Hon. Matthew E. Orso · U.S. District Court for the Western District of North Carolina
=== Pretrial Order and Case Management Plan ===
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE AND STATESVILLE DIVISIONS CIVIL ACTION NO. ____________
_________________,
Plaintiff(s),
v.
________________,
Defendant(s). PRETRIAL ORDER AND CASE MANAGEMENT PLAN
IN ACCORDANCE WITH the Local Rules Governing Civil Cases in the Western
District of North Carolina (“Local Rules”) and pursuant to Rule 16 of the Federal Rules of Civil
Procedure (“FRCP”), the Court enters the following Pretrial Order and Case Management Plan in
this matter. For represented parties, counsel is ordered to provide a copy of this Order to each
party.
Rule 26 Disclosures Filing of Proposed Protective Order Joinder of Other Parties Designation of Mediator
[ Deadline date ] [ Within 45 days of PTO ] [ Deadline date ] [ Within 60 days of PTO ]
Amendment of the Pleadings
[ Deadline date ]
Expert Reports: Plaintiff[s] Defendant[s]
Mediation Report Completion of Discovery
Filing of Dispositive Motions Trial Term
[ Due date ] [ Due date ]
[ By discovery deadline ] [ Date (approx. 8 months after PTO)]
[ No later than 5 months before trial ] [ Date (approx. 14 months after PTO) ]
It is the Court’s intent that the agreed schedule set by this Order will provide sufficient
time for the parties to pursue this action with reasonable diligence. Accordingly, the parties should
expect that requests for extensions of time that are likely to lengthen the course of this action will
be denied in the absence of unusual and substantial good cause.
A.
The parties’ deadline to amend the pleadings is
.
(presumptively at
least 3 months prior to the end of discovery).
B.
The parties’ deadline to join other parties is
. (presumptively within 60
days of the entry of the Scheduling Order).
A.
MOTIONS AND MEMORANDA IN SUPPORT OF MOTIONS: Every motion shall be
in writing; appropriately filed with the Court; show consultation between or among counsel
in accordance with Local Rule 7.1; and include or be accompanied by (1) a brief description
of the parties and a statement of the facts relevant to the motion with appropriate citation
to the record; (2) a statement of the party’s legal argument, including citations of authority;
and (3) a clear statement of the ruling or relief being requested. No memorandum need
accompany simple consent motions, motions to continue or for extension of time, or
motions related to the admission or withdrawal of counsel so long as such motions contain
an adequate statement of the basis of the relief sought. Motions not in compliance with this
Order are subject to summary denial.
B.
PROPOSED FORM OF ORDER: All pretrial motions other than motions made pursuant
to FRCP 12(b), 12(c), 23, 56 or 65(a) shall be accompanied at the time of filing by a
proposed order stating the requested relief. This proposed order must also be separately
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submitted in a Word document to the Court through the CyberClerk part of the ECF system,
which will automatically send a copy to the Court.
C.
RESPONSES AND REPLIES: Responses to motions, if any, must be filed within 14 days
of the date on which the motion is filed. Replies to responses, if any, must be filed within
7 days of the date on which the response is filed. The Parties are advised that the Court’s
ECF system may automatically generate a due date that is different than set in this Order.
In that event, the time set by this Order controls. A party that does not intend to file a reply
must promptly inform the Court through an ECF filing. Surreplies are not allowed, but
leave of Court may be sought to file a surreply in exceptional circumstances. Parties may
not file a proposed surreply as an exhibit to a motion seeking leave or otherwise without
leave of Court.
D.
EXTENSIONS OF TIME: If counsel need more than 14 days to file a response or 7 days
to file a reply, a motion for extension of time shall be filed accompanied by a proposed
order. The moving party must show consultation with opposing counsel regarding the
requested extension and must notify the Court of the views of opposing counsel on the
request. If a party fails to make the requisite showing, the Court may summarily deny the
request for extension.
E.
