HomeMy WebLinkAbout2022-cv-1983-SKC - Townley v. Fort Collins, et al - 039 - Consent Case Practice and Trial Preparation Order1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
U.S. Magistrate Judge S. Kato Crews Civil Action No. 1:22-cv-01983-SKC MICHAEL PIPER TOWNLEY, ANNA KRUGER, and JOSHUA DELEON, Plaintiffs, v. BRIAN MALLORY, in his individual capacity; ETHAN VANSICKLE, in his individual capacity; DANIEL NETZEL, in his individual capacity; JARED ROBERTSON, in his individual capacity; JOE SCHILZ, in his individual capacity; JASON HAFERMAN, in his individual capacity; CHRISTOPHER YOUNG, in his individual capacity. Defendants.
CONSENT CASE PRACTICE AND TRIAL PREPARATION ORDER
This Order imposes requirements that supplement the Scheduling Order,
this Court’s Practice Standards for Civil Cases, and the Discovery Procedures for
Pro Se Civil Cases (as applicable), in cases where all parties have consented to
the jurisdiction of this Magistrate Judge. It also explains requirements for trial.
This Order may not be modified by agreement of the parties.
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A. MOTIONS PRACTICE
1. Page Limits and Format: All motions shall be doubled-spaced and in
12-point font. Footnotes should also be in 12-point font. Except motions for
summary judgment, all motions and responses shall not exceed 16 pages. Motions
and briefs shall be combined and are considered one document for purposes of
computing page limits. Replies shall not exceed 11 pages. These page limits include
the cover page through the certificate of service. Documents attached in support of
a motion or response shall not exceed 10 pages, while documents attached in
support of a reply shall not exceed five pages.
2. Surreplies: Surreplies are not allowed without leave of Court.
3. Motion to Exceed Page Limits: These motions must be supported by a
showing of good cause and specify the number of additional pages proposed, and the
reason(s) why those pages are necessary.
4. Dispositive Motions:
a. Motions to Dismiss (Fed. R. Civ. P. 12(b)): Rule 12(b) motions are
discouraged if the defect is correctable by filing an amended
pleading. Rule 12(b) motions should not be stated in the alternative
as a Rule 56 motion for summary judgment.
b. Motions for Summary Judgment (Fed. R. Civ. P. 56)
i. Motions and responses shall not exceed 21 pages. Replies
shall not exceed 16 pages. These page limits include the
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cover page through the certificate of service.
ii. The parties shall file separate Statements of Undisputed
Material Facts using the three-column chart found at
Attachment 1, as follows:
1. For the movant: A separate Statement of Undisputed
Material Facts in support of the motion must
separately identify each material fact claimed to be
without dispute. Absent prior leave of Court, a movant
shall not file more than 80 separately-numbered
statements of undisputed material facts. In a three-
column format, the statement must state in numerical
sequence the undisputed material facts in the first
column, followed by a specific reference to material in
the record that establishes those undisputed facts in
that same column. The pages of the chart are not
included in the page limits for motions for summary
judgment. There is no page limit on the
evidence/exhibits attached in support of the motion.
2. For the opposing party: A separate Statement of
Undisputed Material Facts in opposition to the motion
for summary judgment must contain the following in a
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three-column format: (a) In the first column, the
verbatim entries that were prepared by the movant at
step one; (b) In the second column, directly opposite
the recitation of the movant’s material facts and
supporting evidence, the response must state whether
the fact is “disputed” or “undisputed.” An opposing
party who contends the fact is “disputed” must state,
in the second column of the page directly opposite the
fact in dispute, the nature of the dispute followed by a
specific reference to material in the record that
supports the position that the fact is controverted.
Also in the second column, the opposing party shall
set forth any additional material facts which it
contends are undisputed, followed by a specific
reference to material in the record that establishes
those additional material facts as undisputed in that
same column. Absent prior leave of Court, a
respondent to a summary judgment motion shall not
file more than 40 separately-numbered statements of
additional facts. The pages of the chart are not
included in the page limits for the response. There is
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no page limit on the evidence/exhibits attached in
support of the motion.
