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Case 1:04-cv-00048-T Document 68 Filed 10/13/2005 Page 1 of 17 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, a / s / o John Sirois, and SAFEGUARD INSURANCE COMPANY A/ s/ o Rui Henriques V.
:
C.A. No: 04-48 T CHURCHILL & BANKS, LTD and COTTAGE PLAZA, LLC J.H. LYNCH & SONS, INC.
THIRD PARTY DEFENDANT, J.H. LYNCH & SONS, INC.'S OBJECTION TO THIRD PARTY PLAINTIFFS, CHURCHILL & BANKS, LTD. AND COTTAGE PLAZA ASSOCIATES LLC'S, MOTION TO DISMISS THE THIRD PARTY ACTION WITHOUT PREJUDICE Third party defendant, J.H. Lynch & Sons, Inc. hereby object to the Third Party Plaintiffs, Churchill & Banks, Ltd and Cottage Plaza Associates LLC's Motion to Dismiss the third party action without prejudice. In support of its objection, the third party defendant relies on the attached memorandum of law.
By Its f)Wjheys, - - - 95 chestnut Street, 6th F1 Providence, RI 02903
(401) 454-4550 Craig R: Wacksler, ~ s q u i r 6 Stephen Adarns, Esquire Taylor, Duane, Barton & Gilman, LLP 10 Dorrance Street Providence, RI 02903
(401) 273-7 171
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CERTIFICATION
I hereby certify that a true copy of the within document was mailed to Faith A. W e , Esquire, Law Offces, One Turks Head Place, Site 1010, day of October, 2005.
Providence, RI 02903 on this )3*
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Case 1:04-cv-00048-T Document 68 Filed 10/13/2005 Page 3 of 17 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, a/s/o John Sirois, and SAFEGUARD INSURANCE COMPANY A/ s/ o Rui Henriques :
C.A. No: 04-48 T V.
CHURCHILL & BANKS, LTD and COTTAGE PLAZA, LLC v.
J.H. LYNCH & SONS, INC.
MEMORANDUM IN SUPPORT OF THIRD
INC.'S OBJECTION TO THIRD PARTY PLAINTIFFS, CHURCHILL & BANKS, LTD. AND COTTAGE PLAZA ASSOCIATES LLC'S, MOTION TO DISMISS THE THIRD PARTY ACTION WITHOUT PREJUDICE FACTS This action arises out of a fire that occurred on November 14, 2003 at the Greenhalgh Mill Complex in Pawtucket, Rhode Island. The plaintiffs, Pennsylvania General Insurance Company and Safeguard Insurance Company, were insurers who paid claims for losses arising out of damage to houses in the area surrounding the mill. The defendants/ third party plaintiffs, Churchill & Banks, Ltd and Cottage Plaza Associates, LLC filed a third party action against J.H. Lynch & Sons, Inc.
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In their third-party complaint, the third-party plaintiffs allege a breach of contract by third-party defendant Lynch. That contract required Lynch to install a "temporary construction fence", the cost of which was not to exceed $12,000. The third-party complaint sought contribution and indemnification from Lynch. The third-party complaint, which did not make specific reference to the terms of the contract, contains the following allegation:
"The third party defendant, its agents, employees, or subcontractors, was the site constructer and entity responsible and/or involved with selecting and installing security fences and implementing other security measures during the demolition process."
There is no factual support for those allegations, and, if the instant motion were denied, third-party defendant would be entitled to judgment as a matter of law.
Discovery in this case proceeded according to a pre-trial Order issued by this Court on July 2 1, 2004. (A copy of that pre-trial Order is attached hereto and marked as Exhibit "A"). The case is presently tentatively assigned for trial in November, 2005.
The parties undertook extensive discovery in this case, involving both fact witnesses and expert witnesses. During the course of the discovery process, the third-party plaintiffs identified two experts, James
R. Eddy and Daniel Hoffman. The depositions of both experts were
conducted, as well a s those of two experts designated by the plaintiff.
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For the purposes of the third-party complaint, and the instant motion, Mr. Hoffman's opinions are the most significant. Mr. Hoffman was identified as an expert with respect to security issues involving demolition sites. Mr. Hoffman's testimony, and his report dated June 7, 2005, clearly demonstrate a complete lack of any factual foundation for the third-party complaint. In his report, Mr. Hoffman offers the following findings and conclusions:
"The fence that was erected appears to have met the standard for construction site fencing for the demolition site. This is evidence by the lack of comment, by any building inspector, fire official, or police official in the City of Pawtucket or State of Rhode Island to the contrary." (p3)
***
"The fence that was erected on the site was in accordance with industry standards for a demolition site such as this." (p5) Based on the opinions offered by third-party plaintiffs own expert, Mr. Hoffman, Lynch prepared to file a motion for summary judgment. Subsequent to the completion of the depositions of expert witnesses, the defendantslthird-party plaintiffs reached a settlement with the plaintiffs during mediation. Third-party defendant, Lynch did not contribute towards that settlement. A stipulation has been filed with the Court dismissing the plaintiffs complaint. The third-party complaint remains pending.
