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Hon. Annemarie Carney Axon · U.S. District Court for the Northern District of Alabama
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA ________ DIVISION [Name of plaintiff(s)], Plaintiff(s), v. [Name of defendant(s)], Defendant(s). Civil Action No. INITIAL ORDER GOVERNING ALL FURTHER PROCEEDINGS This order governs all proceedings in this action, unless modified by written order for good cause shown. Judge Axon’s staff will not answer questions from attorneys or unrepresented parties over the telephone. Therefore, each attorney or unrepresented party appearing in this case and practicing in this court should carefully review this order and the court’s local rules available at www.alnd.uscourts.gov. If an attorney or an unrepresented party has a question that cannot be answered by reference to this order or the local rules, the attorney or unrepresented party must email chambers ([email protected]) with a copy to all opposing counsel or, if a party is unrepresented, the unrepresented party. The court will not respond to ex parte communication from any attorney or unrepresented party. I. GENERAL PROVISIONS A. Communication With Chambers Any and all questions should be sent to axon_chambers@ alnd.uscourts.gov, with a copy to all opposing counsel or, if a party is unrepresented, the unrepresented party. Emails that do not include all counsel of record, or if a party is unrepresented, the unrepresented party, will not receive a response. If an unrepresented party does not have an e-mail address, the parties may file a motion for a telephone conference. B. HIPAA Compliance In accordance with the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996), and its regulations, when “protected health information” is relevant to the claims or defenses presented in an action, the party seeking such “protected health information” shall present a valid authorization at the Rule 26 planning meeting to be executed by the party from whom such “protected health information” is sought. The parties shall include in their report a deadline (specific date) by which the authorization will be executed. The parties may file with the court a motion for a “qualified protective order,” to which all parties stipulate, and, at the same time, e- mail to [email protected] a proposed “qualified protective order,” in substantially the form attached to this order as Appendix I. 2 C. Dismissal of Non-Served Defendants Any defendant who has not been served with a summons and complaint within 90 days after the filing of the complaint (or within 90 days after the party was added to the action) may be dismissed without further order of the court unless the party on whose behalf such service is required shows good cause why service has not been perfected. D. Suitability of Action for Alternative Dispute Resolution All parties should give early consideration to the possibility of settlement to avoid unnecessary costs and fees. The court requires that the attorneys for all parties make an early analysis of the case along with their clients and be prepared to discuss settlement at an early date. The parties shall also consider and discuss whether this action may be suitable for mediation, whether under the court’s ADR plan or otherwise. In the absence of an objection by any of the parties, the court will order this case to mediation before the submission of dispositive motions. Each attorney is directed to immediately forward a copy of the initial order to his or her client. Plaintiff(s)’ attorney(s) are ordered to immediately discuss the feasibility of settlement with Defendant(s)’ attorney(s). 3 E. Courtesy Copies For all submissions exceeding thirty (30) pages (including exhibits), the filing party must submit, within three (3) business days of filing, an exact courtesy copy of the submission, reflecting the CM/ECF case number, document number, date, and page stamp on each page, to the Clerk’s office for delivery to chambers. Deliveries are not accepted in the court’s chambers. COURTESY COPIES SHOULD BE DOUBLE-SIDED TO CONSERVE PAPER AND SECURELY BOUND IN A THREE-RING BINDER OR BY LARGE CLIP. The parties must also email a copy of any brief filed with the court to chambers in Microsoft Word format. F. Disclosure of Use of Artificial Intelligence All counsel and pro se parties must disclose the use of artificial intelligence (“AI”) in any capacity to prepare documents submitted to the court. If any attorney or pro se party uses AI in any way to prepare a filing or submission to the court, the attorney or pro se party MUST sign and file a disclosure of the use of artificial intelligence stating, as follows: This document was generated with the assistance of [identify AI tool name]. I hereby certify under penalty of perjury that, despite use of an AI tool, I have independently reviewed this document to confirm the accuracy, legitimacy, and use of good and applicable law, pursuant to Federal Rule of Civil Procedure 11. 4 The court cautions counsel and pro se parties that it does not recognize mistake, lack of technical expertise, and time constraints as a good faith excuse for submission of documents that either violate Rule 11 or this disclosure rule. In particular, arguments in briefs that are supported by AI-generated caselaw (i.e., cases or quotations from cases that do not actually exist) are not acceptable. Failure to comply with this rule may result in appropriate sanctions, up to and including dismissal or default judgment. II. Electronic Submissions A. CM/ECF Record The official record of this case is maintained electronically pursuant to CM/ECF. Documents must be filed through CM/ECF in PDF (Portable Document Format) in searchable format, unless submitted by a party appearing pro se, in which case documents should be filed with the Clerk of Court. All filings must comply with the Court’s Civil Administrative Procedures Manual found on the court’s website.1 B. Type Size The court requires all documents created by counsel for submission to the court to be in 14 point type, except that footnotes may be in 12 point type. 1 The Administrative Procedures Manual is available on the court’s website by clicking the “Policies tab. under (https://www.alnd.uscourts.gov/sites/alnd/files/AL-N%20Civil%20Administrative%20Procedure s%20Manual.Revision.05-18-2021.pdf) Procedures” Attorneys” “For link and the 5 C. Sealed and/or Redacted Protected Information The Civil Administrative Procedures Manual for CM/ECF, located on the main page of CM/ECF generally outlines the requirements and procedures with respect to redaction and sealing. All parties should confirm compliance with those provisions in advance of any filing. The failure to properly redact information may result in sanctions. Parties must seek the court’s permission to file any documents under seal by following the procedure outlined in the Civil Administrative Procedures Manual for CM/ECF, even when filing information designated as confidential pursuant to a confidentiality protective order. In the Eleventh Circuit, there is a presumptive constitutional public right of access to judicial records. Comm’r, Ala. Dep’t of Corr. v. Advance Loc. Media, LLC, 918 F.3d 1161, 1166 (11th Cir. 2019); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001). The parties cannot overcome this presumption, which protects a right held by the public, by agreeing in a protective order that documents may be filed under seal. See, e.g., Advance Loc. Media, LLC, 918 F.3d at 1166. To overcome the public’s constitutional right of access, the party moving to seal must establish that good cause warrants filing the judicial records under seal. See id. at 1169; Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1363 (11th Cir. 2021). All parties should note that the designation of a document as confidential does not, standing alone, 6 sustain the burden of establishing good cause. Motions to seal that fail to show good cause will be denied. See, e.g., Chicago Tribune, 263 F.3d at 1310. D. Required Electronic Submissions to Chambers Counsel must email to chambers copies of all proposed orders in Word Format with opposing counsel or pro se parties copied. The address for the undersigned judge’s chambers is [email protected]. III. MOTION PRACTICE A. Dispositive Motions Any motion(s) for summary judgment filed in this action must comply with all requirements of Appendix II to this order. Any other dispositive motion must comply with the requirements of Appendix II to the extent practicable. B. Other Motions All motions longer than ten pages in length must comply with the requirements in Appendix II to this order to the extent practicable. Before filing any motion (other than a motion to remand), moving counsel shall contact the opposing counsel and determine if counsel opposes the motion. All motions shall include, in the caption under the case number, a notation that the motion is either “Opposed” or “Unopposed.” The first paragraph shall briefly summarize the parties’ attempts to resolve the issue(s) and set forth areas of agreement and disagreement. Failure of the 7 parties to abide by these requirements can result in a sua sponte denial of the motions for failure to comply. Parties must seek leave of the court before filing a motion about a discovery dispute. The motion for leave of the court must specify the nature of the discovery dispute and the steps the parties have taken to resolve that dispute. The motion need only include the facts relevant to the dispute. Legal argument and/or legal citations are not necessary. Opposing counsel MUST file a response to the motion for leave within three days of its filing, explaining why the court should not grant leave to file the discovery motion. If the court grants leave to file, the parties will receive an opportunity to make substantive arguments at that time. C. Motion of Counsel to Withdraw Once an attorney has appeared as counsel for a party, he or she may not withdraw from the action merely by filing a “notice of withdrawal,” but must file a motion stating the specific grounds for withdrawal and seeking permission of the court to do so. Any motion to withdraw which, if granted, would leave a party unrepresented by counsel must include a certification that the moving attorney has served a copy of the motion on his or her client and has informed the client of the right to promptly file an objection with the court. The motion must also include the notation, “Future notice to (name of party) is to be made at the following address: (state last known address of the party). 8 D. Motions for Extensions of Time Any motion that seeks an extension of the discovery deadline by more than thirty days must provide: (1) a description of all discovery conducted up to the point of filing the motion for an extension and the dates said discovery was served and answered; (2) what depositions the parties have taken up to the point of filing the motion; and (3) a discovery plan setting the date on which each outstanding discovery issue will be resolved. Successive motions for extensions of time are strongly disfavored. III. SPECIFIC PROVISIONS RELATING TO CERTAIN CASES A. ATTORNEY FEE SHIFTING CASES If a party anticipates that during or upon the completion of this action it may for any reason (other than as a sanction under the Federal Rules of Civil Procedure) seek an award of attorneys’ fees from the opposing party pursuant to any statute or other law, the party must comply with the following requirements as a precondition to any such award: (a) Counsel must maintain a separate record of time with a complete and accurate accounting of all time devoted to this particular action (to the nearest 1/10 of an hour), recorded contemporaneously with the time expended, for each attorney and with sufficient detail to disclose the nature of the work performed in the action (i.e., not just “research” but the specific matter being 9 researched; not just “conference” but the identity of persons conferring and general subject matter of the conference). (b) If a 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 in accordance with (a) above. (c) Counsel is directed to review and verify all attorney and non- attorney time records no less than once per month. (d) Although the court does not require counsel to file a copy of the time records before a request for a fee, counsel may file with the Clerk of Court either a copy of the time record referenced in (a) above, or a separately prepared document setting forth the information described in (a) above. If counsel elects to file reports, they should be filed by the 15th day of the month following the month in which the work was performed during the pendency of the case. If counsel elects to file time reports, the material filed may be filed under seal, subject to further court order, by placing the same in a sealed envelope with the case name and number along with “ATTORNEY TIME RECORDS - FILE UNDER SEAL” written thereon. However, if the material is filed under seal, then the filing party must, at the time of such filing, also file (and serve a copy on opposing parties or their counsel) a document stating the total of the hours represented by the sealed filing, allocated as to total 10 attorney hours and total non-attorney hours included in the current filing under seal. Upon the conclusion of this case, without further order the seal will be lifted as to all attorney fee materials filed under seal. (e) A petition for attorney fees shall be accompanied by counsel’s certification that all time records are accurate; that such records were prepared contemporaneously with the performance of the work for which the fees are claimed; and that counsel reviewed and verified all attorney and non-attorney time records no less frequently than once per month. B. CASES THAT REQUIRE EEOC CHARGES If this case is one in which the filing of a charge of discrimination with the Equal Employment Opportunity Commission or similar agency is required as a prerequisite to suit, then the plaintiff(s) must file with the Clerk of Court at the time of filing the disclosures required by Federal Rule of Civil Procedure 26(a)(1): (a) a copy of all charges of discrimination filed with the EEOC and which form the bases of the action; and (b) a copy of the EEOC’s response to all such charges of discrimination filed with that agency, including the notice of right to sue. DONE and ORDERED this May 23, 2025. _________________________________ ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE 11 12 APPENDIX I UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA ________ DIVISION AAA, Plaintiff(s), v. BBB, Defendant(s). Civil Action No. ___ QUALIFIED HIPAA PROTECTIVE ORDER The court GRANTS the parties the right, upon compliance with the applicable discovery provisions of the Federal Rules of Civil Procedure and the orders of this court, to obtain from any health care provider, health plan, or other entity covered by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996), any and all information relating to the past, present, or future medical condition of any individual who is a party to this action (or the decedent or ward of a party who sues in a representative capacity), as well as any and all information relating to the provision of health care to such individual and payment for the provision of such health care. 13 This order authorizes any third-party who is provided with a subpoena requesting the production of documents or commanding attendance at deposition or trial to disclose the protected health information in response to such request or subpoena. This order is intended to authorize such disclosures under the privacy regulations issued pursuant to HIPAA. 45 C.F.R. § 164.512(e)(1)(i). The court expressly prohibits the parties from using or disclosing the protected health information obtained pursuant to this order for any purpose other than this action. Further, the court orders the parties either to return to the covered entity from whom or which such protected health information was obtained, or to destroy the protected health information (including all copies made), immediately upon conclusion of this action. See 45 C. F. R. §§ 163.502(b); 164.512(e)(1)(v). DONE and ORDERED this ________ day of ________________, ______. _______________________ Annemarie Carney Axon United States District Judge 14 APPENDIX II SUMMARY JUDGMENT REQUIREMENTS NOTICE This exhibit contains specific, mandatory instructions regarding the preparation and submission of briefs and evidentiary materials in support of and in opposition to potentially dispositive motions. These instructions must be followed strictly. Except for good cause shown, briefs and evidentiary materials that do not conform to the following requirements may be stricken. SUBMISSION DATES The court’s scheduling order will provide a deadline for filing summary judgment motions. Any motion for summary judgment and evidentiary materials will be due on or before that deadline. Briefs in support of or in opposition to summary judgment must be filed within one business day of the filing of the dispositive motion and/or evidentiary submissions. The court will enter a briefing schedule upon receipt of the brief in support of the motion for summary judgment. To ensure that each party is afforded a full and fair opportunity to be heard, the parties must deliver copies of briefs and evidentiary materials to opposing parties without undue delay and, generally, on the same date the party submits the brief. SUBMISSIONS The parties’ submissions in support of and opposition to summary judgment motions must consist of: (1) a brief containing, in separately identified sections, (i) a statement of allegedly undisputed relevant material facts and (ii) a discussion of relevant legal authorities; and (2) copies of any evidentiary materials upon which the party relies. More detailed requirements for these submissions are explained in the following sections. REQUIREMENTS FOR BRIEFS A. Format Initial and response briefs are limited to thirty-five pages. Reply briefs are limited to ten pages. Briefs that exceed twenty pages must include a table of contents that accurately reflects the organization of the document. The table of contents is not included in the page limit. The text of briefs must be double-spaced (except for quotations exceeding fifty words, which may be block indented from the left and right margins and single spaced) using fourteen point typeface, preferably Times New Roman. The court will not consider arguments incorporated by reference to earlier filings and will not consider substantive arguments made in footnotes. The court may strike any brief that would exceed the page limits because of attempts to incorporate by reference or include substantive arguments in footnotes. 