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Perez v. Valastro

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 8, 2010

MANUAL PEREZ, INDIVIDUALLY, AND AS THE EXECUTOR OF THE ESTATE OF DOLORES PEREZ, PLAINTIFF,
v.
VALASTRO, L.L.C., DOING BUSINESS AS ADIRONDACK BAR & GRILL, AND STACY L. GOODSPEED AS THE ADMINISTRATOR OF THE ESTATE OF JASON S. GOODSPEED, DEFENDANTS.
RONALD KELLER, PLAINTIFF,
v.
JOHN DEERE AND COMPANY; HOMELITE CONSUMER PRODUCTS, INC; HOMELITE INC.; AND TECHTRONIC INDUSTRIES NORTH AMERICA, INC., DEFENDANTS.
KATHLEEN CURNS AND LINDA ZUKAITIS, PLAINTIFFS,
v.
WAL-MART STORES INC., DEFENDANT.
GERALD BATCHER, PLAINTIFF,
v.
WARREN FAMIGLIETTI, DEFENDANT.
ANGEL HERNANDEZ, PLAINTIFF,
v.
DUKE BUNCE, II; DAVID DUGATKIN; AND THE TOWN OF NEW PALTZ;, DEFENDANTS.
ENERGY SERVICES PROVIDERS, INC., PLAINTIFF,
v.
CONSUMER SALES SOLUTIONS, LLC, DEFENDANT.
THE ANDERSON GROUP, LLC AND GAIL ANDERSON, PLAINTIFFS,
v.
CITY OF SARATOGA SPRINGS, ET AL., DEFENDANTS.
TRAVIS NAJA, PLAINTIFF,
v.
PAUL M. VEITCH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS POLICE OFFICER OF THE CITY OF SARATOGA SPRINGS, DEFENDANT.
ONEBEACON AMERICA INSURANCE COMPANY, AS SUBROGEE OF THE GARRETT HOTEL GROUP, INC., PLAINTIFF,
v.
COMSEC VENTURES INTERNATIONAL, INC., AND MAHONEY NOTIFY-PLUS, INC., DEFENDANTS.
SARA BODE KULLMAN AND JENNIFER SNYDER, PLAINTIFFS,
v.
STATE OF NEW YORK, ET AL., DEFENDANTS.
DONNA HOFLER, PLAINTIFF,
v.
FAMILY OF WOODSTOCK, INC., DEFENDANT.
MADELINE FOWLER, PLAINTIFF,
v.
KOHL'S DEPARTMENT STORES, INC., DEFENDANT.
NAUM SHKOLNIK, PLAINTIFF,
v.
PHILLIPS MEDICAL SYSTEMS MR, INC., DEFENDANT.
ALBANY PATROONS, INC., PLAINTIFF,
v.
UNITED STATES BASKETBALL LEAGUE, DEFENDANT.
CHERYL CIPPERLEY AND ART CIPPERLEY, PLAINTIFFS,
v.
ATS, INC. AND OCTAVIO CAYETANO, SR., DEFENDANTS.
JOEL SHANKS AND RICK SHANKS, PLAINTIFFS,
v.
VILLAGE OF CATSKILL BOARD OF TRUSTEES; VILLAGE OF CATSKILL FIRE DEPT.; VILLAGE OF CATSKILL FIRE COMPANY INC.; RANDY ORMEROD; FLOYD PRINCE, JR.; JACK ORMEROD, SR.; NEAL RUSSELL; JOHN DARLING, III; JIM CHEWENS; STEVE SCHULTZ; HANK COONS; JOHN DEES; RICK CHEWENS; HAROLD RIVENBURG; FOREST COTTON; ANGELO W. AMATO; JOSEPH KOZLOSKI; PAUL OVERBAUGH; VINCENT SEELEY; AND PAUL D. ORMEROD, JR., DEFENDANTS.
WANT AD DIGEST, INC., PLAINTIFF
v.
DISPLAY ADVERTISING, INC AND EDWARD H. SPAIN, DEFENDANTS.
E. BRUCE NAUMAN, PLAINTIFF,
v.
RENSSELAER POLYTECHNIC INSTITUTE, DEFENDANT.
TIMOTHY E. COUGHTRY AND JOANN E. COUGHTRY, PLAINTIFFS,
v.
TRACKER MARINE, LLC, DEFENDANT.
WARREN EDWARD IVEY, PLAINTIFF,
v.
JAMES LYMAN, DEFENDANT.
EARL JOHN CUTTER, SR., DECEASED, AND LEONA M. CUTTER, AS ADMINISTRATRIX OF THE ESTATE OF EARL JOHN CUTTER, SR., DECEASED, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

Trial Order

All relevant Uniform Pretrial Scheduling Order deadlines having expired in the above twenty-one (21) captioned cases, are hereby designated "trial ready" in the numerical order listed, and shall proceed to trial during a jury term beginning on Monday, May 17, 2010, and continuing thereafter on a daily schedule. All listed actions are governed by this Scheduling Order unless they are designated "exempt" according to the terms of this order, and a new Scheduling Order is issued by a Magistrate or District Court Judge.