The pre-trial Order issued by the Court in this case contains the following requirement with respect to the filing of a motion for summary judgment:
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8. "Prerequisites to Filing; Motions for Summary J u d m e n t . No motion for summary iudnment mav be filed until counsel proposing: to file such motion has, first, conferred with the Court and other counsel for the purpose of discussing; the need for and utilitv of the proposed motion".
A summary judgment conference, in accordance with the pre-trial
Order, was conducted by the Court on September 1, 2005. At that time, third-party defendant advised the Court and counsel for third-party plaintiff that it intended to file a motion for summary judgment. At that conference, the third-party plaintiffs advised the Court that they would seek a dismissal of this matter without prejudice. Following that conference, the Court issued a scheduling Order relating to the filing of the instant motion.
By filing the instant motion, the third party plaintiffs are impermissibly engaging in "forum shopping" in a n effort to avoid summary judgment. Third-party defendant Lynch respectfully requests that this Court deny the motion to dismiss without prejudice and allow this matter to proceed to summary judgment or trial.
LAW AND ARGUMENT
Rule 4 1(a)(2)of the Federal Rules of Civil Procedure provides in relevant part as follows:
"(A)naction shall not be dismissed a t the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper. . . . Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." The express language of the rule makes it clear that the determination of whether to grant a motion for voluntary dismissal rests
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within the sound discretion of the district court. The purpose of Rule 4 1(a)(2)is "primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions". Alamance Indus., Inc. v. Filene's, 29 1 F.2d 142, 146 (1st Cir. 1961). In exercising its discretion under the rule, the Court generally must make three separate determinations:
1. Whether the dismissal should be allowed at all;
2. Whether the dismissal should be with or without prejudice; and
3. What terms and conditions, if any, are appropriate. Burnette v. Godshall, 828 F.Supp. 1439, 1433 (N.D. Cal. 1993). In deciding whether to grant a Rule 4 1(a)(2)motion, Courts consider the following factors:
1. The defendant's effort and expense of preparation for
trial;
2. Excessive delay and lack of diligence on the part of the plaintiff in prosecuting the action;
3. Insufficient explanation for the need to take a dismissal; and
4. The fact that a motion for summary judgment has been filed by the defendant.
Doe v. Urohealth Svstems, Inc., 2 16 F.3d 157 (1st Cir.2000) (quotingPace
v. Southern Express Co., 409 F.2d 33 1, 334 (7fhCir. 1969)). However,
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courts need not analyze each factor or be limited by these factors. Id. They are "simply a guide for the trial judge, in whom the discretion ultimately rests." Id. (quotingWco Labs., Inc. v. Koppers Co., 627 F.2d 54, 56 (7th Cir. 1980)). ("The enumeration of the factors to be considered in Pace is not equivalent to a mandate that each and every such factor be resolved in favor of the moving party before dismissal is appropriate. I t is rather simply a guide for the trial judge, in whom the discretion ultimately rests."). Thus, when courts consider whether to grant or deny a Rule 4 1(a)(2)motion "the very concept of discretion presupposes a zone of choice within which the trial courts may go either way." Id. (quoting Kern v. TXO Prod. Corp., 738 F.2d 968, 97 1 (8th Cir. 1984)). In exercising its broad equitable discretion under Rule 41(a)(2),the district court must weigh the relevant equities and do justice between the parties in each case, imposing such costs and attaching such conditions to the dismissal as are deemed appropriate. Pontenberg v. Boston Scientific Corm, 252 F.3d 1253 ( I l t h Cir.2001) quoting McCants v. Ford Motor Co., Inc., 781 F.2d 855, 857 (11th Cir.1986).
In passing on a motion for voluntary dismissal under Rule 41 (a)(2),the Court should also consider the principals enunciated in Rule 1 of the Federal Procedure, which provides as follows:
"These rules govern the procedure in the United States District Courts in all suits of a civil nature whether cognizable as cases a t law or in equity or in admiralty, with the exceptions stated in Rule 8 1. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."
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The "just, speedy, and inexpensive" resolution of the instant third-party claim is best served by denial of the instant motion to dismiss. I.
The third party action should not be dismissed because the third party defendant will be prejudiced.
The third party defendant submits that the defendant/ third party
plaintiffs' motion to dismiss without prejudice should be denied and the case should proceed to trial as scheduled. In this case, the parties have conducted extensive discovery in preparation for trial. Counsel for the third-party defendant appeared and participated in the depositions of a t least 15 fact witnesses. Additionally, depositions of the four expert witnesses identified by the parties were also conducted. Prior to the filing of this motion, the third-party defendant had anticipated filing a Motion for Summary Judgment. The bases for that motion would have included that, as a matter of law, Lynch did not owe any legal duty with respect to the security issues, that the fence constructed by Lynch was done so in accordance with all applicable standards and the terms of the contract, and that no act or omission on the part of Lynch caused or contributed to cause the subject fire. The bases of any liability of the third-party defendant is the contract between Lynch and the third-party plaintiffs. That contract required, in pertinent part that Lynch install a "temporary construction fence". I t is uncontested that a temporary construction fence was
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installed and, further, that it was done so in accordance with all applicable standards and regulations.
