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Spinner v. Board of County Commissioners of Johnson County

United States District Court, D. Kansas

December 19, 2018

ERIC SPINNER, Plaintiff,



         On December 19, 2018, in accordance with Fed.R.Civ.P. 16, the undersigned U.S. Magistrate Judge, James P. O'Hara, conducted a scheduling conference. Plaintiff appeared through counsel, John J. Ziegelmeyer, III. Defendant appeared through counsel, Jeannie DeVeney and Jennifer Schorgl.

         At the outset of the scheduling conference, the parties stipulated and the court ordered that the pleadings should be deemed amended to reflect defendant's correct name for purposes of litigation under K.S.A. 19-105, consistent with the caption of this scheduling order. All future filings must be styled accordingly.

         After consultation with the parties, the court enters this scheduling order, summarized in the table that follows:




Plaintiff's settlement proposal

January 2, 2019

Defendant's settlement counter-proposal

January 16, 2019

Jointly filed mediation notice, or confidential settlement reports to magistrate judge

January 30, 2019

Mediation completed

April 19, 2019

Supplementation of initial disclosures

40 days before

deadline for

completion of all


All discovery completed

June 19, 2019

Experts disclosed by plaintiff

March 19, 2019

Experts disclosed by defendant

April 19, 2019

Rebuttal experts disclosed

30 days after the other party's disclosures

Physical and mental examinations

March 26, 2019

Motions to amend or join additional parties

January 24, 2019

All other potentially dispositive motions (e.g., summary judgment)

August 2, 2019

Motions challenging admissibility of expert testimony

45 days before trial

Proposed pretrial order due

June 26, 2019

Pretrial conference

July 8, 2019 at 9:00 AM


April 7, 2020 at 9:00 AM

         1) Alternative Dispute Resolution (ADR).

         After discussing ADR during the scheduling conference, the court has determined that settlement of this case potentially would be enhanced by use of early mediation. Toward that end, plaintiff must submit a good-faith settlement proposal to defendant by January 2, 2019. Defendant must make a good-faith counter-proposal by January 16, 2019. By January 30, 2019, unless the parties have jointly filed a notice stating the full name, mailing address, and telephone number of the person whom they have selected to serve as mediator, along with the firmly scheduled date, time, and place of mediation, each party must submit a confidential settlement report by e-mail to the undersigned U.S. Magistrate Judge (but not the presiding U.S. District Judge). These reports must briefly set forth the parties' settlement efforts to date, current evaluations of the case, views concerning future settlement negotiations, the overall prospects for settlement, and a specific recommendation regarding mediation. If the parties cannot agree on a mediator and any party wishes the court to consider a particular mediator, then up to three nominations may be provided in the confidential settlement reports; such nominations must include a statement of the nominee's qualifications and billing rates, and confirmation that the nominee already has pre-cleared all ethical and scheduling conflicts. These reports must not be filed with the Clerk's Office. Mediation is ordered. Absent further order of the court, mediation must be held no later than April 19, 2019. An ADR report must be filed by defense counsel within 14 days of any scheduled mediation, using the form located on the court's website:


         a) The parties already have served their initial disclosures with regard to witnesses, exhibits, damage computations, and any applicable insurance coverage, as required by Fed.R.Civ.P. 26(a)(1). See ECF Nos. 9 and 10. Supplementations of the parties' initial disclosures under Fed.R.Civ.P. 26(e) must be served throughout the case at such times and under such circumstances as required by that rule. In addition, final supplemental disclosures must be served in any event 40 days before the deadline for completion of all discovery. The supplemental disclosures served 40 days before the deadline for completion of all discovery must identify all witnesses and exhibits that probably or even might be used at trial. The opposing party and counsel should be placed in a realistic position to make judgments about whether to take a particular deposition or pursue follow-up “written” discovery before the time allowed for discovery expires. Should anything be included in the final disclosures under Fed.R.Civ.P. 26(a)(3) that has not previously appeared in the initial Rule 26(a)(1) disclosures or a timely Rule 26(e) supplement thereto, the witness or exhibit probably will be excluded from offering any testimony under Fed.R.Civ.P. 37(c)(1).

         b) All discovery must be commenced or served in time to be completed by June 19, 2019. The court respectfully reminds the parties and counsel that they are entitled to obtain pretrial discovery regarding any nonprivileged matter provided it's (a) relevant to a party's claim or defense, AND (b) proportional to the needs of this case. Under Fed.R.Civ.P. 26(b)(1), whether any particular discovery request is proportional is to be determined by considering, to the extent they apply, the following six factors: (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties' relative access to relevant information, (4) the parties' resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.

         c) If expert testimony is used in this case, disclosures required by Fed.R.Civ.P. 26(a)(2), including reports from retained experts, must be served by plaintiff by March 19, 2019, and by defendant by April 19, 2019; disclosures and reports by any rebuttal experts must be served no later than 30 days after the other party's disclosures. The parties must serve any objections to such disclosures (other than objections pursuant to Fed.R.Evid. 702-705, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), or similar case law), within 14 days after service of the disclosures. These objections should be confined to technical objections related to the sufficiency of the written expert disclosures (e.g., whether all of the information required by Rule 26(a)(2)(B) has been provided) and need not extend to the admissibility of the expert's proposed testimony. If such technical objections are served, counsel must confer or make a reasonable effort to confer consistent with D. Kan. Rule 37.2 before filing any motion based on those objections.

         d) The parties agree that physical or mental examinations pursuant Fed.R.Civ.P. 35 may be appropriate in this case. The parties must complete all physical or mental examinations under Fed.R.Civ.P. 35 by March 26, 2019. If the parties disagree about the need for or the scope of such an examination, a formal motion must be filed sufficiently in advance of this deadline in order to allow the motion to be fully briefed by the parties, the motion to be decided by the court, and for the examination to be conducted, all before the deadline expires.

         e) Consistent with the parties' agreements as set forth in their planning conference report, electronically stored ...

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