RULE 16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT

Obsolete Date: 12/1/2011

(a) Purposes of a Pretrial Conference. In any action, the court may, and when any of the triggering events specified in Rule 16(b) occur must, order the attorneys and any self-represented parties to appear in person, telephonically, or by other electronic means, for one or more protrial conferences for such purposes as:

(1) expediting disposition of the action;

(2) establishing early and continuing control so that the case will not be protracted because of lack of management;

(3) discouraging wasteful pretrial activities;

(4) improving the quality of the trial through more thorough preparation;

(5) facilitating settlement; and

(6) discussing the desirability of using alternative dispute resolution.

(b) Scheduling; Triggering Events.

(1) Triggering Events. The court must conduct a pretrial conference for the purpose of entering a scheduling order if:

(A) more than six months have passed since filing of the summons and complaint or answer without final disposition of the case or filing of a dispositive motion;

(B) a Rule 40 (e) notice has been issued and any response to the notice contained a request that the case be left open; or

(C) any party makes a written request for a pretrial conference to enter a scheduling order.

(2) When Conference Held. The pretrial conference must be held within 60 days of the triggering event.

(c) Attendance and Matters for Consideration at a Pretrial Conference.

(1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by telephone or other means to consider possible settlement.

(2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate actionon the following matters:

(A) formulating and simplifying the issues, and eliminating claims or defenses;

(B) joining other parties and amending the pleadings, if necessary or desirable;

(C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence;

(D) avoiding unnecessary proof and cumulative evidence, and determining limitations or restrictions on the use of testimony under N.D.R.Ev. 702;

(E) determining the appropriateness and timing of summary adjudication under Rule 56 and other motions;

(F) controlling and scheduling discovery;

(G) resolving issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

(H) scheduling the identification of witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial;

(I) referring issues to a master;

(J) settling the case and using special procedures to assist in resolving the dispute;

(K) determining the form and content of the pretrial order;

(L) disposing of pending motions;

(M) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;

(N) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue;

(O) ordering the presentation of evidence early in the trial on a manageable issue that could, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c);

(P) establishing a reasonable limit on the time allowed to present evidence;

(Q) allocating peremptory challenges; and

(R) facilitating in other ways the just, speedy, and inexpensive disposition of the action.

(d) Pretrial Orders. After any conference under this rule, the court must issue an order reciting the action taken. This order controls the course of the action unless the court modifies it.

(e) Final Pretrial Conference. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the time of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any self-represented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.

(f) Sanctions.

(1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37, if a party or its attorney:

(A) fails to appear at a pretrial conference;

(B) is substantially unprepared to participate, or does not participate in good faith, in the conference; or

(C) fails to obey a scheduling or other pretrial order.

(2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the judge must order the party, its attorney, or both to pay the reasonable expenses, including attorney fees, incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.