In assessing liability with respect to the fire which is the subject matter of this action, it is important to bear in mind that the official finding a s to the cause of the fire is "undetermined". That was the final determination of the State Fire Marshall's Office, which conducted its investigation in conjunction with various Federal, State, and Municipal agencies. Third-party plaintiffs expert Eddy also concluded that the cause of the fire was undetermined. The plaintiffs theory in the underlying action was that the fire was started by a trespasser on the property. Even if the third-party plaintiffs were now to adopt that theory, they would be unable to present even a scintilla of evidence to suggest that any act or omission on the part of third-party defendant Lynch caused or contributed to the cause of the fire.
The facts adduced through the testimony of third-party plaintiffs7 employees clearly establishes that Lynch was neither advised of any problems involving trespassers on the site, nor was Lynch ever requested to take any steps with respect to such a problem.
There would also be no evidence to support a finding that a trespasser gained entrance onto the property through any problem or defect in the temporary construction fence. The fence was constructed with a gate which allowed access onto the site for workers and equipment. On the date of this fire, there were three sub-contractors on
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the site. The gate had been opened at approximately 6:30a.m. and remained opened until the time of the fire at approximately 2: 15 p.m. Further, the temporary construction fence installed by Lynch in accordance with its contract with the third-party plaintiffs did notcompletely encircle the construction site. Along a portion of the perimeter of the construction site, there was pre-existing fencing. Lynch was instructed by the third-party plaintiffs to connect the temporary construction fence to that pre-existing fencing. Photographs taken on the day of the fire clearly establish that there was at least one hole in the pre-existing fence. Certainly that hole, or the gate which had been opened for approximately 7 hours could have provided access to a trespasser on the date of this fire.
The third-party plaintiffs chose to file the third-party action in this Court. The action was filed after the Court issued its pre-trial Order which contained schedules for discovery, the filing of dispositive motions and pre-trial memoranda. The pre-trial Order also established a tentative trial date. Third-party plaintiffs were aware of that scheduling and bound by it at the time of they chose to file this third-party complaint. When it was brought into this case, Lynch became bound by the terms of the pre-trial Order, and has complied with those terms. It has participated in discovery conducted in accordance with the terms of that pre-trial Order. That discovery has clearly established the lack of any legal or factual bases for the third-party complaint. If the third-party
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plaintiffs were allowed simply to dismiss this third-party action without prejudice, thereby avoiding an adverse judgment, and requiring the third-party defendant to re-litigate these issues, the third-party defendant would be significantly and unfairly prejudiced. For that reason, this Court should exercise its discretionary authority and deny the plaintiffs motion.
11.
If this Court does grant the plaintiffs motion to dismiss, the dismissal should be with prejudice.
If this Court grants the third party plaintiffs motion, the dismissal
should be with prejudice. A s previously discussed, the parties have conducted extensive discovery in preparation for trial. In fact, the third party action is scheduled for trial in November 2005. Prior to the filing of this motion, the third party defendants had anticipated filing a Motion for Summary Judgment. A Summary Judgment Conference was conducted on September 1, 2005 at the request of the parties. There is no dispute that to date, the third party plaintiff has failed to prove any liability on the part of the third party defendant.
The case of Doe v. Urohealth Systems, Inc., 216 F.3d 157 (1st Cir.2000) is instructive. In Urohealth, the trial judge granted the plaintiffs motion to dismiss without prejudice. The defendant, Urohealth, appealed. The First Circuit Court of Appeals reversed the order on the ground that "the district court's main stated reason for dismissing without prejudice was based on a legal error." Id. a t 162-63. On remand, the case was assigned to a different district court judge. The
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Case 1:04-cv-00048-T Document 68 Filed 10/13/2005 Page 13 of 17 judge ordered the parties to file new memoranda supporting and opposing the motion to dismiss. The district court later issued an order staying the federal matter until the resolution of parallel state court proceedings. Urohealth appealed that order to the 1st Circuit Court of Appeals.
In Re: Urohealth Svstems, 252 F.3d 504 (1st Cir.2001), the First Circuit Court of Appeals made clear its disapproval, absent unusual circumstances, of either staying or dismissing claims once a matter has been properly brought to a district court's attention. The court stated: "We do think that a plaintiff cannot conduct a serious product liability claim in a federal court, provoke over a year's worth of discovery and motion practice, allow the case to reach the stage a t which the defendant filed a full-scale summary judgment motion, and then when matters seemed to go badly for plaintiff, simply dismiss the case and begin all over again in a state court in what is essentially an identical proceeding."
Urohealth, 252 F.3d at 508.
The Court went on to say:
"This case is ready for summary disposition. Staying or dismissing without prejudice would cause legal prejudice to defendant, relinquish this court's jurisdiction, and encumber the speedy and efficient resolution of this case."
The same applies in this case. The third party action is scheduled for trial in November 2005. Discovery has been completed. The third party defendant has invested substantial resources to defend itself against the third party plaintiffs' claim. Principles of judicial economy and fairness militate against dismissing this case without prejudice.
