Amended Pleadings

Amended Pleadings Any party moving to file an amended pleading shall reproduce the entire proposed pleading. Any party filing an amended pleading may not incorporate any part of a prior pleading by reference, except with leave of Court. CVLR 16-1 Pre-Trial Management and Scheduling Conference (a) Exempt Actions. In addition to the exempt actions set forth in Fed. R. Civ. P. 26(a)(1)(B), the following actions are exempt from compliance with these procedures unless otherwise directed by the Court: Any action filed by or on behalf of a convicted prisoner, a pretrial detainee, or (1) any other person confined in a territorial or federal institution challenging the validity or the conditions of confinement; (2) Any action challenging the validity of a criminal conviction or sentence; (3) Eminent domain proceedings; and (4) Actions to enforce out-of-state judgments. - 6 - (b) Scheduling.

(1) Scheduling Notice. The Clerk of Court will schedule a Scheduling Conference to be held approximately ninety (90) days after the complaint is filed. The Clerk shall issue, no later than forty (40) days after the complaint has been filed, a Scheduling Notice setting forth: the date on which the Scheduling and Planning Conference Report shall (A) be filed by the parties, and (B) the date for the Scheduling Conference. It is the responsibility of plaintiff’s counsel or the pro se plaintiff to serve a copy of the Clerk’s Scheduling Notice on all parties who may appear after the Clerk’s issuance of the Scheduling Notice.

Scheduling and Planning Order. The Court shall issue a Scheduling and Planning (2) Order pursuant to Fed. R. Civ. P. Rule 16(b)(1) after receiving and discussing the Scheduling and Planning Conference Report described in CVLR 26(f), with the parties’ attorneys and any unrepresented parties at the Scheduling Conference. Said Scheduling and Planning Order shall control the course of the action unless modified by the Court, a sample of which is attached hereto as Civil Attachment 2. Extension of Deadlines Fixed in Scheduling and Planning Order.

A deadline (3) established by a Scheduling and Planning Order will be extended only upon a good cause finding by the Court. In the absence of disabling circumstances, the deadline for completion of all discovery will not be extended unless there has been active discovery. Delayed discovery will not justify an extension of discovery deadlines. A motion to extend the deadline in a Scheduling and Planning Order must demonstrate a specific need for the requested extension and should be accompanied by a detailed proposed amendment to the previously entered Scheduling and Planning Order.

The date for completion of discovery will be extended only if the remaining discovery is specifically described and scheduled, e.g., the names of each remaining deponent and the date, time and place of each remaining deposition. The Court, in its discretion, may order that the client consent in writing to any continuance proposed by counsel. (c) Preliminary and Final Pretrial Conferences. Preliminary pretrial conferences shall be held on the dates and at the times set by a Scheduling and Planning Order.

Generally, the Court will schedule three (3) preliminary pretrial conferences before the Magistrate Judge and a final pretrial conference before the assigned trial judge. The agenda for the preliminary pretrial conferences shall consist of the matters covered by Fed. R. Civ. P. 16(c)(2). The parties shall have a final pretrial conference with the assigned judge seven (7) days - 7 - prior to trial for the purpose of ensuring that all pretrial preparation is complete and to discuss mechanical aspects of trial, such as starting and stopping times, etc. (d) Pretrial Disclosures. Parties to an action shall make pretrial disclosures and objections thereto pursuant to Fed. R. Civ. P. 26(a)(3).

Responses to any objections to pretrial disclosures shall be filed and served within seven (7) days of the filing of the objection, unless leave of Court is obtained shortening the time for filing. (e) Trial Brief. Each party shall serve and file a trial brief thirty (30) days prior to the trial date containing a summary of the party’s basic factual contentions supported by legal authority in the form of a legal brief. No trial brief shall exceed twenty-five (25) pages in length without leave of Court.

The brief shall include the following: Factual Contentions. The brief shall contain a brief but full exposition of the (1) party's theory of the case and a statement in narrative form of what the party expects to prove. (2) Legal Assertions. Issue of Law - The brief shall include the issues of law necessary to the (A) determination of the case with authorities cited in support thereof.

Evidentiary Problems - The brief shall identify and state the party's (B) position on any anticipated evidentiary problems. Attorney’s Fees. If either party claims that attorney’s fees are recoverable by the (3) prevailing party, the brief shall discuss the factual and legal basis of such claim. Abandonment of Issues.