PAGE LIMITS, FONTS, AND SPACING: The Court finds most persuasive concise
memoranda of law that directly address the relevant facts and legal issues. Unless prior
permission has been granted, the maximum length permitted for memoranda of law in
support or in opposition to a motion is 25 pages (inclusive of caption but excluding
signatures and certificates of counsel). Reply memoranda shall not exceed 12 pages. Parties
may not file memoranda exceeding these limits, as an exhibit to a motion seeking leave or
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otherwise, without leave of Court. All briefs must be double spaced using the “double
spaced” setting in Word (not 24-point spacing) and all text (including footnotes) must be
in a proportional font of at least 12-point type.
F.
EXHIBITS: A copy of all exhibits upon which a party relies in support of or in opposition
to a motion shall be filed with the Court. However, a party may not file any exhibits which
the party does not cite in the motion or a supporting or responsive memoranda. Except as
requested by the Court, parties should not deliver “courtesy copies” of memoranda or
exhibits to the Judge’s chambers or the Clerk of Court.
G.
MOTIONS DEADLINE: All motions except motions in limine and motions to continue
shall be filed no later than
. [no later than 5 months prior to
the scheduled trial term]. Parties may not extend this deadline by agreement and
stipulated extensions of the completion of discovery do not extend the Motions Deadline.
If a motion for summary judgment is filed by either or both parties, then the parties shall
hold a settlement conference within 14 days of the completion of the briefing on the
motion(s) and file a Certification of Settlement Conference as ordered below.
H. MOTIONS HEARINGS: Hearings on motions will be conducted when the Rules require
a hearing, when the papers filed in support of and in opposition to the motion do not provide
an adequate basis for decision, or when the Court determines it would aid the decisional
process. Otherwise, the Court will rule on the written record. If a party believes that oral
argument would particularly aid the decisional process, then the party should request oral
argument in its motion or response. The Clerk will notify all parties as far in advance as
possible of the date and time set for any hearing.
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The Federal Rules of Civil Procedure require that discovery be proportionate to the needs
of the case, considering the issues at stake, the amount in controversy, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. The Court expects the parties to follow both the
letter and spirit of the Rules governing discovery and focus their discovery requests with the intent
to most efficiently resolve the matter in dispute. The Court reserves the right to shift the costs of
production of discovery to the party requesting it when the Court determines that the request is not
proportionate, or the shifting of costs is otherwise in the interests of justice. Abuse of the discovery
process will not be tolerated, and the Magistrate Judges who will oversee discovery are empowered
to do so strictly to prevent and sanction any such abuse.
A.
DISCOVERY GUIDELINES: Discovery in this case is limited as follows: each party may
propound no more than
interrogatories, including subparts to any other party;
requests for admission (excluding requests to admit the genuineness of a
document) to any other party; and
requests for production of documents to any
other party; and take no more than depositions
(or a specific number of
deposition hours) of non-expert witnesses. [The presumptive limitations on discovery
are 25 interrogatories, 25 requests for admission, 30 requests for production of
documents and 8 depositions (or 40 hours of deposition time, with time allocated
based on each counsel’s questioning regardless of who noticed the deposition)].
B.
RULE 26 DISCLOSURES: The parties have agreed to exchange the information set forth
in Rule 26 by
.
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C.
RESPONSES TO INTERROGATORIES AND REQUESTS FOR ADMISSION: Every
response to an interrogatory or request for admission and every objection thereto shall be
preceded by the original number and complete text of the corresponding interrogatory or
request for admission.
D.
THE MAINTENANCE OF DISCOVERY MATERIALS: Discovery materials are NOT
to be filed. All counsel are advised to consult the Local Rule which provides that while
depositions, interrogatories, and requests for admission, and responses thereto must still be
served on all parties, they are no longer to be filed unless upon order of the Court. The
parties are responsible for the preservation of any and all discovery materials they may
generate.
E.
VIDEO DEPOSITIONS: If video depositions are taken and counsel intend to use them at
trial, counsel are directed to resolve any objections and edit the video accordingly so that
it may be shown without interruption. Failure to do this prior to trial will result in objections
being deemed to be waived.
F.