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The third party defendant submits that they will be prejudiced if the third party action is dismissed without prejudice. In Gonzalez v. Jose Santiago, Inc., 141 F.Supp.2d 202, 205 (D.P.R. 200 I), the district court held that legal prejudice occurs if the defendant is voluntarily dismissed when he is entitled to a final judgment of dismissal with prejudice on summary judgment motion. See also Millsap v. Jane Lamb Memorial Hospital, 111 F.R.D. 48 1 (S.D.Iowa 1986);Mills v. Merrill Lvnch. Pierce, Fenner & Smith. Inc., 703 F.2d 305, 308 (8th Cir.1983); Young; & Rubicarn, Inc. v. Ticket Holder Marketing;, Inc., 1988 WL 28616, (N.D.Il1.1988).
The case of Fremaint v. Ford Motor Co., 258 F.Supp.2d. 24, (D.P.R. 2003) is also instructive. In Fremaint, the district court refused to grant the plaintiff's motion to dismiss without prejudice. The motion was filed less that two weeks before the scheduled trial date and after the defendant had filed a motion for summary judgment. The Court found that the defendant had invested substantial resources defending itself against the plaintiffs claims for over a year and a half. The Court concluded:
"Principles of judicial economy and fairness militate against either staying or dismissing this case without prejudice pending the decision of the Fund Manager."
Fremaint v. Ford Motor Co., 258 F.Supp.2d. at 32.
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Document 68 Filed 10/13/2005 Page 15 of 17 If the Court does grant the plaintiff's motion, terms and conditions should be imposed which protect the third party defendant.
If this Court orders that the third party plaintiffs motion to dismiss should be granted, the third party defendant respectfully requests that terms and conditions be imposed which will protect the third party defendant. The third party defendant respectfully requests that, at a minimum, the following terms and conditions be imposed: 1.
An order denying all the claims presented against the third party defendant by the third party plaintiffs in this matter.
2.
An order prohibiting the third party plaintiffs from seeking contribution/ indemnification from the third party defendant with respect to the claims presented by the plaintiff insurance companies or their insureds in this matter.
3.
An order prohibiting the third party plaintiffs from seeking attorneys' fees or costs in connection from the third party defendant with respect to the claims presented in this case.
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Case 1:04-cv-00048-T IV.
Document 68 Filed 10/13/2005 Page 16 of 17 This court has ancillary Jurisdictionof the third party action regardless of the non-diversity between the third party litigants.
The fact that there is no diversity between the third party plaintiff and third party defendant is not dispositive. The Tenth Circuit Court of Appeals has held as follows:
"It is well settled, however, that a court has ancillary jurisdiction of a defendant's proper rule 14(a)claim against a third-party defendant without regard to whether there is an independent basis of jurisdiction (e.g., diversity between the third-party litigants), so long as the court has jurisdiction of the main claim between the original parties."
King Fisher Marine Service, Inc. v. 2 1st Phoenix Corp., 893 F.2d 1155 (loth Cir. 1990) See also 6C. Wright & A. Miller, Federal Practice and Procedure 81444, at 223-25 (1971 & 1989 Supp.).
The Tenth Circuit held that if jurisdictional prerequisites are satisfied when the suit is begun, subsequent events will not work an ouster of jurisdiction.
Id. The Court reasoned that to hold otherwise would "seriously impair the utility of the Rule, breed confusion and generate many sterile jurisdictional disputesn. Id.
Therefore, the third party defendant submits that this court has the discretion to exercise its ancillary jurisdiction over the third party action even though the plaintiffs original claim has been settled.
CONCLUSION
For the reasons hereinabove cited, the third party defendant respectfully request that the third party plaintiffs motion to dismiss with prejudice be denied.
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Case 1:04-cv-00048-T Document 68 Filed 10/13/2005 Page 17 of 17 By Its Attorneys, 95 Chestnut Street, 6th F1 Providence, RI 02903
(401) 454-4550 w waQ&L ,.v Craig R. Wacksler, Esquire Taylor, Duane, Barton & Gilman, LLP 10 Dorrance Street Providence, RI 02903
(401) 273-7171
* .QL, steph'en Adams, Esquire Taylor, Duane, Barton & Gilman, LLP 10 Dorrance Street Providence, RI 02903
(401) 273-7171 CERTIFICATION I hereby certify that a true copy of the within document was mailed to Faith A. Lasalle, Esquire, Law Offices, One Turks Head Place, Site day of October, 2005.
1010 Providence, RI 02903 on this !@
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 1 of 17 El EXHIBIT UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, EF-AL Plaintiffs ., CIVIL ACTION NO. 04-481 CHURCHILL & BANKS, ET AL., Defendants PRETRIAL ORDER - JURY CASE P u r s u a n t t o R u l e 1 6 of t h e F e d e r a l R u l e s of Civil P r o c e d u r e , it is hereby ORDERED:
1.
Closure Date.