The brief shall state any issues in the pleadings which (4) have been abandoned. (f) Witness Lists, Discovery Material Designations, Exhibit Lists and Exhibit Binders. (1) Witness List. Fourteen (14) days prior to trial, each party shall serve and file under separate cover, a list of witnesses to be called at trial other than those contemplated to be used for impeachment or rebuttal.

The Witness List shall also contain the address, telephone number, and current employment information of each witness. Witness names which were not exchanged thirty (30) days prior to trial pursuant to Federal Rule of Civil Procedure 26(a)(3) may not be contained on the Witness List absent leave of Court, which shall be sought by motion. The obligation of listing such witnesses is a continuing one, and except for good cause shown the testimony of any such witness proffered at trial who is not listed upon a party’s witness list shall be precluded. - 8 - Discovery Material Designations. Fourteen (14) days prior to trial, each party (2) shall serve and file under separate cover, a designation of those witnesses whose testimony is expected to be presented by means of (A) a deposition, and if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; statements designating excerpts from interrogatory answers to be offered (B) at trial other than for impeachment or rebuttal; and statements designating excerpts from responses to requests for admission (C) to be offered at trial other than for impeachment or rebuttal.

Deposition designations which were not exchanged thirty (30) days prior to trial pursuant to Fed. R. Civ. P. 26(a)(3) may not be contained on the Deposition Designation absent leave of Court, which shall be sought by motion. Exhibit List. Fourteen (14) days prior to trial, each party shall serve and file (3) under separate cover a list of exhibits each party expects to offer at trial other than those to be used for impeachment or rebuttal, with a description of each exhibit sufficient for identification. Exhibits which were not exchanged thirty (30) days prior to trial pursuant to Fed. R. Civ. P. 26(a)(3) may not be contained on the exhibit list absent leave of Court, which shall be sought by motion.

The parties shall meet and confer sufficiently in advance of trial and formulate a list of joint exhibits, if possible. Those exhibits upon which agreement cannot be reached shall be submitted separately. The Plaintiff’s exhibits shall be marked numerically and the Defendant’s exhibits shall be marked alphabetically. The exhibit list shall be in substantially the same form as Civil Attachment 3.

(4) Exhibit Binders. Each party shall prepare and lodge with the Court three (3), three-ring binders each containing a copy of each exhibit marked for identification. Exhibit identification tags are available from the Clerk’s Office. Pretrial Order.

Fourteen (14) days prior to trial, plaintiff shall serve and lodge with (g) the Clerk a proposed Pretrial Order, signed by each party or the attorney for each party, approved as to form and substance by the attorneys for all parties appearing in the case. The Pretrial Order shall address all matters discussed in the last preliminary pretrial conference. The form shall be in substantially the same form as Civil Attachment 4. Proposed Jury Instructions, Voir Dire Questions, Forms of Verdicts, Objections.

In (h) jury cases, unless the Court otherwise orders, the parties shall, not less than fourteen (14) days prior to the date on which the trial is scheduled to commence, serve and file proposed jury instructions and proposed verdict forms. If desired, each party may also submit proposed voir dire questions. The parties shall meet and confer sufficiently in advance of trial and formulate a list of joint proposed jury instructions, if possible. Those instructions upon which agreement - 9 - cannot be reached shall be separately filed.

Each proposed instruction shall be numbered, set forth in full on a separate page, embrace only one subject or principle of law, indicate which party presents it, and indicate at the bottom of the instruction the source from which it was derived, i.e., Ninth Circuit Model Jury Instructions, case law with case citations, etc. The Court may at any time prior to instructing the jury receive requests for additional instructions. (i) Waiver of Pretrial Requirements. If the parties believe that the action should not be subject to the pretrial requirements of subsections (e) through (h) of this rule, the parties may include in the Scheduling and Planning Conference Report required by CVLR 26(f) a statement requesting a waiver and the basis(es) for such request. If the request is made, the Scheduling and Planning Conference Report shall contain a comprehensive discovery schedule that will permit the trial to be set within six (6) months of the date of the Scheduling Conference.

(1) Waiver - Limitation. Waiver of pretrial shall apply only to cases that are realistically estimated to consume no more than two (2) trial days. Preparation for Trial. If the case is approved by the Court for waiver of pretrial (2) preparation, the attorneys for the parties shall meet thirty (30) days before the date set for commencement of the trial and each party shall file not less than fourteen (14) days before the date set for commencement of the trial: (A) a succinct statement of the factual and legal issues; (B) in non-jury cases, detailed narrative statements of witnesses to be used at trial as the direct testimony of the witnesses, subject to cross-examination at trial by the opposing party; (C) a witness list; (see Fed. R. Civ. P. 26(a)(3) and CVLR 16-1(f)(1); (D) an exhibit list; (see Fed. R. Civ. P. 26(a)(3) and CVLR 16-1(f)(3); depositions to be used at trial marked as required by Fed. R. Civ. P. (E) 26(a)(3); and (F) a trial brief which provides the theory of the case and statutory or precedential support for the theory, together with any unusual evidentiary or legal questions which may be anticipated at trial.

