Requirements for District Judge John H. McBryde

I. Case Management Procedures in Civil Actions

1. Status Report Order

   After all defendants have answered or otherwise appeared, the court issues a status report order, which requires the parties to meet face-to-face to discuss settlement of the action and their counsel to meet to help fix a schedule for trial of the case. The text of the form of status report order normally used is as follows:

ORDER

This order pertains to preparation of a status report and also contains directives that will govern procedures applicable throughout the pendency of this action.

Counsel (the term "counsel" as used herein includes pro se parties. For example, the term "plaintiff's counsel" means the plaintiff himself or herself if proceeding pro se) are directed to confer for the purpose of submitting a Joint Status Report in this case. The Joint Status Report shall be filed by 4:00 p.m. on ^, and shall address in separate paragraphs each of the following matters:

1. A brief statement of the nature of the case, including the contentions of the parties;
2. Any challenge to jurisdiction or venue;
3. Any pending motions (including the dates of filing of motions and responses), an estimate of time needed to file any contemplated motions and a description of anticipated motions;
4. Any matters which require a conference with the court;
5. Likelihood that other parties will be joined, identities of potential parties and an estimate of the time needed for joinder of such parties;
6. Requested trial date, estimated length of trial, and whether jury has been demanded;
7. Prospects for settlement, and status of any settlement negotiations; and
8. Any other matters relevant to the status and disposition of this case.

Any differences between counsel as to the status of any of the above matters must be set forth in the report.

Plaintiff's counsel is responsible for initiating the status conference and for filing the Joint Status Report. All counsel must participate in the conference and shall sign the Joint Status Report.

Prior to the filing of the Joint Status Report, the parties and their respective lead counsel shall meet face-to-face to discuss settlement of this action. Individual parties and their counsel shall participate in person, not by telephone or other remote means. All other parties shall participate by a representative or representatives, in addition to counsel, who shall have unlimited settlement authority, and who shall participate in person, not by telephone or other remote means. If a party has liability insurance coverage as to any claim made against the party in this action, a representative of each insurance company providing such coverage who has full authority to offer to pay policy limits in settlement shall be present at, and participate in, the settlement conference in person, not by telephone or other remote means. The court expects the parties to comply with the requirements of Rule 16.3 (a) of the Local Civil Rules of this court ("Local Civil Rules") that the parties make a good faith effort to settle. The parties shall include in their Joint Status Report a report detailing the date on which the settlement conference was held, the persons who were present, including the capacity of any representative who was present, a statement regarding whether meaningful progress toward settlement was made, and a statement regarding the prospects of settlement. Dollar amounts of offers and demands are not to be disclosed if the case is to be tried non-jury.

No process shall be served upon any person in attendance at any conference held pursuant to the requirements of this order.

Failure to timely submit the Joint Status Report or to cooperate in the preparation and the filing of the report or to participate as required in the settlement conference may result in the imposition of sanctions, including dismissal or entry of default without further notice. See Fed. R. Civ. P. 16(f).

The court reminds the parties that a response and brief to an opposed motion must be filed within twenty (20) days from the date the motion is filed, Local Civil Rule LR 7.1 (e), and that a reply brief may be filed within fifteen (15) days from the date the response is filed, Local Civil Rule LR 7.1 (f). Each motion shall be deemed to be ripe for ruling by the court at the end of such time period. If the court concludes that the motion should be granted, the court normally will not await a reply before ruling. As a general rule, motions will be ruled upon without hearing; however, hearings will be scheduled as appropriate.

All parties and attorneys in this action are reminded of the provisions of Fed. R. Civ. P. 11 and Local Civil Rules LR 7.1, LR 10.1, LR 83.7, LR 83.9, and LR 83.10. The rules do not contemplate that law firms are, or will be, admitted or authorized to practice before this court. Instead, the representation is to be provided by individual attorneys who qualify to practice before this court under the provisions of Local Civil Rules LR 83.7, LR 83.9, or LR 83.10. Nor do the rules contemplate that simulated signatures of attorneys of record can be used, instead of actual signatures, on pleadings, motions, etc.