16 B. Submissions The parties must electronically file the original brief. The parties also shall e- mail to the court’s chambers ([email protected]) the brief in Word format. The email must copy opposing counsel, or if a party is unrepresented, the unrepresented party. For requirements about the submission of courtesy copies of evidentiary materials, see Part III.D. of the initial order. C. Binding The Clerk will not accept bound materials for filing, but the parties must securely bind the court’s “courtesy copy” of the brief in a three-ring binder or large clip for ease of use and to prevent inadvertent loss of pages. In addition, all pages submitted in the court’s “courtesy copy” shall be three-hole punched. D. Manner of Stating Facts All briefs submitted either in support of or opposition to a motion must begin with a statement of allegedly undisputed relevant material facts set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. Each statement of fact must be supported by specific reference to the CM/ECF document and page number of the evidentiary submissions. 17 1. Moving Party’s Initial Statement of Facts The moving party shall list in separately numbered paragraphs each material fact the movant contends is true and not in genuine dispute, and upon which the moving party relies to demonstrate that it is entitled to summary judgment. Each statement of fact must be followed by a specific reference to those portions of the evidentiary record that the movant claims supports it. 2. Opposing Party’s Statement of Facts Each party opposing a summary judgment motion also must submit a statement of facts divided as follows. a. Response to Movant’s Statement of Facts The first section must consist of only the non-moving party’s disputes, if any, with the moving party’s claimed undisputed facts. The non-moving party’s response to the moving party’s claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the moving party’s claimed undisputed facts. Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be admitted for summary judgment purposes unless controverted by the response of the party opposing summary judgment. 18 b. Additional Undisputed Facts The second section may contain additional, allegedly undisputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The second section of the opposing party’s statement of facts, if any, shall be clearly designated as such. Each statement of fact in this section shall be supported by its own evidentiary citation. The opposing party should include only facts that the opposing party contends are true and not in genuine dispute. c. Additional Disputed Facts The third section may contain additional, allegedly disputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The third section of the opposing party’s statement of facts, if any, shall be clearly designated as such. Each statement of allegedly disputed facts must be followed by specific reference to those portions of the evidentiary record which both support and contradict the alleged fact. 3. Moving Party’s Reply The reply submission, if any, must include the moving party’s disputes, if any, with the non-moving party’s additional claimed undisputed facts. The moving party’s response to the non-moving party’s additional claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the non-moving 19 party’s additional claimed undisputed facts. Any statements of fact that are disputed by the moving party must be followed by a specific reference to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth in the statement required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant. REQUIREMENTS FOR EVIDENTIARY MATERIALS To facilitate the court’s requirement that the parties cite to the CM/ECF document and page numbers, the parties must electronically file all evidentiary materials (e.g., affidavits, exhibits, depositions, or other products of discovery) relied upon in support of or opposition to summary judgment motions before they file their briefs in support of or opposition to summary judgment. The parties may file their briefs, with citations to the CM/ECF document and page numbers, one business day after making their evidentiary submissions. Any party opposing a summary judgment motion may reference materials included in the moving party’s initial evidentiary submission without resubmitting that evidentiary submission. Parties should refrain from re-submitting additional copies of the same documents. While the court reserves the right to consider evidentiary materials that are not specifically referenced in the brief, no party should assume the court will 20 consider such materials. A specific reference must include the CM/ECF document, page, and, when appropriate, line number. A. Organization Each volume of evidentiary materials must include a table of contents that includes a brief narrative description of each document included: e.g., “Plaintiff’s Exhibit 1, the Deposition of John Jones.” Each affidavit, exhibit, deposition, or other product of discovery must be separately identified by a capital letter or numeral (i.e., “Exhibit A” or “Exhibit 1”); and, if the exhibit contains more than one page, each page must be separately numbered. Deposition travel transcripts that are submitted as part of the evidentiary record should include no more than four pages of deposition text per 8½” by 11” page. Counsel are directed to submit entire depositions, including all exhibits to the depositions, even if relying only on excerpts. However, if the deposition or exhibits to the deposition contain information designated as confidential under a protective order and the parties agree that the confidential information is not necessary to the court’s determination of the summary judgment motion, the parties may seek to be relieved of the obligation to submit the full deposition with all exhibits. If a party seeks to be relieved of this obligation, the party should move for that relief at least one calendar week before the due date for the summary judgment 21 motion. The motion should specify whether the party will redact parts of the deposition or will omit or redact exhibits. B. Number of Sets Submitted The parties must electronically file one set of evidentiary materials. The parties must submit a “courtesy copy” to the Clerk of Court for delivery to the court’s chambers by the Clerk, an exact copy of the filed set of evidentiary materials, reflecting the CM/ECF case number, document number, date, and page stamp on each page, within three business days of electronic filing. Additionally, the evidentiary material should include a tab corresponding to each document. Regarding courtesy copies of depositions, parties shall include the entire deposition, in travel transcript format consisting of no more than four pages of deposition text per 8 ½ by 11 inch page, as well all exhibits to the depositions with sub-tabs, clearly labeled. C. Binding The Clerk will not accept bound materials for filing, but the parties must securely bind the court’s “courtesy copy” of the evidentiary submission—in separately numbered volumes, if necessary—for ease of use and to prevent inadvertent loss of pages. 22
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APPENDIX II SUMMARY JUDGMENT REQUIREMENTS NOTICE This exhibit contains specific, mandatory instructions regarding the preparation and submission of briefs and evidentiary materials in support of and in opposition to potentially dispositive motions. These instructions must be followed strictly. Except for good cause shown, briefs and evidentiary materials that do not conform to the following requirements may be stricken. SUBMISSION DATES The court’s scheduling order will provide a deadline for filing summary judgment motions. Any motion for summary judgment and evidentiary materials will be due on or before that deadline. A supporting brief will be due within one business day of the motion and evidentiary materials being filed. The court will enter a briefing schedule upon receipt of the brief in support of the motion for summary judgment. To ensure that each party is afforded a full and fair opportunity to be heard, the parties must deliver copies of briefs and evidentiary materials to opposing parties without undue delay and, generally, on the same date the party submits the brief. 1 SUBMISSIONS The parties’ submissions in support of and opposition to summary judgment motions must consist of: (1) a brief containing, in separately identified sections, (i) a statement of allegedly undisputed relevant material facts and (ii) a discussion of relevant legal authorities; and (2) copies of any evidentiary materials upon which the party relies. More detailed requirements for these submissions are explained in the following sections. REQUIREMENTS FOR BRIEFS A. Format Initial and response briefs are limited to thirty-five pages. Reply briefs are limited to ten pages. Briefs that exceed twenty pages must include a table of contents that accurately reflects the organization of the document. The table of contents is not included in the page limit. The text of briefs must be double-spaced (except for quotations exceeding fifty words, which may be block indented from the left and right margins and single spaced) using fourteen point typeface, preferably Times New Roman. The court will not consider arguments incorporated by reference to earlier filings and will not consider substantive arguments made in footnotes. The court 2 may strike any brief that would exceed the page limits because of attempts to incorporate by reference or include substantive arguments in footnotes. B. Submissions The parties must electronically file the original brief. The parties also shall e-mail to the court’s chambers ([email protected]) the brief in Word format. The email must copy opposing counsel, or if a party is unrepresented, the unrepresented party. For requirements about the submission of courtesy copies of evidentiary materials, see Part III.D. of the initial order. C. Binding The Clerk will not accept bound materials for filing, but the parties must securely bind the court’s “courtesy copy” of the brief in a three-ring binder or large clip for ease of use and to prevent inadvertent loss of pages. In addition, all pages submitted in the court’s “courtesy copy” shall be three-hole punched. D. Manner of Stating Facts All briefs submitted either in support of or opposition to a motion must begin with a statement of allegedly undisputed relevant material facts set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. Each statement of fact must be supported by specific 3 reference to the CM/ECF document and page number of the evidentiary submissions. 1. Moving Party’s Initial Statement of Facts The moving party shall list in separately numbered paragraphs each material fact the movant contends is true and not in genuine dispute, and upon which the moving party relies to demonstrate that it is entitled to summary judgment. Each statement of fact must be followed by a specific reference to those portions of the evidentiary record that the movant claims supports it. 2. Opposing Party’s Statement of Facts Each party opposing a summary judgment motion also must submit a statement of facts divided as follows. a. Response to Movant’s Statement of Facts The first section must consist of only the non-moving party’s disputes, if any, with the moving party’s claimed undisputed facts. The non-moving party’s response to the moving party’s claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the moving party’s claimed undisputed facts. Any statements of fact that are disputed by the non-moving party must be followed by a specific reference to those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement required of the moving party will be deemed to be admitted for summary judgment 4 purposes unless controverted by the response of the party opposing summary judgment. b. Additional Undisputed Facts The second section may contain additional, allegedly undisputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The second section of the opposing party’s statement of facts, if any, shall be clearly designated as such. Each statement of fact in this section shall be supported by its own evidentiary citation. The opposing party should include only facts that the opposing party contends are true and not in genuine dispute. c. Additional Disputed Facts The third section may contain additional, allegedly disputed facts set out in separately numbered paragraphs that the opposing party contends require the denial of summary judgment. The third section of the opposing party’s statement of facts, if any, shall be clearly designated as such. Each statement of allegedly disputed facts must be followed by specific reference to those portions of the evidentiary record which both support and contradict the alleged fact. 5 3. Moving Party’s Reply The reply submission, if any, must include the moving party’s disputes, if any, with the non-moving party’s additional claimed undisputed facts. The moving party’s response to the non-moving party’s additional claimed undisputed facts shall be in separately numbered paragraphs that coincide with those of the non- moving party’s additional claimed undisputed facts. Any statements of fact that are disputed by the moving party must be followed by a specific reference to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth in the statement required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant. REQUIREMENTS FOR EVIDENTIARY MATERIALS To facilitate the court’s requirement that the parties cite to the CM/ECF document and page numbers, the parties must electronically file all evidentiary materials (e.g., affidavits, exhibits, depositions, or other products of discovery) relied upon in support of or opposition to summary judgment motions before they file their briefs in support of or opposition to summary judgment. The parties may file their briefs, with citations to the CM/ECF document and page numbers, one business day after making their evidentiary submissions. 6 Any party opposing a summary judgment motion may reference materials included in the moving party’s initial evidentiary submission without resubmitting that evidentiary submission. Parties should refrain from re-submitting additional copies of the same documents. While the court reserves the right to consider evidentiary materials that are not specifically referenced in the brief, no party should assume the court will consider such materials. A specific reference must include the CM/ECF document, page, and, when appropriate, line number. A. Organization Each volume of evidentiary materials must include a table of contents that includes a brief narrative description of each document included: e.g., “Plaintiff’s Exhibit 1, the Deposition of John Jones.” Each affidavit, exhibit, deposition, or other product of discovery must be separately identified by a capital letter or numeral (i.e., “Exhibit A” or “Exhibit 1”); and, if the exhibit contains more than one page, each page must be separately numbered. Counsel are directed to submit entire depositions, even if relying only on excerpts, including all exhibits to the depositions. Deposition travel transcripts that are submitted as part of the evidentiary record should include no more than four pages of deposition text per 8½” by 11” page. 7 B. Number of Sets Submitted The parties must electronically file one set of evidentiary materials. The parties must submit a “courtesy copy” to the Clerk of Court for delivery to the court’s chambers by the Clerk, an exact copy of the filed set of evidentiary materials, reflecting the CM/ECF case number, document number, date, and page stamp on each page, within three business days of electronic filing. Additionally, the evidentiary material should include a tab corresponding to each document. Regarding courtesy copies of depositions, parties shall include the entire deposition, in travel transcript format consisting of no more than four pages of deposition text per 8 ½ by 11 inch page, as well all exhibits to the depositions with sub-tabs, clearly labeled. C. Binding The Clerk will not accept bound materials for filing, but the parties must securely bind the court’s “courtesy copy” of the evidentiary submission—in separately numbered volumes, if necessary—for ease of use and to prevent inadvertent loss of pages. 8
