Joint Preliminary Report and Discovery Plan

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PATRICIA BIRDSONG, JAMILAH BIRDSONG, THE ESTATE OF LOUSIE BIRDSONG, WAYNE SMITH, LINDA SMITH and JOHN DOE/JANE DOE

Plaintiffs,v.

RONNIE HAYNES individually and in his official capacity for HAYNES GENERAL CONTRACTING and/or R.H. BUILDERS INC. and SOMMERER ELECTRIC, INC. and BROOKWOOD PLUMBING SRVS & REMODELING INC.

Defendants.

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CIVIL ACTION

CASE NO. 1:12-CV-01149-WBH

JOINT PRELIMINARY REPORT AND DISCOVERY PLAN

1. Description of Case:

(a) Describe briefly the nature of this action.

The Birdsongs allege that, due to Defendants’ actions/inactions, they are liable

for: Negligent Infliction of Emotional Distress, Negligence and Statutory Attorney Fees

under O.C.G.A. 13-6-11.

The Smiths allege that, due to Defendant, Haynes’ actions/inactions, he is liable

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for: Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional

Distress, Negligence, Loss of Consortium, Breach of Contract, and Statutory Attorney

Fees under O.C.G.A. 13-6-11.

The John/Jane Doe Plaintiffs allege that, due to Defendant Haynes’

actions/inactions, he is liable for: Intentional Infliction of Emotional Distress, Negligent

Infliction of Emotional Distress, Negligence, Loss of Consortium, Breach of Contract,

and Statutory Attorney Fees under O.C.G.A. 13-6-11.

(b) Describe briefly the nature of this action.

i. Birdsong Plaintiffs:

On or about July 23, 2009, Plaintiffs: Patricia, Jamilah, and Louise Birdsong

retained Defendant Haynes to perform an extensive addition to their home. The addition

was required to create multiple handicap accessible spaces for Louise Birdsong and aid in

her home treatment/care. Defendant Haynes provided a specific proposal for the work he

was to perform. Plaintiffs accepted the proposal and it was subsequently amended

pursuant to Defendant’s advice. In order to start the job, Plaintiffs paid Haynes a

significant down payment and ultimately paid Defendant approximately $30,000.00 to

complete the work. Defendant was required to construct the addition as well as the

electrical/plumbing work and to either hire/supervise any professionals be believed

necessary to finalize the addition.

Defendant failed to complete the work as agreed and subsequently promised

Plaintiffs on different occasions that he would complete the addition by offering new

completion dates. Each time Defendant failed to meet the promised date. Without

warning, Defendant abruptly left the work site and never returned, did not contact

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Plaintiffs, nor did Defendant return any of Plaintiffs’ money. Defendant’s work created

multiple safety hazards and, in one instance, caused Plaintiffs to become physically ill

due to improperly wired exhaust fumes pouring into Plaintiffs’ home.

Since Defendant left, Plaintiffs were required to spend approximately $60,000.00

to correct the hazards and mistakes left at their home.

ii. Smith Plaintiffs:

Plaintiffs Wayne and Linda Smith retained Defendant Haynes to complete an

addition to their home. Haynes requested that the Smiths pay him $16,000.00 to perform

the work. The Smiths agreed and paid him approximately $3,000.00 to begin work.

Haynes started construction but abruptly left without notice and failed to complete the

work as agreed. The addition, in its unfinished state, caused the Smiths to suffer physical

injury and financial loss.

iii. John/Jane Doe Plaintiffs:

Pursuant to contract, other Georgia residents paid Haynes substantial sums of

money to perform construction related work in the latter part of 2009. Defendant’s

actions/inactions created multiple hazards, physical injury and financial loss.

By Defendant Ronnie Haynes:

(a) Describe briefly the nature of this action.

Plaintiffs allege intentional infliction of emotional distress, negligence and loss of

consortium in connection with a construction agreement for improvements to Plaintiffs’

home.

(b) Summarize, in the space provided below, the facts of the case. The summary should not be argumentative nor recite evidence.

