Davis Neurology PA v. Dental Equities LLC et al

MEMORANDUM IN SUPPORT re Motion to Intervene

E.D. Ark.September 27, 2016

DAVIS NEUROLOGY, P.A., on behalf of itself and all other entities and persons similarly situated, Plaintiffs, v. DENT AL EQUITIES, LLC, d/b/a PEER UNITED; FIRST ARKANSAS BANK & TRUST; and JOHN DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) FILED EAsr~~~P~rlmrJr)9H&1SAs 4:16-cv-371-BSM Judge Miller Magistrate Judge Deen SEP .2 7 2016 MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE I. INTRODUCTION Proposed intervenors, Scoma Chiropractic, P.A., Dr. William P. Gress, and Florence Mussat, M.D., S.C. (collectively, "Intervenors"), respectfully move to intervene pursuant to Fed. R. Civ. P. 24(b) in this action, in order to move to stay or dismiss this case. This case is entirely duplicative oflntervenors' action, Scoma Chiropractic, P.A. v. Dental Equities, LLC, et al. pending in the United States District Court for the Middle District of Florida, Case No. 2: 16-cv- 00041-UA-MRM ("Scoma Action"). This case and the Scoma Action are based on identical junk faxes and allege similar conduct, and seek identical damages on behalf of a similar class. The Scoma Action was filed January 25, 2016, and has advanced much further. Prior to joining the Scoma Action, there were 2 other cases pending arising out of alleged unsolicited advertising faxes sent by or on behalf of Dental Equities, LLC and First Arkansas Bank & Trust. Plaintiff Florence Mussat, M.D., S.C. ("Mussat") filed its complaint against Kianor Shahmohammadi on January 7, 2016 in the United States District Court for the Northern 1 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 1 of 41 District of Illinois, Case No. 16 C 171. Plaintiff Dr. William P. Gress ("Gress") also filed a similar lawsuit against Kianor Shahmohammadi, Card Assets, LLC and First Arkansas Bank & Trust, in the United States District Court for the Northern District of Illinois, Case No. 16 C 1499 on January 28, 2016. The Mussat, Scoma and Gress complaints attached copies of similarly designed unsolicited advertising faxes. On February 4, 2016, Mussat filed an MDL Petition, MDL No. 16-8, seeking transfer of all cases to the United States District Court for the Northern District of Illinois. The petition was subsequently withdrawn by Mussat after briefing by Defendants First Arkansas Bank & Trust, Dental Equities, LLC and Kianor Shahmohammadi. While the petition was pending, Counsel for Scoma, Gress and Mussat voluntarily agreed to cooperate and coordinate their litigation efforts. "When feasible, such voluntary cooperation or coordination among the parties and the involved courts is preferable to centralization." In re Local Lighthouse Corp. Telephone Consumer Protection Act (!'CPA) Litig., No. MDL 2644, 118 F.Supp.2d 1379 (J.P.M.L Aug. 7, 2015) (citing In re Eli Lily & Co. (Cephalexin Monohydrate) Patent Litig., 446 F.Supp. 242, 244 (J.P.M.L. 1978) and Manual for Complex Litigation, Fourth,§ 20.014 (2004)). Both Gress and Mussat dismissed their complaints in the Northern District of Illinois without prejudice and joined the Scoma Action as plaintiffs and putative class representatives on April 29, 2016. Counsel for Davis Neurology, P.A. has previously been contacted by one of the attorneys representing the Intervenors regarding the existence of the pending Scoma Action, and was asked to dismiss or stay the duplicative case but counsel declined to do so. The Court should grant the motion to intervene because the motion is timely, the cases share common questions of law and fact, the Scoma Action is more procedurally advanced than 2 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 2 of 41 this case, and neither Davis Neurology, P.A. nor any other party will suffer undue prejudice if intervention is allowed only to stay or dismiss this case in favor of the more advanced Scoma Action. II. THE SCOMA AND DA VIS NEUROLOGY ACTIONS A. The Scoma Action The Scoma Action was filed on January 25, 2016, 1 alleging that defendant Dental Equities, LLC violated the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of2005, 47 U.S.C. § 227 ("JFPA"), by sending unsolicited fax advertisements that did not contain a proper opt out notice. The complaint was amended on February 24, 2016, adding First Arkansas Bank & Trust as a defendant. The complaint was again amended on April 29, 2016, adding additional plaintiffs. (Appendix A - Scoma Second Amended Complaint) The junk faxes attached to the second amended complaint in the Scoma Action invite the recipients to apply for the Doctors Club MasterCard. The Scoma Action has progressed significantly over the past several months. A case management order was entered on April 19, 2016, setting a November 1, 2017 discovery deadline. (Appendix B - Scoma Case Management Order) Discovery is also well under way in the Scoma Action. Depositions were taken in August, 2016 of Dental Equities, LLC's principal. Intervenors have issued written discovery and received responses back. Intervenors have also issued a third party subpoena and received responsive documents back from the fax broadcaster, which were examined by an expert. The expert's report was served the week of July 25, 2016. A protective order was entered on May 19, 2016. An order of default has been entered against Dental Equities, LLC. The parties have 3 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 3 of 41 fully briefed First Arkansas Bank & Trust's motion to dismiss or in the alternative motion to stay the case. Counsel for the Intervenors are experienced in handling junk fax class actions. Daniel A. Edelman has handled hundreds of JFP A/TCP A cases inside and outside of Illinois and has successfully recovered millions of dollars for classes he has represented. B. Davis Neurology Action The Davis Neurology Action was filed on January 15, 2016, naming only Dental Equities, LLC and its principal, Kianor Shahmohammadi based on violations of the JFP A. First Arkansas Bank & Trust was not added as a defendant until May 12, 2016. On February 17, 2016, Davis Neurology voluntarily dismissed Kianor Shahmohammadi. First Arkansas Bank filed a notice of removal on June 14, 2016, after being served on May 18, 2016. First Arkansas Bank will file a responsive pleading on October 14, 2016. The Fed. R. Civ. P. 26(f) conference will occur by December 5, 2016 and the parties joint report is due on December 19, 2016. In contrast to the Scoma Action, this action is still in the pleading stage and this Court has not issued a case management or scheduling order. III. STANDARD OF REVIEW FOR PERMISSIVE INTERVENTION Fed. R. Civ. P. 24(b)(l)(B) provides, "On a timely motion, the court may permit anyone to intervene who: ... (b) has a claim or defense that shares with the main action a common question of law or fact." The decision to allow permissive intervention is discretionary with consideration given to "whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). The motion to intervene must state the grounds for intervention and be accompanied by a 1 The Complaint in Scoma has been amended twice, most recently on April 29, 2016. 