The court ORDERS that from this point forward all parties to this action, and their counsel, shall strictly comply with the requirements of the above-mentioned rules unless otherwise directed by the court, and that, in the course of doing so:

1. Each attorney who participates in a conference contemplated by Local Civil Rule LR 7.1 shall be an attorney of record who is admitted to practice before this court pursuant to the provisions of Local Civil Rules LR 83.7, LR 83.9, or LR 83.10;
2. Each certificate of service and certificate of conference shall be signed by either a pro se party or an attorney of record who is admitted or authorized to practice before this court pursuant to the provisions of Local Civil Rules LR 83.7, LR 83.9, or LR 83.10;
3. A simulated signature of an attorney or party is unacceptable and will not be used;
4. None of the items filed with the papers in this action is to be signed by a law firm, as opposed to individual attorneys who are admitted or authorized to practice before this court pursuant to the provisions of Local Civil Rules 83.7, 83.9, or 83.10;
5. None of the items filed with the papers in this action is to be signed by an attorney who is not authorized to practice before this court pursuant to the provisions of Local Civil Rules LR 83.7, LR 83.9, or LR 83.10; and
6. Each pro se party shall sign each item filed by him or her on his or her own behalf.

The court further ORDERS that: Each evidentiary item, including any exhibits, filed in connection with any pleading or other paper, shall be clearly marked by the exhibit number or letter, or other designation if any, assigned to the item. All such items shall be filed as attachments, or in a separate volume, bearing consecutive page numbers and appropriate index tabs so that the court can readily locate each item. Each collection of evidentiary items shall have at the front a table of contents giving the description of each item in the collection and the tab and page number where the item can be found. Evidentiary items shall not be put together in such a fashion as to make them unwieldy. An item or collection of items of more than fifty pages shall be spiral-bound on the side. Counsel shall highlight, as appropriate, those portions of the items that are of particular pertinence. Submission to the court of any collection of cases or other legal authorities will be handled in a manner comparable to the foregoing directions relative to evidentiary items.

Further, counsel are reminded that the federal rules contemplate only that statements in pleadings may be adopted by reference. Fed. R. Civ. P. 10 (c). Attempted incorporation by reference of any other material may not be considered by the court.

For the information of the parties, the court does not routinely make it a practice to allow documents to be filed under seal. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (the public has a common-law right to inspect and copy judicial records); SEC v. Van Waeyenberghe, 990 F. 2d 845, 848 (5th Cir. 1993) (the court's discretion to seal records is to be exercised charily); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir.1983) (the First Amendment and the common law limit the court's discretion to seal records). The parties are, of course, free to enter into any agreement between them as to confidentiality of documents produced in discovery.² Any party desiring to file a specific document under seal should file a motion for leave to do so, accompanied by a memorandum giving with specificity (including a statement of all facts supporting such request and a citation and discussion of all legal authorities supporting the request) all reasons why there should be a sealing from public view of such document. ³ Further, all facts recited in any such memorandum must be verified by the oath or declaration of a person or persons having personal knowledge thereof. Cf. United States v. Edwards 823 F.2d 111, 118 (5th Cir. 1987) (if closure of a presumptively open proceeding is to withstand a first amendment challenge, the court must make specific fact findings demonstrating that a substantial probability exists that an interest of a higher value will be prejudiced and that no reasonable alternatives will adequately protect that interest.

 

The court will consider ordering the denial of the relief sought by any item that has not been properly prepared, signed, and filed or the ordering that such an item be stricken from the record of this case.

Strict compliance with the terms of this order is required. Should any party or counsel fail to cooperate in doing anything required by this order to be done, such party or counsel or both will be subject to sanctions, including dismissal or entry of default without further notice. See Fed. R. Civ. P. 16 (f).