In order of priority, the cases are designated as follows:

1. Perez, et al. (1:06-cv-948);

2. Keller, et al. (1:06-cv-986);

3. Curns, et al. (1:06-cv-1336);

4. Batcher, et al. (1:07-cv-1);

5. Hernandez, et al. (1:07-cv-113);

6. Energy Services, et al. (1:07-cv-686);

7. Anderson, et al. (1:05-cv-1369);

8. Naja, et al. (1:07-cv-465);

9. OneBeacon, et al. (8:07-cv-900);

10. Kullman, et al. (8:07-cv-716);

11. Hofler, et al. (1:07-cv-1055);

12. Fowler, et al. (1:07-cv-1197);

13. Shkolnik, et al. (1:07-cv-854);

14. Albany, et al. (1:08-cv-691);

15. Cipperley,et al. (1:07-cv-1136);

16. Shanks, et al. (1:06-cv-1399);

17. Want Ad Digest, Inc., et al. (1:08-cv-189);

18. Nauman, et al. (1:07-cv-740);

19. Coughtry, et al. (1:08-cv-875);

20. Ivey, et al. (9:02-cv-470);

21. Cutter,et al. (1:06-cv-1381).

Schedule

Unless an action is designated "exempt," all parties shall proceed in accordance with the schedule established in this order and attachment.

Trials

The attorneys and parties in the first action on the trial ready list, or in the first action on any subsequently amended trial ready list, shall appear at Courtroom No. 6, 445 Broadway, Albany, New York, First Floor, South, for trial beginning promptly at 9:30 a.m. on Monday, May 17, 2010.

Each succeeding action on the trial ready list shall proceed on the day following completion of the action preceding it, unless a different date is otherwise ordered by the court.

The parties are hereby notified that their trial dates will advance should a case preceding them on the trial ready list settle, or for any other reason, be removed from the list.*fn1 The parties are further advised that should a case be removed from the trial ready list because of settlement or some other non-exempt factor on or after Thursday, May 13, 2010, at 4:00 p.m., the court may impose sanctions pursuant to N.D.N.Y. L.R. 47.3.

Final Pretrial Conferences

To the extent practicable, final pretrial conferences will be subsequently scheduled within the week preceding the anticipated trial date. The attorneys for all parties in each action shall appear at this court's chambers, 445 Broadway, Albany, New York, First Floor, South, for the final pretrial conference.

Note: The court will not conduct a settlement conference during the final pretrial conference. The co-assigned Magistrate Judges are available for settlement conferences, and the court expects that parties, if they elect to do so, will schedule such a conference with the Magistrate Judge on or before May 6, 2010.

Pretrial Submissions*fn2

Pursuant to Attachment 1, pretrial submissions in all cases shall be filed in accordance with the schedule set forth in Attachment 1.

Exemptions

If a case is designated as "exempt" because it meets either of the two following criteria, it will be removed from the trial ready list and referred to a designated Judge who may elect to issue a new scheduling order setting new fixed dates for all further proceedings, including pretrial submissions and trial:

1. If, on or before April 8, 2010, all parties in an action file a Consent to the Exercise of Jurisdiction by a Magistrate Judge (see General Order 25, 28 U.S.C. § 636(c), N.D.N.Y. L.R. 72.2(b), and Attachment), the court will issue an Order of Reference, and designate the action as "exempt"; or

2. If this court subsequently refers an action to another District Court Judge, the case will be designated "exempt" if the referral Judge elects to issue an amended scheduling order.

IT IS SO ORDERED.

Attachment #1

Pretrial Submissions

N.B. Unless otherwise noted, all parties shall electronically file and serve all pretrial submissions in accordance with General Order No. 22, ¶ 5.

The following pretrial submissions shall be filed in accordance with this Order.

1. Joint Pretrial Stipulation

On or before Monday, April 12, 2010, a joint pretrial stipulation shall be subscribed by counsel for all parties, and shall contain:

(1) The basis of federal jurisdiction;

(2) A list of all exhibits which can be stipulated into evidence orwhich will be offered without objection as to foundation; and

(3) Relevant facts not in dispute.