4 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 4 of 41 pleading that sets out the claim or defense for intervention. Fed. R. Civ. P. 24(c). A proposed pleading is attached hereto as Appendix C. A. Timeliness "Whether a motion to intervene is timely is determined by considering all the circumstances of the case." Mille Lacs Band of Chippewa Indians v. State of Minnesota, 989 F.2d 994, 998 (8th Cir. 1993) In assessing the timeliness of a motion to intervene, the court may consider the following factors: (1) how far the litigation had progressed at the time of the motion for intervention, (2) the prospective intervenor's prior knowledge of the pending action, (3) the reason for the delay in seeking intervention, and ( 4) the likelihood of prejudice to the parties in the action. US. v. Ritchie Special Credit Investments, Ltd., 620 F.3d 824, 832 (8th Cir. 2010), quoting Minn. Milk Producers Ass 'n v. Glickman, 153 F.3d 632, 646 (8th Cir. 1998). This motion was timely filed. This case was removed to federal court on June 14, 2016, and this motion was filed approximately 3 months after the removal. The Scoma Action was filed approximately 10 days after this case. However, First Arkansas Bank was added in the Scoma Action on February 24, 2016. First Arkansas Bank was not added in this case until May 12, 2016, almost 3 months later. Since First Arkansas Bank is the only substantial (and active) defendant in the case, the Scoma Action is the filed-filed case against First Arkansas Bank. Further, the Scoma Action is procedurally more advanced. The first-filed rule is "usually disregarded when the competing suits were filed merely days apart." Ontel Products, Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1153 (S.D.N.Y. 1995). The 5 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 5 of 41 parties in the Scoma Action have been actively litigating the case for months, supra, while this case has not advanced and the parties are still in the pleading stage. Intervenors have not delayed in moving to intervene. At the time the Intervenors, First Arkansas Bank & Trust, and Dental Equities, LLC were briefing the MDL petition, they became aware of the existence of this action which was pending in Arkansas state court. Counsel for Davis Neurology was notified of the pendency of the Scoma Action prior to the filing of this motion and has refused to take any action to stay or dismiss this case. Once this case was removed to federal court, Intervenors acted promptly by filing this motion approximately three months thereafter and before any substantive proceedings have occurred. Mille Lacs Band of Chippewa Indians v. State of Minnesota, 989 F.2d 994, 999 (8th Cir. 1993) (Motion to intervene filed 18 months after complaint was filed was not untimely where there was little activity in the case). "The principal consideration in ruling on a Rule 24(b) motion is whether the proposed intervention would unduly delay or prejudice the adjudication of the parties' rights." South Dakota ex rel. Barnett v. US. Dept. Of Interior, 317 F.3d 783, 787 (8th Cir. 2003). There is no possible prejudice to Davis Neurology or anyone else if Intervenors are allowed to intervene. This case is in its early stages and First Arkansas Bank & Trust is due to file a responsive pleading to the complaint on October 14, 2016. The court's electronic docket shows an initial scheduling conference is set for December 5, 2016 and otherwise reflects no substantive activity. Accordingly, Intervenor's motion is timely and will not prejudice Davis Neurology or any other party. On the other hand, Intervenors would be prejudiced if they were not able to proceed with their advanced case. The Intervenors have already conducted written discovery and taken 6 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 6 of 41 depositions and served expert reports. There has also been extensive motion practice. In sum, the Intervenors' motion is timely. B. Common Questions of Law and Fact There is no dispute that the Scoma Action shares common questions or law and fact with this case. The party defendants are identical in both actions. In fact, months after First Arkansas Bank & Trust was named as a defendant in the Scoma Action, Davis Neurology amended its complaint to add First Arkansas Bank & Trust as a defendant. The second amended complaint in this case is now essentially identical to the further advanced Scoma Action. The complaints in both cases are based on identical junk faxes and the underlying facts are the same in that the Intervenors and Davis Neurology were all sent unsolicited fax advertisements with non- compliant opt out notices. Indeed, all of the junk faxes appear to have been sent as part of the same fax broadcast on December 18-23, 2016. The fact that the amended complaint in Davis Neurology also alleges a state law conversion claim does not alter the conclusion. "As long as the underlying facts are the same, as is the case here, the fact that the two complaints allege violations of different state laws is not enough to render them substantially dissimilar for purposes of the first-to-file analysis." Askin v. Quaker Oats Co., 11 C 111, 2011 WL 5008524, at *4 (N.D. Ill. Feb. 15, 2012). Clearly, the same set of facts used to prove the TCP A/JFP A claim will be used to prove the conversion claim in this case. Finally, the putative classes in both cases are substantially similar and overlap. The Scoma Action alleges a class of the following persons: All persons who (1) on or after four years prior to the filing of this action, (2) were sent telephone facsimile messages of material advertising the commercial availability of quality of any property, goods, or services by or on behalf of Defendants, and (3) which 7 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 7 of 41 Defendants did not have prior express permission or invitation, or (4) which did not display a proper opt-out notice. A motion for class certification is already filed and pending in the Scoma Action. This action has alleged a class of the following persons: All persons, natural or otherwise, in the United States and its territories who received one or more unsolicited facsimile transmissions from Defendants advertising goods or services for a commercial purpose with content substantially similar to that contained in Exhibit A during the period from January 15, 2012 through the present. There is no motion for class certification pending in this case. In sum, the legal issues and factual questions in the two cases overlap. C. Davis Neurology Will Not Be Prejudiced By a Stay or Dismissal Finally, there is no possible prejudice to Davis Neurology or anyone else if the motion to intervene is granted and this case is dismissed or stayed. "Although the adequacy of protection is only a minor variable in the Rule 24(b) decision calculus, it is not an illegitimate consideration." South Dakota ex rel Barnett v. U.S. Dept. Of Interior, 317 F.3d 783, 787 (8th Cir. 2003). Davis Neurology will suffer no prejudice because if the Intervenors motion to stay is granted, Davis Neurology's rights would be protected in the Scoma Action. Davis Neurology is of course, free to opt out of any class certified in the Scoma Action. In sum, Davis Neurology will not be prejudiced by a stay. IV. CONCLUSION Intervenors respectfully request that this Court permit them leave to intervene and move to stay or dismiss this action. Respectfully submitted, Robert R. Cloar 8 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 8 of 41 Robert R. Cloar AR Bar ID: 72025 P.O. Box 1623 Fort Smith, AR 72902 rrcloar@gmail.com (479) 783-1186 Daniel A. Edelman EDELMAN COMBS LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603 (312) 739-4200 Application for Pro Hae Vice Pending Attorneys for Proposed lntervenors 9 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 9 of 41 CERTIFICATE OF SERVICE -I, Robert Cl oar, hereby certify that on September 1- ~ , 2016, a true and correct copy of the foregoing document, was filed via the Court's CM/ECF system which caused notice to be sent to the following parties: James A. Streett Alex G. Streett Streett Law Firm, P.A. 107 West Main Russellville, AR 72801 jarncs(i'i strcctt la\v .com Joe P. Leniski Branstetter, Stranch & Jennings PLLC 223 Rosa L. Parks Ave., Ste. 