United States District Court, Southern District of New York
April 8, 2003
LEE INDUSTRIES, PLAINTIFF(S)
THINK TEK, DEFENDANT(S).
The opinion of the court was delivered by: Laura Taylor Swain, District Judge.
PRE-TRIAL SCHEDULING ORDER
A pre-trial conference was last held in this matter on April 8, 2003. The Court hereby makes the following provisions for scheduling and trial in this matter. To the extent copies of this Order were not distributed to all parties in open court, Plaintiff's counsel*fn1 shall serve a copy of this Pre-Trial Scheduling Order on counsel for each other party and on each unrepresented party within ten (10) days from the date hereof, and a copy of this Pre-Trial Scheduling Order shall be served with any subsequent process that brings in additional parties. Proof of such service shall be filed promptly with the Court.
1. Amendments to Pleadings, Additional Parties
All applications to amend pleadings or amendments as
of right shall be made, and any additional parties
joined, by July 31, 2003.
a. All non-expert witness discovery in this matter
shall be completed by December 1, 2003.
b. Plaintiff(s) shall make expert witness disclosures
described in Rule 26(a)(2) of the Federal Rules of
Civil Procedure no later than 60 days before the
date set forth in paragraph 2.c. below.
Defendant(s) shall make such disclosures no later
than 30 days before the date set forth in paragraph
2.c. below. Such disclosures shall be made in
writing, signed and served, but shall not be filed
with the Court.
c. All expert witness discovery shall be completed by
December 31, 2003.
3. Dispositive Pre-Trial Motions
Dispositive motions, if any, seeking resolution, in
whole or in part, of the issues to be raised at trial
shall be served and filed on or before January 30,
2004. No pre-motion conference is required. If the
movant believes the motion, if granted, would obviate
entirely the necessity of a trial in this matter, the
movant shall so state in a separate document captioned
APPLICATION FOR STAY OF PRE-TRIAL SCHEDULING ORDER and
served and filed with the moving papers, and may in
such Application request that the Court defer the
remaining requirements of this Order pending its
decision on the motion. Unless the Court grants such
Application, the filing of a dispositive motion does
not affect the parties' obligations under this Order.
4. Preliminary Conference
Counsel for the parties shall confer preliminarily at
least forty-five (45) days before the date set forth
in paragraph 9 below. At or prior to this preliminary
conference, counsel shall provide copies of each
proposed exhibit for inspection by opposing counsel
and for waiver or noting of objection and shall make
the disclosures required by Fed.R.Civ.P. 26(a)(3). At
the preliminary conference, counsel shall discuss (a)
settlement, any anticipated further motion practice,
including motions in limine, and (c) the matters
required to be addressed in their Joint Pre-Trial
Statement, as set forth in paragraph 6 below.
5. Other Pre-Trial Motions
Other motions, including but not limited to motions in
limine relating to evidentiary issues, must be filed
and served no later than thirty (30) days before the
date set forth in paragraph 9 below, unless otherwise
allowed by the Court for good cause shown.
6. Joint Pre-Trial Statement
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 ten (10) days before the
date set forth in paragraph 9 below, a single document
captioned JOINT PRE-TRIAL STATEMENT, which shall
a. A concise statement of the legal issues to be decided.
b. A concise statement of the material facts not in
c. A witness list containing the names, addresses and
a brief summary of the testimony of each witness
each party will call. A person not identified on
this list may not be called during a party's case
d. A final exhibit list containing a description of
all exhibits to be offered at trial, with one star
indicating exhibits to which no party objects on
grounds of authenticity and two stars indicating
exhibits to which no party objects on any ground.
Exhibits not identified on this list may not be
offered during a party's case in chief. Each
exhibit shall be marked and the list shall identify
the exhibits by their numbers or letters.
i. Plaintiff's exhibits shall be identified with
numbers as follows: Plaintiffs' Exhibit 1;
Plaintiff's Exhibit 2; etc.
ii. Defendant's exhibits shall be identified with
letters as follows: Defendant's Exhibit A;
Defendant's Exhibit B; etc.