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA ________ DIVISION [Name of plaintiff(s)], Plaintiff(s), v. [Name of defendant(s)], Defendant(s). Civil Action No. ORDER REGARDING COMPLIANCE WITH FEDERAL RULE OF CIVIL PROCEDURE 26(f) The court reminds the parties of their obligations under Federal Rule of Civil Procedure 26(f) to confer within thirty days from the first appearance of a defendant for the purposes of: considering the nature and basis of their claims and defenses; the possibilities for a prompt settlement or resolution of the case; to make or arrange for the disclosures required by Federal Rule of Civil Procedure 26(a)(1); and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning all of the matters addressed in sub-paragraphs (1) through (4) of Federal Rule of Civil Procedure 26(f). If the court has entered this order more than thirty days after the first appearance of a defendant, the parties must confer within fourteen days of entry of this order. If the parties are unable to agree upon a date, time, or place for such conference, the court ORDERS the parties to meet at 10:00 a.m. in the chambers of the undersigned judge on the last Friday falling within the 30-day period starting from the first appearance of a defendant. If use of the court’s chambers is necessary, counsel should email chambers ([email protected]) at least seven days before the required meeting to advise the court. If a party is proceeding without counsel, the obligation to email chambers rests upon counsel for the opposing party. All email communication should copy opposing counsel, or if a party is unrepresented, the unrepresented party. A. Form of Report The court expects the parties to jointly file a report of the parties’ planning meeting, in the general format of Exhibit A to this order, with the Clerk of Court within fourteen days after the meeting. The report should contain a synopsis of the case advising the court of the general claims and defenses of the parties. Should the parties disagree about an item in the report, the positions of the parties as to that item should be clearly set forth in separate paragraphs. When preparing the report, be aware that the case should be ready for trial within eighteen months from the date of service of the complaint. In cases where the parties request deadlines that extend beyond eighteen months, the parties must 2 include a summary of the factors they believe justify the court’s departure from its customary scheduling. Upon receipt of the report, the court will set a Federal Rule of Civil Procedure 16(b) scheduling conference if requested by the parties. The report must include a discovery plan stating the parties’ views and proposals on: 1) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; and, 2) any issues about claims of privilege or of protection as trial-preparation materials. If the parties agree on a procedure to assert these claims after production (i.e., a “clawback” agreement), the report should include a statement about whether they want the court’s scheduling order to adopt their agreement under Federal Rule of Evidence 502. B. Commencement of Discovery The parties are authorized to commence discovery pursuant to the terms of Federal Rule of Civil Procedure 26. In cases removed from state court in which any discovery requests were filed before such removal, those discovery requests shall be deemed to have been filed on the date the parties file the report required by 3 Federal Rule of Civil Procedure 26(f). The court instructs the parties to review Local Rule 5.3 regarding the non-filing of discovery materials in civil cases. DONE and ORDERED this ___________ EXHIBIT A UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA ______ DIVISION [Name(s) of plaintiff(s)] Plaintiff(s), v. [Name(s) of defendant(s)] Defendant(s). Civil Action No. ___ REPORT OF THE PARTIES’ PLANNING MEETING 1. The following persons participated in a Federal Rule of Civil Procedure 26(f) conference on <Date> by <State the method of conferring>: <Name>, representing the <plaintiff(s)> <Name>, representing the <defendant(s)> 2. Initial Disclosures. The parties [have completed] [will complete by <Date>] the initial disclosures required by Rule 26(a)(1). 3. Discovery Plan. The parties propose this discovery plan: 4 <Use separate paragraphs or subparagraphs if the parties disagree.> (a) Discovery will be needed on these subjects: <Describe>. (b) to be <Dates for commencing and completing discovery, including discovery commenced or completed before other discovery.> <Maximum number of interrogatories by each party to another party, along with the dates the answers are due.> <Maximum number of requests for admission, along with the dates responses are due.> <Maximum number of depositions by each party.> <Limits on the length of depositions, in hours.> <Dates for exchanging reports of expert witnesses.> <Dates for supplementations under Rule 26(e).> (c) (d) (e) (f) (g) (h) 4. Other Items: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) <A date if the parties ask to meet with the court before a scheduling order.> <Requested dates for pretrial conferences.> <Final dates for the plaintiff to amend pleadings or to join parties.> <Final dates for the defendant to amend pleadings or to join parties.> <Final dates to file dispositive motions.> <State the prospects for settlement.> <Identify any alternative dispute resolution procedure that may enhance settlement prospects.> <Final dates for submitting Rule 26(a)(3) witness lists, designations of witnesses whose testimony will be presented by deposition, and exhibit lists.> <Final dates to file objections under Rule 26(a)(3).> <Suggested trial date and estimate of trial length.> <Other matters.> Date: <Date> <Signature of the attorney or unrepresented party> ____________________________________ <Printed name> 5 Date: <Date> <Address> <E-mail address> <Telephone number> <Signature of the attorney or unrepresented party> ____________________________________ <Printed name> <Address> <E-mail address> <Telephone number> 6
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION Plaintiff(s)., Choose an item., v. Defendant(s)., Choose an item.. } } } } } } } } } Case No.: Case Number. INITIAL ORDER IN ERISA BENEFITS CASES The above-styled case appears to make a claim for benefits and/or other relief under the Employee Retirement Income Security Act (“ERISA”). It therefore requires specialized treatment. On or before Click here to enter a date. (60 days from entry of order), the parties SHALL file a joint report, under Federal Rule of Civil Procedure 26(f), which states their respective positions as to the following questions: (1) If plaintiff has named more than one defendant, do the defendants agree that a particular named defendant, or a third-party who is not a defendant, is the single entity responsible for the alleged ERISA violation or violations? If so, name that entity. (2) Provide the court with an electronic and paper copy of the administrative record as it presently exists, including the plan document and the summary plan description. Are the parties in agreement about the accuracy and completeness of the administrative record as it presently exists? If the parties disagree about the accuracy or completeness of the current administrative record, what is the basis for their disagreement? (3) If the court finds monetary liability, do the parties agree on the amount due, taking into consideration any offsets? If so, state the amount. If not, each party SHALL explain the amount it proposes. (4) Does plaintiff seek benefits only pursuant to 29 U.S.C. § 1132(a)(1)(B), or does plaintiff seek relief pursuant to 29 U.S.C. § 1132(a)(3)? (5) Do the parties agree that the case should be decided on the administrative record alone? If not, what additional presently available evidence should be considered, and why? (6) If any party believes that discovery beyond the administrative record will be needed, describe the nature of such evidence, and how the party proposes to obtain it. (7) What is the proper standard of review, and why? (8) If any defendant relies upon a discretionary clause in the plan, does Plaintiff concede that the clause meets the Bruch standard? If not, why? 2 (9) Did any decision-maker whose decision is contested, operate under a structural conflict-of-interest? (10) If any defendant interposes a defense of plaintiff’s alleged failure to exhaust administrative remedies, what does the alleged failure consists of? (11) Is this case subject to remand of the dispute to the plan administrator, or other decision-making entity? If not, explain why? (12) Does plaintiff claim any procedural shortcoming by defendant or defendants that may affect liability? If so, describe. (13) Has the Social Security Administration been involved in any way in the subject-matter of the case? If so, describe that involvement in detail along with the result. (14) Does plaintiff complain about the decision-maker’s interpretation of the plan language? If so, what is the difference in interpretation between the parties? (15) Does plaintiff complain about any of the plan administrator’s findings of fact (in contrast to conclusions reached upon such facts)? If so, in what respects? (16) Does any party believe that the liability question cannot be finally disposed of upon cross-motions by the parties on a written record? If not, explain why in detail. 3 (17) When should the case be ready for a final disposition, whether upon cross-motions or upon bench trial? (18) Does any party desire mediation? Upon receipt of the parties’ joint report, the court will set this case for a scheduling conference by separate order. 4
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION Plaintiff(s)., Choose an item., v. Defendant(s)., Choose an item.. Case No.: Case Number. SCHEDULING ORDER The court enters this order under Federal Rule of Civil Procedure 16(b) based on the parties’ report of a planning meeting. (Doc. __). This governs further proceedings in this action unless modified for good cause shown. 1. Pleadings and Parties: Unless the party’s pleading may be amended as a matter of course pursuant to Federal Rule of Civil Procedure 15(a), the party must file a motion for leave to amend. Such motion for leave to amend shall state, specifically, those matters the party wishes to add or delete and shall contain, attached as an exhibit, the complete and executed amended pleading, which is suitable for filing. The motion for leave to amend, with the attached amended pleading, shall be served in accordance with Federal Rule of Civil Procedure 5. No causes of action, defenses, or parties may be added after Click here to enter a date. as to plaintiff(s) and Click here to enter a date. as to defendant(s). 2. Discovery Limitations and Deadlines: a. Depositions: Maximum of __ by each party. Each deposition is limited to a maximum of 7 hours. Interrogatories: Requests for Production: Requests for Admission: Maximum of __ by any party directed to any other party. Maximum of __ by any party directed to any other party Maximum of __ by any party directed to any other party. b. Expert Testimony: Unless modified by stipulation of the parties, the disclosures of expert witnesses—including a complete report under Federal Rule of Civil Procedure 26(a)(2)(B) from any specially retained or employed expert—are due: From plaintiff(s): by Click here to enter a date. From defendant(s): by Click here to enter a date. c. Supplementation: Supplementation of disclosures and discovery under Federal Rule of Civil Procedure 26(e) is due within a reasonable period of time after discovery of such information, but all such supplementation shall be provided no later than 14 days before the close of discovery. d. Deadline: All discovery must be commenced in time to be completed by Click here to enter a date. 3. Discovery Motions: Before a party files a motion to compel, a motion to quash, or any other discovery-related motion, the party must seek leave of the court to file the motion. Counsel for the moving party must confer in person or by telephone with opposing counsel to attempt to resolve their disagreements regarding discovery requests. If the parties are unable to resolve their dispute in that manner, then the party filing the motion for leave of the court shall describe all efforts taken to resolve the disputed matter and shall certify in the motion that the parties conferred pursuant to this order and were unable to reach an agreement. If an attorney makes a good faith effort but is unable to contact opposing counsel, then the attorney shall describe in the motion the attorney’s efforts to contact and coordinate with opposing counsel. Failure to include a statement of the parties’ attempt to resolve the matter without the court’s intervention may 2 result in an automatic denial of the motion. The motion for leave of the court need only include the facts relevant to the dispute. Legal argument and/or legal citations are not necessary. If the motion for leave of the court is opposed, opposing counsel may file a response within three days. If the non-moving party does not file a response, then the court will consider the motion unopposed. If the court grants leave, the moving party must file the discovery motion within one day. The non-moving party must file a response to the discovery motion within seven days. 4. Dispositive Motions: All potentially dispositive motions and evidentiary submissions upon which a party will rely in support of the motion must be filed no later than Click here to enter a date. (2 months and 1 week after close of discovery). Briefs in support of dispositive motions must be filed within one business day of the filing of the dispositive motion and evidentiary submissions. All briefs filed in support of or opposition to dispositive motions must contain citations to the evidentiary record by CM/ECF document and page number. To the extent that a party responding to a dispositive motion relies on evidence that is not included in the moving party’s evidentiary submission, the responding party must file that evidence on or before the day the opposition brief is due. The parties must file and brief all dispositive motions consistent with Appendix II which is attached to the court’s initial order. The court recognizes that Appendix II addresses only motions for summary judgment. If the parties file a dispositive motion other than one for summary judgment, the parties must comply with Appendix II to the extent practicable. 5. Extensions: Parties requesting an extension of any deadline must file a motion at least one week before the deadline, and must show good cause for the extension. Good cause includes, at a minimum, a description of why the party or parties cannot meet the existing deadline. 3 6. Mediation: Unless a party objects, the court will enter an order referring the parties to mediation and setting a deadline by which mediation must occur. Objections to mediation should be included in the joint status report as described in paragraph seven. As a general rule, if the court refers the case to mediation, the court will not stay discovery and dispositive motion deadlines. The court has extended the deadline for dispositive motions in contemplation of mediation. 7. Joint Status Report: The parties shall file a joint status report on or before Click here to enter a date. (one month before the close of discovery). The status report should state whether the parties object to mediation and include enough information to allow the court to understand the nature of the case, its current status, including any pending motions, and any current or anticipated problems in preparing the case for trial. Specifically, the court should be advised of the pertinent issues and the parties’ positions as to those issues. The status report should not be used to argue the party’s case, or to present all possible legal theories; instead, the report should apprise the court of the case and current issues affecting trial preparation, including the status of critical discovery. 8. Status Conference: If the parties object to mediation in the joint status report, the court will set the case for a status conference approximately two weeks after the submission of the joint status report. If the parties do not object to mediation and the court refers them to mediation, the parties must submit, within a week of the completion of mediation, a joint status report informing the court whether mediation was successful. If mediation is not successful, the court will set a status conference by separate order. Additional conferences, including a pretrial conference, will be scheduled as needed by separate order. Due dates for lists of trial witnesses, exhibits, and objections under Federal Rule of Civil Procedure 26(a)(3) shall be established in a separate pretrial order. 9. Trial: The parties shall be ready for trial in Click here to enter a date., to be scheduled by separate order. 10. Oral Argument: If a party wants oral argument on motion, the party must clearly indicate that request in the motion. In the interest of exposing less 4 experienced attorneys to oral argument, the court will, in addition to its other considerations, take into consideration whether an attorney with less than five years’ experience will be arguing before the court. If the court grants the request for oral argument and one of the attorneys has less than five years’ experience, the court will give the parties additional time for argument in order to provide an experienced attorney the opportunity to supplement the less experienced attorney’s argument. 5