3. For the movant’s reply filing: A separate Statement of
Undisputed Material Facts in support of the motion
must contain the following in a three-column format:
(a) The first two columns shall contain the verbatim
entries prepared by movant at step one, and the
verbatim entries prepared by the responding party at
step two; (b) In the third column, directly opposite the
recitation of the opposing party’s material facts and
supporting evidence, the reply must state whether the
fact is “disputed” or “undisputed.” The moving party
who contends the fact is “disputed” must state, in the
third column of the page directly opposite the fact in
dispute, the nature of the dispute followed by a
specific reference to material in the record that
supports the position that the fact is controverted.
Also in the third column, if the moving party contests
the opposing party’s dispute of the moving party’s
recitation of undisputed material fact, the moving
party may make specific reference to any additional
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supporting material in the record.
iii. When making a specific reference to material in the record
which establishes a fact, general references are insufficient if
the document is longer than one page. A “specific reference”
means reference to:1 a page number; a line number; a
paragraph number; a CM/ECF Docket entry number (with
additional internal specific reference provided); or any
combination of these references to assist the Court to easily
locate the pertinent information. The effort at specificity
may be further aided by highlighting, underlining, or
manually underscoring the pertinent information.
iv. In addition to filing its Statement of Undisputed Material
Facts with the Court, each party shall provide to the
opposing party an editable electronic version of its
Statement in Word format for the opposing party’s use in
preparing its Statement. Thus, for example, the moving
party shall provide its Statement to the opposing party, with
the first column completed. The opposing party shall provide
its Statement to the moving party, with the first and second
1 Only if the nature of the material fact does not permit a specific reference (e.g., “The contract contains no provision for termination.”) is a general reference sufficient.
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columns completed, and so on.
B. PROPOSED FINAL PRETRIAL ORDER
Counsel and any pro se parties shall meet and confer sufficiently in advance
of the Final Pretrial Conference to jointly prepare a proposed Final Pretrial Order.
It shall be filed at least seven days before the combined Final Pretrial
Conference/Trial Preparation Conference, and a Word version should also be
emailed to chambers at Crews_Chambers@cod.uscourts.gov.
The proposed Final Pretrial Order should reflect the narrowing of issues to
those that will actually be tried, the witnesses that will be called, and the exhibits
that will be presented. The form proposed Final Pretrial Order available on our
district court’s website should be used, incorporating the following changes to that
form:
• Section 3: Claims and Defenses: Parties are discouraged from
submitting a narrative summary of the claims, defenses, facts, and
legal theories. If a narrative summary is submitted, it should not
exceed one page, and shall be in addition to the following: Separately
enumerate each claim and affirmative defense (a defense on which
the Defendant bears the burden of proof) that will be tried. (An
example is at Attachment 2.) For each claim and affirmative defense
designate:2
2 Any claims or affirmative defenses not specifically identified may be deemed
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1. the standard of proof and controlling law; and,
2. each element that must be proved. Under each element,
identify the facts that establish that element, and
reference the witness whose testimony, or the exhibit the
contents of which, will establish that fact at trial.
• Section 4: Stipulations: To save time and expense, and to focus the
trial, the parties shall stipulate to all material facts that are not in
dispute.3 Stipulated facts will be included in a jury instruction
given to the jury prior to opening statements.
• Section 6: Witnesses: In addition to listing witnesses as required
by the form, the parties should also attach their witness lists
using the form found here:
http://www.cod.uscourts.gov/JudicialOfficers/ArticleIMagistrateJu
dges/HonSKatoCrews.aspx
• Section 7: Exhibits: Only the parties’ exhibit lists should be
attached, using the form found here:
http://www.cod.uscourts.gov/JudicialOfficers/ArticleIMagistrateJu
waived.
3 Please be cognizant of the difference between disputing the existence of a fact and disputing the significance of that fact. A stipulation to the existence of a fact (e.g., that the sun set at 7:00 p.m. on the day in question) does not prevent the party from arguing the significance of that fact (e.g., that there was or was not adequate daylight at 7:00 p.m.).
