Masters of the Courtroom SM. Motions. The Hon. Martin L.C. Feldman, USDC - EDLA Joseph M. Bruno, Bruno & Bruno Kerry J. Miller, Frilot LLC

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1 Masters of the Courtroom SM Motions The Hon. Martin L.C. Feldman, USDC - EDLA Joseph M. Bruno, Bruno & Bruno Kerry J. Miller, Frilot LLC Course Number: Hour of CLE December 12, :30 p.m. 1:30 p.m.

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3 JOSEPH M. BRUNO, ESQUIRE Current Education Professional Managing Partner, Bruno & Bruno, L.L.P. Tulane Law School, Juris Doctor 1978 Tulane University, Bachelor of Arts 1977 Jesuit High School 1972 Admitted to practice in all courts of the State of Louisiana; in all courts of the State of Texas; in the United States District Courts for the Eastern, Middle, and Western Districts of Louisiana; in the United States Fifth Circuit Court of Appeal; and in the United States Tax Court. Professional Louisiana State Bar Association Organizations House of Delegates Federal Bar Association New Orleans Bar Association Louisiana Association for Justice Board of Governors Board of Governors Executive Committee Council of Directors American Association for Justice Key Person Committee & Task Force Committee St. Thomas More Catholic Lawyers Association N. O. Opera Association Board of Directors N. O. Center for the Creative Arts (NOCCA) Institute Board of Directors N. O. Center for the Creative Arts (NOCCA)/Riverfront Board of Directors 2006-present N. O. Center for the Creative Arts (NOCCA), Vice President Board of Directors, N. O. Center for the Creative Arts (NOCCA), President August present Piazza d Italia Development Corporation Board of Directors, 1997-present Louisiana Endowment for the Humanities Board of Directors, 2012

4 Biography Joseph M. Bruno is widely regarded as a creative, energetic and outspoken advocate of victims rights, particularly in difficult and complex cases of liability. He is a defender of class action procedures, seeing them as an important balancing tool in our complex society. He is a graduate of Tulane University (1977) and Tulane Law School (1978). In 1979, he went into partnership with his father, Frank S. Bruno, a well-known and respected litigator, most particularly in the field of workmen s compensation. At one time, he also practiced with his brothers, Stephen, Robert and Christopher. Joseph Bruno has been admitted to practice in all Courts in the State of Louisiana and Texas, as well as the United States District Courts for the Eastern and Middle District of the State of Louisiana, the United States FifthCircuit Court of Appeal, and the United States Tax Court. Joseph Bruno is recognized as an authority in class actions, and particularly, in class action management. His expertise in difficult and complex litigation has led to his representation of numerous claimants in class action and mass joinder proceedings involving racial discrimination, occupational lung disease, products liability, and wage and hour violations. Joseph Bruno has been active in the Louisiana Trial Lawyers organization, having served on the Board of Governors for over twenty (20) years. His goal is to build and maintain an aggressive firm that has the courage to fund and handle all types of complex and difficult litigation. Cases of Interest Mr. Bruno is currently involved in or has successfully completed the following class actions and/or mass joinder proceedings: Hurricane Katrina litigation, in which Mr. Bruno is the Plaintiffs Liaison Counsel, as well as a standing member of the Levee, MRGO and Insurance Steering Committees. This consolidated matter involves the claims of hundreds of thousands of businesses and individuals for their losses resulting from wind and the widespread flooding of New Orleans. The various suits led by Mr. Bruno involve claims against the U.S. Corps of Engineers and its contractors for the levee breaches that led to the flooding, as well as mass actions against insurers that failed to adequately adjust the claims of their insured. U. S. District Judge Judge Stanwood Duval rendered a 157 page opinion finding the United States Army Corps of Engineers liable for flood damage as a result of the their negligent maintenance of the Mississippi River Gulf Outlet. In re: Katrina Canal Breaches Litigation, USDC, EDLA Docket No A class action, naming the State of Louisiana s Road Home Program and hundreds of mortgage companies as defendants, to break the stalemate between the Road Home program and the mortgage companies, as they each claimed entitlement to hurricane Katrina related insurance proceeds recovered by Mr. Bruno on behalf of his clients. This stalemate was paralyzing the ability of Mr. Bruno s clients to continue rebuilding their lives after Katrina. The Law Offices of Joseph M Bruno, APLC et al v. ABN Amro Mortgage Group, Inc. et al., USDC, EDLA Docket No

