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INITIAL SCHEDULING ORDER: Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set… — Agent Fee Litigation (Dkt. 16)

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An Initial Scheduling Order in Sport & Wheat CPA PA v. ServisFirst Bank Inc and Synovus Trust Company, National Association, Case No. 3:20-cv-5425-TKW-HTC, in the U.S. District Court for the Northern District of Florida, Pensacola Division. The order directs the parties to begin discovery immediately and to set any discovery due date no later than September 14, 2020, and it requires a Rule 26(f) conference within 30 days and a joint report within 14 days after that. It sets deadlines for initial and expert disclosures, lists topics the joint report must address, including magistrate judge jurisdiction and electronic discovery, and provides procedures for discovery disputes, summary judgment filings and filing of Rule 26 disclosures. The order closes with information on consenting to disposition of the case by a United States Magistrate Judge.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

SPORT & WHEAT CPA PA,

Plaintiff,

V. CASE NO. 3:20-cv-5425-TKW-HTC

SERVISFIRST BANK INC
and SYNOVUS TRUST
COMPANY, NATIONAL
ASSOCIATION

Defendants.
__________________________/

INITIAL SCHEDULING ORDER

Federal Rule of Civil Procedure 1 seeks a “just, speedy, and

inexpensive determination of every action.” To accomplish that

purpose, and in accordance with Rule 16(b), it is ORDERED:

(1) DISCOVERY PERIOD:

(a) The parties must begin discovery immediately. The par-

ties are further directed to conduct discovery so that the due date

of any discovery requested shall not be later than September 14,

2020. The conduct of any discovery which would require a later

due date shall be permitted only on order of the Court. An exten-

sion of time will ordinarily be granted only for good cause and upon
1
showing of diligence during the initial discovery period. See N.D.

Fla. Loc. R. 6.1. The filing of motions shall not operate to toll or

extend the discovery cut-off date set forth in this paragraph. The

parties must not delay discovery because a motion to dismiss is

pending.

(b) The parties are advised to make discovery requests no

later than 75 days before the end of the discovery period. Unless

otherwise ordered by the Court, motions to compel discovery are

due no later than 30 days before the close of discovery. The Court

will ordinarily entertain a motion to compel brought during the

last 30 days of discovery only on a showing of reasonable diligence

during the discovery period and the discovery dispute in question

arose during the last 30 days of discovery.

(2) RULE 26 REQUIREMENTS: This scheduling order is en-

tered prior to the conference of parties and the filing of the joint

report required under Federal Rule of Civil Procedure 26(d), so

that discovery may proceed immediately and without unnecessary

delay. Modifications may be made to this order upon consideration

of the parties’ joint report. The following will be required of all par-

ties to this litigation:

2
(a) CONFERENCE OF PARTIES AND FILING OF JOINT REPORT:

Counsel of record and any unrepresented parties shall confer (per-

sonally, by phone, or electronically) within 30 days from the date

of this order, as required by Rule 26(f), and the joint report to the

Court shall be filed within 14 days thereafter. The plaintiff shall

initiate arrangements for the conference and filing of the report,

but the Court shall hold all parties equally responsible for ensur-

ing that the conference is held and the report filed as required. If

the parties are unable to agree, each party=s position shall be set

out in the filed joint report. In addition to the matters set out in

Rule 26(f), the following shall also be discussed at the conference

and specifically addressed in the joint report:

(i) The matter of magistrate judge jurisdiction over the

case. In accordance with Rule 73.1(A) of the Local Rules, the par-

ties are directed to confer regarding their willingness to consent to

magistrate judge jurisdiction, and the joint report should reflect

this discussion. However, the joint report should state only that

the parties have conferred regarding this issue. The parties may

withhold consent if they so choose. Under no circumstances should

the parties indicate their respective positions on the matter of con-

3
sent in the joint report. If all parties, after conferring with one an-

other, elect to consent to magistrate judge jurisdiction, the at-

tached form of consent should be signed by all parties and filed in

the Clerk=s office. It shall be plaintiff=s responsibility to forward

the form to defendant(s), who, in turn, shall have the responsibility

of filing the document. The form should be filed only if all parties

have consented and signed the form. If any party elects not to con-

sent, the form should not be returned.

