UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

WARREN HAVENS, :

: Civil Action No. 11-993(KSH)

:

Plaintiff, :

: ORDER ON INFORMAL

v. : APPLICATION & THIRD AMENDED

: PRETRIAL SCHEDULING ORDER

:

MOBEX NETWORK SERVICES, et al., :

:

Defendant :

____________________________________:

This matter having come before the Court by way of letter dated June 11, 2012; and the

Court being advised of the status of discovery; and the letter reflecting that document production

will be completed by June 19, 2012 and that the parties continue to confer in a good faith effort to

resolve their disputes; and the parties seeking an extension of the June 12, 2012 deadline to raise

unresolved discovery disputes; and the Court granting an extension and reminding the parties of

their obligation to meet and confer in-person or via telephone in an effort to resolve all discovery

and case management disputes and that an exchange of written communication does not satisfy the

meet and confer requirement; and the Court granting a slightly larger extension than requested to

ensure such a process is followed and that the parties have an adequate opportunity to review the

documents so as to present only those issues requiring court-intervention; and for good cause

shown,

IT IS ON THIS 11th day of June, 2012

ORDERED that:

1. MOBEX shall ensure the documents in storage is preserved and relevant nonprivileged

documents are available for inspection.

2. The discovery served by MOBEX and served upon MOBEX shall be responded no later

than deadline passed on May 18, 2012;

3. The discovery served upon MCLM shall be responded no later than deadline passed on

June 10, 2012;

4. MCLM may serve interrogatories and document demands no later than deadline passed

on May 10, 2012, which shall be responded to no later than deadline passed on June 10, 2012;

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5. All documents shall be produced no later than June 19, 2012; and 

6. The request to extend the deadline to raise discovery disputes is granted and all discovery

disputes submitted in accordance with the requirements of Paragraph 9 no later than June 27, 2012

at noon; 

IT IS FURTHER ORDERED THAT:

I. COURT DATES

1. There shall be a telephone status conference before the Undersigned on June 25,

2012 at 2:00 p.m. Plaintiff shall initiate the telephone call.

2. a. There will be a settlement conference before the Undersigned on TO BE SET. 

b. Trial counsel and clients with full settlement authority are required to appear at the

conference and they shall confirm their availability to appear on the date of the conference by filing

a letter no later than TO BE SET. Absent exceptional, unforeseen personal circumstances, the

confirmed settlement conference will not be adjourned.

c. If the trial counsel and client with full settlement authority do not appear, the

settlement conference may be cancelled or rescheduled and the noncompliant party and/or attorney

may be sanctioned, which may include an assessment of the costs and expenses incurred by those

parties who appeared as directed.

3. A final pretrial conference shall be conducted pursuant to Fed. R. Civ. P. 16(d) on

November 19, 2012 at 1:00 p.m. The Final Pretrial Conference will occur even if there are

dispositive motions pending. The Court will adjourn the Final Pretrial conference only if the

requesting party makes a compelling showing that manifest injustice would otherwise result absent

adjournment.

II. DISCOVERY AND MOTION PRACTICE

4. a. MOBEX shall provide its Fed. R. Civ. P. 26 disclosures on or before deadline

passed on May 10, 2012

b. MCLM shall provide its Fed. R. Civ. P. 26 disclosures on or before deadline

passed on May 18, 2012

c. No later than deadline passed on February 21, 2012, the parties shall submit a

proposed discovery confidentiality order and certification as required by Local Civ. R. 5.3.

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If a party seeks to file under seal information submitted in connection with a request for non1

discovery relief, then the party shall: (1) consult Local Civ. R. 5.3 and (2) contact the Chambers of

the Undersigned for instructions regarding the format for presenting such a motion.

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5. Discovery necessary to engage in meaningful settlement discussions: some discovery

6. The party groups may serve interrogatories limited to 25 single questions including

subparts and requests for production of documents on or before deadline passed on February 21,

2012, which shall be responded to no later than March 21, 2012 except as set forth on page 1.

7. Absent agreement of counsel or order of the Court, the number of depositions to be

taken by each side shall not exceed 10. No objections to questions posed at depositions shall be

made other than as to lack of foundation, form or privilege. See Fed. R. Civ. P. 32(d) (3) (A). No

instruction not to answer shall be given unless a privilege is implicated. The depositions shall be

completed no later than August 8, 2012.

8. Fact discovery is to remain open through August 8, 2012. No discovery

is to be issued or engaged in beyond that date, except upon application and for good cause shown.

9. Counsel shall confer in a good faith attempt to informally resolve any and all

discovery disputes before seeking the Court’s intervention. Should such informal effort fail to

resolve the dispute, the matter shall be brought to the Court’s attention in the first instance via a joint

letter that sets forth: (a) the request or issue, (b) the response; (c) efforts to resolve the dispute; (d)

why the complaining party believes the information is relevant and why the responding party’s

response continues to be deficient; and (e) why the responding party believes the response is

sufficient. No further submissions regarding the dispute may be submitted without leave of Court. If

necessary, the Court will thereafter schedule a telephone conference to resolve the dispute.

No discovery motion or motion for sanctions for failure to provide discovery shall be

filed before utilizing the procedures set forth in these paragraphs without prior leave of Court.

Any unresolved discovery disputes (other than those that arise during depositions)

must be brought before the Court no later than June 27, 2012 at noon. The Court will not entertain

applications concerning discovery matters, informally or otherwise, after this date. If an unresolved

dispute arises at a deposition, then the parties shall contact the Chambers of the Undersigned for

assistance during the deposition. If a party does not present an unresolved dispute arising at a

deposition during the deposition, then the right to seek court-intervention shall be deemed waived.

