial summary judgment shall be filed and served on

or before January 2, 2003. All motions in limine shall be filed

and served at least five (5) business days before the trial date.

All other motions shall be filed and served prior to the close of

the discovery period. Any motions filed in violation of this order

shall be deemed waived unless good cause is shown.

No brief filed in support of or in opposition to any

motion shall exceed twenty-five (25) pages in length without prior

leave of court. Although a reply brief is discouraged and

ordinarily not helpful, the moving party may file a reply brief,

limited to a maximum of seven (7) pages, within five (5) business

days of the filing of the opposing party's response. 

7. In addition to a brief, any party filing a motion for

summary judgment or partial summary judgment shall file a separate,

short and concise statement, in numbered paragraphs, of the

material facts as to which the party contends there is no genuine

issue to be tried. The party must support each of the material

facts with specific citations to the underlying record, and attach

a copy of the relevant portions of that record, if practicable and

not already of record. Failure to submit such a statement of

material facts with citations may constitute ground for denial of

the motion.

The opposing party shall file a separate, short and

concise statement, responding to the numbered paragraphs in the

moving party's statement, of the material facts as to which the

opposing party contends there is a genuine issue to be tried and

shall conform to the record citation requirements listed above.

All factual assertions set forth in the statement required to be

served by the moving party shall be deemed admitted unless

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controverted by the statement required to be served by the opposing

party.

Trial

8. All parties shall prepare and file with the Clerk of

Court and opposing counsel their pretrial memoranda, in accordance

with Local Rule 16.1(c)(1)(2)(3)(6) and (7) as follows:

A. Plaintiff - at least twenty (20) days prior to

the trial date.

B. Defendant - at least ten (10) days prior to the

trial date.

9. Any party having an objection to the admissibility of

any exhibit based on authenticity or the adequacy of the

qualifications of an expert witness expected to testify, shall set

forth separately each such objection in their pretrial memorandum.

Such objection shall describe with particularity the ground and the

authority for the objection.

10. The case is scheduled for trial on March 17, 2003 at

10:00 a.m. This scheduling order will be the only written notice

counsel will receive of the date this case will be tried. Counsel

and all parties shall be prepared to commence trial on this date

and the court will make every effort to commence trial on this date

consistent with its other obligations. The order in which cases

are listed in the Legal Intelligencer for that date has no

relevancy to the order in which they will be called for trial.

Ordinarily cases will begin trial on the date

scheduled. In the event the court is unable to begin the trial

within two (2) weeks of that date, counsel will be given the option

of remaining on the standby list until the case can proceed to

trial or continuing the case to a new fixed date in the future. A

copy of the court's trial guidelines is available from the

courtroom deputy upon request.

11. Because a witness may be unavailable at the time of

trial as defined in Federal Rule of Civil Procedure 32(a)(3), the

court expects use of oral or videotape depositions at trial of any

witness whose testimony a party believes is essential to the

presentation of that party's case, whether that witness is a party,

a non-party or an expert. The unavailability of any such witness

will not be a ground to delay the commencement or progress of the

trial. Any oral or videotape deposition for use at trial shall be

held at least five (5) business days before the trial date. 

12. Any party who contends or will contend that the

proposed testimony of any expert witness requires a Daubert hearing

shall notify the court by letter at least thirty (30) days prior to

the trial date so that the hearing can be held prior to trial and

without impinging upon the jury's time.

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In the event a deposition is to be offered at trial,

the offering party shall file with the court, prior to the

commencement of the trial, a copy of the deposition transcript, but

only after all efforts have been made to resolve objections with

other counsel. Portions of the deposition offered by the plaintiff

shall be marked in blue; portions offered by the defendant, in red.

Where a court ruling is necessary, the basis for unresolved

objections shall be stated in five (5) words or less in the margin

of the deposition page(s) and a covering list of such objections

supplied therewith. 

13. (JURY CASES ONLY) All proposed jury instructions

shall be numbered and shall have citations of authority for each

point (one point per page). If a model jury instruction is

submitted, for instance, from Devitt and Blackmar, Federal Jury

Practice and Instructions, (4th Edition) or Pennsylvania Suggested

Standard Civil Jury Instructions, counsel shall state whether the

proposed jury instruction is modified or unchanged. If counsel

modifies a model jury instruction, additions shall be underlined

and deletions shall be placed in brackets. If a model jury

instruction is unchanged, it may be submitted by title and

paragraph reference only.

At least fifteen (15) business days before the trial

date, counsel shall exchange proposed jury instructions and

proposed jury interrogatories. Counsel for the plaintiff is

directed to initiate the scheduling of a meeting of all counsel to

be held at least ten (10) business days before the trial date, at

which counsel shall meet, discuss and submit to the court one

complete set of agreed upon jury instructions and jury

interrogatories. The original shall be filed with the Clerk of

Court. If a good faith effort is not made to comply with this

directive, the trial may be continued or sanctions imposed on

individual counsel.

If the parties are unable to agree upon certain jury

instructions or jury interrogatories, at least five (5) business

days before the trial date, the party proposing the instruction or

interrogatory shall submit to the court one (1) copy of the

proposed instruction or interrogatory and its citation of authority

and the party opposing the instruction or interrogatory shall

submit to the court one (1) copy of its specific objection,

citation of authority and proposed alternative. The originals

shall be filed with the Clerk of Court.

At least five (5) business days before the trial

date, each party shall file a trial memorandum on the legal issues

involved in the case and that party's proposed voir dire questions.

The originals shall be filed with the Clerk of Court.

At least five (5) business days before the trial

date, each party shall submit to the court a one page or less

summary in non-legalese language of its contentions with reference

to the facts, theories of liability and damages. Prior to the

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beginning of voir dire, the other party may file objections or

alternatives to this summary. The summary will be used by the

court in its preliminary and final instructions to the jury to

familiarize the jurors with the general framework of the factual

issues in the case.

14. (NON-JURY CASES ONLY) At least fifteen (15)

business days before the trial date, counsel shall exchange

proposed findings of fact and conclusions of law.

Counsel for the plaintiff is directed to initiate

the scheduling of a meeting of all counsel to be held at least ten

(10) business days before the trial date at which counsel shall

meet, discuss and submit to the court one (1) complete set of

agreed upon findings of fact and conclusions of law. The original

shall be filed with the Clerk of Court. If a good faith effort is

not made to comply with this directive, the trial may be continued

or sanctions imposed on individual counsel.

With reference to those findings of fact and

conclusions of law upon which the parties are not able to agree, at

least five (5) business days before the trial date each party shall

submit to the court two (2) copies of that party's proposed

disputed findings of fact and conclusions of law, and a trial

memorandum on the legal issues involved in the case. The original

shall be filed with the Clerk of Court.

15. All trial exhibits, except for impeaching documents,

shall be premarked and exchanged by counsel prior to the

commencement of trial. At the commencement of trial, counsel shall

supply the court with a bench copy of each exhibit, the duplication

of which is practicable (two (2) copies in non-jury trials), and

two (2) copies of a schedule of all exhibits which shall briefly

describe each exhibit.

At the time of its use, counsel shall supply the

court and opposing counsel with a copy of each impeaching document,

the duplication of which is practicable.

__________________________________

 William H. Yohn, Jr., Judge

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