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dges/HonSKatoCrews.aspx
C. COMBINED FINAL PRETRIAL/TRIAL PREPARATION
CONFERENCE
Trial counsel and any pro se parties must appear at the combined Final
Pretrial/Trial Preparation Conference (“Conference”). The Court will review the
proposed Final Pretrial Order with counsel and any pro se parties to determine
what issues will ultimately be tried, what facts can be stipulated to, what factual
disputes require evidence, the time necessary for trial, and other trial related
issues. If the case has not been sufficiently narrowed, an amended final pretrial
order may be required.
Any problems in the trial setting or special needs for witnesses should be
addressed at the Conference. The unavailability of designated witnesses,
including “may call” and “will call” witnesses, will not constitute a basis for
delay in or continuance of the trial. Witnesses should be scheduled and available
so the trial will not be delayed waiting on a witness. Witnesses may be taken
“out of turn,” as necessary, to avoid any lag-time during trial.
D. TRIAL INFORMATION
1. Motions in Limine: Motions in limine are allowed and should be filed
within seven days after the Conference. Motions to exclude expert testimony must
be filed 30 days after the rebuttal expert witness disclosure deadline unless a
different date is provided in the Scheduling Order.
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2. Trial Briefs: Trial briefs are encouraged only where there are unusual
issues of law. They should be filed 14 days before trial. They should not exceed 10
pages and should not attach exhibits.
3. Final Witness and Exhibit Lists: By no later than Noon on the Friday
before the start of trial, the parties shall submit their respective final witness and
exhibit lists via CM/ECF.
4. Access to the Courtroom Prior to Trial: The courtroom will be made
available to all parties before the start of trial so that the parties may bring in items
for trial or to test technical equipment. My Courtroom Deputy is Amanda Montoya.
She can be reached at (303) 335-2096. Please contact Ms. Montoya in advance if you
would like to access the courtroom prior to trial.
5. Jury Trials:
a. Proposed Jury Instructions and Verdict Forms: Jury instructions and
verdict forms shall be both e-filed on CM/ECF, and e-mailed to my
chambers (Crews_Chambers@cod.uscourts.gov) in Word format, by no
later than 14 days prior to the Conference. Counsel (and any pro se
parties) shall confer and stipulate to as many instructions as possible.
Up to four sets of instructions should be submitted to the Court, as
necessary: (1) one set of stipulated jury instructions; (2) one set of
opposed or disputed jury instructions; (3) one set of stipulated verdict
forms (if any); and/or (4) one set of disputed or opposed verdict forms (if
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any). Jury instructions should be appropriately titled and must
include citations to relevant authority in footnotes.
b. Exhibits and Exhibit Notebooks:
i. Plaintiff’s exhibits should be marked using numbers.
Defendant’s exhibits should be marked using letters A through
Z, then using A-1 through A-99, then B-1 through B-99, etc.
There should be no duplicate exhibits between the
parties’ lists. The parties must confer and stipulate to the
admissibility of as many exhibits as possible.
ii. There will be no juror exhibit notebooks. Instead, the Court will
provide an Elmo projector and television screen for purposes of
publishing admitted exhibits to the jury. The parties may use
the Elmo system provided by the Court or may bring in their
own technology for purposes of publishing exhibits. Questions
concerning exhibits and courtroom equipment/technology may
be directed to Ms. Montoya.
iii. Only three exhibit notebooks are necessary to provide: (1) one
for the witness stand (containing that party’s original exhibits,
properly marked and tabbed, with the pages of each exhibit
numbered); (2) one copy for the Court; and, (3) one copy for the
Court Reporter (if any).