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At all relevant times, Defendant Ronnie Haynes was a State-licensed residential

general contractor. On or about July 24, 2009, Plaintiff Patricia Birdsong, in her

individual capacity, entered into an agreement with Defendant Haynes to build an

addition to her home for $21,600.00. Specifically, Defendant Haynes’s services were to

include: (1) building a handicap accessible bedroom and bathroom, complete with all

necessary hardware and fixtures, (2) building a 12x12 wood deck, and (3) creating a 5x6

handicap accessible concrete ramp for the front porch. Said agreement was void of any

assurances regarding an estimated date of completion for the project.

Shortly after beginning the project, Plaintiff Patricia Birdsong decided to switch

the location of the addition from one end of the home to the other, which altered the

scope of work and the anticipated costs. Specifically, the change in location required

additional work, which included adding a fill line addition to the existing septic tank.

These additional costs and services resulted in the contract price increasing to

$32,200.00.

In addition, Plaintiff Patricia Birdsong contracted with other individuals and

companies to perform work on her home that interfered and/or complicated the work

Defendant Haynes was trying to complete.

During construction, Plaintiff Patricia Birdsong’s home was inspected 16 times by

the Gwinnett County Department of Planning and Development to ensure compliance

with state and local building codes. Defendant Haynes’s work passed the necessary

inspections by the County.

In January 2010, after completing approximately 90% of his contracted work at

Plaintiff Patricia Birdsong’s home, Defendant Haynes’s construction business went

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completely under due to economic hardship. Defendant Haynes was forced to leave

Georgia and move to Louisiana to live with his daughter because he could not financially

support himself, including buying food and providing shelter. Defendant Haynes admits

that he was unable to complete the entire contract for Plaintiff Patricia Birdsong,

however, that the majority of the work was completed and in compliance with state and

local building codes. At the time of Defendant Haynes’s departure, the framing, sheet

rock, plumbing, electrical and HVAC had been completed pursuant to the agreement.

However, the hardware and fixtures remained unfinished and Defendant Haynes had not

completed the 12x12 wood deck.

On or about December 11, 2009, Defendant Haynes entered into an agreement

with Wayne Smith for an addition to his home. Defendant Haynes required a $3,000

down payment for his work, which was paid by Plaintiff Wayne Smith. Upon receipt of

the down payment, Defendant Haynes began work at Plaintiff Wayne Smith’s residence,

which included drawing and submitting plans to the subject homeowners association,

performing the preliminary digging, landscaping, prepping the groundwork, installing

steel into the footing, and submitting the subject permitting fees.

As set forth above, in January 2010, Defendant Haynes’s construction business

went under and he was forced to leave Georgia. Although Defendant Haynes was unable

to complete the entire project for Plaintiff Wayne Smith, he completed the work he was

to perform per his down payment and the work was performed in compliance with state

and local building codes.

(c) The legal issues to be tried are as follows:

Plaintiffs contend that the issues to be tried (collectively) are as follows:

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Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress,

Negligence, Loss of Consortium, Breach of Contract, and Statutory Attorney Fees Under

O.C.G.A. 13-6-11.

Defendant Ronnie Haynes contends that the legal issues to be tried are as follows:

(i) Whether some or all of Plaintiffs’ claims are barred by the statute of

limitations

(ii) Whether Plaintiffs can prove by a preponderance of the evidence that

Defendant Haynes caused intentional infliction of emotional

distress;

(iii) Whether Plaintiffs can prove by a preponderance of the evidence

that Defendant Haynes was negligent;

(iv)Whether Plaintiffs can prove by a preponderance of the evidence a

valid claim for loss of consortium;

(v) Whether other parties are liable to Plaintiffs for some or all of the

damages she alleges in her Complaint;

(vi)Whether Plaintiffs’ alleged damages should be reduced by any

comparative or contributory negligence of Plaintiffs and/or Third

Parties;

(vii) Whether Plaintiffs’ alleged injuries were caused by a pre-existing,

intervening, or superseding cause;

(viii) Whether Plaintiffs failed to reasonably mitigate damages;

(ix)Whether Plaintiffs have proven entitlement to damages from

Defendant Haynes;

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(x) The amount of damages, if any, Plaintiffs are entitled to recover.