 

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²The court is not inclined to involve itself in such an agreement of the parties. There is no reason why the parties cannot put any agreement into a legally enforceable document without causing the court to devote is time and attention to the matter. Rule 26 (c) of the Federal Rules of Civil Procedure should not be used as a vehicle for converting an agreement of the parties into a court order. into a court order. Therefore, the court does not anticipate that the parties will request it to review any discovery agreement they have reached.

³The movant should bear in mind that simply showing that disclosure of the information sought to be sealed would harm a party's reputation or its business is not sufficient to overcome the strong common law presumption in favor of public access. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983)

prejudiced and that no reasonable alternatives will adequately protect that interest).

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As required, the order is modified to accommodate the needs of specific cases.

2. Fed R. Civ. P. 26(f) Conference. See A. above.
   
   
3. Scheduling Order. Based on the information provided by the attorneys in their status report, the court fixes a schedule for trial of the action, including deadlines for adding parties, amending pleadings, and completing discovery. Ordinarily, cases are set close to the date requested by the parties. The text of the form of the scheduling order normally used is as follows:

ORDER SETTING SCHEDULE
AND PROVIDING SPECIAL PRETRIAL INSTRUCTIONS

The court, having considered and reviewed the status report submitted by the parties, finds that the following order should be entered. In addition to fixing a schedule, this order provides important, special pretrial instructions that the parties must bear in mind as the trial date approaches.

The court ORDERS that:

1. Any motion for leave to join other parties to this action shall be filed by ^. Any motion for summary judgment shall be filed at least sixty (60) days prior to the scheduled pretrial conference date. A motion for summary judgment will be filed separately and will not include any other motion. A motion for continuance pursuant to Fed. R. Civ. P. 56(f) will be filed separately and will not be included in a summary judgment response or any other document.
   
   
2. All discovery must be initiated in time to allow completion of discovery by ^. After that date, no discovery may be conducted and no discovery motion, other than a motion under Fed. R. Civ. P. 37(d), may be filed without an order extending the discovery deadline upon a showing of good cause.
   
   
3. Any motion for leave to amend pleadings must be filed by ^.
   
   
4. Any motion, other than the motions described in items 1-3 above and motions in limine, shall be filed at least thirty (30) days prior to the scheduled pretrial conference date.
   
   
5. A pretrial order in compliance with the attached special pretrial instructions shall be presented to the Court by 12:00 o'clock noon three (3) business days prior to the pretrial conference, which is hereby set for ^ .m. on ^, Room 401, U.S. Courthouse, Fort Worth, Texas. Any motions that have not been previously disposed of will be heard at the pretrial conference, as appropriate.
   
   
6. This case is set for a ^jury trial the week of ^, with docket call at 9:00 a.m. on that date.
   
   
7. No later than Monday one week prior to the scheduled trial date each party shall file with the Clerk (i) a witness list, (ii) an exhibit list, (iii) an agreed summary, accompanied by appropriate page and line references, of portions of each deposition, other than portions to be offered by video, to be offered at trial, and (iv) if set for non-jury trial, proposed findings of fact and conclusions of law, or, if set for jury trial, a proposed jury charge and verdict form.
   
   
8. The parties shall not file depositions or exhibits prior to trial, but shall have the originals and one copy thereof available immediately prior to trial. Each exhibit that will be offered at trial shall bear the case number of this action in addition to the exhibit number and identity of offering party.
   
   
9. The witness list contemplated by paragraph 7 above will be accompanied, when it is filed, by a statement as to each witness of each subject matter upon which the witness will be asked to testify. The witness list will include two columns, one bearing the heading "Sworn" and the other bearing the heading "Testified" so that the court can keep track of the witnesses at trial.
   
   
10. The exhibit list contemplated by paragraph 7 above shall be accompanied, when it is filed, by a statement signed by counsel for each party, other than the party who will be offering the exhibit, stating as to each exhibit shown on the list either that the parties agree to the admissibility of the exhibit or the nature and legal basis of any objection that will be made to the admissibility of the exhibit and the identity of the party or parties who will be urging the objection. All parties are required to cooperate in causing such statements to be prepared in a timely manner for filing with the exhibit lists. The party proposing to offer an exhibit shall be responsible for coordinating activities related to preparation of such a statement as to the exhibit he proposes to offer. No exhibit will be offered at the trial of this case unless such a statement has been timely filed as to the exhibit. The exhibit list will include two columns, one bearing the heading "Offered" and the other bearing the heading "Admitted."
    