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c. Voir Dire: If trial is to a jury, the Court will conduct an initial
orientation and voir dire. The Court’s voir dire is designed to address
issues of juror hardship. The Court will leave the inquiry of
impartiality and potential juror bias to the parties during their voir
dire. Unless the Court is persuaded otherwise, the parties will be
permitted 20 minutes each to conduct voir dire. In most circumstances,
the Court does not condone inculcating the jury pool with specific facts
of the case during voir dire. If there are questions about whether
intended voir dire approaches that line, those questions should be
raised during the Conference.
d. Number of Jurors: The jury will normally consist of nine jurors, with
each side afforded three peremptory challenges. The Court will inform
the parties of the intended number of jurors for their specific case
during the Conference.
e. Notes by Jurors: Jurors will be permitted to take notes during trial.
f. Time for Giving Jury Instructions: Preliminary instructions will be
given prior to opening statements. Final instructions will be given after
closing arguments.
6. Transcript of Proceedings: If a court reporter is available, the
proceedings will be transcribed by the court reporter. If a court reporter is not
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available, the proceedings will be digitally recorded. Any request for transcripts
should be directed to the courtroom deputy.
DATED: January 23, 2023. BY THE COURT _____________________________ S. Kato Crews United States Magistrate Judge
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Attachment 1
Format for Separate Statement of Undisputed Material Facts Movant’s Statement:
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Opposing Party’s Statement:
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Moving Party’s Reply Statement:
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Attachment 2
Format for Section 3 of Proposed Final Pretrial Order Form
Example: Claim 1: Breach of contract under Colorado law: Plaintiff has burden of proof by a preponderance of the evidence Elements: (1)-(3) offer, acceptance, consideration (a) the parties stipulate that these elements are satisfied (4) performance by the plaintiff (a) On March 3, 2004, Peter Plaintiff delivered one crate of widgets to Widget Packers, Inc. (Testimony of Peter Plaintiff; Don Defendant; Exhibits 1, 4) (b) The widgets conformed to the specifications in the contract. (Testimony of Peter Plaintiff; Exhibit 2) (c) The widgets were delivered on the date set by the contract. (Exhibit 2) (5) non-performance by the defendant (a) Widget Packers, Inc. failed to remit payment on the terms set by the contract. (Testimony of Barry Bookkeeper; Exhibit 2) (b) Peter Plaintiff has made several written demands for payment. (Peter Plaintiff; Exhibits 3, 5, 7)
(6) damages (a) Peter Plaintiff has been damaged in the contract amount of $10,000. (Testimony of Peter Plaintiff; Exhibit 2). Claim 2: Unjust Enrichment under Colorado law: Plaintiff has burden of proof on all elements by a preponderance of the evidence
Elements: (1) Defendant has received a benefit (a) On March 3, 2004, Peter Plaintiff delivered one crate of widgets to Widget Packers, Inc. pursuant to a contractual agreement. (Testimony of Peter Plaintiff; Don Defendant; Exhibits 1, 2, 4).
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(2) the benefit is at the Plaintiff’s expense (a) Widget Packers, Inc. failed to remit payment on the terms set by the contract. (Testimony of Barry Bookkeeper, Exhibit 2) (3) justice requires that Defendant reimburse the Plaintiff for the benefit received (a) The widgets have a market value of $15,000. (Testimony of Peter Plaintiff) (b) Don Defendant is in breach of the contract. (Testimony of Peter Plaintiff)
Affirmative Defense to Claim 2: Failure to mitigate under Colorado law: Defendant has burden of proof on all elements by a preponderance of the evidence
Elements: (1) Plaintiff had a reasonable opportunity to avoid injury (a) On March 5, 2004, Don Defendant left a message on Peter Plaintiff’s voice mail offering to return the crate of widgets unopened. (Testimony of Don Defendant; Peter Plaintiff) (b) On March 8, 2004, Don Defendant wrote to Peter Plaintiff, offering to assign the contract for the purchase of widgets to WidgetCo. (Don Defendant; Warren Widget; Exhibit 6)
(2) Plaintiff unreasonably failed to avail itself of
opportunities to avoid injury (a) Peter Plaintiff did not respond to the March 5, 2004 message. (Don Defendant) (b) Peter Plaintiff did not respond to the March 8, 2004 (Don Defendant) # # #
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