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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LEAH VALENTINE,

Plaintiff,

v. CASE NO.: 3:09cv334/MCR/EMT

LEGENDARY MARINE FWB, INC.,

Defendant.

________________________________/

FINAL SCHEDULING AND TRIAL ORDER

AND MEDIATION REFERRAL

Rule 1 of the Federal Rules of Civil Procedure requires a “just, speedy, and

inexpensive determination of every action.” Prior to the court’s issuance of a scheduling

order in accordance with Rule 16(b) of the Federal Rules of Civil Procedure, the parties 

conferred and have submitted their joint scheduling report. Upon consideration,

IT IS ORDERED:

1. Trial is hereby set for the two-week trial period commencing on Monday,

October 18, 2010. Any party with a conflict during that trial period may file a notice to that

effect within 14 days of the date of this order, and such notice will be given such

consideration as may be appropriate.

2. The joint scheduling report (doc. 15) will control the matters set forth therein. 

The parties will commence all non-expert discovery in time for it to be completed on or

before May 31, 2010. All expert discovery will be completed by July 31, 2010. The

conduct of any discovery which would require a later due date shall be permitted only on

order of the Court. No extension of time will be granted except for good cause and upon
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showing of diligence during the initial discovery period [See N.D. Fla. Loc. R. 6.1]. The

filing of motions SHALL NOT operate to toll or extend the discovery cut-off date set forth

in this paragraph.

The Rules of Civil Procedure set out explicit time limits for responses to discovery

requests. If an attorney cannot respond on time, this fact should be communicated by the

most expeditious means to opposing counsel; and if consent to an extension of time

cannot be obtained, a motion requesting the same should be immediately filed and served.

In the meantime, no motion to compel a response shall be filed. Unless otherwise ordered

by the Court, no motions to compel discovery may be filed after the close of discovery.

Stipulations extending the time for responses to discovery may be made only as authorized

by Rule 29, Federal Rules of Civil Procedure, and Local Rule 6.1.

The Court will ordinarily award counsel fees for time spent in filing (and arguing) a

motion to compel if such a motion is necessary to make the recalcitrant party respond, or

for time spent in opposing (and arguing) such a motion that is found to be unnecessary or

without basis. Certification of all discovery requests, responses, and objections is required

under Rule 26(g), and violations thereof will be subject to sanctions.

Counsel should attempt to resolve discovery controversies without the Court’s

intervention. The Court will entertain a motion with respect to matters which remain in

controversy only if, after consultation and sincere attempts to resolve differences, counsel

are unable to reach an accord. Any motion filed shall include certification that such

attempts have been made, in accordance with Rule 7(B) and Rule 37, Federal Rules of

Civil Procedure, and shall be in the form required by Local Rule 26.2(C). Counsel’s

attention is also directed to the supplementation requirements of Rule 26(e) and their

obligations under Rule 26(g), as well as counsel’s potential liability for excessive costs

under Title 28, United States Code, Section 1927.

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3. The deadline for filing potentially dispositive motions as well as Daubert

motions is September 6, 2010. The filing of potentially dispositive motions need not,

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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. 

Any motion for summary judgment filed pursuant to Rule 56 or Rule 12(b)(6), 12(c),

or 12(d), Federal Rules of Civil Procedure, shall be accompanied by a separate, short and

concise statement of the material facts as to which the moving party contends there is no

genuine issue to be tried. Failure to submit such a statement constitutes grounds for

denial of the motion.

The statement shall reference the appropriate deposition, affidavit, interrogatory,

admission, or other source of the relied-upon material fact, by page, paragraph, number,

or other detail sufficient to permit the Court to readily locate and check the source.

The party opposing a motion for summary judgment shall, in addition to other papers

or matters permitted by the rules, file and serve a separate, short and concise statement

of the material facts as to which it is contended that there exists a genuine issue to be

tried, in the format set forth above.

All material facts set forth in the statement required to be served by the moving party

will be deemed to be admitted unless controverted by the statement required to be filed

and served by the opposing party [See N.D. Fla. Loc. R. 56.1(A)].

Motions for summary judgment will be taken under advisement by the court 21

calendar days after the motion is filed or 7 calendar days after the responsive

memorandum is required to be filed under Local Rule 7.1(C)(1), whichever is later, unless

the court specifically sets the motion for hearing or sets a different advisement date. 

Parties are required to file and serve affidavits and any other documents or materials

See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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authorized to be filed under the Federal Rules of Civil Procedure prior to the advisement

date. Only those documents and evidentiary materials in the record prior to the

advisement date will be considered in ruling on the motion.

4. 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. Pursuant to the parties’ proposal, the deadline to join

additional parties and to amend pleadings is November 15, 2009 for plaintiff and

December 15, 2009, for defendant.

5. The disclosures required by Rule 26(a)(1) shall be provided (unless otherwise

stipulated), without awaiting a discovery request, to all other parties within 14 days from

the date of the parties’ conference required under Rule 26(f). Even if supplemented prior

to the deadline established by the joint scheduling report, disclosures under Federal Rule

of Civil Procedure 26 shall in any event be supplemented within a reasonable time after

learning information calling for supplementation and in time to ensure the opposing party

is not prejudiced by any failure to supplement immediately after the information was or with

diligence should have been discovered. 