CVLR 16-2 Alternative Dispute Resolution (a) Purpose and Scope. - 10 - Purpose. Pursuant to the findings and directives of Congress in 28 U.S.C. § 651 (1) et seq., the primary purpose of this local rule is to provide parties to civil cases and proceedings in bankruptcy in this district with an opportunity to use alternative dispute resolution (ADR) procedures. This rule is intended to improve parties’ access to the dispute resolution process that best serves their needs and fits their circumstances, to reduce the financial and emotional burdens of litigation, and to enhance the Court’s ability to timely provide traditional litigation services. Through this rule, the Court authorizes and regulates the use of mediation and arbitration.

(2) Scope. (A) Cases Pending Before a District Judge or Magistrate Judge. This local rule applies to all civil cases pending before any district judge or magistrate judge in this district. Proceedings Pending Before a Bankruptcy Judge.

Under 28 U.S.C. § 651 (B) et seq., and the Court’s inherent authority, proceedings pending before any bankruptcy judge in this district also may be afforded an opportunity to participate in mediation and arbitration. (b) ADR Procedures and Rules. (1) Judicial Settlement Conference. (A) Definition.

A Judicial Settlement Conference is a process in which a Settlement Conference Judge is made available in order to facilitate communication between the parties and assist them in their negotiations, e.g., by clarifying underlying interests, as they attempt to reach an agreed settlement of their dispute. A Judicial Settlement Conference generally will be conducted by a Magistrate Judge, but in some limited circumstances may be conducted by a Senior District Judge or a visiting federal judge. Whether a settlement results from a Judicial Settlement Conference and the nature and extent of the settlement are within the sole control of the parties. (B) Initiation of a Judicial Settlement Conference.

At any time after an action or proceeding is commenced, any party may request, or the assigned judge on his or her own initiative may order, a Judicial Settlement Conference. As a general rule, the judge assigned to try the matter will not conduct the Judicial Settlement Conference. Upon written stipulation of all parties, however, the assigned judge, in the exercise of his or her discretion, may conduct a Judicial Settlement Conference. None of the matters or information discussed during the conference will be communicated to any judge assigned to the action, unless all parties expressly stipulate to such communications. - 11 - Procedure for Judicial Settlement Conference.

After the initiation of the (C) Judicial Settlement Conference process, the Settlement Conference Judge will issue an order governing the process and procedure utilized by that judge for the Judicial Settlement Conference. (D) Report of Settlement Conference Judge. At the conclusion of a Judicial Settlement Conference, a docket entry order with the Court will reflect whether settlement was or was not achieved. (2) Mediation.

(A) Definition. Mediation is a process in which a private, impartial third party (the “Mediator”) is hired or retained by the parties to facilitate communication between them to assist in their negotiations, e.g., by clarifying underlying interests, as they attempt to reach an agreed settlement of their dispute. Whether a settlement results from a Mediation and the nature and extent of the settlement are within the sole control of the parties. (B) Initiation of a Mediation.

At any time after an action or proceeding is at issue, any party may request, or the assigned judge on his or her own initiative may order, a Mediation. None of the matters or information discussed during the conference will be communicated to any judge assigned to the action. Selection of a Mediator. The parties may either select from the list of (C) approved Mediators found on the Court’s website or select someone not on the Court’s list through mutual agreement.

The parties may contact the Court’s ADR Coordinator for facilitation of the selection of a mediator from the Court’s list. (D) Compensation. The list of approved Mediators on the Court’s website shall include a disclosure of the fee schedule to be charged by each Mediator. If appropriate in light of the circumstances of the dispute, a Mediator may opt to charge no fee.

No party may offer or give the Mediator any gift or gratuity without consent of all parties. (E) Payment. All terms and conditions of payment must be clearly communicated to the parties. Unless agreed otherwise, plaintiffs jointly and defendants jointly shall each be responsible for equal portions of the Mediator’s fee.

