United States District Court
For The Northern District of Illinois
Eastern Division
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Austin Bennaza
Plaintiff(1),
v.
Buddy Smith,
Defendant.
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Civil Action No. 04-CIV-004578
Judge Caroline S. Cascino
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FINAL PRETRIAL ORDER
This
matter having come before the court at a pretrial conference held pursuant
to Fed. R. Civ. P. ("Rule") 16, and Jennifer
L. Abernathy, 565 West Adams St., Chicago, IL, 312 906-5000, Jay C. Carle,
565 West Adams St., Chicago, IL, 312 906-5000, and Kathryn M. Smith, 565 West Adams St., Chicago, IL, 312 906-5000, having appeared
as counsel for plaintiff(s) and J. Justin Boyd, 565 West Adams St., Chicago,
IL, 312 906-5000, and John G. New, 565 West Adams St., Chicago, IL, 312 906-5000,
having appeared as counsel for defendant(s), the following actions were taken:
(1) This is an action for battery and assault and the
jurisdiction of the court is invoked under 28 U.S.C. § 1332. Jurisdiction
is disputed. The claim
against the Village of Kenilworth was dismissed without prejudice.
(2) The following stipulations and statements were
submitted and are made a part of this Order:
(a) a comprehensive stipulation or
statement of all uncontested facts, which will become a part of the evidentiary
record in the case (and which may be read to the jury by the court or any
party):
(i) Plaintiff Bennaza
is a citizen of Illinois;
(ii) Defendant Smith is a citizen of Wisconsin;
(iii) Plaintiff Bennaza’s medical treatments after
the incident in litigation cost $75,100, of which $60,000 was paid by
insurance, and the remainder paid by plaintiff himself;
(iv) Plaintiff Bennaza
was stopped by Defendant Smith for an allegedtraffic violation in the
Village of Kenilworth
on September 21, 2004;
(v) Defendant Smith is employed by the Village of Kenilworth Police
Department as a Patrolman;
(vi) Illinois
law applies to the substantive claims by plaintiff;
(b) an agreed statement or
statements by each party of the contested issues of fact and law and a
statement or statements of contested issues of fact or law not agreed to:
(i) whether plaintiff has
satisfied the jurisdictional minimum for diversity jurisdiction as a matter of
law;
(ii) whether the conduct by Defendant Smith
constitutes the tort of battery;
(iii) whether the conduct by Defendant Smith constitutes
the tort of assault;
(iv) whether the conduct by Defendant Smith was privileged under Illinois
law or within an immunity conferred by Illinois law.
(c) except for rebuttal exhibits,
neither party will offer exhibits, demonstrative evidence or experiments
into evidence, except for the following:
(i) flashlight used by Defendant Smith
(ii) demonstration by Defendant Smith of his movements and those of Plaintiff
(iii) Defendant Smith's personnel records or summaries thereof, the authenticity
of which will be stipulated before trial
(d) a list or lists of names of the potential witnesses to be
called by each party, with a statement of any objections to calling, or to the
qualifications of, any witness identified on the list:
Plaintiff: Austin Bennaza
Defendant: William H. "Buddy" Smith
Treating physician or bartender (Frank Salinas, 565 West Adams St., Chicago,
IL, 312 906-5000) (expert, if physician)
Anger management witness (Patricia A. Culliton, 565 West Adams St., Chicago,
IL, 312 906-5000) (expert)
Ambulance driver or attendant (Nathan B. Hinch, 565 West Adams St., Chicago,
IL, 312 906-5000)
(e) no expert witnesses will
be called by either party, except as indicated in subsection (d); qualifications
of experts identified in subsection (d) are stipulated
(f) a list of all depositions,
or portions thereof, to be read into evidence and statements of any objections
thereto: none, except as may be used for impeachment;
(g) special damages have been
stipulated;
(h) no claims
or defenses have been abandoned by any party except for those covered by the
stipulations set forth above;
(i) each
party has provided the following:
(i) trial briefs except
as otherwise ordered by the court (none, pursuant to court order);
(ii) one set of marked proposed jury instructions,
verdict forms and special interrogatories, if any; and
(iii) a list of the questions the party requests
the court to ask prospective jurors in accordance with Fed.R.Civ.P.
47(a);
(k) the parties have engaged in settlement negotiations, but
further negotiations are not likely to be productive;
(l) each party has completed
discovery. Absent good cause shown, no further discovery shall be permitted;
and
(m) no motions in limine are anticipated.
(3) Trial of this case is expected to take one hour and
forty minutes. Trial will commence at 6:00 PM.
(a) Plaintiff shall have five minutes for an opening statement, 15 minutes
to present his case in chief, 15 minutes to cross examine Defendant’s witnesses,
and five minutes for closing argument;
(b) Defendant shall have five minutes for an opening statement, 15 minutes
to cross examine Plaintiff’s witness, 15 minutes to present his case in
chief and five minutes for closing argument;
(4) [Indicate the type of trial by placing an X in the
appropriate box]
[X] Jury [_] Non-jury
(5) The parties recommend that 75 jurors be selected; the
jurors will have been selected and will be seated at the commencement of the
trial.
(6) The parties agree that the issues of liability and
damages should not be bifurcated for trial.
(7) [Pursuant to 28 U.S.C. § 636(c), parties may
consent to the reassignment of this case to a magistrate judge who may conduct
any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case. Indicate below if the
parties consent to such a reassignment.]
[_] The parties consent to this case being reassigned to a magistrate judge
for trial.
(8) This Order will control the course of the trial and may
not be amended except by consent of the parties and the court, or by order of
the court to prevent manifest injustice.
(9) Possibility of settlement of this case was considered
by the parties.
(10) One photographer (Henry H. Perritt, Jr.) shall be allowed to
photograph the trial.
____________________________
United States District Judge(15)
Date: 1 December 2004
[Attorneys are to sign the form before presenting it to the court.]
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____________________________
Attorney for Plaintiff
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____________________________
Attorney for Defendant
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