TRIAL DEPOSITIONS: Depositions taken for the sole purpose of preserving testimony
for trial are not considered discovery for the purposes of this section provided that (1) the
witness will be unavailable for trial for one of the reasons set forth in Rule 32(a)(4); (2) the
reason for such unavailability is that the witness resides outside the subpoena power of this
Court and the party seeking to take such deposition has failed, after making a good faith
effort, to obtain a commitment from the witness to testify at trial voluntarily; and (3) such
deposition can be concluded in time so that the portions of the deposition to be used at trial
can be designated and objections thereto resolved at the final pretrial conference, but in
any event no later than 45 days prior to the Trial Date, absent leave of Court upon a showing
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of good cause for scheduling the deposition closer to trial. Such depositions should be
presented at trial by video recording whenever possible.
G.
PROTECTIVE ORDERS: If one or more of the parties desire entry of a protective order
with respect to discovery, then the parties are required to meet and confer and file with the
Court a joint draft proposed protective order governing discovery on or before _______.
[within 45 days of the entry of this Pretrial Order]. If parties cannot agree on the form
of the proposed protective order, then each party shall submit a proposed protective order.
When counsel submit proposed protective orders, they shall include a provision leaving the
ultimate disposition of protected materials subject to a final order of the Court on the
completion of the litigation. Protective Orders must also provide that any motion,
memorandum, document, or other paper filed with the Court is presumptively a public
document, and any decision of the Court regarding whether to allow any filing to be made
under seal is subject to Local Rule 6.1 and applicable law.
H.
MOTIONS TO COMPEL: A motion to compel must include a statement by the movant
that the parties have conferred in good faith in an attempt to resolve the dispute and are
unable to do so. Consistent with the spirit, purpose, and explicit directives of the FRCP and
the Local Rules, the Court expects all parties and counsel to attempt in good faith to resolve
discovery disputes without the necessity of Court intervention. Failure to do so may result
in appropriate sanctions. Further, a party shall, before filing a disputed motion for an order
relating to discovery, request a conference with the Magistrate Judge in accordance with
the Magistrate Judge’s preferences. Only when that request is denied or an impasse is
reached at the conference may the party file a contested motion for an order relating to
discovery. Such conferences may be conducted in chambers or by conference call and need
7
not be recorded, all in the discretion of the Magistrate Judge.
I.
DISCOVERY COMPLETION: All discovery shall be complete no later than _______.
[the presumptive time for completion of discovery is approximately 8 months
following the entry of the Pretrial Order]. Supplementations per FRCP 26(e) shall be
due within 30 days after obtaining applicable information. Counsel are directed to initiate
discovery requests and notice or subpoena depositions sufficiently in advance of the
discovery completion deadline so as to comply with this Order. Discovery requests that
seek responses or schedule depositions after the discovery completion deadline are not
enforceable except by order of the Court for good cause shown. The parties may consent
to extensions of the discovery completion deadline so long as any such extension expires
not later than 21 days prior to the scheduled trial setting. If a party requests an extension
of time to respond to discovery requests or to extend the discovery deadline, the result of
consultation with opposing counsel must be stated in the motion.
J.
EXPERT WITNESSES: The Plaintiff[s] shall provide reports from its expert witnesses
pursuant to Rule 26(a)(2) by _________. Defendant[s] shall provide reports from its expert
witnesses by _________.
The Court stands ready to adjudicate all cases and controversies appropriately before the
Court. However, litigation in Federal Court requires a substantial commitment of time, money and
effort notwithstanding the Court’s desire to manage the litigation efficiently. Through a negotiated
settlement of their dispute, the parties can avoid the ongoing costs and risks inherent in litigation.
Further, in a settlement the parties can agree on equitable or business solutions or accommodations
different than or beyond those that may be ordered by the Court. Despite the many benefits of
8
settlement, however, some parties are unwilling to raise the topic of settlement because of a
perception that doing so will hurt their negotiating position. Accordingly, the Court orders as
follows:
A.
SETTLEMENT CONFERENCES: To establish regular required settlement conferences
between the parties, the Court orders the parties and/or their counsel to meet (either in
person or by telephone) to meaningfully discuss the possibility of settling this matter at the
following points in the litigation:
1.
2.
3.
4.