200 Nashville, TN 37204 j lc11iski(d1bra11stetterlaw .com Gary D. Marts, Jr. Jaimie Grunert Moss Patrick Darrow Wilson Wright, Lindsey & Jennings 200 West Capitol Ave., Ste. 2300 Little Rock, AR 7220 I gmarts(i1>wlj.com jmoss(al.wlj.com pwi lson(d!wlj .com Lewis S. Wiener Sutherland Asbill & Brennan LLP 700 Sixth Street NW, Suite 700 Washington, D.C. 20001 lewis.wiener(cl,;sutherland.com Robert R. Cloar AR Bar ID: 72025 P.O. Box 1623 Fort Smith, AR 72902 rrcloar@gmail.com Attorney.for Proposed lntervenors Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 10 of 41 . ,I APPENDIX A Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 11 of 41 Case 2:16-cv-00041-UA-MRM Document 38 Filed 04/29/16 Page 1 of 14 PagelD 350 IN THE UN111ED STATES DISTRICT COURT MIDDLE DISTRICT OP FLORIDA SCOMA CHIROPRACTIC, P.A. a Fl9rida ) corporation, FLORENCE MUSSAT, M.D., ) S.C., an Illinois service corporation, and DR. ) Wil..LIAM P. GRESS, an Illinois resident. ) individually and u the reprosentatives! of a ) class of similarly-situated persons. ) Plaintift11, v. DENTAL EQUITIES, LLC, FIRST ARKANSAS BANK & TRUST and JOHN DOES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil No. 2: 16-cv-00041-UA-MRM CLASS ACl'ION FILED a..\ 1-z. °' I H.o Dato Time CLERK, U. S. DISTRICT COURT MIDDLE DISTRICT OF FLORiOf\ FT. MVERS. FLORIDA Initials SECONP ~ED CLASS ACTION CQMPLAINT Plaintift11, SCOMA CHIROPRACTIC, P.A., FLORENCE MUSSAT, M.D., S.C. and DR. WILLIAM P. GRESS ("Plaintiff's''), bring this action on behalf of themselves and all others similarly situated, through their attomeys, and except as to those allegations pertaining to Plaintiffs or their auomeys. which alJeptions arc based upon personal knowledge, allege the following upon infonnatfon and belief against Defendants, DENT AL EQUITIES, LLC, FIRST ARKANSAS BANK & TR.UST and JOHN DOES 1-10 (1'Defendants"): PRILJMINARY STADMENT I 1. This case challenges Defendants' practice of sending unsolicited facsimiles. I 2. The federal Telephone fonsumer Protection Act of t 991, as amended by the Junk Fax. Prevention Act of 2005, 47 U~ § 227 ("JFPA" or the "Act"), and the regulations promulpted under the Act, prohibit la person or entity from faxing or having an agent fax ' advortisements without the recipient's prior expn:ss invitadon or permission. The JFPA provides Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 12 of 41 Case 2:16-cv-00041-UA-MRM Document 38 Filed 04/29/16 Page 2 of 14 PagelD 351 a private right of action and provi~ statutory dmnages of SSOO per violation. Upon infonnation and belief, Defendants have sent ifacsimile transmissions of unsolicited advertisements to I l Plaintiffs and the Class in violatlo~ of the JFPA, including, but not limited to, the facsimile transmission of unsolicited advertl'earents on or about December 18-23, 2015 (''die Faxesj, the true and correct copies of which •n:j attached hereto as Exhibit A, B and C, and made a part hereof. The Faxes describe the c:ommFial availability or quality of Defendants' products, goods l and services. Plaintiffs are informed apd believe, and. upon such lnfonnation and belief aver, that Defendants have sent, and c:ontin~ to send, unsolicited advertisements via ticsimile I transmission in violation of the JFPA. 1 3. Unsolicited faxes~ their recipients. A junk fax recipient loses the use of its fax machine, paper, and ink toner. Ait unsolicited fax wastes the· recipient's valuable time 1hat would have been spent on somethiDg else. A junk fax interrupts the recipient's privacy. ! Unsolicited faxes prevent fix machines from n=iving authorized faxes, prevent their use for I authorized outgoing faxes, cause undr' wear and tear on the recipients' fax machines, and require additional labor to attempt to discern the source and purpose of the unsolicited message. I 4.. On behalf of themselvesiand all others similarly situated, Plaintiffs brina this case as a class action asserting claims asainsl Defendants under the JFPA. 5. Plaintiffs an: infonned a'nd believe, and upon such infonnadon and belief aver, I that this action is based upon a compion nucleus of operative facts because the facsimile transmissions at Issue were and are befl done in the same or similar manner. This action is based on the same legal theory, nam~ly liability under the JFPA. This action seeb relief expressly authorized by the JFPA: (i) i~ve relief eajoining Defendants, their employees, agents, representatives, c:ontnctors, aftll~ and all persons and entities aeting in concert with ' Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 13 of 41 Case 2:16-cv-00041-UA-MRM Document 38 Filed 04/29/16 Page 3 of 14 PagelD 352 them. from sending unsoUcited advertisements in violation of the JFPA; and (ii) an award of statutory damages in the minimum ambunt of SSOO for each violation of the JFP ~ and to have such damages trebled. as provided by §;227(b)(3) of the AcL JUR1sp1cr10N AND VENUE 6. This Court has subject ~atter jurisdiction under 28 U.S.C. § 1331 and 47 U.S.C. § 227. 7. This court has personal jurisdiction over Defendants because Defendants transact business within this judicial district, h1ive made contacts within this judicial district., and/or have committed tortious acts within this judicial district. PARTIES 8. Plaintiff, SCOMA C~OPRACTIC. P.A. ("SCOMA j, is a Florida corporation located in Cape Coral1 Florida. 9. Plaintiff, FLORENCE MUSSAT, M.D., S.C. ("MUSSAT''), is an Illinois service corporation. I 0. Plaintiff, DR. WILLIAM P. GRESS ("GRESSj, is an Illinois individual. 11. On information and beliqf, Defendant, DENTAL BQUITIF.S, LLC. is a Nevada limited liability company with its principal place of business in Irvine, caJifomia. DoctorsCJub ! ls a registered trademark of Dental ~uities. LLC offering financial services, namely, issuing credit cards and debit cards, and providing credit card and debit card services. 12. On information and belief, Defendant, FIRST ARKANSAS BANK & TRUST I ("FIRST ARKANSAS''), is an ArkansaS state bank and is located at 600 Main St., Jacksonville, I Arkansas. FIRST AR.KANSAS, throuf Card Assets, serves as a credit card issuer to over 400 financial institutions across the Uni~ States. Card Assets allows financial institutions and 3 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 14 of 41 Case 2:16-cv-00041-UA-MRM Document 38 Filed 04/29/16 Page 4of14 PagelD 353 business orpni7.ations to issue bnnd!"' consumer and small business credit cards. Cud Assets is a division of First Arkansas Bank 8i Tnist. 13. John Does I· l O will b~ identified through discovery, but are not presently known. f AQJ 14. On infonnation and .belief, on or about December 23, 2015, Defendants transmitted by telephone facsimile machine an unsolicited facsimile to Plaintiff SCOMA. A I copy of the facsimile is attached hereto 88 Exhibit A. 15. On infonnation and belie( on or about December 18, 2015, Defendants transmitted by telephone facsimile ~inc an unsolicited facsbnile to Plaintiff MUSSA T. A copy of the facsimile is attached h~ 88 Exhibit B. 16. On infonnation and belief, on or about December 22, 2015, Defendants transmitted by telephone facsimile maqhine an unsolicited facsimile to Plaintiff GRESS. A copy of the facsimile is attached hereto as ~bit C. 17. On infonnation and belief, Defendants receive some or all of the revenues from the sale of the products, goods and serylces advertised on Exhibits A, B and C, and Defendants profit and benefit from the sale of the products, goods and services advertised on Exhibits A, B andC. 18. In order to obtain the qoctorsClub MasterCard credit cud that Is advertised in Exhibits A, B, and C, a person needsjto complete an application and agree to the terms and conditions provided by Defendant First f.rkansas Bank & TNSt. 19. Plaintiffs had not invited ;or given permission to Defendants to send the faxes. 