The parties may agree to pay the fee in other than equal portions. The parties must pay the Mediator directly, or the Mediator’s law firm or employer, as directed by the Mediator. On a form questionnaire provided by the Court, the mediator must promptly report to the Court’s ADR Coordinator the amount of any payment received. Report of Mediator.

Within five days of the conclusion of a Mediation, (F) the Mediator shall file a report with the Court’s ADR Coordinator indicating - 12 - when mediation occurred and merely whether settlement was or was not achieved. (3) Arbitration. (A) Definition. Arbitration is a process whereby an impartial third party (the “Arbitrator”) is hired or retained by the parties to hear and consider the evidence and testimony of the disputants and others with relevant knowledge and issues a decision on the merits of the dispute.

The Arbitrator makes an award on the issue(s) presented for decision. The Arbitrator’s award is binding or non-binding as the parties may agree in writing. Cases Eligible for ADR Arbitration. No civil action, or proceeding in (B) bankruptcy, shall be referred to Arbitration as the parties’ ADR method, except upon written consent of all parties.

Additionally, no matter will be referred to arbitration if the Court finds that: the action is based upon an alleged violation of a right secured (i) by the Constitution of the United States; (ii) (iii) than $150,000.00; or (iv) reason. jurisdiction is based in whole or in part on 28 U.S.C. § 1343; the relief sought includes money damages in an amount greater the objectives of arbitration would not be realized for any other Initiation of an Arbitration. At any time after an action or proceeding is at (C) issue, any party may request an Arbitration. All parties must consent in a writing, signed by all parties and their counsel, before an Arbitration will be ordered by the judge assigned to the matter. (D) Selection of an Arbitrator.

The parties may select from the list of approved Arbitrators found on the Court’s website. The parties, for good cause, may select an Arbitrator not on the Court’s approved Panel of Arbitrators only with the approval of the judge assigned to the case. Procedure for Arbitration. After the initiation of Arbitration, the (E) Arbitrator will issue to the parties a document setting forth the process and procedure utilized and to be followed.

Award. At the conclusion of an Arbitration, the Arbitrator shall issue to (F) the parties a written award. (c) Selection of ADR Procedure. (1) Mandated Early ADR Selection Process. - 13 - (A) The Parties’ Duty to Consider ADR, Confer and Report.

Prior to the Rule 16-1 scheduling conference, unless otherwise ordered, in every case to which this rule applies, the parties must meet and confer about (i) whether they might benefit from participating in some ADR process; (ii) which type of ADR process is best suited to the specific circumstances in their case; and (iii) when the most appropriate time would be for the ADR session to be held. In their Scheduling and Planning Conference Report, the parties must report their shared or separate views about the utility of ADR, which ADR procedure would be most appropriate, and when the ADR session should occur. (B) Designation of Process. After considering the parties’ submissions, the Court may order the parties, on appropriate terms and in conformity with this rule, to participate in ADR.

The Court may refer the case to Judicial Settlement Conference, Mediation or, with written consent of all parties, to an ADR procedure which, by stipulation of all parties, has been tailored to meet the specific needs of the parties and the case. Referral to ADR During Pretrial Period. Notwithstanding the provisions of (2) paragraph (c)(1) above regarding the early selection process, at any time before entry of final judgment, the Court may, on its own motion or at the request of any party, order the parties to participate in a Judicial Settlement Conference or Mediation or, with the written consent of all parties, Arbitration. (3) Protection Against Unfair Financial Burdens.

Assigned judges shall take appropriate steps to assure that no referral to ADR results in an imposition on any party of an unfair or unreasonable economic burden. Right to Secure ADR Services Outside the Programs Sponsored by the Court. (4) Nothing in this rule precludes the parties from agreeing to seek ADR services outside the Court’s program. Parties remain free to use any form of ADR and any neutral they choose.

To the extent resources permit, Court staff may assist mediators outside of the Court’s ADR program. (d) Process Administration. ADR Coordinator. The ADR Coordinator is responsible for implementing, (1) administering, overseeing and evaluating, along with the judges, the ADR program and procedures covered by this local rule.

The ADR Coordinator may be contacted through the Court’s website: www.gud.uscourts.gov or as follows: District Court of Guam ADR Coordinator 4th Floor, U.S. Courthouse 520 W. Soledad Avenue - 14 - Hagatna, GU 96910 (671) 969-4500 (telephone) (671) 969-4488 (facsimile) ADR Resources. The ADR Coordinator maintains the requirements for, and (2) roster of, available neutrals and information regarding the ADR process and procedures set forth in this rule.