6///% of Said date, Discovery i n this case s h a l l be c l o s e d as u n l e s s o t h e r w i s e o r d e r e d by t h e Court. o r s u c h o t h e r d a t e a s t h e C o u r t may s u b s e q u e n t l y specify, shall be r e f e r r e d t o a s t h e "Closure D a t e . " 2.
T i m e f o r Discovery.
On o r before the Closure Date, all interrogatories and requests f o r p r o d u c t i o n m u s t be served, and all d e p o s i t i o n s and o t h e r d i s c o v e r y must be completed. No d i s c o v e r y may be conducted after t h e C l o s u r e Date e x c e ~ by t agreement of a l l c o u n s e l o r by o r d e r of t h e Court.
identify the A motion particular d i s c o v e r y f o r s u c h an o r d e r shall sought, the reasons it is necessary, and t h e r e a s o n s why i t was n o t done prior t o t h e Closure Date.
Nothing contained in this order shall excuse a p a r t y from its c o n t i n u i n g o b l i g a t i o n , under the Rules, t o update responses t o
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- discovery or to respond to discovery requests made before the Closure Date.
3 Expert Witnesses.
Any p a r t y intending t o u t i l i z e t h e testimony of an expert witness shall, upon reuuest, disclose the identity . of.- such witness prom~tlv.
I f -the expert-is retained-.
- - -.-. -.. .
.
.
subsequent to such request, disclosure shall be made immediately after retention and before the Closure Date. In any disclosure shall be made within the times event, prescribed by Fed.R.Civ. P. 26 ( a ) ( 2 ) (C). Anv such witness not so disclosed mav be barred fr0.m testifving unless the Court otherwise directs for good cause shown.
4. Time for Motions. All motions, including motions to amend pleadings, motions for leave to file counterclaims, cross claims or third party complaints, motions to add parties, motions for summary judgment, motions for judgment on the pleadings, and motions to dismiss, shall be filed promptly after counsel discovers, or should have discovered, the basis for such motions. No motion, other than a motion to modify this Order or a motion to compel compliance with a discovery request made prior to the Closure Date, may be filed after the Closure Date.
5.
Permitted and Remired Memoranda.
objection to a motion shall be memorandum.
Every motion and e v e r y accompanied by a supporting In addition, within 10 days after an objection i s filed, the proponent of the motion may file a reply memorandum.
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 3 of 17 No other memoranda, supplemental memoranda, or reply memoranda shall be filed in support of or in opposition to a motion nor shall any memorandum or other document relating to a motion be filed after a hearing date has been set for the motion unless the Court otherwise orders for good cause shown.
6. Format for Memoranda. Every memorandum shall bear a title identifying the motion in support of or in opposition to which it is filed; shall contain a "Facts" section as described in Subparagraph C; and shall set forth the basis for the motion or objection together with the statute, rule or other provision of law relied upon. Photocopies of all cases and authorities cited shall be included with the memorandum as a s e p a r a t e appendix. In the case of dis~ositivemotions ( e . g . motions to dismiss or for summary judgment) such memorandum shall include in t h e following order:
A.
A table of contents page; B.
A section entitled "Description of Motion" that identifies the movant (s) and the party against whom the motion is directed and that describes the motion and the precise nature of the order or relief sought; C.
A section entitled "Facts" that contains a clear and concise recitation of those facts necessary to enable the reader t o understand what the case is about and the basis for the motion or objection
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 4 of 17 without reviewina other documents (whether those documents are appended to the motion or not); A section entitled "Issues" that contains a numerical listing of the s ~ e c i - t i cissues ' that the -. . be . required Court will . . ...to address i-n_-rulingon the motion; A section entitled "Points and Authorities" that states and discusses, under separately labeled headings, each argument or contention advanced in support of or in opposition to the motion together with citations to any authorities relied upon.
In addition, motions for summarv iudament also shall be accompanied by a Statement of Undisputed Facts that concisely s e t s forth, in separate numbered paragraphs, all material facts which the movant contends are undisputed and that entitle the movant to judgment as a m a t t e r of law. An obiection to a motion for summary judgment shall specify which, if any, of the material facts cited by the rnovant are genuinely disputed, The party opposing the motion also shall set forth, in separate numbered paragraphs, any additional facts that it contends precludes summary judgment. Each stated fact and each statement that a material fact is disputed shall cite the source r e l i e d upon, i n c l u d i n g the page and line of any document to which reference is made.
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 5 of 17 Documents shall be submitted with a motion and/or memorandum only if the contents of the document are disputed and necessary to decide the motion and, then, only to the extent that references to s p e c i f i c portions of said documents are made in the accompanying memorandum.
Motions and memoranda also shall comply with any additional requirements set forth in the Local Rules.
7.
Paae Limits.
Unless permitted by the Court, for good cause shown, memoranda in support: of and memoranda in opposition to any motion shall not exceed 15 pages and reply memoranda shall not exceed 5 pages.
Appendices and/or exhibits attached to or filed with any motion or memorandum shall not exceed a total of 10 pages in the aggregate with the following exceptions:
A.
In the case of motions for summary judgment and motions in opposition thereto, an additional statement of undisputed facts may be filed which shall not exceed 10 pages.
B.