20. On infonnation and be~ef, Defendants faxed the same and other unsolicited facsimiles without the required opt-out 1•nguage to Plaintiffs and more than 25 other recipients ! 4 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 15 of 41 Case 2:16-cv-00041-UA-MRM Document 38 Filed 04/29/16 Page 5 of 14 PagelD 354 or sent the same and other adverti-1'cnts by fax with the required opt-out language but without flnt receiving the recipients' express srormission or invitation. 21. There is no reasonable1mcans for Plaintiffs (or any other class member} to avoid receiving unauthorized faxes. Fax i;nachincs are loft on and ready to receive the 1111cnt communications their owners desire tq receive. 22. Defendants' facsimiles attached as Exhibits A, B and C did not display a proper opt-out notice as required by 47 C.F.~ § 64.1200. ' CLASS ACTION ALLEGATIONS ! 23. In accordance with Fed.: R. Civ. P. 23(b)(l), (b)(2) and (b)(3), Plaintiffi bring this class action pursuant to the JFPA, on behalf of the following class of persons: • AJI persons who (1) on pr after four years prior to the filin1 of this action, (2) were sent felephone facsimile messages of material advertising the commcrJrial availability or quality of any property, goods, or services by or on behalf of Defendants, and (3) which Defendants did not hav~ prior express permission or invitation, or ( 4) which did not dlspl~ a proper opt-out notice. Excluded from the Cius are the ~dants. their employees. agents and members of the Judiciary. Plaintiffs reserve the right ~ amend the class definition upon completion of class certification discovery. 24. Class Size (fed. R. Civ. P. 23CaX1»: Plalntifti are informed and believe, and I upon such infonnation and belief aver,. that the number of persons and entities of the Plaintiffs Class is numerous and joinder of all !members is impracticable. Plaintiffs arc infonned and believe, and upon such infonnation and!bolicf aver, that the number of class members is at least forty. s Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 16 of 41 Case 2:16-cv-00041-UA-MRM Document 38 Filed 04/29/16 Page 6 of 14 PagelD 355 i 2S. CommonaUtv Qll: The Plaintiffs' claims are typical of the i claims of all class members. The Pl8'tif& received the same faxes as the faxes sent by or on behalf of the Defendants advertising Pfociucts, goods and services of the Defendants during the Class Period. The Plaintiffs arc making the same claims and seeking the same relief for themselves and all class members based upon the same federal statute. The Defendants have acted in the same or in a similar mann~r with respect to the Plaintiffs and all the class members by sending Plaintiffs and each member of the class the same faxes. 27. Fair and Adeau1te SeprCsentation CFed. R. Civ. P. 23 (aX4)); The Plaintiffs will I fairly and adequately represent and pro+:ct the interests of the class. They arc interested in this matter, has no conflicts and has retaine~ experienced class counsel to represent the class. 28. Need for Consistent Stanciards and Practical Effect of Adjudication (Fed. R. Civ. I P. 23 (bl OU: Class certification is ap~ropriate because the prosecution of individual actions by class members would: (a) create the I risk of inconsistent adjudications that could establish incompatible standards of conduct f~r the Defendants, and/or (b) as a practical matter, adjudication of the Plaintiffs' claims will be dispositive of the interests of class members who are I not parties. 29. Common Conduct CFe9. R. Ciy. P. 23 Cb)(2)l; Class certification is also appropriate because the Defendants ha'je acted and refused to act in the same or similar manner I with respect to all class members there~y making injunctive and declaratory relief appropriate. ' The Plaintiffs demand such relief as autyorized by 47 U.S.C. §227. 30. Preclominaoce and Superigrity oetors Club ,./'1 .· :· • 1 J • • \ ·'"'·'· .\ .... ~ • Is Its member ldentlfiq1tl' ol tl\OL1!1DtUl;i 11J ~·1ffo1 t. ~ Trdwl nnil l'ilr.atiJll dt1111!< to mC1r6 U1an 200 countrill~ with over 10tl lltiO hole! choices :. Lce<.il. Rllgt1.11111:. N~Ui:mal illld llnr111rsal P11vlh1ges Also, Enjoy the Additional MnsterCard Benefits: r .. Robust R~wl\rd Proomm with oplionio ior C11shbock and Points n1de&mi1b1e ror lllih:hMdii:G, l)ltt cards. omllrovcl' · Wdlltl Elll" Conciar!)\• Sel'licas" • Em11rottncy Cartl R'r1lace111t'nl • Ma~lerCard ldt:nlky Thc•lt ft!J!JllUE' ln~ur~1M• • Purch0>sc Prol~ctioo:; - El!lended WCi I ..,, v. r;1M Mn h tel c:llclces ·'}-' • En18rgency Card • ExtEindad Warranta11 <-"' • \ •',,"·····~ :•=~'1°%11 )l'J';:;il':.,~ •X· ..:1 Replacament • LuxuryTravel Pl'!l9r~···~t.J .. ~ )'1 r( f.,l\ ''· • '~.y .... ,,,, .. '''-"4", ~"K ~ .• ;.'' .... ;1. •1 .t' •. ~ loU\~plll\yfllas. .ii ''"· ·· ·~~"n· .,,,.:\ ~·· J'~ll'fl. \'' 1' • • '• •' ' • • I' ' 'V.f' If l~ 'i• ~ J·~ ;; .,-.,,l •• ~ • ~\'-, , ~ ':'" ,_ \-I •t.\.: •t ''·~f•' \:•q .J.~ ~ '• \)r.li"" "~· \ ~·::> Tfi~ett'ly Credit Card th~fY.,a'"s Qe~i.9~~~ B:Y."DOCTORS FOR DOCTORS~ \t·~·o;f ?~ "'" ( ,,.. i' :l:'- \ ·l~J . •. • '.~ •" - . • ... ~ • . · ·:.:: ,.. !· .. it Pa1s"to}Ji:J./tet~. · <-r· '~ ~":\~ .,.. -·· 7:"" j' t ...... ~;~:. F.,0.r.~indre information and corngl~te felJPls and conditions ~ ...... i~':'Pl ... • ·~ • ,-::, • :Sit ~ ... !· r:; '\)~'::·.:·::. .• ~ •. :i~ APPLY, visit TfieDrt;·1ub~com today! ..:;~. ·;C,:l.·vt.~e Reci~~~~~~Y~P.~ut ouJy future faxes by emailing D request 10 OptOul@TheDrClub.com or by cDlli~~~J~~ 777 , Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 31 of 41 APPENDIXB Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 32 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 1 of 9 PagelD 324 UNITED STA TES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION SCOMA CHIROPRACTIC, P.A., a Florida corporation, individually and as the representative of a class of similarly- situated persons Plaintiff, v. Case No: 2:16-cv-4l-FtM-99MRM DENT AL EQUITIES, LLC, JOHN DOES ( 1-10) and FIRST ARKANSAS BANK & TRUST, Defendants. CASE MANAGEMENT AND SCHEDULING ORDER Having considered the Case Management Report prepared by the parties, see Fed. R. Civ. P. 26(f) and M.D. Fla. R. 3.05(c), the Court enters this case management and scheduling order: Mandatory Initial Disclosures (pursuant to Fed. R. Civ. P. 26(a)(I) as amended) June8, 2016 Certificate or Interested Persons and Corporate Disclosure Statement IMMEDIATELY Motions to Add Parties or to Amend Pleadings June 29, 2016 Disclosure of Expert Reports Plaintiff: March 22, 2017 Defendant: April 21, 2017 Rebuttal: Discovery Deadline November 1, 2017 Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 33 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 2 of 9 PagelD 325 Mediation Deadline: Mediator: Address: Telephone: IF NO MEDIATOR IS DESIGNATED HEREIN: The parties shall file a stipulation selecting a mediator within fourteen (14) days of the date of this Order Dlsposltive Motions, Daubert, and Markman Motions Meeting In Person to Prepare Joint Final Pretrial Statement Joint Final Pretrial Statement (Including a Single Set of Jointly Proposed Jury Instructions and Verdict Form (a Word venion should also bee- mailed to the Chamben e-mail address listed on the Court's website), Voir Dire Questions, Witnesses Lists, and Exhibit Lists on Approved Form found on the Court's website) All Other Motions Including Motions In Llmlne, Trial Briefs (Deneb Trials only) Final Pretrial Conference Date: Time: Judge: Trial Term Begins (Trials Before Magistrate Judges Begin on Date Certain) Estimated Length of Trial Jury/Non· Jury The purpose of this order is to discourage wasteful pretrial activities. and to secure the just. speedy, and inexpensive detennination of the action. See Fed. R. Civ. P. I; M.D. Fla. R. l.Ol(b). This order controls the subsequent course of this proceeding. Fed. R. Civ. P. 16(b}, ( e }. Counsel and all parties (both represented and pro se) shall comply with this order, with the Federal Rules of Civil Procedure, and with the Local Rules of the United States District Court for the Middle District of Florida. Counsel shall also comply with the Ideals and Goals of Professionalism adopted by the Board of Governors of the Florida Bar on May 16, 1990. 