(ii) The nature and basis of all claims and defenses, and a

good faith attempt to identify the principal factual and legal issues

in dispute.

(iii) The possibility for prompt settlement or resolution of

the case, and whether mediation (or any other alternative dispute

resolution process) might be helpful in settlement, either now or

after certain limited discovery has taken place.

(iv) Proposed timetables and cutoff dates for the joinder of

other parties, amendments to the pleadings, and the filing of mo-

tions and responses, and in particular, whether this initial sched-

uling order should be revised or amended in any way.

4
(v) The parties= respective discovery requirements in this

case, and if the parties deem this initial scheduling order to be in-

adequate, they shall develop an alternate proposal which specifi-

cally addresses the timing and form of discovery, whether discov-

ery should be conducted in phases or limited in any respect, and

what, if any, changes should be made in the discovery procedures

and time deadlines set out in this initial scheduling order, or in the

applicable rules.

(vi) Whether any party will likely request or produce infor-

mation from electronic or computer-based media:

1. whether disclosure or production will be limited to data

reasonably available to the parties in the ordinary course of busi-

ness. Absent a showing of good cause, the Court will not require

the production of back-up or historic legacy data, nor will it require

the production of data that is not reasonably available in the ordi-

nary course of business in reasonably usable form;

2. if data beyond what is reasonably available to the par-

ties in the ordinary course of business is to be sought, the antici-

pated scope, cost and time required for its disclosure or production,

and who will bear the cost;

5
3. the format and media agreed to by the parties for the

production of any electronic or computer-based data, as well as

agreed procedures for such production;

4. whether reasonable measures have been taken to pre-

serve potentially discoverable data from alteration or destruction

in the ordinary course of business or otherwise;

5. procedures to deal with inadvertent production of priv-

ileged information; and

6. other problems which the parties anticipate may arise

in connection with electronic or computer-based discovery.

(vii) A good faith estimate as to when the parties believe

the case will be ready for trial (month and year), how many days

will be needed for trial, and whether it will be a jury or bench

trial. The Court typically does not set the trial date until after

ruling on motions for summary judgment or other potentially dis-

positive motions, but this information is still helpful to the Court

for planning purposes.

(viii) Any other matters which the parties deem appropri-

ate with regard to specific aspects or the uniqueness of this case,

and including any applicable subject within Rule 16(c).

6
(ix) The parties are directed to inform the Court in their

joint report if it appears that this case should be made subject to

the Manual for Complex Litigation.

(b) INITIAL DISCLOSURES. The initial disclosures required by

Rule 26(a)(1) shall be provided (unless otherwise stipulated), with-

out awaiting a discovery request, to all other parties within 14

days from the date of the parties= conference required under Rule

26(f).

witnesses and their opinions shall be made by the plaintiff within

60 days from the date of this scheduling order, and by the defend-

ant or defendants within 30 days thereafter. Third parties or par-

ties added or joined later shall disclose their experts under Rule

26(a)(2) within 60 days after appearance in this case, or within 30

days after the disclosure by the opposing party, whichever is the

longer period. Rebuttal expert reports are due within the time set

by Rule 26(a)(2)(d)(ii). Expert witnesses not timely disclosed as re-

quired by Rule 26(a)(2), or whose opinions have been significantly

modified or changed after discovery has ended, will normally not

be permitted to testify at trial.

7
(d) PRETRIAL DISCLOSURES. The Rule 26(a)(3) pretrial disclo-

sures are not required at this time. The Court will enter an order

after the completion of discovery which will set a pretrial confer-

ence and will specify the parties= comprehensive trial disclosure

and preparation requirements.

(3) ADDITIONAL COURT ACTION OR SCHEDULING CONFER-

ENCE. The Court will promptly consider the parties= filed joint re-

port, and will take one of the following courses of action within 14

days thereafter:

(a) Enter a final scheduling order by modifying this initial

scheduling order as the presiding judge deems appropriate in light

of the parties= joint report, or by adopting the parties= report, or by

confirming the requirements of this order.

