At the initial status conference or case management conference, the
judge will commonly be called upon to confront some or all of the following problems:
1. All of the named parties will not be present; there will be numerous
defendants and cross-defendants who have not yet appeared in the action and whose defaults
have not been entered.
2. The developer or prime contractor will complain that he has no idea
what the specific defects are that the plaintiffs complain about and that he cannot obtain
any comprehensive list thereof.
3. Many of the subcontractors named as defendants will complain that they
have no idea why they have been named, and that they have been unable to obtain any
information as to what they are alleged to have done to cause or contribute to any defect.
4. The plaintiffs will contend that they should not be required to
apportion blame for the defects to the various defendants, that they have no idea how the
developer or prime contractor parceled out his contractual obligations to subcontractors,
or how the subcontractors might have further subdivided those obligations among
sub-subcontractors or materialmen.
5. Many of the defendants will state that when they find out precisely
what charges are made against them, they might have to bring in additional parties by
cross-complaint
6. Many of the defendants will state that they intended to file
cross-complaints for indemnity against some or all of their co-defendants.
To impose order upon the chaos that will otherwise ensue, the judge should
immediately take control of all pretrial discovery and pleading activity. Only by doing so
can the court assure that what needs to be done will be done in an orderly and timely
manner and that wasteful and duplicative pretrial activity will not be permitted.
The mechanism for controlling the case is a case management order or
orders. Some judges prefer to issue a single, comprehensive case management order after
the first status conference; others prefer to issue a series of orders and thereby
establish the priority that is given to the various tasks that must be accomplished.
Some judges prefer to let the parties submit a proposed case management
order; others prefer to draft the order or orders themselves after obtaining input from
counsel at the status conference or conferences.
Whatever technique is used, the following specific orders should be
considered for inclusion in a case management order or orders:
1. An immediate stay on all discovery pending the development of a plan
for the orderly and timely prosecution of necessary discovery;
2. An order that any named defendant or cross-defendant who has not
appeared in the action by a date certain will be dismissed unless that defendant's default
has been entered;
3. An order that the plaintiff file and serve a complete list of alleged
defects by a date certain, that the list of defects will supersede the pleadings and
constitute the subject matter of the action, and that no items may be added to the list by
amendment after it is filed, except by permission of the court, upon showing of good cause
why the additional defect could not have been identified earlier;
4. An order that the list of defects be sufficiently detailed so as to
show the location of each claimed defect (no listing of defects by category) and that each
defect be described in sufficient detail to disclose all of the information that the
plaintiffs have that will assist the defendants in apportioning potential responsibility
therefor
5. A cut-off date beyond which no new parties may be added, except upon a
showing of good cause as to why the identity of such party could not have been ascertained
earlier
6. An order that all parties be deemed to have cross-complained against
all other parties for equitable indemnity, implied indemnity, and apportionment of fault,
and that allegations in all such cross-complaints are deemed denied, without the necessity
of filing an answer thereto.