Prior to the filing of the answer or other response to the complaint as set forth in the Court’s Standing Order Requiring an Initial Settlement Conference in Civil Cases. (In the event that no Initial Settlement Conference has occurred then the parties are ordered to hold such conference within fourteen days of the entry of this Pretrial Order);
At the Initial Attorney’s Conference, as required by FRCP 26(f);
Within fourteen days of the completion of the briefing on any motion for summary judgment; and
Five weeks prior to the scheduled trial term.
B.
ADDITIONAL SETTLEMENT CONFERENCES: The settlement conferences ordered
above are not meant to limit the timing of the parties’ efforts to settle the case. Rather, the
parties are encouraged to discuss settlement at any time that might lead to a resolution of
the dispute.
C.
CERTIFICATION OF SETTLEMENT CONFERENCE: Following the Initial Settlement
Conference and the settlement conferences held after briefing on a motion for summary
judgment and prior to trial, the parties shall file a Certification of Settlement Conference
signed by each party and counsel in the form attached to the Court’s Standing Order
Requiring an Initial Settlement Conference. The parties are not required to file a
certification of any additional settlement discussions they may have.
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D.
MEDIATION: In addition to the settlement conferences ordered above, the parties are
ordered to conduct a mediation [or other approved ADR process]. The timing for
completing mediation and filing a report on the results is in the parties’ discretion but shall
be completed no later than
. [date ordered for the completion of discovery]
E.
SELECTION OF MEDIATOR: The parties shall select the mediator and notify the Court
of their selection within 60 days of the entry of this Order.
A.
TRIAL DATE. A [trial by jury] or [trial by the Court] is scheduled for ________. [trial
term will be set approximately 14 months after the Pretrial Order is entered;
however, if the parties do not expect to file summary judgment motions, then the trial
may be scheduled sooner]. The parties estimate that the total time needed for trial will be
approximately _____ days. The parties are advised that the length of the trial, which may
well be shorter than the parties’ current estimate, will ultimately be set by the Court at the
pretrial conference.
B.
TRIAL SUBPOENAS: Counsel must subpoena all witnesses at least 14 days before the
trial date. The Court may elect not to enforce subpoenas that have not been issued in
compliance with this deadline or, if requested, may quash subpoenas that have not been
issued in compliance with this deadline.
C.
PRETRIAL SETTLEMENT CONFERENCE: At least five weeks before the trial date the
parties shall hold a settlement conference as ordered above and file a Certification of
Settlement Conference.
D.
COUNSEL’S DUTIES PRIOR TO TRIAL: At least four full weeks before the trial date,
counsel for all parties shall:
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1. Exchange copies of exhibits or permit inspection if copying is impractical;
2. Number and become acquainted with all exhibits;
3. Exchange a list of witnesses expected to be called at trial (which is non-binding but
must be prepared in good faith);
4. Agree upon stipulations of fact and file them with the Court. The parties are
encouraged to stipulate to as many facts as possible to facilitate the trial of the case;
5.
In all jury cases or with respect to all issues to be tried to a jury, file with the Court a
trial brief stating the issues to be tried and addressing all questions of law and any
anticipated evidentiary issues;
6.
In all non-jury cases or with respect to all issues to be tried to the Court, file proposed
Findings of Fact and Conclusions of Law; and
7. File motions in limine, which shall have an expedited briefing schedule as follows:
the response to a motion in limine shall, unless extended by the Court for good cause
shown, be filed within 10 days and replies, if any, must be filed within 4 days of the
response. (Note: these due dates will likely be shorter than the due date automatically
generated on the docket, which should be disregarded).
E.
FURTHER PRETRIAL FILINGS: At least 14 days before the trial date, counsel for the
parties shall file with the Court the following documents, which are described below:
1. Requested questions for voir dire (prepared jointly);
2. Proposed jury instructions (prepared jointly); and
3. Deposition testimony a party intends to offer as evidence at trial. Counsel should
not file deposition designations for any witness that a party plans to have testify in
person or who is unlikely to testify at all. In the event that a witness expected to
11
appear is unexpectedly unable or unwilling to appear or a witness’ deposition
testimony becomes unexpectedly necessary then counsel will be given a reasonable
opportunity to file deposition designations for that witness.
F.
