NEW DIMENSION INDUSTRIES v. GUTTER STUFF, INC.

Filing 27

ORDER ON INFORMAL APPLICATION & SECOND AMENDED PRETRIAL SCHEDULING ORDER: Telephone Conference set for 3/18/2010 01:30 PM before Magistrate Judge Patty Shwartz., Final Pretrial Conference set for 8/10/2010 10:00 AM before Magistrate Judge Patty Shwartz., Discovery due by 5/15/2010, etc., Signed by Magistrate Judge Patty Shwartz on 3/11/10. (dc, )

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UNITED STATES DISTRICT COURT D I S T R I C T OF NEW JERSEY ____________________________________ : : : Plaintiff : : v. : Civil Action No. 09-2633(FSH) : G U T T E R STUFF, INC. :O R D E R ON INFORMAL APPLICATION & :SECOND AMENDED PRETRIAL :S C H E D U L I N G ORDER : Defendant : : ____________________________________: N E W DIMENSION INDUSTRIES T H I S MATTER having come before the Court for a telephone conference on March 11, 2010; a n d the parties reporting on the progress on their settlement discussions and requesting adjustments to c e rta in deadlines to enable them to continue their settlement discussions without expending potentially u n n e c e s s a ry resources; and the requested extensions having no impact on the overall schedule; and for go o d cause shown; I T IS on this 11th day of March, 2010 O R D E R E D THAT: T h e request to extend the pretrial deadlines is granted as set forth herein; IT IS FURTHER ORDERED THAT: 1. The defendant shall identify the patent claims and the infringement contentions no la te r than deadline passed . 2 . The plaintiff shall provide its invalidity contentions no later than deadline passed. 3 . The parties shall identify the claims that they believe need to be construed no later th a n April 15, 2010. 4 . The parties shall exchange preliminary claim constructions no later than May 7, 2010. 5 . The parties shall submit the joint claims construction chart no later than May 14, 2010. 6 . The opening Markman briefs shall be submitted no later than May 28, 2010. 7. The responsive Markman briefs shall be submitted no later than June 14, 2010. 8 . The parties shall submit a joint letter that sets forth the information required by p ro p o s e d Patent Rule 4.6, including the estimated length of the Markman hearing and the names of the w itn e s s e s (if any) no later than June 21, 2010. I T IS FURTHER ORDERED THAT: I. COURT DATES 1. There shall be a telephone conference on March 18, 2010 at 1:30 p.m. Defendant s h a ll initiate the telephone call. 2. There will be a settlement conference before the Undersigned on TO BE SET IF R E Q U E S T E D . Trial Counsel and clients with full settlement authority must attend the conference. If the trial counsel and client with full settlement authority do not appear, the settlement conference may b e cancelled or rescheduled and the noncompliant party and/or attorney may be sanctioned, which may in c lu d e an assessment of the costs and expenses incurred by those parties who appeared as directed. 3. The final pretrial conference shall be conducted pursuant to Fed. R. Civ. P. 16(d) on August 10, 2010 at 10:00 a.m. The Final Pretrial Conference will occur even if there are dispositive m o tio n s pending. The Court will adjourn the Final Pretrial conference only if the requesting party m a k e s a compelling showing that manifest injustice would otherwise result absent adjournment. I I . DISCOVERY AND MOTION PRACTICE 4. passed. S u p p le m e n ta l Fed. R. Civ. P. 26 disclosures are to be exchanged on or before deadline 5. Discovery necessary to engage in meaningful settlement discussions: information needed to evaluate method to resolve the patent issues, which shall be responded to no later than deadline passed. 6. T h e parties may serve interrogatories limited to 25 single questions including subparts a n d requests for production of documents directed to the new patent and new party on or before d e a d lin e passed, which shall be responded to no later than deadline passed. 7. T h e number of depositions to be taken by each side shall not exceed 10. No objections to questions posed at depositions shall be made other than as to lack of foundation, form or privilege. See Fed. R. Civ. P. 32(d) (3) (A). No instruction not to answer shall be given unless a privilege is im p lic a te d . The depositions are to be completed no later than May 15, 2010. 8. F a c t discovery is to remain open through May 15, 2010. No discovery is to be issued or engaged in beyond that date, except upon application and for good cause shown. 9. C o u n s e l shall confer in a good faith attempt to informally resolve any and all discovery d is p u te s before seeking the Court's intervention. Should such informal effort fail to resolve the dispute, 2 the matter shall be brought to the Court's attention via a joint letter that sets forth: (a) the request, (b) th e response; (c) efforts to resolve the dispute; (d) why the complaining party believes the information is relevant and why the responding party's response continues to be deficient; and (e) why the re s p o n d in g party believes the response is sufficient. No further submissions regarding the dispute may b e submitted without leave of Court. If necessary, the Court will thereafter schedule a telephone c o n fe re n c e to resolve the dispute. No discovery motion or motion for sanctions for failure to provide discovery shall be file d before utilizing the procedures set forth in these paragraphs without prior leave of Court. A n y unresolved discovery disputes (other than those that arise during depositions) must b e brought before the Court no later than April 15, 2010. The Court will not entertain applications c o n c e rn in g discovery matters, informally or otherwise, after this date. If an unresolved dispute arises a t a deposition, then the parties shall contact the Chambers of the Undersigned for assistance during the d e p o s itio n . 