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA _____ DIVISION _____, Plaintiff(s), v. _____, Defendant(s). ] ] ] ] ] ] ] ] ] ] _______-ACA ERISA SCHEDULING ORDER The court has before it the ____, report of the parties’ planning meeting under Federal Rule of Civil Procedure 26(f), and discussed that report with counsel on _____________. Based on the court’s determination that such procedure is appropriate in this case, this case is set for final submission, without oral argument, on ______________. Any objection to this determination may be made by filing a Motion for Trial no later than __________________. I. Deadlines A. Deadlines to Amend Pleadings Plaintiff may amend pleadings and/or join additional parties, in accordance with Federal Rule of Civil Procedure 15, until ____. Defendant may amend pleadings and/or join additional parties, in accordance with Rule 15, until _____. B. Discovery If either party wishes to conduct discovery beyond the administrative record, that party shall file a motion requesting same on or before _____, citing appropriate authority as to why discovery should be allowed in this particular case and setting forth with specificity the discovery sought; any response should be filed by seven days thereafter. Failure to set forth the requested discovery with specificity OR to cite appropriate authority will result in the sua sponte denial of the motion. C. Record By ____ the parties are jointly to develop and electronically file with the court the Administrative Record and any other evidence including deposition excerpts, stipulations, affidavits,1 etc. (“the Record”) on which they intend the court to rely. Electronic filing should comply with court rules and file size restrictions as described in the Civil Administrative Procedures Manual for CM/ECF, which can be found in the CM/ECF Info tab at www.alnd.uscourts.gov, the court’s webpage. If the Record exceeds 15 pages, the parties shall also jointly submit an exact courtesy copy of the Record reflecting CM/ECF case number, 1 See Civil Administrative Procedures Manual for CM/ECF, Part II.C, with regard to electronically filing affidavits or other documents requiring an original signature. 2 document number, date, and page stamp on each page within three business days of electronic filing. The courtesy copy should begin with a table of contents and include tabs corresponding to each document listed on the table of contents. And the courtesy copy should be securely bond to prevent the inadvertent loss of pages. Ideally, it should be double sided to conserve paper. The parties shall comply with all privacy provisions described in the Civil Administrative Procedures Manual for CM/ECF and redact personal information from the filed documents. D. Joint Status Report Counsel shall file with the court a Joint Status Report on ____. The status report should include enough information to allow the court to understand the nature of the case, its current status, including any pending motions, and any current or anticipated problems in preparing the case for disposition. Specifically, the court should be advised of the pertinent issues and the parties’ positions as to those issues. The status report should not be used to argue the party’s case, or to present all possible legal theories. Instead, the report should apprise the court of the case and current issues affecting preparation. As part of the status report, parties should consider the prospects for settlement of this matter and shall report their efforts to do so. In addition, parties 3 shall notify the court whether they are agreeable to submitting this case to mediation conducted by a mediator from the panel of neutrals. II. Nondispositive Motions Responses to all nondispositive motions are due within five days of receiving notice of the motion. Failure to respond within five days will result in the court granting the motion. Parties must seek leave of the court before filing a motion about a discovery dispute. The motion for leave of the court must specify the nature of the discovery dispute and the steps the parties have taken to resolve that dispute. The motion need only include the facts relevant to the dispute. Legal argument and/or legal citations are not necessary. Discovery disputes will occasionally be referred to a magistrate judge for handling. Because decisions concerning discovery rest largely within the discretion of the judge, objections to a magistrate’s ruling on a discovery matter should rarely be made and will rarely be granted absent a clear showing that the decision was clearly erroneous or contrary to law. See 28 USC § 636. III. Briefs ALL briefs must comply with the following requirements, unless the court grants specific permission to deviate or the court has otherwise ordered specific 4 deviations. A. Format Initial and response briefs are limited to thirty-five pages. Reply briefs are limited to ten pages. Briefs that exceed twenty pages must include a table of contents that accurately reflects the organization of the document. The table of contents is not included in the page limit. The text of briefs must be double-spaced (except for quotations exceeding fifty words, which may be block indented from the left and right margins and single spaced) using fourteen point typeface, preferably Times New Roman. B. Binding The Clerk will not accept bound materials for filing, but the parties must securely bind the court’s “courtesy copy” of the brief in a three-ring binder or large clip for ease of use and to prevent inadvertent loss of pages. In addition, all pages submitted in the court’s “courtesy copy” shall be three-hole punched. Courtesy copies of briefs in Word format should be emailed to chamber’s email at [email protected] and must be identical to the filed version. C. Manner of Stating Facts All briefs submitted either in support of or opposition to the final submission must begin with a statement of allegedly undisputed relevant material facts set out 5 in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. Each statement of fact must be supported by specific reference to the CM/ECF document and page number of the evidentiary submissions. When the parties refer to evidence in their briefs, they must cite to the CM/ECF document and page numbers where the evidence can be found. The court may strike any brief that fails to comply with these requirements. DONE and ORDERED this ____ day of ____. 6
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA _____ DIVISION _____, Plaintiff(s), v. _____, Defendant(s). ] ] ] ] ] ] ] ] ] ] _______-ACA ERISA SCHEDULING ORDER The court has before it the ____, report of the parties’ planning meeting under Federal Rule of Civil Procedure 26(f), and discussed that report with counsel on _____________. Based on the court’s determination that such procedure is appropriate in this case, this case is set for final submission, without oral argument, on ______________. Any objection to this determination may be made by filing a Motion for Trial no later than __________________. I. Deadlines A. Deadlines to Amend Pleadings Plaintiff may amend pleadings and/or join additional parties, in accordance with Federal Rule of Civil Procedure 15, until ____. Defendant may amend pleadings and/or join additional parties, in accordance with Rule 15, until _____. B. Record By ____ the parties are jointly to develop and electronically file with the court the Administrative Record and any other evidence including deposition excerpts, stipulations, affidavits,1 etc. (“the Record”) on which they intend the court to rely. Electronic filing should comply with court rules and file size restrictions as described in the Civil Administrative Procedures Manual for CM/ECF, which can be found in the CM/ECF Info tab at www.alnd.uscourts.gov, the court’s webpage. If the Record exceeds 15 pages, the parties shall also jointly submit an exact courtesy copy of the Record reflecting CM/ECF case number, document number, date, and page stamp on each page within three business days of electronic filing. The courtesy copy should begin with a table of contents and include tabs corresponding to each document listed on the table of contents. And the courtesy copy should be securely bond to prevent the inadvertent loss of pages. Ideally, it should be double sided to conserve paper. The parties shall comply with all privacy provisions described in the Civil Administrative Procedures Manual for CM/ECF and redact personal information from the filed documents. 1 See Civil Administrative Procedures Manual for CM/ECF, Part II.C, with regard to electronically filing affidavits or other documents requiring an original signature. 2 C. Joint Status Report Counsel shall file with the court a Joint Status Report on ____. The status report should include enough information to allow the court to understand the nature of the case, its current status, including any pending motions, and any current or anticipated problems in preparing the case for disposition. Specifically, the court should be advised of the pertinent issues and the parties’ positions as to those issues. The status report should not be used to argue the party’s case, or to present all possible legal theories. Instead, the report should apprise the court of the case and current issues affecting preparation. As part of the status report, parties should consider the prospects for settlement of this matter and shall report their efforts to do so. In addition, parties shall notify the court whether they are agreeable to submitting this case to mediation conducted by a mediator from the panel of neutrals. II. Briefs ALL briefs must comply with the following requirements, unless the court grants specific permission to deviate or the court has otherwise ordered specific deviations. A. Format Initial and response briefs are limited to thirty-five pages. Reply briefs are 3 limited to ten pages. Briefs that exceed twenty pages must include a table of contents that accurately reflects the organization of the document. The table of contents is not included in the page limit. The text of briefs must be double-spaced (except for quotations exceeding fifty words, which may be block indented from the left and right margins and single spaced) using fourteen point typeface, preferably Times New Roman. B. Binding The Clerk will not accept bound materials for filing, but the parties must securely bind the court’s “courtesy copy” of the brief in a three-ring binder or large clip for ease of use and to prevent inadvertent loss of pages. In addition, all pages submitted in the court’s “courtesy copy” shall be three-hole punched. Courtesy copies of briefs in Word format should be emailed to chamber’s email at [email protected] and must be identical to the filed version. C. Manner of Stating Facts All briefs submitted either in support of or opposition to the final submission must begin with a statement of allegedly undisputed relevant material facts set out in separately numbered paragraphs. Counsel must state facts in clear, unambiguous, simple, declarative sentences. Each statement of fact must be supported by specific reference to the CM/ECF document and page number of the 4 evidentiary submissions. When the parties refer to evidence in their briefs, they must cite to the CM/ECF document and page numbers where the evidence can be found. The court may strike any brief that fails to comply with these requirements. DONE and ORDERED this ____ day of ____. 5
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA ______ DIVISION [Name(s) of plaintiff(s)] Plaintiff(s), v. [Name(s) of defendant(s)] Defendant(s). Civil Action No. ___ REPORT OF THE PARTIES’ PLANNING MEETING 1. The following persons participated in a Federal Rule of Civil Procedure 26(f) conference on <Date> by <State the method of conferring>: <Name>, representing the <plaintiff(s)> <Name>, representing the <defendant(s)> 2. Initial Disclosures. The parties [have completed] [will complete by <Date>] the initial disclosures required by Rule 26(a)(1). 3. Discovery Plan. The parties propose this discovery plan: <Use separate paragraphs or subparagraphs if the parties disagree.> (a) Discovery will be needed on these subjects: <Describe>. (b) to be <Dates for commencing and completing discovery, including discovery commenced or completed before other discovery.> <Maximum number of interrogatories by each party to another party, along with the dates the answers are due.> <Maximum number of requests for admission, along with the dates responses are due.> <Maximum number of depositions by each party.> (c) (d) (e) (f) (g) (h) <Limits on the length of depositions, in hours.> <Dates for exchanging reports of expert witnesses.> <Dates for supplementations under Rule 26(e).> 4. Other Items: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) <A date if the parties ask to meet with the court before a scheduling order.> <Requested dates for pretrial conferences.> <Final dates for the plaintiff to amend pleadings or to join parties.> <Final dates for the defendant to amend pleadings or to join parties.> <Final dates to file dispositive motions.> <State the prospects for settlement.> <Identify any alternative dispute resolution procedure that may enhance settlement prospects.> <Final dates for submitting Rule 26(a)(3) witness lists, designations of witnesses whose testimony will be presented by deposition, and exhibit lists.> <Final dates to file objections under Rule 26(a)(3).> <Suggested trial date and estimate of trial length.> <Other matters.> Date: <Date> Date: <Date> <Signature of the attorney or unrepresented party> ____________________________________ <Printed name> <Address> <E-mail address> <Telephone number> <Signature of the attorney or unrepresented party> ____________________________________ <Printed name> <Address> <E-mail address> <Telephone number> 2
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RU LIN G O N O BJECTIO N (if any) RU LIN G O N REO FFER I D E N T I F I E D R E C E I V E D R E C D . C O N D . O R L T D . EXHIBITS PLAINTIFF GOVERNMENT DEFENDANT COURT JOINT SUS O/R RES SUS O/R DESCRIPTION N O T O F F E R E D N U M B E R 1 2 3 4 5 6 7 8 9 0
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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION , Plaintiffs, Defendants. v. , } } } } } } } } } Case No.: Case Number. PRETRIAL SCHEDULING ORDER On _____, the court held a pretrial scheduling conference in this matter. Appearing at the conference were ___. Consistent with the discussion at the conference, the court SETS the following deadlines. I. Jury/Bench Trial The jury/bench trial will commence on ___. The trial is expected to take ___ days. II. Witnesses The parties must file witness lists on or before ____. 1. Live Witnesses a. Unless specifically agreed by the parties in writing or allowed by the court for good cause shown, the parties shall be precluded from offering substantive evidence through any witness not included on the party’s witness list. The listing of a witness does not commit a party to have that witness available at trial or to call that witness to testify, but it does preclude the party from objecting to the presentation of that witness’s testimony by another party. b. Objections to live witnesses are due on or before ____. c. Objections shall be stated with specificity and cite legal authority. Objections not made within such time, other than objections under Federal Rule of Evidence 402 and 403, shall be deemed waived in the absence of good cause shown. 2. Depositions a. The court will accept the parties’ written agreement to use a deposition at trial even though the witness is available. In the absence of such an agreement, parties must comply with Federal Rule of Civil Procedure 32. b. If a witness will be presented by deposition, the party designating that witness must provide the courtroom deputy and opposing counsel with an electronic, text searchable copy of the deposition with the proffered trial testimony highlighted. This submission shall be made at the same time as the filing of the witness list. c. An opposing party may serve an objection to the use of deposition testimony under Federal Rules of Civil Procedure 32 or 26(a)(3)(B), a list of additional pages of the deposition to be used, and/or objections to specific designations on or before ____. d. Objections shall be stated with specificity and cite legal authority. Objections not made within such time, other than objections under Federal Rule of Evidence 402 and 403, shall be deemed waived in the absence of good cause shown. 3. Videotape Depositions Where a party wishes to present deposition testimony by videotape at trial, it must follow the procedure set out above in § 2. Once cross designations and objections are resolved, the party offering the videotape at trial shall edit the video to include only those portions of the deposition the jury will view. The final video exhibit shall be produced to opposing counsel the Thursday before trial. Any objections to the final video should be presented to the court the Friday before trial. 4. Bench Trials In a non-jury trial, depositions offered as a trial exhibit shall attach to the front of the exhibit a summary of what each party intends to prove by the deposition 2 testimony with citations to the line and page. The exhibit shall highlight all lines proffered by any parties. III. Exhibits 1. Pretrial Exhibit Lists All parties must file exhibit lists using the court approved form (Word version available on the court website at http://www.alnd.uscourts.gov/clerks-office-forms) on or before ____. A description of a document on an exhibit list is provided only for identification; it is not an admission or otherwise evidence regarding the document. The court urges counsel to be judicious in determining which documents are relevant to necessary elements of the case. Objections to exhibit lists must be filed on or before ____. Objections shall be stated with specificity and cite legal authority. The relevant evidence upon which the objection is based shall be attached to the objection as an exhibit. The parties are reminded that the Judiciary’s privacy policy restricts the publication of certain personal data in documents filed with the court. The policy requires limiting Social Security and financial account numbers to the last four digits, using only initials for the names of minor children, and limiting dates of birth to the year. The parties are reminded that they will not be allowed to use at trial any exhibit not disclosed in accordance with Federal Rules of Civil Procedure 26(a) or 26(e), unless the failure was substantially justified or the offering party can show that its failure to disclose was harmless. See Fed. R. Civ. P. 37(c)(1). 2. Demonstratives Demonstratives do not need to be included on a party’s pretrial exhibit list. Plaintiff’s demonstratives will be identified with the prefix “PD,” starting with PD- 1. Defendant’s demonstratives will be identified with the prefix “DD,” starting with DD-1. Except in the case of closing demonstratives, parties must exchange all demonstratives by 6:30 p.m. the Wednesday before trial. Any objections must be served within 24 hours. The parties must attempt to resolve objections through a meet and confer. If there are still outstanding objections, the objecting party must 3 file a motion no later than 9:00 a.m. Friday morning. The parties must provide an exact color copy of the demonstrative as an exhibit to any motion filed. In the case of closing demonstratives, parties must exchange demonstratives by 6:30 p.m. the night before the session in which they will be used. Any objections must be served by 8:30 p.m. The parties must attempt to resolve objections through a meet and confer. If there are still outstanding objections, the objecting party must file a motion no later than 6:00 a.m. the following morning. The parties must provide the demonstrative as an exhibit to the motion. 