2 DECEMBER 4, 2017 JayM.Cohen 981 Mayfield Avenue Winter Park, FL 407-644-1181 December 12, 2017 February 22, 2018 March 16, 2018 March 16, 2018 Aprll 16, 2018 9:00AM JOHN E. STEELE MAY7,2018 Sdays Non-Jury See 13 Florida Bar Journal 711- 13 (September 1999); M.D. Fla. R. 2.04(g). I. DISCOVERY A. Certificate of Interested Penons and Corporate Disclosure Statement - This Court has previously ordered each party, governmental party, intervenor, non-party movant, and Rule 69 garnishee to file and serve a Certificate of Interested Persons and Corporate Disclosure Statement using a mandatory fonn. No party may seek discovery from any source before filing and serving a Certificate of Interested Persons and Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 34 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 3 of 9 PagelD 326 Corporate Disclosure Statement. A motion, memorandum, response, or other paper - including emergency motion - may be denied or stricken unless the tiling party has previously tiled and served its Certificate of Interested Persons and Corporate Disclosure Statement. Any party who has not already tiled and served the required certificate shall do so within fourteen (14) days of the date of this order or sanctions will be imposed. B. Discovery Not Filed - The parties shall not file discovery materials with the Clerk except as provided in M.D. Fla. R. 3.03. C. Limits on Discovery - The parties may agree by stipulation on other limits on discovery within the context of the limits and deadlines established by this case management and scheduling order, but the parties may not alter the terms of this order without leave of Court. Fed. R. Civ. P. 29. D. Discovery Deadline - Each party shall timely serve discovery requests so that the rules allow for a response prior to the discovery deadline. The Court may deny as untimely all motions to compel filed after the discovery deadline. E. Disclosure of Expert Testimony - On or before the date set forth in the above table for the disclosure of expert reports, the party shall fully comply with Fed. R. Civ. P. 26(a)(2) and 26(e). Expert testimony on direct examination at trial will be limited to the opinions, basis, reasons, data, and other information disclosed in the written expert report disclosed pursuant to this order. Failure to disclose such information may result in the exclusion of all or part of the testimony of the expert witness. F. Confidentiality Agreements - The parties may reach their own agreement regarding the designation of materials as "confidential." There is no need for the Court to endorse the confidentiality agreement. The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce stipulated and signed confidentiality agreements. See M.D. Fla. R. 4.15. Each confidentiality agreement or order shall provide, or shall be 3 deemed to provide, that "no party shall tile a document under seal without first having obtained an order granting leave to file under seal on a showing of particularized need." See also "Motions to File Under Seal" below. U. MOTIONS A. Certificate of Good Faith Conference- Before filing any motion in a civil case, the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion, and shall file with the motion a statement certifying that the moving party has conferred with opposing counsel, and that counsel have been unable to agree on the resolution of the motion. M.D. Fla. R. 3.0l(g); Fed. R. Civ. P. 26(c). No certificate is requi~d in a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, or to involuntarily dismiss an action. M.D. Fla. R. 3.0l(g). Nevertheless, the Court expects that a party alleging that a pleading fails to state a claim will confer with counsel for the opposing party before moving to dismiss, and will agree to an order permitting the tiling of a curative amended pleading. Fed. R. Civ. P. I 0, 15. The term "confer" in Rule 3 .0 I (g) requires a substantive conversation in person or by telephone in a good faith effort to resolve the motion without court action, and does not envision an exchange of ultimatums by fax or letter. Counsel who merely "attempt" to confer have not "conferred." Counsel must respond promptly to inquiries and communications from opposing counsel. Board of Governors of the Florida Bar, Ideals and Goals of Professionalism, 73 Florida Bar Journal 1I2 • I 3 , 6. I 0 and Creed of Professionalism , 8 (adopted May 16, 1990). The Court may deny motions that fail to include an appropriate, complete Rule 3.0l(g) certificate. Motions titled as "unopposed" or "agreed" normally come to the Court's attention prior to the deadline for response. If the parties are in agreement, counsel should consider whether an untiled stipulation is sufficient in lieu of a motion seeking a Court order. B. Extension of Deadlines Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 35 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 4 of 9 PagelD 327 1. Disposltive Motions Deadline and Trial Not Extended - The Court cannot extend a dispositive motion deadline to the eve of trial. In light of the district court's heavy felony trial calendar, at least four months are required before trial to receive memoranda in opposition to a motion for summary judgment, and to research and resolve the dispositive motion sufficiently in advance of trial. 2. Extensions of Other DeadUnes Disfavored - Motions for an extension of other deadlines established in this order, including motions for an extension of the discovery period, are disfavored. Failure to complete discovery within the time established by this order shall not constitute cause for continuance unless brought to the attenti.on of the Court at least sixty days in advance of the beginning of the scheduled trial term. The movant must show that the failure to complete discovery is not the result of lack of diligence in pursuing discovery. M.D. Fla. R. 3.09(b). The filing of a motion for extension of time does not toll the time for compliance with deadlines established by rule or order. C. Motions to Compel and for Protective Order - Motions to compel and motions for a protective order will be denied unless the motion fully complies with M.D. Fla. R. 3.04, requiring the motion to quote in full each interrogatory, question, or request; to quote in full opposing party's objection and grounds, or response which is asserted to be insufficient; and to state the reasons the motion should be granted. D. Motions to File Under Seal - Whether documents filed in a case may be filed under seal is a separate issue from whether the parties may agree that produced documents are confidential. Motions to file under seal are disfavored. The Court will permit the parties to file documents under seal only upon a finding of extraordinary circumstances and particularized need. See Brown v. Advantage Engineering, Inc., 960 F .2d I 013 (11th Cir. 1992); Wilson v. American Motors Corp., 159 F.2d I 568 (11th Cir. 1985). A party seeking to file a document under seal must file a motion to file under seal requesting such Court action, together with a memorandum of law in support. 