IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOSHUA S. FRIEBEL and ELIZABETH

F. FRIEBEL,

Plaintiffs,

vs. CASE NO. 5:10cv120/RS-MD

PARADISE SHORES OF BAY COUNTY,

LLC, a Florida Limited Liability Company;

ROBERT E. BLACKERBY; and MAGNUM

CAPITAL, LLC, a Florida Limited Liability

Company,

Defendants

_________________________________/

SCHEDULING AND MEDIATION ORDER

Before me is the Amended Joint Report (Doc. 25). Upon consideration,

IT IS ORDERED:

1. Jury trial is set for February 7, 2011, beginning at 8:30 a.m., in Panama City,

Florida. A pretrial conference will be scheduled by separate order; however,

counsel are advised that the pretrial conference usually will be scheduled for

the Monday prior to trial. All trial counsel are required to attend the pretrial

conference in-person. Continuance of the pretrial conference or waiver of

the in-person appearance will be granted only for compelling reasons.

2. The Amended Joint Report (Doc. 25) will control the matters set forth therein,

except as otherwise provided in this Order. The discovery deadline is

November 29, 2010. Motions to compel discovery must be filed no later

than the discovery deadline. Depositions to be used at trial must be

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completed not later than twenty days after the discovery deadline. Final Rule

26(e)(1) disclosures shall be served no later than twenty-one days before the

discovery deadline. With respect to matters not addressed in the parties’

joint report, the Initial Scheduling Order remains in effect. 

3. The deadline for filing potentially dispositive motions is fourteen (14) days

after the discovery deadline. Extensions of this deadline will rarely be

granted and only for compelling reasons. Responsive memoranda shall be

filed not later than fourteen (14) days after filing of a dispositive motion. The

filing of potentially dispositive motions need not, however, await the deadline

for such motions. Potentially dispositive motions should be filed at the

earliest appropriate time. It is rarely necessary that such motions await the

completion of all discovery.

4. Fourteen (14) days after the discovery deadline, the parties must disclose

the witnesses they intend to call via deposition, DVD, or any other manner

allowing the witness to not be physically present in the courtroom, and the

parties must specifically identify the testimony that will be presented.

Fourteen (14) days following, the parties must file objections to specific

testimony with the court. Parties may file a copy of the deposition

highlighting the objectionable portions and state the reason or reasons for

the objection.

5. In circumstances when the Federal Rules of Civil Procedure would require

leave of court for adding parties or amending pleadings, parties may be

added or pleadings amended only with leave of court, even if leave is sought

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prior to the deadline established by the Amended Joint Report.

6. The deadlines established by this Order for disclosures under Federal Rule

of Civil Procedure 26(a)(2) abrogate the deadlines set forth in Rule

26(a)(2)(C) and thus apply regardless of whether proposed testimony is

intended solely to contradict or rebut evidence on the same subject matter

identified by another party under Rule 26(a)(2)(B). Leave of court must be

sought, for good cause, prior to addition of testimony for which timely

disclosures were not made, even if the testimony is intended solely to

contradict or rebut evidence on the same subject matter identified by another

party under Rule 26(a)(2)(B).

7. The deadline for disclosures under Federal Rule of Civil Procedure 26(a)(3)

is thirty (30) days before trial. The deadline for objections under Federal

Rule of Civil Procedure 26(a)(3) is five (5) days thereafter.

8. Any motion in limine or other pretrial motion shall be filed no later than fifteen

days prior to the pretrial conference. Responses to those motions shall be

filed no later than five days thereafter.

9. The parties shall mediate this case in accordance with the following

procedures:

(a) The parties are directed to select a mediator certified by the Supreme Court

of Florida as a Circuit Court Mediator or a person otherwise mutually

agreeable to the parties. If the parties are unable to agree upon a mediator

by a date three weeks prior to the discovery deadline, the plaintiff shall

immediately file a notice so indicating, and I will appoint a mediator.

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(b) Unless otherwise agreed, the fee of the mediator shall be paid equally by the

parties. The fee shall be paid in the manner required by the mediator.

(c) The mediator shall set the initial mediation conference with due regard to

schedules and other commitments of the parties and counsel and may

continue or adjourn the mediation conferences in his or her discretion within

the time constraints set out in this order.

(d) The following persons MUST attend the mediation conference:

(1) Counsel of record primarily responsible for the conduct of this matter on

behalf of each party.

(2) All parties. In the case of a corporation, governmental entity, or other

organization, or officer in his or her official capacity, the party must attend

through a representative having full authority to settle the entire case for the

party without further consultation. In his or her discretion, however, the

mediator may waive the requirement that the attending representative’s full

authority to settle be “without further consultation.” Unless the mediator

directs otherwise, the parties by agreement may also waive the requirement

that the attending representative’s full authority to settle be “without further

consultation.” 

(3) If a party is insured, a representative of the insurer having full authority to

settle without further consultation. In his or her discretion, however, the

mediator may waive the requirement that the insurer’s representative’s full

authority to settle be “without further consultation.” Unless the mediator

directs otherwise, the parties by agreement may also waive the requirement

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that the attending insurer’s representative’s full authority to settle be “without

further consultation.” 

(e) Failure of any person to attend the mediation conference as required shall

result in the imposition of sanctions.

(f) The parties shall confer in advance on the submission of written materials to

the mediator and shall proceed in accordance with any agreement they

reach or the instructions of the mediator. In the absence of agreement of the

parties or instructions from the mediator, no written submissions to the

mediator are required, but either party may submit materials as it deems

appropriate, which the mediator may consider as he or she deems

appropriate.

(g) The mediator shall have authority to control the procedure to be followed in

mediation, may adjourn the mediation conference and set times for

reconvening, and may suspend or terminate mediation whenever, in the

opinion of the mediator, the matter is not appropriate for further mediation.

(h) All discussions, representations, and statements made at the mediation

conference shall be off the record and privileged as settlement negotiations.

Mediation proceedings shall not be recorded by a court reporter or by an

electronic recording device, except as necessary to memorialize any

settlement that may be reached.

(i) This referral to mediation does not automatically toll the time for completion

of any other matter in this case.

(j) The parties are encouraged to settle as many issues during mediation as

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possible. Partial or complete settlements shall immediately be reduced to

writing in the presence of the mediator and shall be signed by all parties and

their counsel.

(k) Mediation in this case must be completed on or before a date twenty-eight

(28) days after the discovery deadline. The mediator or parties shall file a

report within five (5) days thereafter indicating when mediation was

conducted and the outcome of the mediation (that is, whether the matter was

settled or impasse was declared). If the matter is settled in full, notice to the

court shall be immediate.

(l) Counsel for each party shall, within ten (10) days of the date of this Order,

consult with his or her client about the advantages (including savings of costs

and attorney’s fees) and disadvantages of proceeding with mediation

immediately rather than awaiting the deadlines set in this Order. On motion

of any party, the court will consider ordering that mediation commence

immediately or at a time earlier than otherwise required by this Order. With

or without such an order, the parties by agreement may commence

mediation at any time before the deadlines set in this Order.

ORDERED on August 31, 2010.

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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