10. A. The Amended Complaint that adds two counts, including a count regarding a design p a te n t, and Mr. Jones shall be filed no later than deadline passed. B . Any other motion to amend pleadings or join parties must be filed by deadline passed. 11. A ll dispositive motions shall be discussed in advance of filing with the Undersigned e ith e r in person or by teleconference. Any and all dispositive motions must be filed no later than June 2 5 , 2010 and must be comply with Local Rule 7.1. No pretrial dispositive motions will be entertained a fte r that date. Any responses shall be submitted no later than July 6, 2010 and any replies shall be s u b m itte d no later than July 13, 2010. The return date shall be July 20, 2010 before the Hon. Faith S. H o c h b e rg. Her Honor's chambers will advise the parties if oral argument will be required. I I I . EXPERTS 12. 13. A ll affirmative expert reports shall be delivered by April 22, 2010. A ll responding expert reports shall be delivered by May 14, 2010. 14. a . All expert reports are to be in the form and content as required by Fed. R. Civ. P. 2 6 (a ) (2)(B). No expert shall testify at trial as to any opinions or base those opinions on facts not s u b s ta n tia lly disclosed in the experts report. b . All expert depositions shall be completed by June 1, 2010. c . Any Daubert motions must be filed no later than fourteen days after the completion o f the expert depositions. IV. FINAL PRETRIAL CONFERENCE 15. T h e final pretrial conference shall be conducted pursuant to Fed. R. Civ. P. 16(d) on August 10, 2010 at 10:00 a.m. The final pretrial conference will occur even if dispositive motions are 3 pending. The Court will adjourn the Final Pretrial conference only if the requesting party makes a c o m p e llin g showing that manifest injustice would otherwise result absent adjournment. 16. N o t later than 20 working days before the pretrial conference, the parties shall exchange c o p ie s of all proposed trial exhibits. Each exhibit shall be pre-marked with an exhibit number c o n fo rm in g to the party's exhibit list. 17. A ll counsel are directed to assemble at the office of Plaintiff's counsel not later than ten (1 0 ) days before the pretrial conference to prepare the proposed Joint Final Pretrial Order in the form a n d content required by the Court. Plaintiff's counsel shall prepare the Joint Pretrial Order and shall s u b m it it to all other counsel for approval and execution. 18. W ith respect to non-jury trials, each party shall submit to the District Judge and to o p p o s in g counsel proposed Findings of Fact and Conclusions of Law, trial briefs and any hypothetical q u e s tio n s to be put to an expert witness on direct examination. 19. T h e original of the Final Pretrial Order shall be delivered to the CHAMBERS of the U n d e r s i gn e d no later than August 3, 2010 at 3:00 p.m. All counsel are responsible for the timely s u b m is s io n of the Pretrial Order. 20. T h e Court expects to engage in meaningful settlement discussions at the final pretrial c o n fe re n c e . Therefore, trial counsel who actually has full settlement authority must attend the c o n fe re n c e and clients or other persons with full settlement authority must be available by telephone. V . MISCELLANEOUS 21. T h e Court may from time to time schedule conferences as may be required, either sua s p o n te or at the request of a party. 22. S in c e all dates set forth herein are established with the assistance and knowledge of c o u n s e l, there will be no extensions except for good cause shown and by leave of Court, even with c o n s e n t of all counsel. Any request to extend any deadline or to adjourn a court event shall be made no la te r than three days before the scheduled date and shall reflect: (1) the good cause the requesting party b e lie v e s supports the extension or adjournment and (2) whether or not all parties consent to the request. Absent unforeseen emergent circumstances, the Court will not entertain requests to extend deadlines that h a v e passed as of the date of the request. 23. A copy of every pleading, document or written communication with the Court shall be s e rv e d on all other parties to the action. Any such communication which does not recite or contain a c e rtific a tio n of such service may be disregarded by the Court. 24. A b s e n t permission from Chambers, communications to the Court by facsimile will not b e accepted. All communications to the Court shall be in writing or by telephone conference. 25. F A I L U R E TO COMPLY WITH THE TERMS OF THIS ORDER MAY RESULT I N SANCTIONS. s /P a tty Shwartz U N I T E D STATES MAGISTRATE JUDGE 4

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