Free Order - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

BILTMORE ASSOCIATES, L.L.C., as ) Trustee for the Visitalk Creditors' ) Trust, ) ) Plaintiff, ) ) vs. ) ) PETER THIMMESCH, et al., ) ) Defendants. ) ____________________________________)

No. 2:02-cv-2405-HRH

AMENDED ORDER FOR PRETRIAL PROCEEDINGS & FINAL PRETRIAL CONFERENCE In preparation for a final pretrial conference, counsel shall discuss among themselves, by telephone or in person, as soon as possible after receipt of this order and from time to time thereafter as counsel deem appropriate, the following subjects for the purpose of completing the development of this case by the dates hereinafter specified.1 (1) Issues. The parties shall prepare and file a

single, joint statement of issues on or before November 26, 2007. The parties should not assume that they are at liberty to stipulate to a change of the dates set herein. If the parties do so stipulate, the court reserves the right to vacate the trial date if the changes in compliance dates deprive the court of adequate time to complete its trial preparation. - 1 1

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At a minimum, the joint statement of issues must identify the legal elements which a party is required to prove in order to establish each claim, affirmative defense, or cross- or counterclaim asserted by the party. If the statement of issues is not concurred in by

all counsel in all respects, a brief statement of the disagreement as to any issue or issues shall be included. At the final pretrial

conference, a final statement of issues to be litigated shall be settled, and only those issues will be tried. (2) Statement of Uncontested Facts. On or before

November 26, 2007, the parties shall prepare and file a joint statement of uncontested facts which shall be offered by plaintiff as the first evidence in the case. The emphasis in the statement of uncontested facts should be upon the inclusion of all possible non-controversial, background material which will serve to put into proper context the issues to be litigated. It is the intent of the court that this statement

include all facts upon which a party intends to rely and which the opposing party does not intend to controvert. In the preparation

of the statement of uncontested facts, and unless the parties all concur in a different, effective procedure, the parties shall each prepare a statement of facts which they intend to prove at trial, from which each side can identify those facts that are not to be controverted; and those uncontroverted facts shall be incorporated into the joint statement of uncontested facts. The court would

emphasize that it is intended that the statement of uncontested facts be read or stipulated directly into the record; and,

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therefore, it shall be entirely factual.

The statement shall not

contain matters of law, claims, or argument. (3) Witnesses. On or before November 26, 2007, each

party shall serve and file a final, revised witness list, which may include only persons who have been previously disclosed as

potential witnesses in a timely filed prior witness list.

This

final witness list shall disclose those witnesses whom the party will in fact call at trial. Only those witnesses so listed will be Witnesses shall be listed in the

permitted to testify at trial.

order in which it is expected they will be called. As to each witness so listed (even though the witness may have been deposed), counsel shall disclose the testimony expected to be elicited from that witness at trial. The disclosure shall be specific and not general, the purpose being to avoid surprise and delay at trial and to give opposing counsel an adequate basis for developing cross-examination. Expert witnesses shall be identified as such and as to their area(s) of expertise, and a statement of each expert's qualifications statement of shall be appended of to the witness be list. The

qualifications

experts

shall

sufficiently

detailed to permit opposing counsel to serve and file objections on or before the date specified hereinafter for the filing of

objections to proposed exhibits.

Any dispute as to qualifications

shall be resolved at the final pretrial conference. Witnesses whose depositions will be offered in lieu of live testimony shall be identified; and, in lieu of a statement of - 3 -

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testimony which counsel expects to elicit from such witnesses, the party shall specify the inclusive pages from the deposition which are proposed to be offered. Objections to such testimony, as well

as any desired counter-designation of deposition testimony, shall be served and filed on or before the date specified hereinafter for the filing of objections to proposed exhibits. Any objections to

proposed deposition testimony (including objections to counterdesignations) shall be resolved at the final pretrial conference. Depositions which are to be used for any purpose at trial shall be lodged with the clerk of court at the time and in the manner hereinafter specified for the filing of exhibits, and the same will be ordered published as a matter of course when and if such depositions are offered. (4) Exhibits. On or before November 26, 2007, the

parties shall mark,2 inspect, and exchange copies of all trial exhibits. Each party shall prepare, serve, and file a schedule of

all trial exhibits which identifies each exhibit by number or letter and title or description and designates each exhibit as "admitted", authenticated but not admitted, or "objection" with the Rule of Evidence upon which the objection is made being noted. A

complete, duplicate copy of the original marked exhibits shall be presented to the court at the commencement of trial.