4 E. Emergency Motions - The Court may consider and determine emergency motions at any time. M.D. Fla. R. 3.0l(e). Counsel should be aware that the designation "emergency" may cause a judge to abandon other pending matters in order to immediately address the "emergency." The Court will sanction any counsel or party who designates a motion as "emergency" under circumstances that are not true emergencies. It is not an emergency when counsel has delayed discovery until the end of the discovery period. F. Motions for Summary Judgment 1. Required Materials - A motion for summary judgment shall be accompanied by a memorandum of law, and a concise statement of the material facts as to which the moving party contends there is no genuine issue for trial in a single document not more than 25 pages as required by M.D. Fla. R. 3.0l(a), along with supporting affidavits. Each party opposing a motion for summary judgment shall file and serve, within fourteen (14) days after being served with such motion, a legal memorandum with citation of authorities as to which the opposing party contends there exists a genuine issue for trial and a concise statement of the material facts in opposition to the relief requested, in a single document limited to not more than 20 pages, as required by M.D. Fla. R. 3.0 I (b ), and shall include necessary affidavits. Both the movant and the party opposing summary judgment shall provide pinpoint citations to the pages and lines of record supporting each material fact. General references to a deposition are inadequate. Material facts set forth in the statement required to be served by the moving party will be deemed admitted for the purposes of the motion unless controverted by the opposing party's statement. 2. Under Advisement - The Court takes a motion for summary judgment under advisement twenty-one (21) days from the date it is served, unless the Court orders a different date. Until that date, the party opposing summary judgment may file additional affidavits and exhibits within the purview of Fed. R. Civ. P. 56 in opposition to the motion, but not additional memoranda. Fed. R. Civ. P. 6(d) and 56(c); M.D. Fla. R. 3.0l(b). Unless specifically ordered, the Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 36 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 5 of 9 PagelD 328 Court will not hold a hearing on the motion. Failure to oppose any motion for summary judgment may result in the entry of a judgment for the movant without further proceedings. See Milburn v. United States, 734 F.2d 762, 765 (I Ith Cir. 1984); Griffith v. Wainwright, 772 F.2d 822, 825 (I Ith Cir. 1985) (percuriam); Fed. R. Civ. P. 56(e). All requirements in this order apply to pro se litigants as well as to parties represented by counsel. G. Daubert and Markman Motions-On or before the date established in the above table for the filing of motions for summary judgment, any party seeking a ruling pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (admissibility of expert opinions) or pursuant to Markman v. Westview Instruments, Inc., 116 S. Ct. 1384 (1996) (interpretation of a patent claim) shall file and serve an appropriate motion. The parties shall prepare a glossary of technical or scientific terms where appropriate for the Court, court reporter, and trier of fact at any hearing or trial. H. All Other Motions Including Motions In Limine - On or before the date established above, the parties shall file and serve all other motions including motions in limine. M.D. Fla. R. 3.0l(g) applies, and the parties shall confer to define and limit the issues in dispute. III. JOINT FINAL PRETRIAL STATEMENT A. Meeting In Person - On or before the date established in the above table, lead trial counsel for all parties and any unrepresented parties shall meet together in person pursuant to M.D. Fla. R. 3.06(b) in a good faith effort to: l. settle the case; the parties shall thoroughly and exhaustively discuss settlement of the action before undertaking the extensive efforts needed to conduct final preparation of the case for trial and to comply with the requirements of this order; 2. stipulate to as many facts and issues as possible; in order to assist the Court, the parties shall make an active and substantial effort to stipulate at length and in detail as to agreed 5 facts and law, and to limit, narrow, and simplify the issues of fact and law that remain contested; as a rule, parties who have complied with this requirement in good faith will file a Joint Final Pretrial Statement listing far more agreed facts and principles of law than those that remain for determination at trial; 3. tag, mark, identify, examine, copy, and list all original trial exhibits (including actual document exhibits) that any party will offer in evidence or otherwise tender to any witness during trial [M.D. Fla. R. 3.06(b)(3) and 3.07(a)]; prepare and exchange a final exhibit list bearing a description identifying each exhibit and sponsoring witness [M.D. Fla. R. 3.07(b)]; it is anticipated that counsel will agree to the admission of the bulk of the opposing parties' exhibits without objection, and shall designate on the exhibit list the exhibits which the Court may admit without objection at trial. Absent good cause, the Court will not receive in evidence over objection any exhibits - including charts, diagrams, and demonstrative evidence - not presented to opposing counsel or unrepresented parties for inspection and copying at the required meeting, or not listed in the joint final pretrial statement. Photographs of sensitive exhibits (i.e., guns, drugs, valuables) and of non-documentary evidence, and reductions of documentary exhibits larger than 8 W' by 14" to be substituted for original exhibits after conclusion of the trial, must be presented to opposing counsel for examination at the meeting to prepare the Joint Final Pretrial Statement. Objections to such photographs or reductions of exhibits must be listed in the Joint Final Pretrial Statement. The parties are advised that the design of certain courtrooms may preclude the use of large exhibits and posters in a jury trial. The parties are directed to contact the trial judge's courtroom deputy to discuss exhibits and equipment to be used during trial; 4. exchange the names and addresses of all witnesses, and state whether they will likely be called; and 5. prepare a Joint Final Pretrial Statement strictly in conformance with M.D. Fla. R. 3.06(c) and this ord~r. 8. The Joint Final Pretrial Statement Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 37 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 6 of 9 PagelD 329 1. Form of Joint Final Pretrial Statement - On or before the date established in the above table, the parties shall file a Joint Final Pretrial Statement that strictly conforms to the requirements of M.D. Fla. R. 3.06{c) and this order. This case must be fully ready for trial at the time that the Joint Final Pretrial Statement is due. Lead trial counsel for all parties, or the parties themselves if unrepresented, shall sign the Joint Final Pretrial Statement. The Court will strike pretrial statements that are unilateral, incompletely executed, or otherwise incomplete. Inadequate stipulations of fact and law will be stricken. Sanctions may be imposed for failure to comply, including the striking of pleadings. At the conclusion of the final pretrial conference, all pleadings are deemed to merge into the Joint Final Pretrial Statement, which will control the course of the trial. M.D. Fla. R. 3.06(e); Fed. R. Civ. P. 16(e). 