3. Joint Trial Exhibit List Counsel shall be prepared to argue all outstanding objections at the pretrial conference. The parties shall provide two flash drives containing a joint trial exhibit list and separate files consisting of each premarked exhibit to the Courtroom Deputy contemporaneously with the submission of their proposed pretrial order. The Trial Exhibit List shall comply with § IV of the Civil Administrative Procedures Manual for CM/ECF (https://www.alnd.uscourts.gov/sites/alnd/files/AL-N%20Civil%20 Administrative%20Procedures%20Manual.Revision.05-18-2021.pdf) and Judge Axon’s trial exhibit list requirements contained in Attachment A. The parties shall also send a Word version of the trial exhibit list to the chambers inbox at [email protected]. 4. Motions in Limine Motions in limine must be filed on or before ____ Each motion must be accompanied by a supporting memorandum. The court expects the parties to file a separate motion in limine for each issue or piece of evidence a party seeks to exclude. The parties should not file an omnibus motion. If the court would need to review the evidence to rule on a motion in limine, the party seeking exclusion must attach the evidence that the party seeks to exclude. As to each matter counsel seeks to exclude, counsel shall indicate whether the exclusion is “opposed” or “unopposed” by counsel for the other side. Parties must meet and confer about their opposition to each motion in limine. Parties are encouraged to resolve evidentiary issues by stipulation whenever possible. Responses in opposition to the motions in limine must be filed on or before ____. 4 Within three days after briefing is complete, the parties must jointly provide the court with an electronic file with separate folders containing text searchable copies of: (1) a motion in limine; (2) the response to that motion in limine; and (3) any corresponding exhibits separated by exhibit slipsheets. 5. Damages On or before ___, each party claiming or seeking damages or equitable relief must file a list itemizing all damages and equitable relief being claimed or sought. The list must show the amount requested and, where applicable, the method and basis of computation. Any objections to damages must be filed within two weeks of service. 6. Sealed Evidence If a party anticipates presenting evidence that they contend must be sealed, the parties must file a notice notifying the court on or before ____. If the court has previously sealed the evidence in the case (e.g., as part of the summary judgment evidentiary record), the parties should include that information in their notice to the court but do not have to provide unredacted versions of the documents again. Where a party has not previously moved to seal the evidence in the case, the party should file a motion to seal on or before ____________ and provide chambers with a copy of the exhibit without any redaction. The party moving to seal the exhibit must follow the procedure outlined in the Civil Administrative Procedures Manual for CM/ECF (https://www.alnd.uscourts.gov/sites/alnd/files/AL-N%20Civil%20 Administrative%20Procedures%20Manual.Revision.05-18-2021.pdf). All parties are reminded that there is a presumptive constitutional public right of access to judicial records. Comm’r, Ala. Dep’t of Corr. v. Advance Loc. Media, LLC, 918 F.3d 1161, 1166 (11th Cir. 2019); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001). The parties cannot overcome that presumption by agreeing in a protective order, or through an unopposed motion to seal, that the document may be filed under seal. See, e.g., Advance Loc. Media, LLC, 918 F.3d at 1166. Nor does a designation of a document as confidential, standing alone, sustain the burden of establishing good cause. To overcome the presumption, the party moving to seal must established that good cause warrants sealing the record. See id. at 1169; Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1363 (11th Cir. 2021). Objections are to a motion to seal are due on or before ____. 5 IV. Jury Charges and Verdict Form On or before ____, the parties shall file a single, joint proposed jury charge, including all necessary instructions, or definitions applicable to the specific issues of the case. a. Each requested instruction must be numbered and presented on a separate sheet of paper with authority cited. b. In their joint proposed jury materials, counsel are to include all necessary instructions or definitions, specifically including: (1) the elements of each cause of action and defense asserted; (2) legal definitions required by the jury; (3) items of damages; and (4) methods of calculation of damages. Counsel are to use the Eleventh Circuit Pattern Jury Instructions, or appropriate state pattern jury instructions, as modified by case law or statutory amendments, wherever possible. Any deviations must be identified and accompanied with legal authorities for the proposed deviation. c. Even if the parties, in good faith, cannot agree on all instructions, definitions or questions, the parties should nonetheless submit a single, unified charge. Each disputed instruction, definition, or question should be set out in bold type, underlined or italicized, and identified as disputed. Each disputed item should be labeled to show which party is requesting the disputed language. Accompanying each instruction shall be all authority or related materials upon which each party relies. The parties shall email the unified charge in Word format, to the chambers email address at [email protected]. d. Together with the joint proposed jury charge, the parties must file a joint proposed verdict form. The court expects that shortly after the close of evidence, the parties will submit any amendments to the proposed jury charge and verdict form required by the evidence presented at trial. V. Proposed Voir Dire Questions The court conducts a preliminary voir dire before the parties’ voir dire. To assist with this process, the parties should provide the court with a list of people, places, and institutions that are likely to be mentioned during the trial. The questions posed by the court are contained in Attachment B. To the extent that the parties all agree on additional, more specific questions they would like the court to ask, the questions should be submitted on the Friday before trial by 5:00 p.m. 6 VI. Final Pretrial Conference The court sets a final pretrial conference for ____. During the pretrial conference, the parties shall be prepared to present argument on all outstanding motions and objections. Within two days after the pretrial conference, the parties shall submit to the chambers email address at [email protected] a proposed pretrial order in Word format that substantially complies with the draft pretrial order contained in Attachment C . VII. Trial Briefs To the extent necessary, the court will grant leave to file a trial brief at the pretrial conference. VIII. Guidelines for Conduct of Trials The parties must read and comply fully with each provision contained in Attachment D – Guidelines for Conduct of Trials. DONE and ORDERED this 7 Attachment A JUDGE AXON’S TRIAL EXHIBIT LIST REQUIREMENTS Judge Axon requires that all parties submit a joint exhibit list to be used at trial. Please be sure to: 1. Number each exhibit sequentially. 2. The numbers for each exhibit should be assigned in the following order: a. Exhibits to which admission is stipulated; b. Plaintiff’s exhibits; c. Defendant’s exhibits. 3. Mark each exhibit as follows: Case Number [Date] Jury Trial Exhibit No. ____ 4. Prepare a PDF of each individual exhibit. Two flash drives containing individual PDFs of each exhibit, named according to its exhibit number, should be provided to the courtroom deputy on the day the parties submit their proposed pretrial order. Attachment B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA DIVISION , Plaintiffs, Defendants. v. , } } } } } } } } } Case No.: VOIR DIRE The court will ask the following questions to each member of the venire: 1. Community/City where you presently live a. Other communities where you have lived in the past 5 years 2. Present Employment a. Name of Employer b. Where c. What Duties d. How Long Employed e. Other Employment in the last 5 years 9 3. Education 4. Marital Status a. Spouse’s Employment b. What Duties c. How long 5. Adult Children within Northern District a. Employment b. Spouse/Spouse’s Employment 6. Your experience as a PARTY in a court case a. Defendant/Plaintiff b. Jury Verdict 7. Your experience as a WITNESS in a court case a. Type of case b. Defense/Plaintiff c. Year 8. Your experience as a JUROR in a court case a. Type of case b. Defense/Plaintiff c. Year 9. Typical source of news 10 10. Do you have a bumper sticker on your car? a. Describe bumper sticker 11. Are you a member of an organization or club that is not affiliated with your employment/profession? a. Name of organization b. Leadership roles 12. Anyone related by blood or marriage to the Plaintiff? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Plaintiff?) a. Does anyone know the Plaintiff? 13. Anyone related by blood or marriage to the Plaintiff’s counsel? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Plaintiff’s counsel?) a. Does anyone know Plaintiff’s counsel? 14. Anyone related by blood or marriage to the Defendant? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Defendant?) a. Does anyone know the Defendant? 11 15. Anyone related by blood or marriage to Defendant’s counsel? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Defendant’s counsel?) a. Does anyone know Defendant’s counsel? 16. Have you or anyone in your immediate family been represented by any of the attorneys here? 17. Have you or anyone in your immediate family retained [the attorneys’ law firms]? 18. Anyone who knows me? 19. Is there anyone here who knows of any reason why you cannot be fair to both sides? 20. [insert questions any party wishes the court to ask and to which there are no objections] 12 Attachment C UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION , Plaintiffs, Defendants. v. , } } } } } } } } } Case No.: Case Number. PRETRIAL ORDER The court held the final pretrial conference in this case on ____. Consistent with the discussions held on the record at the conference, the court ENTERS the following rulings. 1. Parties and Trial Counsel. Any remaining fictitious parties are hereby STRICKEN. The parties and designated trial counsel are correctly named as set out below: [Include a line and designation for each party in the case.] Parties: Trial Counsel: [Name of the Plaintiff(s] [Name of Counsel] [Name of the Defendant(s)] [Name of Counsel] 2. Nature of the Action, Jurisdiction and Venue. 13 (a) The nature of this action is as follows: [For example, employment discrimination; Fair Labor Standard Act, breach of contract, etc.] (b) The court has subject matter jurisdiction of this action under [List each statute, rule or case claimed to authorize the court’s subject matter jurisdiction in this action]. (c) All jurisdictional and procedural requirements prerequisite to maintaining this action [have/have not] been met. (d) Personal jurisdiction and/or venue [are/are not] contested. [If personal jurisdiction or venue is contested, briefly set out the relevant arguments.] 3. Pleadings. The following pleadings have been allowed: [List pleadings in the order in which they were filed and allowed. Do not include pleadings that have been stricken or otherwise disallowed. See Fed. R. Civ. P. 7(a) for a list of allowable pleadings.] 4. Statement of the Case. [Taken from statement of facts submitted by parties before pretrial scheduling conference] 5. Contentions of the Parties [Taken from the contentions submitted by parties before the pretrial scheduling conference .] (a) Plaintiff’s Contentions (b) Defendant’s Contentions 6. Stipulated Facts The parties stipulate to the facts set out in Exhibit A to this Pretrial Order. [In a separate document identified as Exhibit A, please separate out each stipulated fact in numbered paragraphs. These facts will be read to the jury in advance of opening argument] 14 7. Trial Exhibit List. Consistent with § III(3) of the Pretrial Scheduling Order, a thumb drives containing a .pdf document of the joint trial exhibit list and a separate file for each premarked exhibit has been submitted to the Courtroom Deputy. Additionally, a Word version of the joint trial exhibit list has been submitted to chambers via email. The joint trial exhibit list is incorporated here by reference. 8. Witness List [identify all witnesses and separate into the following categories] (a) Live Witnesses (b) Deposition Testimony (c) Video Deposition 9. Damages The damages sought in this action are as follows: [using the same format as plaintiff’s initial damages submission, provide the list of damages and equitable relief claimed with any necessary revisions to reflect rulings made during the pretrial conference]. 10. Proposed Jury Instructions. The proposed jury instructions are set out in Exhibit B. The parties reserve all objections set out therein. 10. Voir Dire Questions. The parties do not object to the court asking the questions set out in Exhibit C during voir dire. [Exhibit C should include all questions set out in Attachment B to the pretrial scheduling order along with any additional questions the parties agree on] DONE and ENTERED this ____ 15 Attachment D GUIDELINES FOR CONDUCT OF TRIALS These guidelines reflect the standard practices of this court in the trial of cases. They do not alter the rules of civil or criminal procedure, the rules of evidence, or local rules. 1. Hours. Trials ordinarily commence at 9:00 a.m. and continue until approximately 5:00 p.m., Mondays through Fridays. a. Punctuality. You, your client, and your witnesses should be present and ready to proceed promptly at the appointed time, both at the beginning of the day and after recesses. Counsel should be present at the courthouse at least 30 minutes before the beginning of each trial day to avoid delays and to be available to discuss unanticipated problems. b. Recesses. A witness whose examination has not been completed at the time of a recess or adjournment should be back in the witness box at the time trial is scheduled to resume. c. Requests for changes. Make known to the court as soon as can be anticipated any requests for changes in the trial schedule, including those relating to religious holidays or arising because of unavailability of witnesses. d. Conferences. In jury cases, the judge may hold a brief conference in chambers at the end of the trial day or before the trial commences or resumes, or both, at which time counsel can discuss the schedule of witnesses and documents and any anticipated evidentiary problems. Alert the court reporter if you want to have some motion, argument, proffer, or other matter placed on the record during the conference. e. Settlement discussions. Although settlements should occur to the extent possible before the trial is scheduled to begin, counsel are encouraged to discuss settlement as the trial progresses. These discussions should, however, ordinarily be conducted 16 during recesses and adjournments. Do not assume that the court will delay the start or resumption of trial for such discussions. Advise the court if at any point you believe the court's assistance might be helpful in arriving at a settlement. 2. Selection of jury. a. Voir Dire. At the conclusion of general voir dire by the court, counsel will be allowed 20 minutes per party to conduct their own voir dire. b. Size. The size of the jury in civil trials ranges from six to twelve, taking into account such factors as the expected length of trial and the number of jurors available for that and other scheduled trials. Absent special agreement by the parties, only a unanimous verdict of all selected jurors not excused or discharged for good cause may be received. c. Peremptory challenges. The number of peremptory challenges to be allowed will depend upon (1) the number of jurors not excused or challenged for cause and (2) the size of the jury to be selected. For example, if 18 jurors remain after any challenges for cause, the court might allow each side five peremptory challenges to select a jury of 8 or might allow each side four peremptory challenges to select a jury of 10. Peremptory challenges are exercised by indicating on a form (provided by the court) the name and juror number of the person(s) so challenged. When completed, these forms are shown to the court and opposing counsel at the bench, outside the hearing of the panel; at this time, the court can consider any "Batson" issues. Subject to consideration of any "Batson" issues, the peremptory challenges shown on the lists will be accepted by the court. Jurors not peremptorily challenged by either side will, in the order in which they were presented, be deemed as selected, up to the number of jurors previously determined by the court. As an example, for a jury of eight, the first 8 jurors not peremptorily challenged by either side will constitute the jury. 17 3. Opening statements. Opening statements are limited to 20 minutes per party. Although a description of the basic claims and defenses and of the principal factual disputes between the parties is usually helpful, do not be argumentative and do not in jury cases refer to disputes about questions of law. In non-jury cases, opening statements are frequently omitted or limited to stating what claims and defenses are being pursued and what witnesses will be called. 