    
11. No party will adopt any motion or pleading filed by any other party; and, the court will not entertain a motion to adopt. No party is permitted to adopt as, or in, the party's witness list or exhibit list all or any part of the witness list or exhibit list of another party.
    
    
12. All deposition testimony to be offered at trial shall be offered in summary, rather than question and answer, form. The offering party shall be responsible to obtain agreement of counsel (the term "counsel" as used herein includes pro se parties. For example, the term "plaintiff's counsel" means the plaintiff himself or herself if proceeding pro se) for all other parties to the accuracy of the proposed summary. Agreement of counsel as to proposed summaries shall be reached before the agreed summaries are filed, as required by paragraph 7 above.
    
    
13. If there is a possibility that a party will use at trial any video or audio recording, or any transcript of such a recording, such party shall notify the court of that fact no later than ^, by the filing of a document advising of such possible use and describing each such item the party might use at trial.
    
14. Not more than fifteen minutes of videotaped deposition testimony will be offered by any party from any deposition. Counsel shall reach agreement in advance of trial as to any objections related to testimony to be offered by videotape or, if agreement cannot be reached, shall present the disagreement to the court for resolution at least two weeks prior to the scheduled trial date. If less than an entire videotaped deposition is offered, it will be offered by means of an appropriately edited tape to which all parties have agreed.
    
15. Each party shall designate experts by filing a written designation including the name, address, and telephone number of each expert who may be called to testify and make the disclosures required by Fed. R. Civ. P. 26(a) (2) by serving the required written reports at least 120 days before the pretrial conference date.
    
    
16. At least ten (10) days before the pretrial conference and again at least fourteen (14) days prior to trial, the parties and their respective lead counsel shall meet face-to-face to discuss settlement of this action. Individual parties and their counsel shall participate in person, not by telephone or other remote means. All other parties shall participate by a representative or representatives, in addition to counsel, who shall have unlimited settlement authority and who shall participate in person, not by telephone or other remote means. If a party has liability insurance coverage as to any claim made against the party in this action, a representative of each insurance company providing such coverage who has full authority to offer to pay policy limits in settlement shall be present at, and participate in, the settlement conference in person, not by telephone or other remote means. The court expects the parties to comply with the requirements of Local Civil Rule 16.3 that the parties make a good faith effort to settle. Within seven (7) days of such settlement conference, the parties shall jointly prepare and file a written report, which shall be signed by all counsel for each party, detailing the date on which the settlement conference was held, the persons present, including the capacity of any representative present, a statement regarding whether meaningful progress toward settlement was made, and a statement regarding the prospects of settlement. Plaintiff's counsel is responsible for initiating the settlement conference and for filing the written report. All counsel must participate in the settlement conference and shall sign the written report.
    
    
17. This case is not exempt from the requirements for scheduling orders, pretrial orders or any other orders of the court.
    
    
18. No process shall be served upon any person in attendance at any conference held pursuant to the requirements of this order.
    
    
19. Strict compliance with the terms of this order is required. Should any party or counsel fail to cooperate in doing anything required by this order to be done, such party or counsel or both will be subject to sanctions, including dismissal or entry of default without further notice. See Fed. R. Civ. P. 16(f).