PROPOSED JURY INSTRUCTIONS: If a jury trial has been requested, counsel must
prepare and jointly submit a single compilation of proposed jury instructions that are
narrowly tailored to the anticipated issues arising at trial (e.g., the elements of the claims
and defenses at issue), subject to supplementation at the close of evidence, as necessary, as
contemplated by FRCP 51. Counsel shall identify and index each proposed instruction by
number and heading and support each proposed instruction with adequate legal authority.
A proposed instruction without a supporting citation may not be considered. Counsel
should number each proposed instruction and shall submit each proposed instruction on a
separate page. Where there is disagreement as to any instruction, this jointly prepared
submission shall disclose the basis for the party’s objection and (if applicable) provide a
proposed alternate instruction. Counsel should not simply send the Court a collection of
pattern jury instructions that have not been conformed to the particular case. Also, standard
pattern introductory instructions are not required to be submitted. In addition to filing the
joint proposed jury instructions electronically, counsel should email to the Court’s
chambers at [email protected] a copy of the proposed instructions in a
Word document. The subject line of the email should include the case number, the case
name, and “Proposed Jury Instructions.”
G.
JURY VOIR DIRE: Counsel should prepare and jointly file with the Court a single
compilation of voir dire questions that they propose for the Court to ask prospective jurors,
noting any party’s objection to each proposed question. The Court, after consideration of
12
the requests for voir dire submitted by counsel, shall conduct jury voir dire pursuant to
FRCP 47(a), which may, at the Court’s discretion, include a short period (e.g., ten minutes)
for counsel to participate in voir dire (without arguing their case). Counsel will be given
an opportunity to submit additional voir dire for the Court’s consideration based on the
responses of the potential jurors. As with the proposed jury instructions, in addition to filing
the joint proposed voir dire questions electronically, counsel should email to the Court’s
chambers a copy of the proposed questions in a Word document. The subject line of the
email should include the case number, the case name, and “Jury Voir Dire.”
H.
DEPOSITION TESTIMONY: For the deposition testimony required to be filed with the
Court as discussed above in E.3, the parties must prepare and submit the testimony to the
Court as follows:
1.
The party originally offering the testimony shall highlight in yellow all portions of
the deposition testimony it will seek to have admitted;
That party shall then provide the highlighted copy to the opposing party;
The opposing party shall highlight in a different color all portions of the deposition
2.
3.
testimony it will seek to have admitted;
4.
The opposing party shall then list briefly in the margins, directly adjacent to the
relevant testimony, any objections it has to that testimony (e.g., 401, hearsay);
5.
The opposing party shall then return the document to the party originally offering
the testimony, who will note on the transcript any objections to the opposing party’s
highlighted portion; and
6.
The parties shall prepare a document that consecutively lists all the testimony in
each deposition being objected to by either party along with a very brief description
13
of the nature of the objection (e.g., “Relevance,” “Hearsay,” “Rule 403,” “Rule
408”) and a blank line or box where the Court can rule on the objection.
The party originally offering the testimony shall then file the highlighted depositions and
summary document with the Clerk of Court. Also, in addition to the electronic filing,
counsel should deliver to the Court’s chambers two courtesy copies of the highlighted
deposition testimony and email to the Court’s chambers a copy of the summary in a Word
document. The subject line of the email should include the case number, the case name,
and “Deposition Testimony.”
I.
FINAL PRETRIAL CONFERENCE: The Court will likely schedule a final Pretrial
Conference after the filings described above to consider the parties’ motions and
objections, inquire about the potential settlement of the matter and otherwise prepare for
trial.
J.
WITNESSES AND EXHIBITS: No later than 2 p.m. two business days immediately
preceding the first day of trial (i.e. by 2 p.m. Thursday if trial is to begin on a Monday) [or
earlier if agreed between the parties], counsel for each party shall file with the Clerk of
Court via CM/ECF the following:
1. A witness list containing the name of every proposed witness;
2. A statement of the education, experience, and qualifications of each expert witness,
unless the parties have stipulated to the qualifications of each expert witness;
3.
Stipulations concerning the authenticity of as many proposed exhibits as possible;
and
4. An exhibit list.
K.