4. Witnesses. Cooperative witnesses not immediately needed should, to the extent practical, be placed “on call.” However, you remain responsible for having sufficient witnesses available in court so that, absent developments that could not have been reasonably anticipated, the trial may proceed during the normal trial hours without the need for adjournments or lengthy recesses to obtain further witnesses. Since defendants should be ready to proceed with their evidence promptly at the conclusion of the plaintiff’s presentation, plaintiff’s counsel should keep defendants’ counsel advised as to when they expect to complete their presentation of evidence. of another witness a. Order. Counsel are expected to cooperate in resolving scheduling problems, including agreement in most circumstances for a witness to be called out of the normal order, even if the testimony interrupted. Such accommodations are the norm for physicians and other similar professionals called as witnesses and may be appropriate for other witnesses with personal, family, or occupational conflicts. Counsel are also expected to cooperate in placing "on call" those employees of another party whose absence would disrupt such party's normal business activities. is b. Production. Do not ask opposing counsel to produce a witness or a document in a way that might suggest to the jury that such counsel would be concealing evidence if the witness or document is not produced. Address such requests to opposing counsel (or, if necessary, to the court) in a manner that will not be heard by the jury. c. Oaths. The courtroom deputy ordinarily administers an oath/affirmation to the witnesses and immediately asks their name and place of residence. If you know that the standard questions might be inappropriate (for example, the witness is in 18 prison), so advise the deputy before the witness is called to the stand. d. Release. Witnesses should be released from further attendance or subpoena as soon as they are no longer needed. After testifying, a witness shall be deemed as released by consent unless counsel or the court indicates that the witness should not be so excused. You should not consent to release of a witness if you will later offer in evidence a prior inconsistent statement about which the witness was not examined or if you wish to make a proffer of testimony of that witness to which an objection was sustained. e. Exclusion. Requests under Federal Rule of Evidence 615 for exclusion of witnesses from the courtroom should be made before examination of the first witness begins, preferably before opening statements. Be alert for witnesses arriving during trial and inadvertently coming into the courtroom. Although the Rule does not prevent talking with excluded witnesses during recesses about their expected testimony, do not in such discussions disclose the courtroom testimony given by other witnesses. After testifying and provided they will not be recalled, witnesses are no longer subject to the Rule and may remain in the courtroom. 5. Examination of witnesses. Absent physical disabilities, examination of a witness should ordinarily be conducted while the witness is seated in the witness box and counsel is standing at the lectern. a. Approaching clerk’s desk or witness box. Permission of the court to approach the clerk’s desk or the witness box is not necessary if for the purposes of submitting or obtaining an exhibit, handing an exhibit to the witness, or conducting examination about an exhibit when counsel needs to be next to the witness during the examination. Return to the lectern after such examination is finished. b. Other locations. Request permission of the court if you wish the witness to step from the witness box (for example, to display an injury, to prepare a sketch, or to identify objects in a photograph). Assist the court in assuring that your voice and that 19 of the witness are sufficiently loud to be heard and that opposing counsel’s view is not obstructed. c. Depositions. As you use or read from a deposition, indicate the page and line number of the starting and stopping points. Colloquies and objections of counsel should ordinarily be omitted, as should questions that are rephrased or changed prior to the answer being given. When the deposition refers to an exhibit, counsel may, in addition to the identification used in the deposition, indicate the exhibit number used during the trial. Persons asked to read the deponent's testimony should do so fairly and impartially. Depositions are not ordinarily read aloud in non- jury cases; you should submit to the court well before the trial is completed a list of the portions you want the court to read. d. Harassment. Treat witnesses with courtesy, even when conducting vigorous impeachment. Do not shout at, ridicule, harass, or unfairly embarrass a witness. Use temperate language when requesting the court's assistance to control or direct a witness who is giving unresponsive or argumentative answers. 6. Objections. Rise before (or as) you object; this draws the attention of the court and other counsel to you and should alert the witness not to answer until your objection is ruled upon. While standing, state that you are objecting and specify concisely the ground(s) of your objection (for example, “hearsay,” “irrelevant,” “lack of personal knowledge,” “leading question”). Do not make a speech or argument to the jury. Do not disparage opposing counsel or the witness. Do not attempt to summarize other evidence. Do not suggest an answer to the witness. a. Response by offeror. The person who asked the question should not interrupt the person making the objection except to withdraw the question or if the objection itself is being made in an improper manner (for example, as an argument to the jury or to suggest an answer to the witness). After the objection has been stated, you may indicate if the evidence is being offered only for a limited purpose or only against certain parties. b. Argument on the objection. Neither counsel should present arguments regarding the objection unless authorized or invited 20 by the court. If you wish to be heard in argument, request the court’s permission. c. Continuing objection. In some circumstances you may be allowed to have a “continuing objection” to a particular line of inquiry, and therefore, you may not have to repeat your objection to a series of questions. Typically, this occurs when your objection on the grounds of relevancy is overruled and you wish to make a relevancy objection to further questions on the same subject. d. Anticipating evidentiary problems. Evidentiary questions which may involve extended discussion and argument should be anticipated and called to the court’s attention at the start or end of the trial day so that the question can be adequately considered without having to interrupt the trial schedule. 7. Special equipment. Audio-visual equipment should be brought into the courtroom and tested before or after trial hours or during a recess. You are responsible for seeing that the trial is not substantially delayed while such equipment is being set up. Make arrangements with the courtroom deputy if you need special access to the courtroom. 8. Closing arguments. Unless otherwise allowed by the court, closing arguments are limited to 30 minutes to the side. Counsel for the party having the burden of proof shall be the first to present closing argument and may reserve a portion of the allotted time (not in excess of initial time taken) to respond to the other parties’ arguments. A party seeking damages and who is permitted to divide its time of argument should address both liability and damages issues in its initial argument. Do not express your own personal opinions about the facts. Do not invite jurors to return a verdict as if they were in the position of one of the parties. You may leave the lectern, but keep your voice sufficiently loud to be heard by other counsel, the judge, and the court reporter. 9. Instructions. Persons are not ordinarily permitted to enter or leave the courtroom during the time the court is instructing the jury. The court will provide counsel with an opportunity to present objections or exceptions to the instructions outside the hearing of the jury and before the deliberations begin either at the bench or after excusing the jurors from the courtroom. Counsel are expected to 21 remain in general attendance at the courthouse while the jury is deliberating; the failure to do so may be treated as a waiver of any right to object should the jury request and be given supplemental instructions. 10. Other Matters of Proper Decorum and Conduct. a. Do not argue with or disparage other counsel in the hearing of the jury. In most situations, the court's permission should be obtained before counsel engage in dialogue between themselves in the courtroom. Side comments between counsel should be limited to situations in which such conversations are intended to facilitate the fair and efficient conduct of the trial and not for any tactical advantage; they should, moreover, be done in a respectful and courteous manner that does not detract from the dignity of the proceedings. In-court offers to stipulate should ordinarily be made only if previously agreed upon or if counsel has reason to believe the offer would have been accepted if made outside the courtroom. b. All should rise and remain standing and quiet while court is being formally opened. Counsel should rise and remain standing while examining a witness, making an objection, presenting a motion, request, or argument, or otherwise addressing the court. At other times while court is in session, remain seated. c. Address or refer to witnesses or other parties using their surname. d. While opposing counsel is presenting a matter to the court or the jury or is examining a witness, other counsel and their clients or associates should not engage in conversation or activity at counsel table or otherwise move about the courtroom in a manner that might be distracting. e. Indicating agreement and disagreement. No one should by words, facial expressions, or other conduct indicate personal agreement or disagreement with what is being said by the court, the jury, an attorney, or a witness. Counsel are responsible for 22 assuring that their clients and the friends or supporters of their clients are warned about such behavior. f. Attendance. Parties are not required to remain in continuous attendance during civil trials. To facilitate arranging for the attendance of witnesses and procuring documents, attorneys may, without need for permission from the court, enter and leave the courtroom during the trial from time to time if their client remains represented by co-counsel. Such movements should, however, be done in an unobtrusive and non-distracting manner. Paralegals not expected to testify may, without the need for special permission from the court, be inside the railing to assist counsel. g. Findings under Federal Rule of Evidence 104(a). Do not disclose to the jury in any manner the findings of the court made under Federal Rule of Evidence 104(a) in connection with questions of admissibility. For example, do not argue to the jury that you were allowed to present evidence of A’s statement because the court found under Federal Rule of Evidence 801(d)(2)(E) that A and B were engaged in a conspiracy. Similarly, do not ask in the presence of the jury for the court to “recognize” a witness as an “expert” or as “hostile.” h. Smoking, eating, and drinking. Smoking, eating, and drinking (other than water) are never permitted in the courtrooms. telephones; i. Cellular recording devices. Keep cellular telephones in an “off” position while in the courtroom. Recording devices may be used in the courthouse only with express permission of the court. 23
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Attachment B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA DIVISION , Plaintiffs, Defendants. v. , } } } } } } } } } Case No.: VOIR DIRE The court will ask the following questions to each member of the venire: 1. Community/City where you presently live a. Other communities where you have lived in the past 5 years 2. Present Employment a. Name of Employer b. Where c. What Duties d. How Long Employed e. Other Employment in the last 5 years 3. Education 4. Marital Status a. Spouse’s Employment b. What Duties c. How long 5. Adult Children within Northern District a. Employment b. Spouse/Spouse’s Employment 6. Your experience as a PARTY in a court case a. Defendant/Plaintiff b. Jury Verdict 7. Your experience as a WITNESS in a court case a. Type of case b. Defense/Plaintiff c. Year 8. Your experience as a JUROR in a court case a. Type of case b. Defense/Plaintiff c. Year 9. Typical source of news 2 10. Do you have a bumper sticker on your car? a. Describe bumper sticker 11. Are you a member of an organization or club that is not affiliated with your employment/profession? a. Name of organization b. Leadership roles 12. Anyone related by blood or marriage to the Plaintiff? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Plaintiff?) a. Does anyone know the Plaintiff? 13. Anyone related by blood or marriage to the Plaintiff’s counsel? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Plaintiff’s counsel?) a. Does anyone know Plaintiff’s counsel? 14. Anyone related by blood or marriage to the Defendant? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Defendant?) a. Does anyone know the Defendant? 15. Anyone related by blood or marriage to Defendant’s 3 counsel? (If Corp., is anyone or their immediate family an officer, director, stockholder, or employee of Defendant’s counsel?) a. Does anyone know Defendant’s counsel? 16. Have you or anyone in your immediate family been represented by any of the attorneys here? 17. Have you or anyone in your immediate family retained [the attorneys’ law firms]? 18. Anyone who knows me? 19. Is there anyone here who knows of any reason why you cannot be fair to both sides? 20. [insert questions any party wishes the court to ask and to which there are no objections] 4
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Attachment C UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA Choose an item. DIVISION , Plaintiffs, Defendants. v. , } } } } } } } } } Case No.: Case Number. PROPOSED PRETRIAL ORDER The court held the final pretrial conference in this case on ____. Consistent with the discussions held on the record at the conference, the court ENTERS the following rulings. 1. Parties and Trial Counsel. Any remaining fictitious parties are hereby STRICKEN. The parties and designated trial counsel are correctly named as set out below: [Include a line and designation for each party in the case.] Parties: Trial Counsel: [Name of the Plaintiff(s] [Name of Counsel] [Name of the Defendant(s)] [Name of Counsel] 2. Nature of the Action, Jurisdiction and Venue. (a) The nature of this action is as follows: [For example, employment discrimination; Fair Labor Standard Act, breach of contract, etc.] (b) The court has subject matter jurisdiction of this action under [List each statute, rule or case claimed to authorize the court’s subject matter jurisdiction in this action]. (c) All jurisdictional and procedural requirements prerequisite to maintaining this action [have/have not] been met. (d) Personal jurisdiction and/or venue [are/are not] contested. [If personal jurisdiction or venue is contested, briefly set out the relevant arguments.] 3. Pleadings. The following pleadings have been allowed: [List pleadings in the order in which they were filed and allowed. Do not include pleadings that have been stricken or otherwise disallowed. See Fed. R. Civ. P. 7(a) for a list of allowable pleadings.] 4. Statement of the Case. [Taken from statement of facts submitted by parties before pretrial scheduling conference] 5. Contentions of the Parties [Taken from the contentions submitted by parties before the pretrial scheduling conference .] (a) Plaintiff’s Contentions (b) Defendant’s Contentions 6. Stipulated Facts The parties stipulate to the facts set out in Exhibit A to this pretrial order. [In a separate document identified as Exhibit A, please separate out each stipulated fact in numbered paragraphs. These facts will be read to the jury in advance of opening argument] 7. Trial Exhibit List. Consistent with § III(3) of the pretrial scheduling order, a thumb drives containing a .pdf document of the joint trial exhibit list and a separate file for each premarked exhibit has been submitted to the courtroom deputy. Additionally, a Word version of the joint trial exhibit list has been submitted to chambers via email. The joint trial exhibit list is incorporated here by reference. 8. Witness List [identify all witnesses and separate into the following categories] (a) Live Witnesses (b) Deposition Testimony (c) Video Deposition 9. Damages The damages sought in this action are as follows: [using the same format as plaintiff’s initial damages submission, provide the list of damages and equitable relief claimed with any necessary revisions to reflect rulings made during the pretrial conference]. 10. Proposed Jury Instructions. The proposed jury instructions are set out in Exhibit B. The parties reserve all objections set out therein. 10. Voir Dire Questions. The parties do not object to the court asking the questions set out in Exhibit C during voir dire. [Exhibit C should include all questions set out in Attachment B to the pretrial scheduling order along with any additional questions the parties agree on] DONE and ENTERED this ____