10. Defendants Paging Systems and Touchtel Corp. shall file their Amended Answer to

add a Noerr Pennington Defense, no later than deadline passed on May 18, 2012.

11. All dispositive motions shall be discussed in advance of filing with the Undersigned

either in person or by teleconference.

If leave is granted to file a summary judgment motion, the following protocol shall

apply:

a. Each motion for summary judgment shall be supported by a separate, short, and

concise statement of material facts, set forth in numbered paragraphs, as to which the moving party

contends there is no genuine issue of material fact to be tried. Each fact asserted in the statement

shall be supported by a record citation. A “record citation” is a citation to a specific page or

paragraph of identified record material supporting the assertion.

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b. Each response in opposition shall be accompanied by a separate, short, and

concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by

reference to each numbered paragraph of the moving party’s statement of material facts and unless a

fact is admitted, shall support each denial or qualification by a record citation. The opposing

statement may contain in a separate section additional facts, set forth in separate numbered

paragraphs and supported by a record citation.

c. In the event a party seeks to submit a reply, the party shall file a formal request for

permission to do so within the time period provided by Local Rule, attaching the proposed reply.

Accompanying the proposed reply shall be a separate, short, and concise statement of material facts

which shall be limited to any additional facts submitted by the opposing party. The reply statement

shall admit, deny or qualify such additional facts by reference to the numbered paragraphs of the

opposing party’s statement of material facts, and unless a fact is admitted, shall support each denial

or qualification by a record citation.

d. Facts contained in a supporting or opposing statement of material facts, if

supported by record citations, shall be deemed admitted unless properly controverted. The Court

may disregard any statement of fact not supported by a specific citation to record material properly

considered on summary judgment. The Court shall have no independent duty to search or consider

any part of the record not specifically referenced in the parties’ separate statement of facts.

e. Local Rules governing electronic filing and length, font-size, and format of

moving, opposing and reply briefs shall continue to apply as appropriate. Parties shall provide the

Court with two hard copies of all submissions by delivering same to the Clerk’s Office, Attention

Judge Katharine Hayden.

III. EXPERTS

12. a. No later than August 8, 2012, the parties shall identify their affirmative experts

and the subjects about which they will opine.

b. All affirmative expert reports shall be delivered by September 5, 2012.

13. All responding expert reports shall be delivered by October 12, 2012.

14. a. All expert reports are to be in the form and content as required by Fed. R. Civ. P.

26(a) (2)(B). No expert shall testify at trial as to any opinions or base those opinions on facts not

substantially disclosed in the experts report.

b. All expert depositions shall be completed by October 31, 2012.

IV. FINAL PRETRIAL CONFERENCE

15. A final pretrial conference shall be conducted pursuant to Fed. R. Civ. P. 16(d) on

November 19, 2012 at 1:00 p.m. The Final Pretrial Conference will occur even if there are

dispositive motions pending. The Court will adjourn the Final Pretrial conference only if the

requesting party makes a compelling showing that manifest injustice would otherwise result absent

adjournment.

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16. Not later than 20 working days before the pretrial conference, the parties shall

exchange copies of all proposed trial exhibits. Each exhibit shall be pre-marked with an exhibit

number conforming to the party’s exhibit list.

17. All counsel are directed to assemble at the office of Plaintiff's counsel not later than

ten (10) days before the pretrial conference to prepare the proposed Joint Final Pretrial Order in the

form and content required by the Court. Plaintiff's counsel shall prepare the Joint Pretrial Order and

shall submit it to all other counsel for approval and execution.

18. With respect to non-jury trials, each party shall submit to the District Judge and to

opposing counsel proposed Findings of Fact and Conclusions of Law, trial briefs and any

hypothetical questions to be put to an expert witness on direct examination.

19. The original joint proposed final pretrial order shall be delivered to the CHAMBERS

of the Undersigned no later than November 13, 2012 at 3:00 p.m. All counsel are responsible for

the timely submission of the Order.

20. The Court expects to engage in meaningful settlement discussions at the final pretrial

conference. Therefore, trial counsel who actually has full settlement authority must attend the

conference and clients or other persons with full settlement authority must be available by telephone.

V. MISCELLANEOUS

21. The Court may from time to time schedule conferences as may be required, either sua

sponte or at the request of a party.

22. Since all dates set forth herein are established with the assistance and knowledge of

counsel, there will be no extensions except for good cause shown and by leave of Court, even with

consent of all counsel. Any request to extend any deadline or to adjourn a court event shall be made

no later than three days before the scheduled date and shall reflect: (1) the good cause the requesting

party believes supports the extension or adjournment and (2) whether or not all parties consent to the

request. Absent unforeseen emergent circumstances, the Court will not entertain requests to extend

deadlines that have passed as of the date of the request. Absent unforeseen emergent circumstances,

the Court will not entertain requests to extend deadlines that have passed as of the date of the

request.

23. A copy of every pleading, document or written communication with the Court shall be

served on all other parties to the action. Any such communication which does not recite or contain a

certification of such service may be disregarded by the Court.

24. Absent permission from Chambers, communications to the Court by facsimile will not

be accepted. All communications to the Court shall be in writing or by telephone conference.

25. FAILURE TO COMPLY WITH THE TERMS OF THIS ORDER MAY

RESULT IN SANCTIONS.

s/Patty Shwartz

UNITED STATES MAGISTRATE JUDGE

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