In accordance with Federal Rule of Civil Procedure 5(d), the parties shall serve but

shall not file with the clerk copies of disclosures under Federal Rules of Civil Procedure

26(a)(1) and 26(a)(2) or discovery materials (including notices of deposition, deposition

transcripts, interrogatories, responses to interrogatories, production requests, responses

to production requests, admissions requests, or responses to admissions requests), unless

and until needed for consideration of pending motions by the court. The parties need not

serve and shall not file with the clerk separate notices of serving interrogatories or

interrogatory responses, notices of serving production requests or responses, or notices

of serving admissions requests or responses.

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Disclosures of retained expert witnesses and their written reports under Rule

26(a)(2) are due from plaintiff on or before December 15, 2009, and from defendant on

or before January 14, 2010. Supplementation under Rule 26(a) shall be made within 15

days after the party receives additional information necessitating a supplementation, but

in no event no later than 30 days prior to the close of discovery. Third parties or parties

added or joined later shall disclose their experts under Rule 26(a)(2) within 60 days after

appearance in this case, or within 30 days after the disclosure by the opposing party,

whichever is the longer period. Expert witnesses not timely disclosed as required by Rule

26(a)(2), or whose opinions have been significantly modified or changed after discovery

has ended, will normally not be permitted to testify at trial. Also, a party’s failure to timely

disclose an expert witness’s report will normally be grounds to bar the witness from

testifying at trial.

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. By separate Order for Pretrial Conference to be issued later, a deadline will

be set for an attorney conference leading to the filing of a pretrial stipulation and related

papers. The deadline for the attorney conference (as established by the Order for Pretrial

Conference) also will be the deadline for disclosures under Federal Rule of Civil Procedure

26(a)(3). The deadline for objections under Federal Rule of Civil Procedure 26(a)(3) is five

days thereafter.

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8. Any motion in limine or other pretrial motion shall be served sufficiently in

advance of the pretrial conference to allow consideration of the motion at or prior to the

pretrial conference.

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.

(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 first mediation conference shall commence by not later than 14 days

after the discovery deadline (but may commence at any earlier time). 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 also may waive the

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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 also

may waive the requirement 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 procedures 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.

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

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 28 days after

the discovery deadline. The mediator or parties shall file a report within 14 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 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. 

10. In any proceeding in which a party is seeking attorney’s fees from the

opposing party to be awarded by the Court pursuant to a statute, contract, or law, the party

seeking such an award of attorney’s fees shall:

(a) Maintain a complete, separate, and accurate record of time (to the nearest

1/10 of an hour) devoted to the particular action, recorded contemporaneously with the

time expended, for each attorney and each specific activity (i.e. not just “research” or

“conference”) involved in the action, and

(b) File a summary of such time record with the Clerk of the Court by the 15 day th

of each month during the pendency of the action, for work done during the preceding

month. If the attorney determines that the attorney/client privilege requires these records

be filed under seal, the attorney must, at the time of such filing, place the records in a

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sealed envelope no larger than 8-1/2 by 11 inches. The attorney must also attach to the

front of these sealed records a summary, for filing, of the time records and serve a copy

thereof on opposing parties or their counsel, which summary shall state the total of the

hours represented by the sealed filing, i.e.,

“TOTAL ATTORNEY HOURS THIS FILING”

“TOTAL NON-ATTORNEY HOURS THIS FILING”

Attorney time records will not be placed in the general case action file, but will be

maintained in a separate folder in the Clerk’s Office. Upon termination of this case or the

determination of attorney’s fees, whichever occurs later, all sealed time records in this civil

action will be destroyed.

(c) If claim will be made for services performed by any person not a member of

the bar, a separate time record shall be maintained for each such individual and filed as

specified above, together with the hourly rate at which such person is actually reimbursed.

(d) Time records for past work performed to date in this case shall be filed within

30 days from receipt of this order, or by the required filing date of the current month’s time

records, whichever is later.

The purpose of this requirement is to enable the Court to adequately perform its

function in awarding attorney’s fees. Failure to comply with these requirements will result

in attorney’s fees being disallowed for the required reporting period. A motion for an award

of attorney’s fees and related non-taxable expenses should be made in accordance with

Rule 54(d), Federal Rules of Civil Procedure, and must be filed and served within 30 days

after entry of judgment.

11. Each party represented by an attorney is required to file documents

electronically, not in paper form, with limited exceptions. Compliance with this requirement

is mandatory. Paper filings are a burden on the clerk of the court, delay the transmission

of the documents to the judge, and waste the judge’s time. The clerk is directed to report

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to the judge for appropriate action any paper filings in this matter that occur more than 14

days after the date of this order.

12. Each nongovernmental corporate party must file a statement that identifies

any parent corporation and any publicly held corporation that owns 10% or more of its

stock or states that there is no such corporation. The deadline for filing the statement is

set forth in Fed. R. Civ. P. 7.1, and, if not filed sooner, the statement must in any event be

filed within 14 days of the date of this order. A supplemental statement must be filed upon

any change in the information that the statement requires.

13. This order may be amended by the Court on its own motion or upon motion

of any party.

 SO ORDERED this 3rd day of December, 2009.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

Case No: 3:09cv334/MCR/EMT