In the case of bankruptcy appeals, social security appeals, other administrative appeals, and suits brought for t h e alleged denial of ERISA benefits, counsel may submit the administrative record or such portion thereof as is relevant to deciding the issues presented.
8.
Prereauisites to Filinu Motions for. Summarv J u d a m e n t .
No motion for summarv iudment mav be filed until counsel
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 6 of 17 p r o ~ o s i n ot o file such motion has, first, c o n f e r r e d with t h e Court t h e utilitv of the ~ r o w o s e d motion.
The matters t h a t c o u n s e l s h o u l d be ~ r e ~ a r et o d a d d r e s s a t that c o n f e r e n c e shall i n c l u d e : t h e n a t u r e of t h e ~ r o ~ o s emotion:
d t h e "undisr>uted8' facts uDon which i t i s based; how many of t h e c o u n t s and/or i s s u e s the motion would r e s o l v e ; whether and t o what extent t h e non-movina party c o n t e s t s t h e motion and t h e "undiswuted" facts asserted and whether the matters in auestion can be resolved more simplv, expensivelv and more ex~editiouslv t h r o u u h a t r i a l . resuestina such a conference.
counsel less Prior t o f o r t h e ~ r o ~ o n e nsth a l l i n f o r m o ~ ~ o s i ncounsel s of t h e nature of t h e ~ r o ~ o s emotion d and t h e " u n d i s ~ u t e d " facts w o n which i t i s b a s e d , Counsel for t h e f what extent, t h e y oDDose t h e motion and d i s ~ u t et h e "facts" upon which t h e motion i s based.
Such discussion s h a l l be i n i t i a t e d by counsel t h a t broposes t o f i l e t h e motion who, conference, will bv reauestina a c e x t i f v t h a t h e o r s h e h a s complied w i t h the provisions of this n a r a a r a ~ h .
9.
Addition of P a r t i e s .
a f t e r the d a t e of t h i s Order, I f any p a r t y i s added t o t h e case it s h a l l be t h e d u t y of c o u n s e l r e s p o n s i b l e f o r adding such p a r t y t o p r o m ~ t l vs e r v e a copy o f this Order upon such party o r its c o u n s e l .
T h i s Order s h a l l be b i n d i n g upon such p a r t y u n l e s s subsequently m o d i f i e d by t h e C o u r t , r e q u e s t of such p a r t y , o r , otherwise.
the
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Case 1:04-cv-00048-T 10.
Document 68-2 Dutv to Confeq.
Filed 10/13/2005 Page 7 of 17 Within 20 days after the Closure Date, counsel for all parties shall c o n f e r and make a diligent, good faith effort to settle the case, Such e f f o r t shall include the presentation of a demand by each claimant of the terms it would accept in s a t. i s f. a c t i .o n.. of .
its claim the presentation of an offer by each party against whom a claim is made of what it is willing to tender to resolve such claim.
If such effort is unsuccessful, counsel shall, at that time, make a diligent, good f a i t h effort t o :
A.
Identify those facts that are disputed; B.
Identify t h o s e documents that they intend to offer as evidence at trial and stipulate as to the admissibility and/or authenticity of such documents; and C.
Take whatever action i s appropriate t o narrow and simplify the issues, avoid unnecessary proof, and expedite trial of the case.
It shall be the duty of plaintiff's c o u n s e l to initiate this conference, and it shall be the duty of other c o u n s e l to respond promptly.
If any counsel is unable t o obtain the cooperation of any other counsel, it shall be his or her duty to immediately communicate that fact, in writing, to the Court. 11.
PretrialFilincrs.
Within 60 days after the Closure Date, each party shall file a Pretrial Memorandum, and any proposed voir dire questions a s d e s c r i b e d in Paragraphs 12-13.
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 8 of 17 t i m e of i m ~ a n e l m e n t , each p a r t y s h a l l file a Supplement At to the Pretrial Memorandum containing a Witness List, an Exhibit List and proposed Jury Instructions a s described in paragraphs 14 15 and 1 6 .
Failure ..-to .
submit .- anv ---- ~ r e t r l a l f i l i n r r on or before the due date mav re-sult i n the im~ositionof sanctions and/or the exclusion of anv evidence that should have been disclosed in. a timely submission.
12.
exceed Pretrial Memorandum.
25 paues The Pretrial Memorandum shall not i n l e n g t h and shall consist of the following sections:
A.
P a r t i e s - a list of all parties and their trial counsel.
Facts -a c o n c i s e recitation of the relevant facts that the party filing the Memorandum is relying upon and/or intends t o prove at trial.
C.
Claims and Defenses - a brief statement of each claim for relief and/or defense asserted by the party filing the Memorandum.
Anv c l a i m or defense not included shall be deemed waived.
D.
Damages - a brief and specific description of the n a t u r e , extent and amount of a l l damages claimed by the party filing the Memorandum together with a description of the manner in which such amount was calculated.
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Case 1:04-cv-00048-T E.
Document 68-2 Issues - Filed 10/13/2005 Page 9 of 17 a numbered l i s t of the f a c t u a l and l e g a l (including any issues anticipated questions) that must be resolved evidentiary in order to a d j udicate the case.
