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KING v. PATHMARK STORES
April 24, 2003
MARIANA KING, PLAINTIFF(S), AGAINST PATHMARK STORES, INC., DEFENDANT(S).
The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
PRELIMINARY PRE-TRIAL ORDER
1. It is hereby ORDERED that a pre-trial conference shall be held in the
above-captioned matter on July 23, 2003 at 3:15 p.m. in Courtroom No.
444, 40 Foley Square, New York, New York 10007. It is further
2. ORDERED that counsel*fn1 for the removing defendant(s) shall serve a
copy of this Preliminary Pre-Trial Order on each other party within
ten (10) days following the date of this order, and that a copy of
this Preliminary Pre-Trial Order shall also be served with any
subsequent process that brings in additional parties, and that proof
of such service shall be filed with the Court promptly. It is further
3. ORDERED, that the removing defendant(s) shall serve on all other
parties and file within ten (10) days following the date of this order
a submission providing the following information:
a. A full explanation if all defendants who had been
served at the time of removal did not join in the
notice of removal.
b. A full explanation if the notice of removal was
dated more than thirty (30) days after the first
defendant was served.
c. If the action has been removed on grounds of
diversity jurisdiction, a statement as to whether
any of the defendants who had been served at the
time of removal is a citizen of New York State.
d. If the action has been removed on the grounds of
diversity jurisdiction, the citizenship of all
named plaintiffs and all named defendants
(including the citizenship of all members or
partners in any non-corporate party), if such
states of citizenship were not set forth in the
notice of removal.
If any plaintiff has a response to defendant's
submission such response, if any, shall be filed
and served within fourteen (14) days of service of
the submission. Any motion to remand the action to
state court based on procedural defects in the
removal must be filed, if at all, within thirty
(30) days after removal. See 28 U.S.C. § 1447(c).
4. ORDERED that counsel for the parties confer preliminarily at least
twenty-one (21) calendar 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. Contested and uncontested legal issues.
c. The disclosures required by Fed.R.Civ.P. 26(a)(1).
d. Anticipated amendments to the pleadings, and an
appropriate deadline therefor.
f. Whether mediation might facilitate resolution of
g. Whether the case is to be tried to a jury.
h. Whether each party consents to trial of the case
by a magistrate judge.
i. Anticipated further discovery and an appropriate
deadline for the conclusion of discovery.
j. Whether expert witness evidence will be required,
and appropriate deadlines for expert witness
k. Whether dispositive motions may be appropriate,
and a deadline for such motions.
l. 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
5. 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) calendar days
before the date set forth in paragraph 1 above a single document
captioned PRELIMINARY PRE-TRIAL 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.
a. A concise statement of the nature of this action.
b. 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
c. A concise statement of all material uncontested or
d. A concise statement of all uncontested legal issues.
e. A concise statement of all legal issues to be
decided by the Court.
f. Each party's concise statement of material
g. A concise statement by each plaintiff and each
counterclaimant of the legal basis of each cause
of action asserted, including citations to all
statutes, Federal Rules of Civil Procedure, other
rules and case law intended to be relied upon by
such plaintiff or counterclaimant.
h. Each party's concise statement of the legal basis
of each defense asserted or expected to be
asserted by such party, including citations to all
statutes, Rules, and other applicable regulatory
and judicial authority intended to be relied on by
i. A concise statement of the measure of proof and on
whom the burden of proof falls as to each cause of
action or defense.
j. Whether and to what extent amendments to pleadings
and/or the addition or substitution of parties
will be required, and proposed deadlines
k. 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
l. 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.
m. The subjects on which disclosure may be needed,
and whether discovery should be conducted in
phases or be limited to or focus upon particular
issues, including a concise description of each
party's plan for discovery and a proposed
discovery cut-off date.
n. Whether and to what extent expert evidence will be
required, and proposed deadlines for expert
o. 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
p. The status of settlement discussions and the
prospects for settlement of the action in whole or
in part, provided that the Preliminary Pre-Trial
Statement shall not disclose to the Court specific
settlement offers or demands.
q. 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.
r. 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
6. 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, and anticipated dispositive motions and a
deadline therefor. It is further
7. 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.
8. In the event that any party fails to comply with this Order, the Court
may impose sanctions or take ...
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