United States District Court, Southern District of New York
April 7, 2003
UNION CARBIDE, PLAINTIFF
M/T "ENCOUNTER" ET AL., DEFENDANTS.
The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
Plaintiff has moved for partial summary judgment striking the affirmative defense set forth at paragraph 9 of Defendants' Answer; Defendants have cross-moved to dismiss the complaint on statute of limitations grounds and for failure to make discovery. The Court having reviewed thoroughly all of the parties' submissions in respect of these motions, it is hereby
ORDERED, that Plaintiff's motion for partial summary judgment is denied, as there are material issues of fact as to whether Plaintiff is properly authorized to bring at least that portion of its claim that arises from losses alleged to have been incurred by Mitsui (or as to which Mitsui bore the risk of loss) as a result of the alleged nonconforming shipment; and further
ORDERED, that Defendants' motion to dismiss the complaint on statute of limitations grounds is denied, as there are material issues of fact as to whether Plaintiff is properly authorized to bring claims on Mitsui's behalf and as to whether claims asserted by Plaintiff as to its own alleged losses are timely; and further
ORDERED, that Defendants' motion to dismiss the complaint for failure to make discovery is denied, as there is no record of an order of this Court requiring Plaintiff to produce Mitsui witnesses as its own; and further
ORDERED, that the parties shall prepare for and appear at a pre-trial conference in accordance with the Preliminary Pre-Trial Order issued simultaneously herewith.
PRELIMINARY PRE-TRIAL ORDER
1. It is hereby ORDERED that a pre-trial conference shall be held in the
above-captioned matter on May 9, 2003 at 3:00 p.m. in Courtroom No.
444, 40 Foley Square, New York, New York 10007. It is further
2. ORDERED that counsel*fn1 for the parties confer preliminarily at
least twenty-one (21) days prior to the date set forth in paragraph 1
above to discuss the following matters:
a. Facts that are not disputed and facts that are in
b. The disclosures required by Fed.R.Civ.P. 26(a)(1).
c. Contested and uncontested legal issues.
e. Whether mediation might facilitate resolution of
f. Whether the case is to be tried to a jury.
g. Whether each party consents to trial of the case by
a magistrate judge.
h. Anticipated further discovery and an appropriate
deadline for the conclusion of discovery.
i. Whether expert witness evidence will be required,
and appropriate deadlines for expert witness
j. Whether dispositive motions may be appropriate, and
a deadline for such motions.
k. Evidence to be presented at trial and the length of
time expected to be required for the presentation
of evidence at trial.
It is further
3. ORDERED that counsel for all parties shall confer and shall prepare,
execute and file with the Court, with one courtesy copy provided to
chambers of the undersigned, no later than seven (7) days before the
date set forth in paragraph 1 above a single document captioned
PRE-CONFERENCE STATEMENT, which shall be signed by all counsel, which
shall set forth the following information, and which shall constitute
the written report required by Fed R.Civ.P. 26(f) if no such report
has previously been submitted:
a. A concise statement of the nature of this action.
b. The status of settlement discussions and the
prospects for settlement of the action in whole or
in part, provided that the Pre-Conference Statement
shall not disclose to the Court specific settlement
offers or demands.
c. A concise statement of each party's position as to
the basis of this Court's jurisdiction of the
action, with citations to all statutes relied upon
and relevant facts as to citizenship and
d. A concise statement of all material uncontested or
e. A concise statement of all uncontested legal issues.
f. A concise statement of all legal issues to be
decided by the Court.
g. Each party's concise statement of material disputed
h. A concise statement of the measure of proof and on
whom the burden of proof falls as to each cause of
action or defense.
i. A statement as to whether all parties consent to
trial of the case by a magistrate judge (without
identifying which parties have or have not so
j. What, if any, changes should be made in the
timing, form or requirements for disclosures under
Fed.R.Civ.P. 26(a), including a statement as to
when any disclosures required under Fed.R.Civ.P.
26(a)(1) were made or will be made.
k. The status of discovery, including the subjects on
which further disclosure may be needed, and whether
any remaining discovery should be conducted in
phases or be limited to or focus upon particular
issues, a concise description of each party's plan
for any remaining discovery and a proposed
discovery cut-off date.
l. Whether and to what extent expert evidence will be
required, and proposed deadlines for expert
m. What, if any, changes should be made in the
limitations on discovery imposed under the Federal
Rules of Civil Procedure or the Local Rules of
court, and what other limitations should be
n. A statement by each party as to whether the case is
to be tried with or without a jury, and the number
of trial days expected to be needed for
presentation of that party's case.
o. What work, if any, remains before the case w ill be
p. Any other information you believe may assist the
Court in advancing your case to settlement or
q. Any other orders that should be entered by the
Court under Fed.R.Civ.P. 26(c) or Fed.R.Civ.P. 16(b)
It is further
4. ORDERED that counsel shall be prepared to discuss the foregoing at the
pre-trial conference, as well as whether mediation may be helpful in
resolving this case. It is further
5. ORDERED that counsel attending the pre-trial conference shall seek
settlement authority from their respective clients prior to such
conference. If counsel is not granted such authority, the client must
be present in person or available by telephone so that a settlement
can be consummated if possible. "Settlement authority," as used
herein, includes the power to enter into stipulations and make
admissions regarding all matters that the participants may reasonably
anticipate discussing at the pre-trial conference including, but not
limited to, the matters enumerated in the preceding paragraphs.
6. In the event that any party fails to comply with this Order, the Court
may impose sanctions or take other action as appropriate. Such
sanctions and action may include assessing costs and attorneys' fees,
precluding evidence or defenses, dismissing the action, and/or the
imposition of other appropriate penalties.
IT IS SO ORDERED.