2. Voir Dire

On or before Monday, April 12, 2010, each party shall submit a numbered list of questions which the court, in the exercise of its discretion, may use during jury selection.

3. Witnesses

(1) On or before Monday, April 12, 2010, counsel shall file a witness list containing the following information regarding the witnesses that may be called to testify at trial other than solely for impeachment purposes:

(a) The name and, if not previously provided, the address (city only) of each witness, separately identifying those whom the party expects to present and those whom the party may call if the need arises.

N.B.: Personal Privacy Protections may apply to disclosure of this information. See Local Rule 8.1; General Order No. 22, ¶¶ 2.1.3, 11.1-11.2 and 12.2.

(b) The designation of those witnesses whose testimony is expected to be presented by means of a deposition (including video-taped deposition), specifically identifying the pertinent portions of the deposition testimony to be offered.

(2) The unavailability of any witness, expert, or otherwise, will not be grounds for a continuance. In order to avoid the possibility of proceeding at trial without the testimony of an unavailable witness, counsel, where appropriate, shall preserve the testimony by written or video-taped deposition for possible use at trial. (Please refer to the attached instruction sheet for the use of video-taped depositions.)

4. Exhibits

(1) All exhibits shall be marked for identification in the manner prescribed hereinafter. A complete set of copies of the exhibits or, alternatively, a copy of a CD-ROM containing the exhibits shall be presented to Judge Sharpe's Deputy Courtroom Clerk AT THE BEGINNING OF TRIAL.

(2) The exhibits shall have been inspected by the opposing party and copied at their expense (unless waived) BEFORE TRIAL COMMENCES. All documents and/or papers intended as exhibits or to be used during the course of trial, including but not limited to documents, photographs, charts, diagrams, etc., shall be assembled in BINDERS AND/OR ON CD-ROM with each document properly marked at the lower right corner for identification purposes as directed below. In voluminous cases, consult with Judge Sharpe's Courtroom Clerk for the proper procedure to follow.

(3) During the course of trial the Deputy Courtroom Clerk shall take charge of exhibits that are received into evidence. At the conclusion of the trial, the Courtroom Deputy Clerk will immediately return all of the exhibits to the proper parties. It is the responsibility of the parties to maintain the exhibits and to produce the exhibits for any appeal.

(4) BEFORE TRIAL COMMENCES, counsel shall electronically file and serve an Exhibit List. The exhibits shall be listed on the form prescribed by the Court, a copy of which is attached to this Order. Counsel are to supply all the requested information with the exception of the two "Date Boxes" which should remain blank.

(5) Counsel shall fill in the appropriate markers leaving the "File" and "Deputy Clerk" lines blank. All exhibits shall be assigned numbers by using a prefix of "P" for plaintiff, "D" for defendant, and "G" for Government (U.S. Attorney).

Plaintiff's exhibits should be denoted as: P-l, P-2, P-3, etc. Defendant's exhibits should be denoted as: D-l, D-2, D-3, etc. Government's exhibits should be denoted as: G-l, G-2, G-3, etc. In cases involving multiple defendants, the exhibits shall be denoted with the initial of the last name of the defendant and its numerical identification number.

Stickers shall be affixed whenever possible to the lower right-hand corner of the exhibit. If the exhibit marker is going to cover any information on the exhibit, then affix the marker to the reverse side of the exhibit.

5. Trial Brief

On or before Monday, April 12, 2010, counsel shall electronically file and serve a trial brief containing argument and citations on any and all disputed issues of law, citing the applicable rules of evidence and case law. Trial briefs should also include any evidentiary issues that are expected to arise.

6. Requests to Charge and Proposed Special Verdict Form

On or before Monday, April 12, 2010, counsel shall traditionally file with the Clerk's Office and serve upon opposing counsel requests to charge and a proposed Special Verdict Questionnaire on either a CD-ROM or 3.5-inch computer disk, preferably in WordPerfect format. The requests to charge need only include instructions that are specific to the law in this case regarding liability, damages, and any unusual issues. The Court has usual boilerplate instructions.

7. Motions in Limine

On or before Monday, April 12, 2010, counsel shall electronically file and serve any motions in limine, citing the applicable rules of evidence and case law. Opposing counsel shall file any response to motions in limine no later than April 19, 2010.

MOTIONS IN LIMINE MAY NOT OTHERWISE BE FILED WITHOUT LEAVE OF THE COURT.