(b) Set the matter for a Rule 16 scheduling conference, either

for the attorneys= (and any unrepresented parties=) personal at-

tendance, or to be conducted by telephone. A final scheduling order

will be entered thereafter.

of the joint report, this initial scheduling order will continue in full

force and effect until some further order of this Court.

8
(d) If any party so requests by motion, a scheduling confer-

ence or preliminary pre-trial conference may be held, by telephone

or in person, to address any of the matters set out in Rule 16(a),

(b), and (c), Federal Rules of Civil Procedure.

(4) INTERROGATORIES. The number of interrogatories shall

be governed by Rule 33(a), Federal Rules of Civil Procedure.

(5) SCHEDULE OF PRETRIAL MATTERS. In accordance with

Rule 16(b), Federal Rules of Civil Procedure, the following sched-

ule shall apply to this case, unless excluded by Local Rule 16.1, or

unless any party shall file an objection or request for a different

schedule within 44 days from the date of this order, viz:

(a) Joinder of other parties and amendments of pleadings

shall be accomplished by the service and filing of the appropriate

motions or pleadings within the time required by the Federal Rules

of Civil Procedure or the Local Rules of this Court, except as noted

below.

(b) All motions and responses shall be served and filed

within the time required by the Federal Rules of Civil Procedure

or the Local Rules of this Court.

9
(c) Motions for summary judgment shall be filed as promptly

as possible, but, unless otherwise permitted by court order, not

later than 21 days after the close of discovery.

(d) Motions filed may be disposed of without hearing. See

N.D. Fla. Loc. R. 7.1.

(e) If the rules and this order do not provide a time for the

filing or service of motions or pleadings, then such motions or

pleadings shall be served and filed within the period provided for

the completion of discovery.

(6) ATTORNEYS= DISCOVERY OBLIGATIONS. The Rules of

Civil Procedure set out explicit time limits for responses to discov-

ery requests. If an attorney cannot respond on time, this fact

should be communicated by the most expeditious means to oppos-

ing counsel; and if consent to an extension of time cannot be ob-

tained, a motion requesting the same should be immediately filed

and served. In the meantime, no motion to compel a response shall

be filed. Stipulations extending the time for responses to discovery

may be made only as authorized by Federal Rule of Civil Procedure

29 and Local Rule 6.1.

(7) RULE 37 AWARDS OF MOTION EXPENSES. The Court will

ordinarily award counsel fees for time spent in filing (and arguing)

10
a motion to compel if such a motion is necessary to make the recal-

citrant party respond, or for time spent in opposing (and arguing)

such a motion that is found to be unnecessary or without basis.

Certification of all discovery requests, responses, and objections is

required under Rule 26(g), and violations thereof will be subject to

sanctions.

(8) RESOLUTION OF DISCOVERY CONTROVERSIES. Counsel

should attempt to resolve discovery controversies without the

Court’s intervention. The Court will entertain a motion with re-

spect to matters which remain in controversy only if, after consul-

tation and sincere attempts to resolve differences, counsel are un-

able to reach an accord. Any motion filed shall include certification

that such attempts have been made, in accordance with Local Rule

7.1(B) and (C), and Federal Rule of Civil Procedure 37, and shall

be in the form required by Local Rule 26.2(G)(3). Counsel=s atten-

tion is also directed to the supplementation requirements of Rule

26(e) and their obligations under Rule 26(g), as well as counsel=s

potential liability for excessive costs under 28 U.S.C. § 1927.

(9) ATTORNEY’S FEE RECORDS. Local Rule 54.1 applies. A

party must not file attorney’s fee records until needed.