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As required, the order is modified to accommodate the requirements of specific cases. The Special Pretrial Instructions that are mentioned in paragraph 5 of the scheduling order read as follows:

SPECIAL PRETRIAL INSTRUCTIONS

1. An original Pretrial Order and one copy thereof shall be delivered to chambers by 12:00 o'clock noon three (3) business days prior to the scheduled pretrial conference.
2. At least seven business days prior to the scheduled pretrial conference, counsel for all parties and all pro se parties shall confer in person with each other for the purpose of preparing a Pretrial Order. During this conference, counsel and pro se parties shall (1) exchange drafts of the language that each party proposes to include in the Pretrial Order, (2) eliminate from the lawsuit any issue that appears in the pleadings but about which there is no controversy, (3) agree on all possible stipulated facts and on all controverted issues of fact and law, and (4) otherwise discuss the preparation of the final Pretrial Order.
3. All counsel and pro se parties are jointly responsible for preparation of the entire Pretrial Order; however, plaintiff's counsel and pro se plaintiffs, if any, are responsible for typing, collating, and otherwise preparing the final document for presentation to the court.
4. The Pretrial Order must set forth:
   1. A concise statement of any pending jurisdictional issues;
   2. A list of all pending motions;
   3. A full and complete statement of plaintiff's claims, with specificity;
   4. A full and complete statement of each defendant's claims, with specificity;
   5. A full and complete statement of the claims of any other parties, with specificity;
   6. A list of the facts established by pleadings, by stipulations, or by admissions;
   7. An agreed list of the contested issues of fact;
   8. An agreed list of the contested issues of law;
   9. A list of each party's expert witnesses and a summary of the opinions to be given by each expert;
   10. A list of additional matters that would aid in the disposition of the case;
   11. An estimate of the length of trial; (l) a statement that the case is jury or non-jury;
   12. The signature of the lead attorney for each party; and
   13. A place for the date and the signature of the Court, which shall be preceded by text on the same page.

   All of the matters set forth above shall be contained within the body of the pretrial order and none shall be attached thereto as exhibits or attachments. All of the contested issues shall be agreed upon and there will not be separate lists of contested issues submitted by each party.
   
   

5. Counsel for all parties and all pro se parties are instructed to cooperate fully in the discovery process and to make all reasonable discovery available to the requesting party. Excessive discovery or resistance to reasonable discovery will not be tolerated by this Court. Throughout the discovery process, counsel must observe the standards of litigation conduct for attorneys appearing in civil actions in the Northern District of Texas, adopted by the judges of this District, sitting en banc, in Dondi Properties Corp. v. Commerce Savings and Loan Ass'n, 121 F.R.D. 284 (N.D. Tex. 1988). Unnecessary discovery or unreasonable delay may subject the infracting party to sanctions and the payment of costs. See Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866 (5th Cir. 1988) (en banc).
6. Lead counsel for each party and each pro se party shall be present at the pretrial conference and shall have access, by telephone or otherwise, to the individual(s) he or she represents or to a person authorized to make decisions regarding the matter before the court on behalf of any corporate or other entity a party to the action.
7. Each attorney and each pro se party should retain a copy of the Pretrial Order submitted to the Court. The Clerk will not provide copies of the signed Pretrial Order.

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4. Referrals to Magistrate Judges. Even if the parties agree that the case should be referred to a magistrate judge, the court reserves the right to determine whether such a referral will be made.
   
   
5. Settlement Discussion.See text of standard status report and scheduling orders, as set forth in paragraphs I.A. and I.C.
   
   
6. Pretrial Order.
   1. See text of standard pretrial instructions that accompany the text of the standard scheduling order, as set forth in paragraph I.C. All of the matters required to be in the pretrial order shall be contained within the body of the pretrial order and none shall be attached thereto as exhibits or attachments. All of the contested issues shall be agreed upon and there will not be separate lists of contested issues submitted by each party.
   2. Lead counsel for each party and each pro se party shall be present at the pretrial conference and shall have access, by telephone or otherwise, to the individual(s) he or she represents or to a person authorized to make decisions regarding the matter before the court on behalf of any corporate or other entity a party to the action.
   3. Each attorney and each pro se party should retain a copy of the Pretrial Order submitted to the Court. The Clerk will not provide copies of the signed Pretrial Order.
      