Plaintiff's exhibits shall be numbered beginning at 001. Defendants' exhibits shall be numbered beginning at 501. Do not use letter (alpha) designations for exhibits. - 4 -

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On or before December 3, 2007, the parties shall serve and file all objections to exhibits, and in particular shall identify any exhibit as to which authentication will be required. Absent such notice, formal authentication will be deemed waived. Objections shall be concise and appropriate authorities shall be cited. The offering party's arguments and authorities in favor of

admission of each such exhibit shall be served and filed by December 10, 2007. (5) Motions. The time for the filing of pretrial

motions has expired; however, motions as to known, difficult evidentiary matters shall be served and filed not later than November 26, 2007. (6) Settlement. By order of June 1, 2007,3 the court A court-assisted mediation

has addressed the matter of mediation.

conference will be required after the court has ruled upon pending motions for summary judgment if this case is not concluded by such motions and if the parties do not agree to private mediation. The

court must be advised of a "last-minute" settlement no later than three business days before the commencement of trial; otherwise, costs are incurred by the court and may be taxed to the parties. (7) Final Pretrial Conference. The final pretrial

conference is scheduled for the general purpose of reviewing compliance with this order.

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Docket No. 354. - 5 -

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(8)

Briefs, etc.

Each party shall serve and file a Such brief shall

trial brief on or before January 11, 2008.

contain a short, plain, and candid statement of the party's position and authorities as to each contested issue of law. It

shall disclose and brief those theories of the case which a party will urge at trial. Except as shall be incidentally necessary, the briefs shall not contain a statement of, nor shall they argue, the facts of the case. letter-sized pages. This case is now calendared for trial by the court. Short opening statements are optional. In lieu of closing Such briefs shall be no longer than fifteen

arguments, the court will receive, at a time to be agreed upon, the parties' written summations coupled with proposed findings of fact and conclusions of law. (9) Trial. Subject to the requirements of the court's

criminal calendar, trial by court in this case is scheduled to commence on Tuesday, January 29, 2008, at Phoenix, Arizona, and is expected to be completed on February 26, 2008. Unless otherwise

ordered, trial will commence at 9:00 a.m. each day and will adjourn for the day at 4:30 p.m. except in unusual circumstances. This case is not a "back-up" case which has been

scheduled for trial in the event that a primary case setting is vacated. (It is the responsibility of counsel for the parties in

a "back-up" case to keep themselves informed as regards the court's calendar and to be ready to proceed with trial on short notice if

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a primary case setting is vacated.

The court will endeavor to

notify counsel for the parties in a "back-up" case of a change in their calendar status at the earliest possible time, but the primary responsibility in this regard is upon counsel.) (10) Other Matters. Such other matters as counsel may

desire to take up at the pretrial conference should be discussed by them in advance, and the court will be pleased to consider any other matters that will in any fashion facilitate and/or expedite the development and trial of the case. IT IS ORDERED: (1) A final pretrial conference in this case will be

held on Wednesday, January 16, 2008, at 1:30 p.m. Alaska Standard Time (3:30 p.m. in Arizona), at Anchorage, Alaska. If scheduled

for Alaska, parties may participate by conference telephone call arranged in advance. (2) The parties shall prepare, serve or exchange, and

file or lodge with the court on or before the dates above specified all of the documents above specified. These dates shall not be

subject to change by stipulation of the parties, and may be changed only by order of the court for good cause shown. Both the final

pretrial conference date and the trial date set for this case are contingent upon timely compliance with this order by the parties. Any party should expect to pay costs to the opposing party or to the court if it is found that he or she has willfully and without good cause failed to comply with this order. Federal Rules of Civil Procedure. - 7 See Rule 16(f),

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(3)

To the extent that stipulations of the parties

and/or earlier orders of the court require additional or more detailed filings or additional procedures, those earlier

stipulations and/or orders shall remain in effect. However, to the extent any such prior stipulation or order conflicts herewith, this order shall control. DATED at Anchorage, Alaska, this 17th day of July, 2007.

/s/ H. Russel Holland United States District Judge

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