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA ___________________ DIVISION TRIBUNAL DE DISTRITO DE LOS ESTADOS UNIDOS DE AMERICA DISTRITO NORTE DE ALABAMA DIVISIÓN _________________ UNITED STATES OF AMERICA, Estados Unidos de América, vs. ___________________________________ , Defendant. Acusado(a). Case No. CR- ________________________ ) Causa Nro. GUILTY PLEA ADVICE OF RIGHTS CERTIFICATION BILINGUAL (ENGLISH/SPANISH) VERSION[1] CERTIFICACIÓN DE NOTIFICACIÓN DE DERECHOS PARA DECLARACIONES DE CULPABILIDAD VERSIÓN BILINGÜE (INGLES/ESPAÑOL) INSTRUCTIONS TO COUNSEL Prior to the offer of a plea of guilty, counsel for the defendant, with the aid of a certified Spanish interpreter, must personally discuss, in detail, each of the following matters with the defendant, and, must indicate compliance in the appropriate places on this form. 2 This revised form is lengthy. You will need at least one hour to thoroughly review it with the defendant. Therefore, counsel must arrange his or her schedule to meet with the defendant and a certified Spanish interpreter well in advance of the plea proceeding. The court prefers that compliance be indicated by instructing the defendant to inscribe his or her initials in the appropriate places on this form. Once completed, the form shall be filed in open court, at the beginning of the plea proceeding. Antes de la audiencia de declaración de culpabilidad el abogado deberá repasar personalmente y en detalle cada uno de los siguientes párrafos con el (la) acusado (a) con la ayuda INDICACIONES AL ABOGADO 1 The English text of this form was approved for use in the United States District Court for the Northern District of Alabama on Aug. 21, 2003, and the Spanish translation was approved by the Administrative Office of United States Courts on Dec. 15, 2003. DO NOT USE ANY EARLIER VERSION. 2 This refers to a Spanish-speaking interpreter certified by the Administrative Office of United States Courts, W ashington, D.C. (hereinafter, “certified Spanish interpreter). Page 1 of 17 de un intérprete certificado en español y deberá indicar el cumplimiento de este requisito en los lugares apropiados en este formulario. Este formulario es bastante largo y tomará por lo menos una hora repasarlo punto por punto con el (la) acusado (a). El abogado deberá hacer todos los arreglos necesarios para reunirse con su cliente y un intérprete certificado en español, con suficiente antelación a la fecha fijada para la audiencia de declaración de culpabilidad. Para indicar el cumplimiento con los requisitos de la sala pídale al acusado (a) que coloque sus iniciales en los espacios apropiados en este formulario. El formulario completado será presentado en actas antes del inicio de la audiencia de declaración de culpabilidad. A. Preliminary Matters / Asuntos Preliminares 1. I understand that I will be placed under oath and, accordingly, that my answers to the court’s questions and any statement I make during the plea proceeding will be subject to the penalties for perjury or for making a false statement. I further understand that, if I should willfully be untruthful, I may be prosecuted in a separate proceeding for perjury and, if convicted, could receive a separate and distinct sentence. Comprendo que seré juramentado, por lo tanto, mis respuestas a las preguntas de la sala y cualquier declaración que yo preste durante la audiencia de declaración de culpabilidad estarán sujetas a las penas por perjurio o por dar una declaración falsa. Ademas, comprendo que si a sabiendas respondo con una falsedad podré ser encausado por separado por perjurio, y si soy condenado, podría recibir una pena separada y a parte. Done: ____________ Hecho: ___________ 2. I understand that I may be asked to state my age, date of birth, the extent of my education or schooling, and whether I can read, write, and understand either the English language or the Spanish language. Comprendo que me podrían pedir que diga mi edad, fecha de nacimiento, y hasta que nivel cursé mis estudios , y si sé leer, escribir y entender el inglés o español.3 Done: ____________ Hecho: ___________ 3 The Castilian language. La lengua castellana. Page 2 of 17 3. I understand that I may be asked whether I have any physical or mental defect that makes it more difficult for me to hear clearly, or to understand anything that is said to me. Comprendo que me podrían preguntar si sufro de alguna condición física o mental que me dificulte o impida oír o entender claramente cualquier cosa que me digan. Done: ____________ Hecho: ___________ 4. I understand that I may be asked whether I recently have been treated for any mental illness or addiction to narcotic drugs of any kind, and, whether I presently am suffering from any mental illness, emotional impairment, or physical illness that might affect my ability to understand the plea proceeding. Comprendo que me podrían preguntar si he recibido tratamiento recientemente por alguna enfermedad mental o por dependencia a cualquier tipo de drogas narcóticas y si actualmente padezco de alguna enfermedad mental, emocional, o física que pueda afectar mi habilidad de entender el proceso de declaración de culpabilidad. Done: ____________ Hecho: ___________ 5. I understand that I may be asked whether I have taken, consumed, or ingested any of the following substances during the preceding 48 hours: (a) alcoholic beverages or intoxicating liquors; (b) drugs or medications of any kind (prescription or otherwise); and (c) any other substance that might affect my ability to understand the plea proceeding. Comprendo que me podrían preguntar si he bebido, consumido o ingerido alguna de las siguientes sustancias durante las últimas 48 horas: (a) bebidas alcohólicas o licores intoxicantes; (b) drogas o medicamentos de cualquier tipo (recetados o no); y (c) cualquier otra sustancia que pueda afectar mi habilidad de entender el proceso de declaración de culpabilidad. Done: ____________ Hecho: ___________ 6. I understand that the court must be satisfied that I completely understand the plea proceeding, and that I accordingly have an affirmative duty to inform the court if I do not understand anything that is said or done. Comprendo que la sala debe estar segura que comprendo bien el proceso de declaración de culpabilidad y que es mi obligación informarle a la sala si no entiendo cualquier cosa que se haga o se diga. Done: ____________ Hecho: ___________ Page 3 of 17 7. I further understand that, if I inform the court that I do not understand anything that is said or done during the plea proceeding, the court will, before going forward, undertake all reasonable steps — including a recess, to allow me to consult in private with my attorney — to make certain that I do understand. Comprendo que si le informo a la sala que no he entendido algo durante la audiencia de declaración de culpabilidad, que antes de continuar con la audiencia, la sala hará todo lo necesario para asegurarse de que yo entiendo todo, inclusive podrá declarar un receso para permitirme hablar con mi abogado en privado. Done: ____________ Hecho: ___________ 8. I understand that the court must be assured that I am satisfied with my attorney, and, that I have no complaints about the manner in which he or she has, thus far, represented me in this case. Comprendo que la sala debe estar segura que estoy satisfecho con mi abogado y que no tengo ninguna queja en cuanto a la manera en la cual el o ella me ha representado en este caso. Done: ____________ Hecho: ___________ 9. I understand that the court must be satisfied: (a) that I have received a copy of the Grand Jury’s Indictment (or the Information filed by the Government); (b) that I have read the Indictment (or Information), or that it has been read to me by a certified Spanish interpreter; and (c) that I understand the charge (or charges) against me. Comprendo que la sala debe estar segura que: (a) he recibido una copia del documento acusatorio (encausamiento) emitido por el jurado acusatorio (o de la denuncia presentada por el gobierno( o fiscalía); (b) que he leído el encausamiento (o denuncia), o que un intérprete certificado en español me lo ha leído , y (c) que entiendo el cargo (o cargos) que pesa (n) contra mi. Done: ____________ Hecho: ___________ 10. I understand that the court must be satisfied that I am entering my plea (or pleas) of guilty freely and voluntarily. Specifically, I understand that the court must be satisfied that I have not been coerced by any threat, or induced by any improper promise, to enter my plea (or pleas) of guilty — regardless of whether the threat or improper promise was made directly to me, or indirectly, to any other person who is related to me, or close to me, and capable of influencing my decisions. Comprendo que la sala debe estar segura que me estoy declarando culpable de manera libre y voluntaria y no como resultado de una amenaza o coacción o de una promesa impropria - sin importar si la amenaza o promesa impropia fue hecha directa o indirectamente Page 4 of 17 hacia mi o hacia algun pariente o allegado quién podría influenciar mis decisiones. Done: ____________ Hecho: ___________ B. Plea Agreement / Acuerdo o Convenio de declaración de culpabilidad 1. I understand that, if there is a plea agreement, the terms of agreement must be fully and completely disclosed in open court, on the record; and that, if the agreement is in writing, a copy will be filed. Comprendo que si hay un acuerdo o convenio de declaración de culpabilidad, que las condiciones del acuerdo serán reveladas en audiencia pública y constarán en actas y si el acuerdo está escrito, una copia le será presentada a la sala y colocada en el expediente del caso. Done: ____________ Hecho: ___________ 2. I understand that I must confirm: (a) if the plea agreement is in writing, that I have read the plea agreement, or that it has been read to me by a certified Spanish interpreter; (b) that I have had ample opportunity to discuss the terms of the plea agreement with my attorney; (c) that the plea agreement incorporates all understandings I have reached with the attorney for the United States Government; and (d) that I personally understand the terms of my plea agreement. Comprendo que debo confirmar: (a) que he leído el acuerdo, si está escrito, o que me ha sido leído por un intérprete certificado en español; (b) que he tenido suficiente tiempo para hablar con mi abogado sobre las condiciones del acuerdo (c) que el acuerdo incorpora todos los puntos acordados entre la fiscalía y yo, y (d) que entiendo las condiciones de mi acuerdo o convenio de declaración de culpabilidad. Done: ____________ Hecho: ___________ 3. I understand that, if my plea agreement provides for the Government to recommend, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the imposition of (or to not oppose my request for) a particular sentence, the court is not bound by the agreement; and, if the agreement is rejected by the court — in other words, if the judgment and sentence imposed by the court differs in any respect from the terms of my plea agreement — I will not have a right to withdraw my plea (or pleas) of guilty. Comprendo que la sala no esta comprometida ni obligada a aceptar las condiciones de mi acuerdo y que aún si mi convenio o acuerdo provee que, conforme al Reglamento Federal de Procedimientos Penales 11 (c)(1)(B) la fiscalía puede recomendar ( o no oponerse) a mi solicitúd a que se imponga una pena en particular, que si la sala rechaza el acuerdo yo no podré retirar mi declaración (o declaraciones) de culpabilidad . En otras palabras, si la condena y pena dictada por son diferentes a lo que dice mi acuerdo, no podré retractar mi (s) declaración (es) de Page 5 of 17 culpabilidad. Done: ____________ Not Applicable: ____________ Hecho: ___________ No aplica: ____________ 4. I understand that, if my plea agreement provides for the dismissal of other charges pending against me pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A), or for the imposition of a specific sentence pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the court may accept or reject the agreement, or may defer its decision as to acceptance or rejection until it has considered the contents of my presentence investigation report. I further understand that, if the plea agreement is accepted by the court, the court will enter a judgment and sentence in accordance with the disposition provided for in my plea agreement. On the other hand, I also understand that, if my plea agreement is rejected by the court: a. b. c. the court will inform me personally, in open court, that it is not bound by the terms of my agreement; and I then will be given the opportunity to withdraw my plea (or pleas) of guilty; and if I choose to persist in my plea (or pleas) of guilty, after having been informed by the court that it rejects my agreement, the sentence imposed upon me may be less favorable than that stated in my plea agreement. Comprendo que si mi acuerdo de declaración de culpabilidad contiene la condición de que se desestimarán otros cargos contra mi , en conformidad con el Reglamento Federal de Procedimientos Penales 11(c)(1)(A), o que recibiré una pena especifíca, según el Reglamento Federal de Procedimientos Penales 11(c)(1)(C), que la sala podrá aceptar o rechazar el acuerdo o aplazar su decisión en cuanto a si aceptarlo o rechazarlo hasta después de leer el informe pre- condenatorio. Asi mismo, entiendo que si la sala acepta el acuerdo , dictará el fallo condentario y la pena de conformidad a mi acuerdo de declaración de culpabilidad. Sin embargo, si la sala rechaza mi acuerdo, entiendo que: a. b. c. la sala me informará personalmente en audiencia pública, que no está comprometida ni obligada a aceptar las condiciones de mi acuerdo, y en ese caso me concederá la oportunidad de retirar mi declaración (o declaraciones) de culpabilidad; y si aún despues que la sala me informe que ha rechazado mi acuerdo, yo insisto en mi declaración (o declaraciones) de culpabilidad, reconozco que podría recibir una pena menos favorable a la que consta en mi acuerdo. Page 6 of 17 Done: ____________ Not Applicable: ____________ Hecho: ___________ No aplica: ____________ C. Explanation of Possible Statutory Penalties / Explicación de las Posibles Penas Bajo Ley 1. I confirm that my attorney has explained, for each charge to which I am entering a plea of guilty, the mandatory minimum sentence (if any) and the maximum penalty provided by statute for each offense to which I am entering a plea of guilty, including the effect of any statute which may enhance or increase the statutory range of punishment. Confirmo que mi abogado me ha explicado la pena mínima obligatoria (si la hubiere) y la pena máxima establecida por ley para cada uno de los delitos a los que me estoy declarando culpable. También me ha explicado las disposiciones legales que podrian aumentar o reducir el marco condenatorio en mi caso. Done: ____________ Hecho: ___________ 2. I understand that, for each count of the Indictment (or Information) to which I enter a plea of guilty, the court will be required to impose a special assessment fee in the amount of $100. Comprendo que la sala tendrá que imponer un recargo especial en la cantidad de $100 dólares por cada cargo en el encausamiento al cual me declare culpable. Done: ____________ Hecho: ___________ 3. I understand that the court may require me to make restitution to any victim of the criminal offense (or offenses) to which I am pleading guilty. Comprendo que la sala puede exigir que pague restitución a la (las) víctima (s) del delito al cual (o delitos a los cuales) me estoy declarando culpable. Done: ____________ Hecho: ___________ 4. I understand that parole has been abolished in the Federal penal system, and that, if I am sentenced to a term of imprisonment, I will not be released on parole. Comprendo que la libertad condicional ha sido abolida en el sistema penal federal. Por lo tanto, si recibo pena de reclusión no saldré libre bajo libertad condicional. Page 7 of 17 Done: ____________ Hecho: ___________ 5. I understand that, if I am sentenced to imprisonment, the court must impose a term of supervised release to follow any term of imprisonment. I confirm that my attorney has explained the potential duration or length of time that I will be subjected to the supervision of a United States Probation Officer. Comprendo que si la sala impone una pena de reclusión, tiene que imponer un período de libertad supervisada a ser cumplida después de la pena de carcel. Confirmo que mi abogado me ha explicado por cuanto tiempo podría estar bajo la supervisión de un oficial de libertad condicional (US Probation Office) de los Estados Unidos. Done: ____________ Hecho: ___________ 6. I understand that, upon the completion of any term of imprisonment, I may be remanded to the custody of the United States Marshal for surrender to an authorized Bureau of Immigration and Customs Enforcement official for deportation proceedings in accordance with the Immigration and Nationality Act. I further understand that, if I am deported, I may not reenter the United States without the express, written permission of the Attorney General of the United States or the Secretary of Homeland Security. Finally, I understand that, if I should reenter the United States within the term of supervised release imposed by the court on the date of sentencing, I must report to the nearest United State Probation Office within 72 hours of my arrival. Comprendo que cuando termine de cumplir la pena de reclusión, podría ser entregado a los alguaciles de los Estados Unidos para ser trasladado a custodia del Servicio de Inmigración y Aduanas y sometido al proceso de deportación según la Ley de Inmigración y Nacionalidad. Asi mismo, entiendo que si me deportan, no podré regresar a los Estados Unidos sin el permiso explícito, por escrito, del Fiscal General de los Estados Unidos o del Secretario de Seguridad Interna. Finalmente, entiendo que si regreso a los Estados Unidos durante la vigencia de mi libertad supervisada, que fué dictada por la sala el día de la imposición de pena, deberé apersonarme a la oficina más cercana de libertad condicional (US Probation Office) de los Estados Unidos durante las primeras 72 horas después de mi llegada al pais. Done: ___________ Not Applicable to U.S. Citizen: ____________ Hecho:___________ No aplica a un ciudadano de los EE.UU.: ____ D. Explanation of U.S. Sentencing Guidelines / Explicación de las Pautas Condenatorias de los Estados Unidos 1. I understand that any sentence imposed upon me will be subject to the requirements Page 8 of 17 of the United States Sentencing Guidelines, and I confirm that my attorney has discussed those Guidelines with me, and, how they could affect any sentence (or sentences) that might be imposed in my case. Comprendo que cualquier pena que se me imponga estará en conformidad a los requisitos de las pautas condenatorias de los Estados Unidos. Mi abogado me ha explicado las pautas federales condenatorias y como éstas pueden afectar cualquier pena (o penas) que pueda(n) ser impuesta(s) en mi caso. Done: ____________ Hecho: ___________ 2. I understand that the Sentencing Guidelines provide for a complex series of calculations that result in a range of sentence for a particular case, and that such calculations are based, in large part, upon a combination of two factors: on the one hand, a factor called the “Offense Level”; and, on the other hand, a factor called the “Criminal History Category,” which is an evaluation of the nature and extent of my prior criminal history (if any). Comprendo que las pautas condenatorias se fundamentan sobre una serie de cálculos bastante complicados que resultan en un marco condenatorio. Estos cálculos están basados, en gran parte, en una combinación de dos factores: el factor denominado “Nivel del Delito” y el segundo factor llamado “Categoría de Antecedentes Penales” que es una evaluación de mis antecedentes penales, si los hubiere. Done: ____________ Hecho: ___________ 3. I also