I. RULE 16: PRE-TRIAL CONFERENCE / PRE-TRIAL ORDERSA. Montana PTC & PTO1. Rule 16(a). Pretrial conferences — objectives. In any action, the court may in its discretion direct the attorneys for the parties and any unrepresented parties to appear before it for a conference or conferences before trial for such purposes as (1) expediting the 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, and; (5) facilitating the settlement of the case.2. Uniform District Court Rule (UDCR) 5; 5(c) is the form 3. 16(f) provides for sanctions4. Mont. “purpose of the pretrial order is to prevent surprise, simplify issues and permit counsel to prepare for trial on the basis of the pretrial order” Whitehawk v. Clark (1981)Workman v. McIntyre Construction (1980), 190 Mont. 5, 617 P.2d 1281. π Mike Workman sued Δs McIntyre, State of Montana & Richard Bleisner after Bleisner’s car went over the right side of a lip of pavement laid down by McIntyre (and Bleisner then jerked the car back onto the road, going into the oncoming lane) and went on to strike Workman’s car, killing his wife, Susan Workman. The state announced in opening statement that it had a film demonstrating what happens when a car goes over a lip, but it had not included the film at the pretrial conference or in the PTO list of exhibits. District Court allowed the film over objections. Mont. reversed and remandedCalaway v. Jones (1981), 191 Mont. 353, 624 P.2d 991.π Tim Calaway sued Δ Sid Jones for loss of a potato crop allegedly caused by Jones’ failure to provide an irrigation system. Jones counterclaimed. Jones’ attorney withdrew from the case, and Jones did not replace him. District Court issued and order for a pretrial conference, and Δ Jones did not attend. District Court issued an order judgment in favor of π and dismissed Δ’s counterclaim. Though Δ Jones claimed he had not received the PTC order, his “attitude of unresponsiveness” throughout the action was taken as evidence that he had received the order and had ignored it. Mont. upheld the judgment and the dismissal.Bache v. Gilden (1992), 827 P.2d 817, 252 Mont. 178.π John Bache, driving a dump truck filled with gravel, drove off the road to avoid a collision with Δ Jim Gilden, driving an empty dump truck, at a sharp curve on a narrow mountain road near Libby. Δ called a witness who had prepared a survey of the road. The witness was not in the pretrial order, and π learned of the witness too late to depose him. π objected. District Court overruled. Mont. reversed & remanded.Zimmerman v. Robertson (1993), 259 Mont. 105, 854 P.2d 338.π sent his colt to be castrated by Δ veterinarian. Colt was cryptorchid and died, likely as a result of infection following the operation. In “Plaintiff’s Issues of Fact” in the PTO, π focused on the surgery and aftercare and made no mention as to whether or not Δ obtained consent of π to perform the surgery. At trial, π attempted to question Δ on whether Δ obtained consent. Relevancy objections on the issue of consent were upheld. Δ obtained directed verdict because π failed to produce expert testimony on the surgery. Though consent would be an appropriate negligence claim, π’s failure to raise consent at PTC or get it into PTO resulted in π being barred from raising consent issue at trial. Mont. ruled that raising it would surprise & prejudice Δ. Mont. affirmed.B. Federal PTC1. FRCivP 162. US District Court Rules for the District of Montana (www.mtd.uscourts.gov)3. 16(f) provides for sanctionsII. DISPOSITION BEFORE TRIALA. Motion for Judgment on the Pleadings1. Rule 12(c). Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 562. either party can move for JotP3. no factual controversy, only requires a ruling on the law – no finding of fact.4. the argument is that the opponent’s pleadings have no merit5. automatically converts to Summary Judgment if materials outside the pleadings are submitted.a) must be notice to parties that JotP has become SJ motionGebhardt v. DA Davidson & Co. (1983), 203 Mont. 384, 661 P.2d 855. π Gebhardt alleged that Δ DAD moved his money from one account to another without his permission and that he had to retain an attorney to get the money restored. π sued for conversion; Δ moved to dismiss, alleging 1) improper arguing of conversion; 2) no damages; 3) failure to state a claim. Δ motion supported by memorandum, affidavit & 4 exhibits. π filed memorandum opposing dismissal & amended complaint; Δ did not file affidavits or other evidence. Judge granted motion; π appealed. Δ argued that the affidavit & exhibits created a R56 SJ motion. Since Judge did not inform π of SJ, considering material outside the pleadings was inappropriate. R&R.Kinion v. Design Systems
3), 206 Mont. 306, 670 P.2d 1386. Δ Doug Swingley leased some mink from π Rogers to get the Swingley mink ranch operation started. Rogers knew that the mink were infected with the AD virus, which reduces productivity. Poor productivity reduced profits, and Swingley fell behind on payments. Swingley signed a mortgage on his house but again fell behind on payments Rogers sued; Swingley counterclaimed, alleging that the agreement was based on fraud (Rogers knew of the infection; Swingley did not). Judge interpreted a statement from Swingley’s deposition to mean that Swingley knew of the infection before he signed the mortgage and granted SJ to Rogers. Statement could also be read to mean that Swingley later determined that, prior to his signing the mortgage, the mink were already infected. Mont. determined that issue of fact existed and SJ inappropriate.4. Court’s decision must be based only on the materials before the courts 5. Parties may request additional time in which to submit materialsa) Rule 56(f)6. Partial Summary Judgment allowed a) R56(d)b) interlocutory in naturec) generally not appealable until the final judgment is entered in the case.7. Judge may issue interlocutory SJ on liability, for example, and proceed to trial on damages. Not appealable until final disposition of case.III. JURISDICTIONJurisdiction requires Subject Matter jurisdiction, Personal jurisdiction, Issue jurisdictionA. Subject Matter Jurisdiction: 1. State Subject Matter Jurisdiction: General. SM jurisdiction arises first from the organic law of the state, found in the state constitution, then from state statutes, federal statutes, and from the federal constitutiona) in general, state court jurisdiction questions require a two-part test;(1) Does the state claim jurisdiction over the activity, individual, or property? The answer to this question is found in state ‘long arm’ statutes which define the scope of jurisdiction that the state asserts. Montana’s jurisdiction statute is found in Rule 4 of the Montana Rules of Civil Procedure — see below.(2) Is the state’s assertion of jurisdiction constitutional? This requires a Due Process analysis.