11
(10) SUMMARY JUDGMENT. Local Rule 56.1 applies to sum-

mary-judgment motions. Additionally, the parties must use the fol-

lowing procedures for filing summary judgment papers:

(a) First, file a notice listing exhibits to be filed in support of

or in opposition to summary judgment. Include the exhibits as at-

tachments to the notice on CM/ECF. Exhibits that cannot be filed

on CM/ECF must be submitted to the Clerk along with a hard-copy

notice of filing.

(b) Second, file the summary judgment memorandum (mo-

tion, response, or reply) pinciting to the ECF number for the ex-

hibit attached to the notice listing the exhibits.

(i) Highlight the portion of the exhibit it wishes this Court

to look at; and

(ii) File deposition transcripts in a form where the text of

the testimony is searchable with the control-F function.

(d) The parties should take note that this Court reviews the

cited portions of the record. Discrepancies between factual asser-

tions in the parties’ memoranda and the actual record do not go

12
unnoticed. The parties should take care to distinguish between rec-

ord evidence and inferences which can reasonably be made from

that evidence.

(11) FILING OF RULE 26 DISCLOSURES AND DISCOVERY

MATERIALS. In accordance with Federal Rule of Civil Procedure

5(d), the parties shall serve but shall not file with the Clerk

copies of discovery materials (including notices of deposition, dep-

osition transcripts, interrogatories, responses to interrogatories,

production requests, responses to production requests, admissions

requests, or responses to admissions requests), unless and until

needed for consideration of pending motions by the Court. The par-

ties need not serve and shall not file with the Clerk separate

notices of serving interrogatories or interrogatory responses, no-

tices of serving production requests or responses, or notices of serv-

ing admissions requests or responses. Contrary to standard prac-

tice under Rule 5(d)(1), the parties must file disclosures under Fed-

eral Rules of Civil Procedure 26(a)(1) and 26(a)(2), and any supple-

ments to those disclosures, no later than 7 days from the date the

disclosure is served on the opposing party. See Fed. R. Civ. P.

13
5(d)(1). Each party must file only the disclosing paper, and not un-

derlying documents. Any supplemental disclosure must reflect the

changes in bold or by highlight.

(12) ELECTRONIC FILING. Each party represented by an at-

torney is required to file documents electronically, not in paper

form, with limited exceptions. Compliance with this requirement

is mandatory. Paper filings are a burden on the Clerk of the Court,

delay the transmission of the documents to the judge, and waste

the judge=s time. Whenever a party files an amended paper, e.g.,

an amended motion to dismiss, the amended paper must clearly

state at the outset the nature of the amendment and the reason for

it.

(13) DISCLOSURE STATEMENT. Each nongovernmental cor-

porate party must file a statement that identifies any parent cor-

poration and any publicly held corporation that owns 10% or more

of its stock or states that there is no such corporation. The deadline

for filing the statement is set forth in Fed. R. Civ. P. 7.1, and, if not

filed sooner, the statement must in any event be filed within 14

days of the date of this order. A supplemental statement must be

filed upon any change in the information that the statement re-

quires.

14
(14) AMENDMENTS. This order may be amended by the

Court on its own motion or upon motion of any party.

DONE and ORDERED this 18th day of May, 2020.

T. Kent Wetherell, II
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE

15
FLN Form 85 (rev. 8/98) Notice, Consent, and Order of Reference - Exercise of Jurisdiction by a United States Magistrate Judge

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
SPORT & WHEAT CPA, PA
Plaintiff,
V. CASE NO. 3:20-cv-05425-TKW-HTC
SERVISFIRST BANK INC
AND SYNOVUS TRUST COMPANY,
NATIONAL ASSOCIATION

Defendant.
__________________________/

NOTICE OF AVAILABILITY OF A UNITED STATES MAGISTRATE JUDGE
TO EXERCISE JURISDICTION

In accordance with the provisions of 28 U.S.C. '636(c), and Fed.R.Civ.P. 73, you are notified that a
United States magistrate judge of this district court is available to conduct any or all proceedings in this case in-
cluding a jury or nonjury trial, and to order the entry of a final judgment. Exercise of this jurisdiction by a magis-
trate judge is, however, permitted only if all parties voluntarily consent.