understand that the “Offense Level” calculations take into consideration a variety of matters, including (but not limited to) such things as: (a) the nature and consequences of the offense (or offenses) of conviction; (b) my role in the commission of such offense (or offenses); (c) whether a weapon was involved; (d) the nature of the victims of the crime, if there were any, and, if so, my consideration of such victims; (e) whether bodily injury was inflicted; (f) the amount of any money, property, or drugs which might be embraced in the offense (or offenses) of conviction; (g) my conduct in connection with the investigation and prosecution of the offense (or offenses); and (h) whether I have accepted responsibility for the offense (or offenses). Asi mismo, comprendo que el cálculo del “Nivel del Delito” esta compuesto por una variedad de factores que incluyen, pero no están limitidas a: (1) la naturaleza y consecuencias del delito (o delitos) cometido (s) por el (los) cual (es) he sido condenado; (b) mi papel en la comisión de dicho (s) delito (s); (c) si se usó un arma en la comisión del delito; (d) el tipo de víctima(s) del delito y la consideración mostrada por mi hácia las victimas (si las hubiere); (e) si las victimas sufrieron algún daño físico; (f) la cantidad de dinero, bienes o drogas relacionadas al delito o delitos por el (los) cual (es) he sido condenado; (g) mi conducta en relación a la investigación y procesamiento del delito o delitos y (h) si he aceptado responsabilidad personal por el (los) delito Page 9 of 17 (os). Done: ____________ Hecho: ___________ 4. I understand that the court will not be able to determine the Guidelines sentence range that applies to my case until a pre-sentence investigation has been completed, and both the Government and I have had an opportunity to challenge the reported facts and the application of the Guidelines recommended by the Probation Officer. Comprendo que la sala no podrá determinar el marco condenatorio en mi caso hasta que se realize la investigación pre-condenatoria y hasta que la fiscalía y yo tengamos la oportunidad de disputar los hechos contenidos en el informe asi como la aplicación de las pautas condenatorias recomendadas por el oficial del departamento de libertad condicional (US Probation Office). Done: ____________ Hecho: ___________ 5. I understand that the sentence ultimately imposed by the court may be different from either any estimate my attorney may have given me, or any preliminary evaluation that may have been provided by a United States Probation Officer. Comprendo que la pena que la sala imponga podría ser diferente al cálculo que me diera mi abogado o a cualquier evaluación preliminar por un oficial del departamento de libertad condicional (US Probation Office). Done: ____________ Hecho: ___________ 6. I understand that, even after my Guidelines sentence range has been finally determined, the court still has the authority — in some limited circumstances — to depart from the Guidelines, and to impose a sentence that is either more severe, or less severe, than the sentence called for by application of the Guidelines. Comprendo, aun después que se determine el marco condenatorio aplicable a mi caso, que bajo ciertas cirunstancias limitadas, la sala tiene la autoridad, de desviarse de las pautas e imponer una condena más severa o menos severa que la condena indicada por las pautas condenatorias. Done: ____________ Hecho: ___________ 7. I understand that the Sentencing Guidelines will require the court to impose a fine on me, unless the court concludes either (a) that I am not likely to be able to pay a fine, or (b) that the imposition of a fine would unduly burden any persons who are dependent upon me for financial support. Even so, I also understand that, in either of those events, the court still could require some Page 10 of 17 form and duration of community service in lieu of all or part of a fine. Comprendo que según las pautas condenatorias la sala tiene que imponer una multa monetaria a menos que concluya que (a) no tengo ni tendré los medios para pagar una multa o que (b) una multa causaría penurías a aquellas personas quienes dependen de mi para su sustento económico. No obstante estas dos situaciones, comprendo que en vez de una multa or multa parcial, la sala puede imponer alguna forma de servicio comunitario por un tiempo determinado. Done: ____________ Hecho: ___________ 8. I understand that, if the court determines I have the financial ability to do so, the court could require me to pay all or part of any cost of imprisonment, confinement, or supervision while on probation or supervised release. Comprendo que si la sala concluye que tengo los recursos económicos, podrá exigir que yo pague el costo total o parcial de mi reclusión, detención o supervisión mientras me encuentre bajo libertad condicional o libertad supervisada. Done: ____________ Hecho: ___________ E. Explanation of Substantive Rights / Explicación de Derechos 1. I understand that I have a right to plead “not guilty” to any offense charged against me, and, to persist in such a plea. In other words, I understand that I am not required to enter a plea of guilty to any charge contained in the Indictment (or Information). Comprendo que tengo el derecho de declararme “no culpable” a cualquier delito que se me impute y de insistir en tal declaración. En otras palabras, comprendo que no tengo que declararme culpable a ningún cargo en el encausamiento (o denuncia). Done: ____________ Hecho: ___________ 2. I understand that, if I did enter a plea (or pleas) of “not guilty,” I then would be entitled to a speedy and public trial by a jury composed of twelve people who have been selected from a panel of persons whose names have been drawn at random from a fair cross-section of the community that comprises that area of the Northern District of Alabama in which the indictment (or information) has been filed. Comprendo que si me declaro “no culpable” tendré el derecho a un juicio público, expedito y con un jurado compuesto por doce personas residentes en la zona del distrito norte de Alabama donde fuí encausado y cuyos nombres fueron escojidos al azar. Page 11 of 17 Done: ____________ Hecho: ___________ 3. I understand that, at a jury trial, I would be presumed innocent of the charge (or charges) against me, and that I could not be convicted of any offense unless the Government proved each and every element of the charge (or charges) against me, by evidence, beyond a reasonable doubt. Comprendo que durante un juicio con jurado la ley me presupone inocente del (de los) cargo (s) que pesa (n) contra mi y que no podré ser declarado culpable de ningún delito a menos que el gobierno compruebe cada uno de los elementos del (de los) cargo (s) que pesa(n) contra mi mediante la presentación de prueba más allá de una duda razonable. Done: ____________ Hecho: ___________ 4. following: I understand that, at a jury trial, I would be entitled to numerous rights, including the a. b. c. d. e. f. the right to be represented by Constitutionally adequate counsel; the right to have all witnesses who testify for the Government to come forward and testify under oath, in open court, so that I may see, hear, and confront them; the right, through counsel, to cross-examine each witness who has testified for the Government — to ask them questions concerning any matter that might be relevant to the charge (or charges) against me or my defense, including matters that might be helpful to the jury in evaluating the credibility (or believability) of the witnesses; the right to call witnesses to testify on my behalf, and to use the subpoena power of the court to compel witnesses to come forward and give evidence in defense of the charge (or charges) against me; the right to decline to testify, unless I voluntarily elect to do so — in other words, that I could not be forced to testify by the court or anyone else, and that the decision of whether to testify is a matter left entirely to me; and, the right to testify on my own behalf, if I voluntarily elect to do so. I also understand, however, that if I elect to testify on my own behalf, I would be placed under oath, and, that I would be subject to cross-examination by the attorney for the United States Government. Comprendo que en un juicio con un jurado, gozaría de los siguientes derechos: a. a ser representado por un abogado capacitado; Page 12 of 17 b. c. d. e. f. a que todos los testigos de cargo se presenten durante el juicio y declaren en actas, bajo juramento, para que yo pueda verlos, oírlos y encararlos; de contra-interrogar a cada testigo de cargo a través de mi abogado e interrogarlo (s) sobre cualquier punto relacionado al cargo o cargos que pesa (n) contra mi o mi defensa, incluyendo cualquier tema que pudiera ayudar al jurado a evaluar la credibilidad del (de los) testigo(s); obligar la presencia de testigos a que declaren a mi favor mediante el uso de citaciones o comparendos judiciales; negarme a declarar a menos que optase por hacerlo por mi propia voluntad. En otras palabras que nadie, inclusive la sala, me puede obligar a declarar y que la decisión en cuanto a si declaro o no es exclusivamente mia; y declarar por mi propia cuenta en mi defensa si opto por hacerlo. Sin embargo, comprendo que si decido declarar durante el juicio, seré juramentado y sometido a contra-interrogatorio del abogado por el gobierno. Done: ____________ Hecho: ___________ 5. I further understand that, if I elected not to testify at a trial, or even to offer any evidence in defense of the charge (or charges) against me, those facts could not be taken adversely to me by the jury, or by a judge in a non-jury trial. Comprendo, mas aún, en caso que decida no declarar durante el juicio o presentar prueba alguna en mi defensa ante el (los) cargo (s), que ésto no podrá ser utilizado en mi contra por el jurado o por la sala durante un juicio sin jurado. Done: ____________ Hecho: ___________ 6. I understand that, by entering a plea (or pleas) of guilty, I am waiving, or giving up, all of the foregoing rights — specifically: a. b. c. d. the right to trial by jury; the presumption that I am innocent of the charge (or charges) against me; the right to compel the Government to prove each element of each charge against me by evidence, beyond a reasonable doubt; the right to confront and cross-examine each witness against me; Page 13 of 17 e. f. the right to subpoena witnesses to testify on my own behalf; and, the right to testify on my own behalf, if I voluntarily elect to do so. Comprendo que al declararme culpable, renuncio a todos los siguientes derechos: a. b. c. d. e. f. el derecho a un juicio con jurado; a la presunción de inocencia del cargo (o de los cargos) contra mi; obligar que el gobierno compruebe cada uno de los elementos de cada cargo contra mi mediante la presentación de prueba más allá de una duda razonable; de ver e interrogar a cada testigo de cargo; de emitir citaciones o mandamientos judiciales para obligar la presencia de testigos a mí favor, y, de declarar a mi propio favor, si opto por hacerlo voluntariamente. Done: ____________ Hecho: ___________ 7. I understand that, by pleading guilty, I am not waiving, or giving up, the right to be represented by Constitutionally adequate counsel in all further proceedings herein, including the sentencing hearing and any post-sentencing proceedings, such as an appeal. Comprendo que al declararme culpable, no renuncio a mi derecho de ser representado por un abogado capacitado durante las audiencias futuras en mi caso, incluyendo la audiencia de imposición de pena y cualquier gestión incluyendo el proceso de apelación. Done: ____________ Hecho: ___________ F. Explanation of Charge(s) / Explicación del (los) Cargo(s) 1. I confirm that I have had ample time to discuss this case with my attorney, and, that I have told him or her everything I know about the facts, in order that my attorney could prepare himself or herself to represent me, and to defend me, to the best of his or her professional abilities, if I elected to plead “not guilty” and proceeded to trial. Confirmo que he tenido suficiente tiempo para conversar con mi abogado sobre mi caso y que le contado todo lo que sé para que se pueda preparar para representarme y defenderme de la Page 14 of 17 mejor manera posible si decido declararme “no culpable” y proceder a juicio. Done: ____________ Hecho: ___________ 2. I further confirm that my attorney has explained each element of each charge to which I am entering a plea of guilty, and that I understand those facts the Government must prove, by evidence, beyond a reasonable doubt, if I elected to plead “not guilty” and proceeded to trial. Confirmo que mi abogado me ha explicado todos los elementos de cada cargo al cual me estoy declarando culpable y que entiendo los hechos que el gobierno tendría que comprobar mediante la presentación de prueba más allá de una duda razonable si fuera a declararme “no culpable” y proceder a juicio. Done: ____________ Hecho: __________ 3. Even though I am waiving, or giving up, my right to a trial, I understand that the court will not accept my plea (or pleas) of guilty until the court has made such inquiry as it may deem appropriate to satisfy itself that there is a factual basis for the plea (or pleas) of guilty. Comprendo que la sala no aceptará mi declaración (o declaraciones) de culpabilidad, no obstante mi renuncia a mi derecho a un juicio, hasta que la sala esté segura después de la indagatoria respectiva que existe una base de hechos que sustente la declaración (o declaraciones) de culpabilidad. Done: ____________ Hecho: ___________ 4. I understand that, if my plea (or pleas) of guilty is(are) accepted by the court, only two things remain to be done: first, a presentence investigation will be conducted by a United States Probation Officer; and second, not sooner than 35 days after the presentence report is disclosed to me, unless I choose to waive the 35-day period, the court will impose sentence. Comprendo que si la sala acepta mi declaración (o declaraciones) de culpabilidad, habrá solo dos cosas por hacer: primero, el departamento de libertad condicional (US Probation Office) realizará una investigación pre-condenatoria y, segundo, si no renúncio al plazo de 35 días, la sala fijará la fecha para la audiencia de imposición de pena como mínimo 35 días después que me entreguen el informe pre-condenatorio. Done: ____________ Hecho: ___________ G. Certification of Defendant / Certificación del Acusado Page 15 of 17 I hereby certify that I have read all of the preceding parts of this form, or that my attorney, aided by a certified Spanish interpreter, has read the entire form to me. I further certify that my attorney, aided by a certified Spanish interpreter, has explained to me, in detail, and to my personal satisfaction, each of the matters set out above, and that I do not have any questions about my rights. I also certify that I am satisfied with the representation my attorney has provided me, and that I have no complaints about any aspect of his or her representation of me. I further certify that I am not under the influence of any alcoholic beverage, intoxicating liquor, drugs, medication, or other substance that affected my ability to comprehend or understand all of the matters set out above. Finally, I certify that I am entering my plea (or pleas) of guilty because I am in fact guilty, and I request that the court accept my plea (or pleas). Por la presente certifico que he leído todo el formulario o que mi abogado, ayudado por un intérprete certificado en español, me lo ha leído. Ademas certifico que mi abogado, con la ayuda de un intérprete certificado en español, me ha explicado en detalle y a mi satisfacción personal, cada uno de los asuntos detallados anteriormente y que no tengo ninguna duda/pregunta acerca de mis derechos. También certifico que estoy satisfecho con la representación brindada por mi abogado y que no tengo ninguna queja acerca de ningún aspecto de su representación de mi caso. Asi mismo, certifico que no estoy bajo la influencia de ninguna bebida alcohólica, licor intoxicante, drogas, medicamentos, ni otra sustancia que pueda afectar mi habilidad de comprender o entender todos los asuntos anteriormente detallados. Finalmente, certifico que estoy presentando mi declaración (o declaraciones) de culpabilidad porque de hecho soy culpable y pido que la sala acepte mi declaración (o declaraciones). _____________________ Date / Fecha ___________________________________ Signature of Defendant / Firma del Acusado H. Certification of Counsel As counsel of record for the above-named defendant, I hereby certify that: 1. With the aid of the certified Spanish interpreter whose name is signed below, I have discussed with the defendant, in detail, each of the matters set out above; 2. I have observed the defendant today, prior to the plea proceeding, and I am aware of no reason why the defendant is not competent to enter a plea (or pleas) of guilty at this time; and, 3. I am aware of no reason, at this time, why the defendant’s plea (or pleas) of guilty should not be accepted by the court. ___________________ Date ___________________________________ Attorney for Defendant I. Certification of Interpreter Page 16 of 17 I hereby swear or affirm as official court interpreter and officer of the United States District Court for the Northern District of Alabama that I have interpreted accurately and faithfully, and to the best of my abilities, the foregoing Guilty Plea Advice of Rights Certification, all statements made by the defendant to his or her attorney of record, and all statements by the attorney to the defendant. I have conveyed the true meaning of the words, phrases, and statements of the foregoing Guilty Plea Advice of Rights Certification and of each speaker, and that in doing so I have paid special attention to variations of the Spanish language due to educational, cultural, and regional differences. I did not interject my own words, phrases, or views. The original copy of the more extensive “Interpreter’s Written Oath” executed by me has been filed in the records of this case. ___________________ Date/Fecha _____________________________________ Signature of Interpreter / Firma del Intérprete Page 17 of 17