F.
- Arg-uments and Discussipn a concise s t a t e m e n t of t h e arguments made i n support of each claim and/or defense described in paragraph 9C and a d i s c u s s i o n of t h e issues r e f e r r e d t o in paragraph E t o g e t h e r with citations t o the Copies any of opinions, statutes, cited authorities a u t h o r i t i e s relied upon.
shall be submitted or other with the Memorandum.
G.
Pending Matters m n t e m ~ - a list and description of any l a t d any , s p e c i a l issue+ e appropriate f o r determination i n advance of trial, and any other matters that counsel believe ought to be considered by t h e Court p r i o r t o t r i a l . H.
Estimated time of trial - Counsel's precise e s t i m a t e of the t i m e required t o present h i s or h e r evidence and t h e time r e w i r e d t o litigate t h e e n t i r e case.
Anv claims, defenses and/or arauments not included in t h e P r e t r i a l Memorandum shall be deemed waived whether or not the" arc
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Case 1:04-cv-00048-T 13.
Document 68-2 Voir Dire Questions Filed 10/13/2005 - Page 10 of 17 shall consist of a list of a l l questions that counsel requests the Court ask of prospective jurors during voir dire examination, and a list of s ~ e c i f i ctopics that counsel wishes to question prospective jurors about, directly, -
- -together . .
- - with--. a statement 0s the reasons why such inquiry is n e c e s s a r y and why examination by the Court would be inadequate. Witness and Exhibit List.
14.
The following witness and exhibit lists shall be submitted:
A.
Witnesses List - a list of all witnesses whose testimony the party filing t h e l i s t i n t e n d s to present at trial ( i n d i c a t i n g whether such testimony will be live or by way of deposition) and concise statements of the subjects of their testimony. B.
Exhibit List -A list of all exhibits that the party f i l i n g the Supplement intends to o f f e r at trial.
The list should sufficiently describe the exhibit and include the date on which it was created. In addition, 1-2 lines of space should be provided between each exhibit to permit the Court to make brief notes with respect to the exhibit. The following format is illustrative:
Identificafion Fall mckihit umber 1 Descrapfion o f S i t 3/22/96 letter from John Doe to Mary Smith
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Case 1:04-cv-00048-T Document 68-2 bUU IdMfUication Filed 10/13/2005 Page 11 of 17 Deecriptlon of FMxiBit Exhibit Numb= 2 7/10/96 purchase agreement between X C o r p . and Richard Roe 3 9/1/96 photo of 101 Elm St.
I --.
..
-- ,-.
. .
-..
..
..
Before submitting their respective lists, counsel should confer t o eliminate duplication (i-e., exhibits that appear on both lists) to the maximum extent possibie.
15.
On Instructions.
Jury impanelment) counsel counterclaim, cross-claim, each for etc., or before party and (7 asserting counsel for days before a claim, each party asserting an affirmative defense shall submit its proposed jury instructions to all other p a r t i e s . shall meet and confer for the Prior t o impanelment, counsel purpose of discussing any modifications proposed by the other parties and shall make an effort: to reach agreement with respect to a joint request for jury instructions.
defendants.
Such meeting s h a l l be i n i t i a t e d by counsel f o r the Such proposed instructions shall include: A.
A brief statement explaining to the jury the nature of the claims and/or defenses asserted by that party; B.
An enumeration of the elements that must be proven to sustain each claim and/or defense.
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 12 of 17 As soon as possible thereafter (but, in any event, no later t h a n the d a t e on which trial commences), counsel shall submit their j o i n t request f o r jury instructions to t h e Court. If counsel c a n n o t a g r e e upon a complete s e t of instructions, counsel shall - submit the portion . ...
on --...which t h e y have agreed; and, in addition, each p a r t y s h a l l submit any supplemental instructions requested by that p a r t y and upon which no agreement could be reached. Each request shall be numbered and s h a l l be set forth on a separate page in order t o facilitate possible integration i n t o the Court's upon charge.
Requested instructions t h a t have not been a g r e e d shall contain citations t o the legal a u t h o r i t y for such instruction.
When all parties have rested, or at such e a r l i e r time as t h e Court designates, counsel will be afforded an opportunity to submit supplemental requests for jury instructions with unanticiwated issues raised by the evidence presented.
respect to Individual requests f o r supplemental instructions w i l l not be considered unless the requesting party makes a strong showing t h a t , i n t h e exercise of due diligence, it could not have made the request o n or b e f o r e t h e date on which trial commenced.
Anv claim or defense for which no p r o ~ o s e dcharue i s s u b m i t t e d mav be deemed waived and f a i l u r e to obSect to anv p r o ~ o s e dcharae mav be deemed a waiver of anv o b j e c t i o n to such proposed chaxxe. 16.
Exhibit Books.
A party's E x h i b i t Book shall consist of copies of those documents and/or p h o t o g r a p h s set forth on its
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 13 of 17 exhibit list that the party intends t o o f f e r at trial. shall be arranged In Said copies order in one o r more t h r e e - r i n g binders and s h a l l be s e p a r a t e d by tabs bearing labels corresponding to each exhibit's designation (e.g., Ex. A, Ex. B, etc. ) designations shall correspond to those on the .