2. Exhibit List - Exhibit lists are available on www.flmd.uscourts.gov. Unlisted exhibits will not be received into evidence at trial, except by order of the Court in the furtherance of justice. See M.D. Fla. R. 3.06(e). The Joint Final Pretrial Statement must attach each party's exhibit list on the approved form listing each specific objection ("all objections reserved" does not suffice) to each numbered exhibit that remains after full discussion and stipulation. Objections not made - or not made with specificity- are waived. 3. Witness List - On the witness list required by M.D. Fla. R. 3.06(c)(S), the parties and counsel shall designate which witnesses will likely be called, and also designate which witnesses may be called. Absent good cause, the Court will not permit testimony from unlisted witnesses at trial over objection. This restriction does not apply to true rebuttal witnesses (i.e., witnesses whose testimony could not reasonably have been foreseen to be necessary). Records custodians may be listed, but will not likely be called at trial, except in the rare event that authenticity or foundation is contested. For good cause shown in compelling circumstances, the Court may permit presentation of testimony in open court by contemporaneous 6 transmission from a different location. Fed. R. Civ. P. 43(a). 4. Depositions The Court encourages stipulations of fact to avoid calling unnecessary witnesses. Where a stipulation will not suffice, the Court permits the use of videotaped depositions. At the required meeting, counsel and unrepresented parties shall agree upon and specify in writing in the Joint Final Pretrial Statement the pages and lines of each deposition (except where used solely for impeachment) to be published to the trier offact. The parties shall include in the Joint Final Pretrial Statement a page-and-line description of any testimony that remains in dispute after an active and substantial effort at resolution, together with argument and authority for each party's position. The parties shall prepare, for submission and consideration at the final pretrial conference or trial, edited and marked copies (as to the portion offered by each party) of any depositions or deposition excerpts which are to be offered in evidence. S. Joint Jury Instructions, Verdict Form, Voir Dire Questions - In cases to be tried before a jury, counsel shall file a single jointly-proposed set of jury instructions, together with a single jointly-proposed jury . verdict form. M.D. Fla. R. 5.0l(c). The parties should be considerate of their juries, and therefore should submit short, concise special verdict forms. The Court prefers pattern jury instructions approved by the United States Court of Appeals for the Eleventh Circuit. A party may include at the appropriate place in the single set of jointly-proposed jury instructions a contested charge, so designated with the name of the requesting party and bearing at the bottom a citation of authority for its inclusion, together with a summary of the opposing party's objection. The Court will deny outright a proposed instruction that is "slanted" in any way. The Court requests that the parties, where possible, e-mail the single set of jury instructions and verdict form, preferably in Word® format to the Chambers mailbox. Each party who wishes for the Court to ask specific questions of the venire during voir dire may also include in the Joint Final Pretrial Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 38 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 7 of 9 PagelD 330 Statement a single joint list of proposed questions. C. Coordination of Joint Final Pretrial Statement - All counsel and parties are responsible for tiling a Joint Final Pretrial Statement in full compliance with this order. Plaintiff's counsel (or plaintiff if all parties are proceeding pro se) shall have the primary responsibility to coordinate compliance with the sections of this order that require a meeting of lead trial counsel and unrepresented parties in person, and the filing of a Joint Final Pretrial Statement and related material. See M.D. Fla. R. 3.10 (relating to failure to prosecute). If the plaintiff is proceeding pro se, defense counsel shall coordinate compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court by written motion or request for a status conference. D. Trial Briefs and Other Materials I . Trial Briefs - In the case of a non-jury trial, on or before the date established above for filing "All Other Motions and Briefs," the parties shall tile and serve a trial brief with proposed findings offact and conclusions of law. The parties may tile a trial brief on or before the same date in the case of a jury trial. 2. Exhibit Notebook - On the first day of a jury trial or non-jury trial, the parties shall provide to the Court a bench notebook containing marked copies of all exhibits. The parties may contact the Courtroom Deputy Clerk for the trial judge to determine whether this requirement may be waived. IV. MEDIATION A. Purpose - To minimize costly pretrial procedures in a case that may be equitably settled, and to secure the just, speedy, and inexpensive determination of this action, all parties shall participate in good faith in court-annexed mediation. See Fed. R. Civ. P. I; Fed. R. Civ. P. 16(a)(5); M.D. Fla. R. l.Ol(b), 9.0l(b). B. Last Date to Mediate - The parties shall complete the mediation conference on or before the mediation date set forth earlier in the above 7 table. Despite M.D. Fla. R. 9.05(d), neither the mediator nor the parties have authority to continue the mediation conference beyond this date except on express order of the Court. In any Track Three case, complex case, or case involving multiple parties, the mediator has the authority to conduct the mediation in a series of sessions and in groups of parties so that mediation is complete by the last date to mediate. C. Mediator's Authority - The mediator shall have all powers and authority to conduct a mediation and to settle this case as are described in Chapter Nine of the Local Rules, except as limited by this order. The mediation shall continue until adjourned by the mediator. In order to coordinate the mediation conference, the mediator may set an abbreviated scheduling conference prior to the scheduled mediation. At such time, the mediator may designate one or more coordinating attorneys who shall be responsible for conferring with the mediator regarding the mediation conference. Ifnecessary, the coordinating attorney may coordinate the rescheduling of a mediation conference within the time allowed in this order. D. General Rules Governing Mediation Conference I . Case Summaries - Not less than two days prior to the mediation conference, each party shall deliver to the mediator a written summary of the facts and issues of the case. 2. Identification of Corporate Representative - As part of the written case summary, counsel for each corporate party shall state the name and general job description of the employee or agent who will attend and participate with full authority to settle on behalf of the corporate party. 3. Attendance Requirements and Sanctions - Each attorney acting as lead trial counsel, and each party (and in the case of a corporate party, a corporate representatiye) with full authority to settle, shall attend and participate in the mediation conference. In the case of an insurance company, the term "full authority to settle" means authority to settle for the full value of the claim or policy limit. The Court will Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 39 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 8 of 9 PagelD 331 impose sanctions upon lead counsel and parties who do not attend and participate in good faith in the mediation conference. 