(d) The cases listed below (include both style and action number) are:

(1) Pending Related Cases: None.

(2) Previously Adjudicated Cases:

This is a renewal action of the matter Patricia Birdsong and

Jamilah Birdsong v. Ronnie Haynes d/b/a Haynes General

Contracting, Civil Action No. 1:10-CV-03664-WBH. This matter

was not “adjudicated.” Rather, Plaintiffs voluntarily dismissed

without prejudice.

2. This case is complex because it possesses one (1) or more of the features listed below (please check):

(1) Unusually large number of parties

(2) Unusually large number of claims or defenses

(3) Factual issues are exceptionally complex

(4) Greater than normal volume of evidence

______ (5) Extended discovery period is needed

(6) Problems locating or preserving evidence

(7) Pending parallel investigations or action by

government

_____ (8) Multiple use of experts

(9) Need for discovery outside United States

Boundaries

______ (10) Existence of highly technical issues and proof

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3. Counsel:

The following individually-named attorneys are hereby designated as lead counsel

for the parties:

By Plaintiffs:S. Carlton Rouse, Esq.ROUSE & COMPANY, LLC3375 Centerville HighwayP.O. Box 392105Snellville, GA 30039(678) 360-0403 (Telephone)(678) 658-9093 (Facsimile)[email protected]

By Defendant Ronnie Haynes:Brynda Rodriguez Insley, Esq.INSLEY & RACE, LLC181 14th Street, NEThe Mayfair Royal, Suite 200Atlanta, Georgia 30309(404) 876-9818 (Telephone)(404) 876-9817 (Facsimile)[email protected]

4. Jurisdiction:

Is there any question regarding this Court’s jurisdiction?

Plaintiffs contend that jurisdiction is improper because the Court lacks diversity

jurisdiction.

Defendant, Haynes, contends that there are no issues regarding jurisdiction.

____ Yes ___ No

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5. Parties to This Action:

(a) The following persons are necessary parties who have not been joined:

Sommerer Electric, Inc.

(b) The following persons are improperly joined as parties:

Defendant, Haynes, contends that:

Sommerer Electric, Inc. and Brookwood Plumbing Service and

Remodeling, Inc. as the applicable statute of limitations have

expired with respect to these two entities.

(c) The names of the following parties are either inaccurately stated or necessary portions of their names are omitted:

None.

(d) The parties shall have a continuing duty to inform the Court of any contentions regarding unnamed parties necessary to this action or any contentions regarding misjoinder of parties or errors in the statement of a party’s name.

6. Amendments to the Pleadings:

Amended and supplemental pleadings must be filed in accordance with the time limitations and other provisions of Fed.R.Civ.P. 15. Further instructions regarding amendments are contained in LR 15.

(a) List separately any amendments to the pleadings which the parties anticipate will be necessary:

Plaintiffs contend that leave to file an amended Complaint is required.

Defendant, Haynes, contends that no amendments are required at this time.

(b) Amendments to the pleadings submitted LATER THAN THIRTY (30) DAYS after the Joint Preliminary Report and Discovery Plan is filed, or should have been filed, will not be accepted for filing, unless otherwise permitted by law.

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7. Filing times for Motions:

All motions should be filed as soon as possible. The local rules set specific filing limits for some motions. These times are restated below.

All other motions must be filed WITHIN THIRTY (30) DAYS after the beginning of discovery, unless the filing party has obtained prior permission of the court to file later. Local Rule 7.1A(2).

(a) Motions to Compel: before the close of discovery or within the extension period allowed in some instances. Local Rule 37.1.

(b) Summary Judgment Motions: within thirty (30) days after the close of discovery, unless otherwise permitted by court order. Local Rule 56.1.

(c) Other Limited Motions: Refer to Local Rules 7.2A; 7.2B, and 7.2E, respectively, regarding filing limitations for motions pending on removal, emergency motions, and motions for reconsideration.

