The opinion of the court was delivered by: Laura Taylor Swain, 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 August 15, 2003 at 2:45 p.m. in Courtroom No. 444, 40 Foley Square, New York, New York 10007. It is further 2. ORDERED that counsel*fn1 for plaintiff(s) shall serve a copy of this Preliminary Pre-Trial Order on each defendant within ten (10) calendar 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 counsel 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. 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 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
4. 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. 26(f):
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 jurisdictional
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 disputed
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
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 such party.
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 therefor.
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 imposed.
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
5. 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
6. 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.
7. 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 ...