You may, without adverse substantive consequences, withhold your consent, but this will prevent the
court=s jurisdiction from being exercised by a magistrate judge. If any party withholds consent, the identity of the
parties consenting or withholding consent will not be communicated to any magistrate judge or to the district judge
to whom the case has been assigned.

An appeal from a judgment entered by a magistrate judge shall be taken directly to the United States
court of appeals for this judicial circuit in the same manner as an appeal from any other judgment of this district
court.

CONSENT TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

In accordance with provisions of 28 U.S.C. '636(c) and Fed.R.Civ.P. 73, the parties in this case consent
to have a United States magistrate judge conduct any and all proceedings in this case, including the trial, order
the entry of a final judgment, and conduct all post-judgment proceedings.

Party Represented Signatures Date

ORDER OF REFERENCE

IT IS ORDERED that this case be referred to ,
United States Magistrate Judge, to conduct all proceedings and order the entry of judgment in accordance with 28
U.S.C. '636(c), Fed.R.Civ.P. 73, and the foregoing consent of the parties.
FLN Form 85 (rev. 8/98) Notice, Consent, and Order of Reference - Exercise of Jurisdiction by a United States Magistrate Judge

Date United States District Judge
NOTE: RETURN THIS FORM TO THE CLERK OF THE COURT ONLY IF ALL PARTIES HAVE CONSENTED ON THIS
FORM TO THE EXERCISE OF JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE.
FLN Form 85 (rev. 8/98) Notice, Consent, and Order of Reference - Exercise of Jurisdiction by a United States Magistrate Judge

NOTICE OF RIGHT TO CONSENT TO DISPOSITION OF
CIVIL CASE BY A UNITED STATES MAGISTRATE JUDGE

Under 28 U.S.C. ' 636(c)(1), full-time magistrate judges are authorized to exercise civil jurisdiction, in-
cluding trial of the case and entry of final judgment, upon consent of the parties. Due to the district courts= heavy
trial schedules, such consent to magistrate jurisdiction often results in more expeditious resolution of cases. The
parties are, of course, entirely free to withhold such consent without any adverse consequences.

In all civil cases, other than prisoner litigation and social security appeals, the parties shall be required
pursuant to the Initial Scheduling Order to confer regarding the matter of magistrate judge jurisdiction. However,
the Joint Report should state only that the parties have conferred regarding this issue. Under no circumstances
should the parties indicate their respective positions on the matter of consent in the Joint Report.

Should all parties, after conferring with one another, elect to consent to magistrate judge jurisdiction, the
attached form of consent should be signed by all parties and returned to the court. It shall be plaintiff=s responsi-
bility to forward the form to defendant(s), who, in turn, shall have the responsibility of filing the document with the
court through the clerk=s office. The form should be returned to the court only if all parties have consented and
signed the form. Should any party elect not to consent, the form should not be returned.

In prisoner litigation and social security appeals, and any other case in which an Initial Scheduling Order
is not entered, the clerk shall, after the first responsive pleading is filed, send a consent form to the plaintiff. If the
plaintiff elects to consent, plaintiff shall sign the form and promptly send it to defendant(s). If defendant(s) also
consents and signs the form, defendant(s) shall promptly return the form to the court. Should any party elect
not to consent, the form should not be returned.

A party=s decision to consent, or not to consent, to the disposition of the case before a United States Mag-
istrate Judge is entirely voluntary, and no judge of this court will be informed of a party=s decision to withhold con-
sent. By returning the consent form only in cases where all parties consent, the court will not be aware of which
party withheld consent. Where the consent form is not returned to the court during the early stages of the case,
either the district court judge or magistrate judge may again advise the parties of the availability of the magistrate
judge, but in doing so, shall also advise the parties that they are free to withhold consent without adverse conse-
quences.

Please note that in the event of consent, the parties may appeal a final judgment from the magistrate di-
rectly to the court of appeals in the same manner as an appeal from any other judgment of the district court.

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INITIAL SCHEDULING ORDER: Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set… — Agent Fee Litigation (Dkt. 16)

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