(d) Motions Objecting to Expert Testimony: Daubert motions with regard to expert testimony no later than the date the proposed pretrial order is submitted. Refer to Local Rule 7.2F.

8. Initial Disclosures:

The parties are required to serve initial disclosures in accordance with Fed.R.Civ.P. 26. If any party objects that initial disclosures are not appropriate, state the party and basis for the party's objection.

None.

9. Request for Scheduling Conference:

Does any party request a scheduling conference with the Court? If so, please state the issues which could be addressed and the position of each party.

The Parties do not request a scheduling conference at this time, but reserve the

right to request a scheduling conference at a later date.

10. Discovery Period:

The discovery period commences thirty (30) days after the appearance of the first defendant by answer to the complaint. As stated in LR 26.2A, responses to

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initiated discovery must be completed before expiration of the assigned discovery period.

Cases in this court are assigned to one of the following three (3) discovery tracks: (a) zero (0)-months discovery period, (b) four (4)-months discovery period, and eight (8)-months discovery period. A chart showing the assignment of cases to a discovery track by filing category is contained in Appendix F. The track to which a particular case is assigned is also stamped on the complaint and service copies of the complaint at the time of filing.

Please state below the subjects on which discovery may be needed:

Plaintiffs:

Discovery will be required related to Defendant’s claims and defenses. Likewise,

Plaintiffs will require discovery from Defendant’s expert witnesses, if any, to refute

damages/allegations.

By Defendant Ronnie Haynes:

Discovery will be needed on the allegations and claims in Plaintiffs’ Complaint

and the defenses raised by Defendant. Discovery will also be needed on the extent of

Plaintiffs’ damages, if any.

If the parties anticipate that additional time beyond that allowed by the assigned discovery track will be needed to complete discovery or that discovery should be conducted in phases limited to or focused upon particular issues, please state those reasons in detail below:

The parties anticipate that discovery will be conducted on the issues set forth in

subsection 1(c) above.

11. Discovery Limitation:

What changes should be made in the limitations on discovery imposed under the Federal Rules of Civil Procedure or Local Rules of this Court, and what other limitations should be imposed:

Defendant Haynes respectfully request that this Court place this case on a four (4)

month discovery track and calculates that the discovery period will begin on May 3,

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2012, and will close on August 31, 2012. Defendant Haynes requests that the discovery

and pleadings from the prior pending lawsuit be joined and used in this re-filed lawsuit.

Defendant Haynes requests dispositive motions be due on or before September 30, 2012.

Defendant Haynes requests that the Proposed Pretrial Order and any Daubert Motions

will be due on September 30, 2012.

12. Other Orders:

What other orders do the parties think that the Court should enter under Rule 26(c) or under Rule 16(b) and (c)?

The Parties do not anticipate the need for such orders at this time but reserve the

right to request if such need should arise.

13. Settlement Potential:

(a) Lead counsel for the parties certify by their signatures below that they conducted a Rule 26(f) conference that was held on April 20, 2012, and that they participated in settlement discussions.

For Plaintiffs:

/s/ S. Carlton Rouse, Esq.Georgia Bar No. 003583Rouse & Co. LLCP.O. Box 392105Snellville, Georgia 30039

For Defendant Ronnie Haynes:

/s/ Sharonda Helen BoyceBrynda Rodriguez Insley, Esq.Georgia Bar No. 611435Sharonda Helen Boyce, Esq.Georgia Bar No. 245438

INSLEY & RACE, LLC181 14th Street, NEThe Mayfair Royal, Suite 200Atlanta, Georgia 30309

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(b) All parties were promptly informed of all offers of settlement and following discussion by all counsel, it appears that there is now:

(_____) A possibility of settlement before discovery.

(__X__) A possibility of settlement during or after discovery.

(_____) A possibility of settlement, but a conference with the judge is needed.

( _ ) No possibility of settlement.