8. Depositions

(1) BEFORE TRIAL, counsel shall electronically file all non-video taped depositions to be used at trial. Counsel shall traditionally file all video-taped depositions to be used at trial. (See General Order No. 22, ¶¶ 1.2, unnumbered paragraph following 2.1.6). To the extent possible, objections are to be resolved between the parties. Areas of unresolved disagreement shall be presented to the Court for ruling at the Final Pretrial Conference. (See attached instruction sheet for use of video-taped depositions.)

INSTRUCTIONS FOR THE USE OF VIDEO TAPED DEPOSITIONS

COUNSEL ARE TO VIEW ALL VIDEOTAPES WHICH MAY BE OFFERED INTO EVIDENCE AT THE TIME OF TRIAL. ALL VIDEO-TAPED DEPOSITIONS TO BE USED AT TRIAL SHALL BE FILED WITH THE CLERK'S OFFICE AT LEAST ONE WEEK BEFORE THE TRIAL READY DATE. NOT EARLIER THAN ONE WEEK AND NOT LESS THAN FOUR DAYS PRIOR TO THE TRIAL READY DATE, EACH PARTY SHALL INDICATE TO THE OTHER PARTY THE PORTION OF THE DEPOSITION TO BE OFFERED. TO THE EXTENT POSSIBLE, OBJECTIONS ARE TO BE RESOLVED BETWEEN THE PARTIES. COUNSEL SHALL SUBMIT ALL OBJECTIONS IN WRITING TO THE COURT FOR RULING PRIOR TO THE TRIAL READY DATE. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -THE CLERKS OFFICE HAS AVAILABLE A VHS FORMAT VIDEO CASSETTE PLAYER AND TELEVISION FOR USE AT TRIAL. PLEASE BE ADVISED THAT YOU MUST PROVIDE A PERSON TO RUN THE EQUIPMENT DURING THE COURSE OF THE TRIAL.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

ELECTRONIC VISUAL EVIDENCE PRESENTER

IN ADDITION TO THE VIDEO EQUIPMENT NOTED ABOVE, THE COURT HAS AVAILABLE A VISUAL EVIDENCE PRESENTER WHICH WILL ALLOW COUNSEL TO DISPLAY PHOTOS (NEGATIVES OR POSITIVES), DOCUMENTS, X-RAYS, AND 3-D OBJECTS, WITHOUT WIRES, ON TELEVISIONS PLACED THROUGHOUT THE COURTROOM. THIS EQUIPMENT IS AVAILABLE AT THE COURTHOUSES IN ALBANY, SYRACUSE, UTICA AND BINGHAMTON. USE OF THE VISUAL PRESENTER MAY BE REQUIRED BY THE TRIAL JUDGE PRESIDING OVER YOUR CASE. FOR FURTHER INFORMATION ON THE USE OF THIS EQUIPMENT, PLEASE CONTACT THE COURTROOM DEPUTY CLERK FOR THE ASSIGNED TRIAL JUDGE.

UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________ CASE NO. _______________ PLAINTIFF EXHIBIT NO. __________ DEFENDANT EXHIBIT NO. __________ DATE ENTERED __________ DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK LAWRENCE K. BAERMAN, CLERK BY: ______________________________ BY: ______________________________ DEPUTY CLERK DEPUTY CLERK

UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________ CASE NO. _______________ PLAINTIFF EXHIBIT NO. __________ DEFENDANT EXHIBIT NO. __________ DATE ENTERED __________ DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK LAWRENCE K. BAERMAN, CLERK BY: ______________________________ BY: ______________________________ DEPUTY CLERK DEPUTY CLERK

UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK NORTHERN DISTRICT OF NEW YORK

CASE NO. _______________ CASE NO. _______________ PLAINTIFF EXHIBIT NO. __________ DEFENDANT EXHIBIT NO. __________ DATE ENTERED __________ DATE ENTERED __________

LAWRENCE K. BAERMAN, CLERK LAWRENCE K. BAERMAN, CLERK BY: ______________________________ BY: ______________________________ DEPUTY CLERK DEPUTY CLERK

United States District Court For The Northern District Of New York Case No. ____________________

Date: ____________________

Presiding Judge: _____________________

( ) Plaintiff ( ) Defendant ( ) Court

Exhibit Marked for Admitted Into Remarks Witness Exhibit Description

No. Identification Evidence

Exhibits Returned To Counsel (Date):______________ Signature:_________________________

Exhibit Marked for Admitted Into Remarks Witness Exhibit Description

No. Identification Evidence

Exhibits Returned To Counsel (Date):______________ Signature:_________________________


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