EXHIBITS: Parties are expected to use presentation technology available in the courtroom
14
to display evidence to the jury. Training on the equipment should be arranged well in
advance of trial with the Courtroom Deputy. See “Courtroom Technology” page on the
District website at www.ncwd.uscourts.gov. Counsel shall provide in electronic format any
exhibits of documents, photographs, videos, and any other evidence that may be reduced
to an electronic file, for the use of Court personnel and the Court’s Jury Evidence
Recording System (JERS) during trial. Documents and photographs shall be in .pdf, .jpg,
.bmp, .tif, or .gif format; video and audio recordings shall be in .avi, .wmv, .mpg, .mp3,
.wma, or .wav format. Each electronic exhibit shall be saved as a separate file, and provided
to the Court on a storage device, such as cd, dvd, or flash drive.
Exhibit files shall be named consistent with their order and name on the exhibit list. For
example:
Exhibit 1 - photograph of . . .
Exhibit 2(a) - contract
Exhibit 2(b) - video deposition of . . .
L.
FORMAT FOR EXHIBIT LIST: In preparing the exhibit list, counsel shall separately
identify and number each exhibit, shall arrange the list numerically by exhibit number, and
place the following headings on the exhibit list:
Exhibit #
Description
Identified by
Admitted
It is not necessary for counsel to make entries in either the “Identified by” column or the
“Admitted” column. Counsel shall also provide an electronic copy of the exhibit list with
the electronic exhibit files.
M.
EXHIBIT NOTEBOOKS: If counsel for any party intends to tender more than 15
documentary exhibits, counsel for that party shall prepare two identical exhibit notebooks,
15
or sets of exhibit notebooks, containing only those exhibits listed on the party’s exhibit list.
Exhibits which are voluminous (unless of particular importance) or which have a very low
likelihood of being introduced even though they have been included on the party’s exhibit
list should not be included in the exhibit notebooks. The exhibit notebooks shall contain an
index of the exhibits and a copy of each exhibit. Counsel shall tab each exhibit separately
(i.e., no group exhibits) and shall numerically arrange each exhibit notebook or set of
exhibit notebooks. The exhibit notebooks are necessary so that the witness and the Court
may each have a set of exhibit notebooks in the event that technical difficulties prevent the
parties from presenting their exhibits electronically. The parties may seek leave of Court
to waive the requirement of exhibit notebooks where hard copies of the proposed exhibits
would be overly voluminous or otherwise unwieldy.
N.
ASSESSMENT OF JURY COSTS: Whenever a civil action scheduled for a jury trial is
settled or otherwise disposed of in advance of the actual trial, the Court may assess all jury
costs, including Marshal’s fees, mileage reimbursement, and per diem fees equally against
the parties or otherwise may determine appropriate assessments unless the Clerk’s Office
is notified at least one full business day prior to the date on which the action is scheduled
for trial or the parties establish good cause why the Court should not assess jury costs
against the parties. When any civil jury trial is settled at trial in advance of the verdict, the
Court likewise may make the same assessments unless the parties establish good cause why
the Court should not do so.
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Failure to comply with any of the provisions of this Order which causes added delay or
expense to the Court may result in the imposition of sanctions as provided by the Federal Rules of
Civil Procedure.
Signature of United States District Judge
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=== Standing Arraignment Order & Standing Order Governing Criminal Cases ===
DOCKET NO. 3:25MC 170
=== Standing Order Requiring an Initial Settlement Conference in Civil Cases ===
3. The parties must file the Ceiiificate with the Court prior to or together with the Defendant's
Answer or other response to the Complaint.' Defendant shall not, however, delay the timely
filing of an Answer or other response to the Complaint because of the failure of the paiiies
to sign the Certification. (In the event that the Defendant is unable to timely file the
Certification, Defendant shall file a brief notice with the Court describing the reason for
the delay or the paiiies should jointly move for leave to extend the time for filing the
Certification); and
4. The Plaintiff is required to serve a copy of this Order on the Defendant(s) together with the
service of the Summons and Complaint.
�d�-
M�ROrso United States District Judge
1
While either party may file the Ce1iification, as a practical matter the Defendant will be most knowledgeable about the timing of the responsive pleading or motion and thus is likely to be in the best position to make a timely filing if the case is not resolved.
3
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