The exhibit Exhibit List furnished to the Court and to the pre-markings on the original documents and photographs that w i l l be o f f e r e d a s evidence. Plaintiff's exhibits s h a l l be marked n u m e r i c a l l y ; and, i n t h e case of groupings of r e l a t e d exhibits, they shall be marked with a number and a letter Defendant's (t.g. lA, lB, IC) .
exhibits shall be marked alphabetically; and groupings of related exhibits shall be marked with a letter and a number (e-g. Al, A2, A3) . After the letters of t h e a l p h a b e t have b e e n exhausted, Defendant's exhibits shall be marked with double letter designations ( e . g . ILA, BB, CC) .
Failure to timely file a witness list and/or exhibit list or to include a witness or exhibit may be grounds f o r sanctions or excluding Prom evidence t h e witness o r exhibit not disclosed. 17.
Trial..
This case shall be in order f o r t r i a l a t a n y time after t h e d a t e f i x e d f o r filing pretrial memoranda. Once the case is placed on the Court's trial calendar, counsel should be p r e p a r e d t o proceed a t t i m e of impanelment or upon 24 hours notice thereafter.
I t i s the duty of counsel to maintain contact with the calendar clerk t o ascertain t h e status of t h e case f r o m t i m e t o time.
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Case 1:04-cv-00048-T 18.
Document 68-2 Filed 10/13/2005 Page 14 of 17 Use of Recorded Testimonv or Evidence at Trial. f o r any pasty proposing to read or play, d u r i n g t r i a l , Counsel evidence that has been p r e v i o u s l y recorded (e.g. d e p o s i t i o n s , tape r e c o r d e d conversations) shall :
A, with AC least 1 0 days prior to-impa-nelment, confer opposing in counsel an effort to reach agreement as to how such material may be edited to eliminate portions that contain irrelevant or otherwise inadmissible material so that the jury and the Court will not be required to listen to evidence that is not helpful in determining the pertinent facts.
B.
A t least one week prior to impanelment, file a transcript of the p r o f f e r e d evidence which shall be highlighted as follows:
1.
The portions that all counsel should be read or presented agree shall be highlighted in yellow.
2.
The portions that the proponent proposes to read or present but that are objected to shall be highlighted in red.
3.
The portions that any other party wishes to have read or presented but to which the proponent objects highlighted in green.
shall be
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 15 of 17 It shall be the responsibility of counsel for any party objecting to the manner in which recorded testimony or evidence has been edited to express such o b j e c t i o n t o the proponent at the conference r e f e r r e d to in subparagraph A s o that t h e h i g h l i g h t e d t r a n s c r i p t referred..to . i n subpasagxaph B is complete and accurate, Any f a i l u r e by counsel for t h e proponent t o comply with his or her obligations under this paragraph may constitute grounds for excluding the p r o f f e r e d evidence. Any f a i l u r e on the part of other counsel to comply with their obligations under this paragraph may be deemed a waiver of their objections to t h e proffered evidence. 19.
g t - A t o r b e f o r e the conclusion of the evidence, c o u n s e l f o r each p a r t y shall submit a "clean1' list of only those exhibits offered by such party that have been admitted Such lists shall be into evidence.
submission to jury the and shall in set a form suitable forth the for following information with respect to each exhibit to the extent applicable: A.
E x h i b i t Number B, Date C.
A b r i e f description of t h e exhibit t h a t w i l l enable the jurors to identify it but which does not characterize the exhibits ( e - g . l e t t e r from A t o B; or it contents p h o t o g r a p h of 1 0 0 Main Street).
20.
Jurv Costs.
I n cases t h a t a r e settled a f t e r a jury has been summoned, j u r y costs a n d / o r attorneys1 fees may be assessed
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 16 of 17 against one or more of the parties and/or their counsel if t h e Court determines the tardiness of the settlement was due t o unreasonable o r vexatious conduct or failure to make a good-faith effort to settle t h e case e a r l i e r . T h e r e f o r e , every e f f o r t should be made t o s e t t l e cases before t h a t time.
BY ORDER :
ENTER :
E r n e s t C. Torres United States District Judge Date :
lorms\pmjltl.wpd rev. July 8,2004 /
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Case 1:04-cv-00048-T Document 68-2 Filed 10/13/2005 Page 17 of 17 UNITED STATES DISTRICT COURT FOR T m DISTRZCT OF RHODE ISLAND PENNSYLVANIA GENERAL INSURANCE COMPANY, ET AL., Plaintiffs CIVIL ACTION NO. CA04-48T CHURCHILL & BANKS, ET AL.
Defendants , DISCOVERY SCHEDULE A l l discovery i n the matter i s stayed for t w o months. d i s c o v e r y w i l l c l o s e on May 1, 2005. Fact The p l a i n t i f f s shall disclose expert reports on March 1, 2005. The d e f e n d a n t s shall d i s c l o s e expert reports on A p r i l 1, 2005.
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