(c) Counsel (X) do or ( ) do not intend to hold additional settlement conferences among themselves prior to the close of discovery. The proposed date of the next settlement conference is on or before September 30, 2012.

(d) The following specific problems have created a hindrance to settlement of this case.

Defendant Haynes contends that the following problems have created a hindrance to settlement of this case:

Defendant Haynes believes that he has no liability in this case. Moreover,

Plaintiffs have not provided any competent evidence to establish causation between

Defendant Haynes’s actions and Plaintiffs’ alleged damages and alleged physical or

psychological injuries.

14. Trial by Magistrate Judge:

Note: Trial before a Magistrate Judge will be by jury trial if a party is otherwise entitled to a jury trial.

(a) The parties ( ) do consent to having this case tried before a Magistrate Judge of this Court. A completed Consent to Jurisdiction by a United States Magistrate Judge form has been submitted to the Clerk of Court this _____ day of _________, 2010.

(b) The parties (__X__) do not consent to having this case tried before a Magistrate Judge of this Court.

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Respectfully submitted, this 3rd day of May, 2012.

/s/ S. Carlton Rouse, Esq.S. Carlton Rouse, Esq.Georgia Bar No. 003583

Attorney for Plaintiffs

ROUSE & COMPANY, LLCP.O. Box 392105Snellville, GA 30039(678) 360-0403 (Telephone)(678) 658-9093 (Facsimile)[email protected]

/s/ Brynda Rodriguez InsleyBRYNDA RODRIGUEZ INSLEY Georgia Bar No. 611435SHARONDA HELEN BOYCEGeorgia Bar No. 245438

Attorneys for Defendant Ronnie Haynes

INSLEY & RACE, LLC181 14th Street, NEThe Mayfair Royal, Suite 200Atlanta, Georgia 30309(404) 876-9818 (telephone)(404) 876-9817 (facsimile)[email protected]@insleyrace.com

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Upon review of the information contained in the Joint Preliminary Planning

Report and Scheduling Order form completed and filed by the parties, the Court orders

that the time limits for adding parties, amending the pleadings, filing motions, completing

discovery, and discussing settlement are as set out in the Federal Rules of Civil Procedure

and the Local Rules of this Court, except as herein modified:

IT IS SO ORDERED, this _____ day of _____________, 2012.

______________________________ __ HONORABLE WILLIS B. HUNT, JR.Senior Judge, United States District Court Northern District of Georgia

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

PATRICIA BIRDSONG, JAMILAH BIRDSONG, THE ESTATE OF LOUSIE BIRDSONG, WAYNE SMITH, LINDA SMITH and JOHN DOE/JANE DOE

Plaintiffs,v.

RONNIE HAYNES individually and in his official capacity for HAYNES GENERAL CONTRACTING and/or R.H. BUILDERS INC. and SOMMERER ELECTRIC, INC. and BROOKWOOD PLUMBING SRVS & REMODELING INC.

Defendants.

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CIVIL ACTION

CASE NO. 1:12-CV-01149-WBH

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have electronically filed the JOINT

PRELIMINARY REPORT AND DISCOVERY PLAN with the Clerk of Court using

the CM/ECF system.

I FURTHER CERTIFY that I have this day served a copy of the within and

foregoing pleading to all parties to this matter by depositing a true copy of same in the

U. S. Mail, proper postage prepaid, addressed to counsel of record listed below:

Mr. Ronnie Haynes c/o Lit Counsel for Scottsdale Ins.INSLEY & RACE, LLC The Mayfair Royal181 14th Street, N.E., Suite 200Atlanta, GA 30309

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Respectfully submitted this 3rd day of April 23.

/s/ S. Carlton Rouse, Esq._S. Carlton Rouse, Esq.Georgia Bar No. 003583Attorney for Plaintiffs

ROUSE & COMPANY, LLCP.O. Box 392105Snellville, GA 30039-9997(678)360-0403(t)(678)658-9093(f)[email protected]

Joint Preliminary Report and Discovery Plan

Documents

Transcript of Joint Preliminary Report and Discovery Plan