If there is more than one plaintiff or defendant,
the parties shall confer so as to avoid duplication
of exhibit identification.
e. A list of the depositions, if any, to be offered at
f. Stipulations, if any, as to the admissibility of
exhibits and depositions.
g. A brief explanation of the objections, if any, to
the exhibits to be offered at trial, including
citation to the relevant legal authority.
h. A brief explanation of the objections, if any, to
the depositions to be offered at trial, including
citation to the relevant legal authority.
i. Each party's statement as to whether the case is to
tried before a jury.
j. A statement as to whether or not all parties
consent to trial of the case by a magistrate judge
(without identifying which parties have or have not
k. Each party's estimate of the time required for
presentation of its case.
When feasible, the Joint Pre-Trial Statement should
also be submitted to Chambers on a CD-Rom or 3.5"
diskette in WordPerfect version 6 or higher format.
The following documents must be annexed to, or
submitted to Chambers concurrently with, the Joint
One copy of each documentary exhibit to be offered
at trial. Such exhibits must be pre-marked. In the
event that a party intends to offer more than 15
documentary exhibits at the trial, the exhibits
should be tabbed or included in a binder for easy
reference. Counsel shall bring on the day of trial
additional pre-marked copies for use by witnesses,
the courtroom deputy, opposing parties and (if
applicable) the jury.
7. Proposed Voir Dire, Requests to Charge and Verdict Form
In a case to be tried before a jury, each party shall
serve on each other party and file with the Court no
later than five (5) business days before the Final
Pre-Trial Conference date set forth in paragraph 9
below, its proposed voir dire, requests to charge
and verdict form. Prior to service and filing of the
proposed voir dire and requests to charge, counsel
shall provide copies of their proposed voir dire and
requests to charge for inspection by opposing counsel
and for noting of objection. Stipulations, if any, as
to the agreed proposed requests to charge and a brief
explanation of the objections, if any, to any disputed
requests to charge, including citations to the
relevant legal authority shall be included with the
submissions made pursuant to this paragraph. When
feasible, proposed voir dire, requests to charge and
verdict forms shall also be submitted to Chambers on
a CD-Rom or 3.5" diskette in WordPerfect version 6
or higher format.
8. Proposed Findings of Fact and Conclusions of Law
If the case is not to be tried before a jury, each
party shall serve on each other party and file with
the Court its proposed findings of fact and
conclusions of law, which shall be broken down into
separately enumerated paragraphs, no later than five
(5) business days before the Final Pre-Trial
Conference date set forth in the following paragraph.
When feasible, the proposed findings of fact and
conclusions of law should also be submitted on a
CD-Rom or 3.5" diskette in WordPerfect version 6 or
9. Final Pre-Trial Conference
The parties are directed to appear before the
undersigned in Courtroom No. 444, 40 Foley Square, New
York, N.Y. 10007, for a final pre-trial conference on
May 14, 2004, at 10:00 a.m. The purpose of the
conference is to explore the possibility of
settlement, schedule the trial (which shall, court
calendar permitting, commence within two weeks after
the conference) if necessary, to review the issues to
be tried and the proof to be offered in connection
therewith, and to resolve any remaining pre-trial
The counsel who plan to try the case must appear at
such conference. Counsel attending the 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 in this order, includes the power
to enter into stipulations and make admissions
regarding all matters that the parties may reasonably
anticipate discussing at the pre-trial conference
including, but not limited to, the matters enumerated
in this Pre-Trial Scheduling Order.
The Court will not adjourn the final pre-trial
conference or excuse the appearance of a party or its
counsel unless a stipulation of settlement is on file
prior to the pre-trial conference date set forth in
this paragraph 9.
10. No Adjournment of Deadlines
The deadlines set forth in this Pre-Trial Scheduling
Order will not be adjourned except in the Court's
discretion upon good cause as shown in a written
application signed by both counsel and counsel's
client and served upon all parties. "Good cause," as
used in this paragraph, does not include circumstances
within the control of counsel or the client.
11. Non-Compliance with This Order
In the event that any party fails to comply with this
Pre-Trial Scheduling Order, or is not prepared to go
forward with trial on the date scheduled, the Court
may impose sanctions or take other action as
appropriate. Such sanctions and action may include
assessing costs and attorney's fees, precluding
evidence or defenses, dismissing the action, granting
judgment by default, and/or other appropriate
In particular, the parties are advised that the Court
may, without further hearing, render judgment in favor
of the adverse party if a party is not prepared to
proceed to trial within two weeks of the scheduled
final pre-trial conference date.
12. Other Matters
The parties shall begin meeting promptly with Judge
Gorenstein for settlement purposes.
IT IS SO ORDERED.