4. Authority to Declare Impasse- Participants shall be prepared to spend as much time as may be necessary to settle the case. No participant may force the early conclusion of a mediation because of travel plans or other engagements. Only the mediator may declare an impasse or end the mediation. S. Restrictions on OITers to Compromise - Evidence of offers to compromise a claim is not admissible to prove liability for or invalidity of the claim or its amount. Fed. R. Evid. 408 (includes evidence of conduct or statements made in compromise negotiations); M.D. Fla. R. 9.07(b). All discussion, representations and statements made at the mediation conference are privileged settlement negotiations. Except in a supplemental proceeding to enforce a settlement agreement, nothing related to the mediation conference shall be admitted at trial or be subject to discovery. M.D. Fla. R. 9.07; Fed. R. Evid. 408. A communication between a party and a mediator during a private caucus is also confidential, unless the party tells the mediator that it is not. E. Rate of Compensation - The mediator shall be compensated as per M.D. Fla. R. 9.02(t), or at a rate stipulated by the parties in advance of mediation and borne equally by the parties. Upon motion of the prevailing party, the party's share may be taxed as costs in this action. F. Settlement and Report of Mediator-A settlement agreement reached between the parties shall be reduced to writing and signed by the parties and their attorneys in the presence of the mediator. See also M.D. Fla. R. 9.06(b) and 3.08. Within seven days of the conclusion of the mediation conference, the mediator shall file and serve a written mediation report stating whether all required parties were present, whether the case settled, and whether the mediator was forced to declare an impasse. See M.D. Fla. R. 9.06. The mediator may report any conduct of a party or counsel that falls short of a good faith effort to 8 resolve the case by agreement. See M.D. Fla. R. 9.05(e), 9.06(a). V. FINAL PRETRIAL CONFERENCE A. Lead Trial Counsel and Parties-If this order does not set a final pretrial conference date, the Court may later set a final pretrial conference on notice. Lead trial counsel and local counsel for each party, together with any unrepresented party, must attend the final pretrial conference in person unless previously excused by the Court. See M.D. Fla. R. 3.06(d); Fed. R. Civ. P. I 6(d). B. Substance of Final Pretrial Conference -This case must be fully ready for trial at the time that the joint final pretrial statement is due. At the final pretrial conference, all counsel and parties must be prepared and authorized to accomplish the purposes set forth in Fed. R. Civ. P. 16 and Local Rule 3.06, including the formulatfon and simplification of the issues; the elimination of frivolous claims or defenses; admitting facts and documents to avoid unnecessary proof; stipulating to the authenticity of documents; obtaining advance rulings from the Court on the admissibility of evidence; settlement and the use of special procedures to assist in resolving the dispute; disposing of pending motions; establishing a reasonable limit on the time allowed for presenting evidence;,and such other matters as may facilitate the just, speedy, and inexpensive disposition of the action. See Fed. R. Civ. P. 16(c)-(d). VI. SANCTIONS The Court will impose sanctions on any party or attorney: I) who fails to attend and to actively participate in the meeting to prepare the joint pretrial statement, or who refuses to sign and file the joint pretrial statement; 2) who fails to attend the final pretrial conference, or who is substantially unprepared to participate; 3) who fails to attend the mediation and actively participate in good faith, or who attends the mediation without full authority to negotiate a settlement, or who is substantially unprepared to participate in the mediation; or 4) who otherwise fails to comply· with this order. Sanctions may include reasonable attorney's fees and costs, the Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 40 of 41 Case 2:16-cv-00041-UA-MRM Document 33 Filed 04/19/16 Page 9 of g PagelD 332 striking of pleadings, the entry of default, the dismissal of the case, and a finding of contempt of court. See Fed. R. Civ. P. 16(f) and 37; M.D. Fla. R. 9.0S(c), (e); 28 U.S.C. § 1927. VU. TRIAL A. Trial Before District .Judge - A case scheduled for trial before a United States District Judge normally will be called for trial on the first day of the trial term indicated in the above table, or as soon after that date as is possible in light of the Court's felony and civil trial calendar. 1 Cases not reached for trial will be carried over to the following month, and issued subpoenas will continue in force. Counsel, parties, and witnesses sllall be available 011 twenty-four !tours' notice for trial after the beginning of the trial term. A different district judge or visiting judge may try the case. Local Rule l.03(d). The case may be set for trial in the Orlando Division, Tampa Division, Fort Myers Division, Ocala Division, or Jacksonville Division of the Middle District of Florida. Local Rule l .02(e). Absent a showing of good cause. any party whose turn it is to provide evidence will be deemed to have rested if, during the hours designated for trial, the party has no further evidence or witnesses available. B. Trial Before Magistrate .Judge - A case scheduled for trial before a United States Magistrate Judge will be called for trial on a date certain. With respect to a civil case that remains pending before a district Judge as of the date of th is order, the United States District Judges of the Middle District of Florida wish to afford the parties the opportunity to consent to proceed before a magistrate judge. Consent must be unanimous. The Magistrate Consent form can be found on the Court's website at http://www.tlmd.uscourts. A United States Magistrate Judge is available pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(a) to conduct all further proceed in gs in th is case (or specified motions in this case), to conduct ajul)' or non-jury trial begi1111i11g 011 a date certain, and to enter final judgment. A party may appeal a final judgment of a magistrate judge to the United 1 This case may be reassigned to a visiting district judge at any time. As stated in paragraph Ill (B)(I) above, this case should be fully ready for trial at the time that the Joint Final Pretrial Statement is due. In 9 States Court of Appeals for the Eleventh Circuit in the same manner as an appeal from the district court. 28 U.S.C. § 636(c)(3); Fed. R. Civ. P. 73. A party is free to withhold consent without adverse substantive consequences. 28 U.S.C. § 636(c)(2); Fed. R. Civ. P. 73(b). C. Settlement - Counsel shall immediately notify the Court upon settlement of any case. M.D. Fla. R. 3.08. The parties are jointly and severally liable for jury costs for settlement after jurors have been notified to appear without sufficient time to cancel the appearance. Regardless of the status of settlement negotiations, the parties shall appear for all scheduled hearings, including the final pretrial conference and for trial, absent the filing of a stipulation of dismissal signed by all parties who have appeared in the action (or notice of dismissal if prior to answer and motion for summary judgment). Fed. R. Civ. P. 4l(a). DONE and ORDERED in Fort Myers, Florida this _)!jjRY of April, 2016. --+-H-l'J.-.1.'-1.-~~-'t-'--""""'--" .. c~-·--- i JOHN E. STEELE SEN R UNITED STATES DISTRICT JUDGE unusual and extraordinary circumstances, the Coun rnay re-notice this case for trial shortly before the first day of the trial term if necessary to accommodate the trial schedule of the district judge or a visiting judge. Case 4:16-cv-00371-BSM Document 19 Filed 09/27/16 Page 41 of 41