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How does this even happen? Sounds like the judge is trying to force a settlement.
I don’t even understand how this happens - were you guys not getting the cm/ecf notifications? You should have been receiving notices of missed deadlines for filing discovery schedules, etc automatically if you were properly registered with the court -I’d at least try to get on a conference call with the judge and submit some sort of stip from both parties stating they feel unprepared for trial. You may have to ask for a voluntary dismissal and refile if the judge is really set against but I can see lots of reasons the parties wouldn’t want to do that
Exactly. How have you not had any contact with the court through to this juncture? No status conferences or anything? And why wouldn’t the parties have jointly moved to stay the scheduling order if there was a trial date (along with all the other deadlines) on the docket during the jurisdictional dispute at the outset?
To answer your questions: 1) yes, it was a bad move for the opposing party who appealed to not file a motion to stay. Both he and I mistakenly believed that a stay would be automatic when there was an appeal. FWIW, he is a very experienced attorney and I’m a first year but the partner overseeing me also assumed that. There have been absolutely no communications from the Lower court about missed deadlines, etc. There was a scheduling order issued for July trial months ago, before the appeal, but all of the other deadlines bedsides trial (including status conferences, etc) went by without a word from either party or the court. The judge called us in to a status conference about 2 weeks ago, where he chastised us for our mistakes here, and said you’re going to trial as scheduled; no ifs, and or buts about it! We’ve been scrambling to prepare and exchanging discovery but he’s denied motions to stay as has the court of appeals but the appeal is still pending.
All around bizarre situation. We’re going to trial as it seems we have to, but.. just trying to find ways to repetition the judge to reconsider
Lol I wish I could say without revealing anything. He is on senior status though.
I have had it happen in state court many times but my jurisdiction allows the parties by agreement to strike a case from the docket and toll the SOL with the case to be refiled within a year. So, it’s not a big deal. I have not seen it in federal court because the case deadlines are so clear. Obviously, the status conference did not go as planned. Not sure if the judge would allow it, but you could set a mediation date with a mediator and request a continuance to allow the parties to complete mediation in advance of the trial. Judge might be more willing to grant a continuance if you are working to settle. Meanwhile, you can work on discovery together with the other side.
Oh good call - especially if you pick a retired judge as the mediator, your judge won’t want to be rude to a colleague
This is weird but you need to file a motion to continue, make sure to preserve the record for a motion for new trial.
Completely agree. Jointly file a motion for reconsideration that comes out and says whoever wins will appeal based on this grounds alone and it’s not in the interest of judicial economy to have this remanded and tried twice. I also suggest conferring on mutually agreeable alternative dates that you propose in the motion to show the judge you aren’t just going to kick this ball down the road.
That’s absolutely crazy
Will opposing counsel just stip to a dismissal w/o prejudice, then refiling? Seems like the most streamlined way of getting what you both want & the judge can't stop it.
Yeah I would say unfortunately the judge is going to be pretty proud of themselves for finding a solution…