      
7. Final Pretrial Conference. Pretrial conferences are scheduled approximately four to six weeks prior to trial.

II. Motion Practice in Civil Actions.

1. Requirements for Specific Motions.
   1. Summary Judgment. See standard status report order and scheduling order, which are set forth above in paragraphs I.A and I.C., respectively. See Fed. R. Civ. P. 56 and applicable Local Civil Rules.
   2. Continuance. See Local Civil Rule 40.1.
   3. In Limine. Although no deadline is set, motions in limine are usually filed the week before trial.
   4. Other. The court's order setting schedule and providing special pretrial instructions contains deadlines for the filing of motions.
2. Hearing. See Local Civil Rule 7.1(g).

III. Discovery.

1. Fed. R. Civ. P. 26(a). Counsel for all parties and all pro se parties are instructed to cooperate fully in the discovery process and to make all reasonable discovery available to the requesting party. Excessive discovery or resistance to reasonable discovery will not be tolerated by this court. Throughout the discovery process, counsel must observe the standards of litigation conduct for attorneys appearing in civil actions in the Northern District of Texas, adopted by the judges of this District, sitting en banc, in Dondi Properties Corp. v. Commerce Savings and Loan Ass'n, 121 F.R.D. 284 (N.D. Tex. 1988). Unnecessary discovery or unreasonable delay may subject the infracting party to sanctions and the payment of costs. See Thomas v. Capital Sec. Serv., Inc., 836 F.2d 866 (5th Cir. 1988) (en banc).
   
   
2. Filing Discovery Material. See Local Civil Rule 5.2.

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IV. Trial Procedures in Civil Actions.

1. Marking and Exchanging Exhibits. The parties shall not file depositions or exhibits prior to trial, but shall have the originals and one copy thereof available immediately prior to trial. Each exhibit that will be offered at trial shall bear the case number of the action in addition to the exhibit number and identity of offering party.
   
   
2. Voir Dire. The parties may submit proposed voir dire questions. The judge will conduct the principal voir dire. Ordinarily, each side will be allowed five minutes to ask additional questions. The judge does not permit jury questionnaires or surveys.
   
   
3. Proposed Jury Instructions/Findings of Fact and Conclusions of Law. See standard scheduling order, as set forth in paragraph I.C.
   
   
4. Courtroom Decorum. See Local Civil Rule 83.4.  No food, drink, chewing gum or tobacco products are allowed in the courtroom.  Water is provided at counsel tables.
   
   
5. Electronic Equipment in the Courtroom. Electronic equipment may be allowed in the courtroom as long as it is not disruptive. Any questions should be directed to the court coordinator or to the law clerk assigned to the case.
   
   
6. Other. Cases not reached will be carried day to day until tried.

V. Miscellaneous Procedures in Civil Actions.

1. Courtesy Copy of Pleading.
   The court's copies of documents are routinely delivered to Chambers throughout the day. Accordingly, courtesy copies need not be delivered.
   
   
2. Telephone Call to Chambers.
   1. Procedural Information. Attorneys may contact the law clerks: Marjorie Panter (odd-numbered cases) (817)850-6653; (even-numbered cases) (817) 850-6652.
   2. Scheduling Information. Contact Fleather Arnold (817) 850-6659.
   3. Status of Motion/Proposed Order. Contact the apprpriate docket clerk. For cases ending in:
      1-4, call (817) 850-6612
      5-8, call (817) 850-6611
      9-0, call (817) 850-6635
      
      
3. Faxed Documents. Documents sent by fax are not accepted for filing.

VI.Vacation Letters.

Vacation Letters. The court does not accept or recognize vacation letters. If an attorney
needs relief from a setting, the attorney must file an appropriate motion.

VII.Law Clerk Positions.

Law clerk applications from third year law students are accepted each September and interviews are ordinarily conducted in October. Judge McBryde does not hire interns. Law clerk applicants should send a resume, writing sample, and two letters of recommendation to:

The Honorable John McBryde
501 W. 10^th Street, Room 401
Fort Worth, Texas 76102

Contact Marjorie Panter, (817) 850-6653, for further information.

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