5 The 2005 Murphy Oil Spill litigation, in which Mr. Bruno served as the Discovery Chair of the Plaintiffs Steering Committee. This litigation resulted in a settlement of over $330 million dollars. Turner v. Murphy Oil, USDC, EDLA Docket No The Shell/Norco litigation, in which Mr. Bruno represented over 7,000 class members and served on the Plaintiffs Legal Committee, which resulted in a $170 million settlement. [In re: Shell Oil Refinery, (1988); USDC-EDLA Docket No , Section I-Settled] The New Orleans Train Car litigation, which resulted in a $3.5 billion exemplary damages verdict and was later settled for $435 million. Mr. Bruno served as co-lead trial attorney with the late Wendell Gauthier. [In re: New Orleans Train Car Leakage and Fire Litigation (1987); serving as Court Appointed Plaintiffs Steering Committee Member; CDC Docket No , Division B ]. The Scott cigarette litigation, the only medical monitoring class action currently pending in the United States, resulted in a jury verdict finding the cigarette industry conspired to defraud Louisiana smokers by distorting the public knowledge regarding cigarette smoking and health. Judgment was in the amount of $241,549, plus interest. Mr. Bruno s primary responsibility was the selection and handling of expert witnesses. [Dianne Castano, et al vs. The American Tobacco Company, et al (1994); serving as Court Appointed Plaintiffs< Steering Committee Member, CDC Docket No , Division K ] A class action lawsuit against Gaylord Chemical, which resulted in a $92 million dollar punitive damage jury verdict. Mr. Bruno was on the court -appointed Plaintiffs Steering Committee and the trial team. His primary responsibility was handling trial plaintiffs at trial, as well as quantum of punitive damages. [Catherine Fuqua, et al vs. Gaylord Chemical Corporation, et al; serving as Court Appointed nd Plaintiffs Steering Committee Member, 22 JDC for the Parish of Washington, Docket No , Division H ] Mr. Bruno successfully represented the interests of over 4,000 thousand claimants in the Gramercy Plant Explosion at Kaiser, and served on the court -appointed Plaintiffs Steering Committee. That case resulted in a settlement of over $30 million dollars. Mr. Bruno s primary responsibilities in the case were shepherding the litigation from settlement agreement to final judgment, and distribution of attorneys fees. rd [In re: Gramercy Plant explosion at Kaiser, 23 JDC for the Parish of St. James, State of Louisiana, Master Docket No. 25,9 75, Division D ] Mr. Bruno was Co-Lead Counsel in a class acction against the Housing Authority of New Orleans and its insurers for lead poisoned children who were exposed to lead paint in HANO devcelopments. The case was settled for $67,370, Casey Billieson, et al vs. City of New Orleans, et al. (Lead paint litigation), No , Division B, Section 15; 2.) John Johnson, et al vs. Orleans Parish School Board, et al; Civil District Court for the Parish of Orleans, State of Louisiana The following matter is presently pending trial. Agriculture Street Landfill, No , Division J, Section 13, c/w No , c/w No , c/w No

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7 1. Motions General a) Rule 7(b)(1) 2. Know the Audience 3. Length of Motions 4. Omnibus Motions 5. Exhibit Presentation 6. Important Points MOTION PRACTICE IN FEDERAL COURT In writing. State with particularity the grounds for seeking the order. State the relief sought. Know the audience (the Judge) before filing the motion. Let the audience guide you in style and presentation. LR 72.1: Magistrate Judges are automatically referred the following pre-trial motions: all civil discovery motions, contested motions for leave to intervene, to amend, to file a third-party complaint, for extension of time to plead, for a more definite statement, and motions relative to attorney representation. Unnecessary to meet the page limits every time. Lengthy MSJs with many exhibits are not advisable if the purpose is to have the motion granted. LR 7.7: Without prior leave of Court, briefs and memorandums are limited to 25 pages, and replies are limited to 10 pages. If there is more than one issue to be decided, should you file multiple motions or one omnibus motion? Quote from and present graphically your important exhibits in the body of the motion. Do not bury important points in exhibits or footnotes.

8 7. Stay Courteous 8. Oral Argument Stay courteous to your opponent. Is there a value to oral argument? DISCOVERY General Provisions Governing Discovery 9. Rule Discovery 26(b) LR 78.1: Any party seeking oral argument must file either contemporaneously with the filing of the motion or opposition memorandum to a motion, a separate written request for oral argument. Oral argument will be permitted in such cases without further order of the court, unless the court advises the parties, as soon as practicable, that the request for oral argument is denied. a) Motion to Enforce Compliance vs. Discovery and Motion to Compel b) Does Rule 26 usurp ordinary discovery? For example, FRCP 26(a)(3)(B) requires that (unless the court orders otherwise) pretrial disclosures be given 30 days before trial. a) Motion under 26(b)(2)(c) required for: 11. Protective Orders 26(c) 12. Depositions a) Rule 30 Unreasonably cumulative or duplicative or obtained by another source; Ample opportunity to obtain in the action; and Burdensomeness (usually encounter in objection to discovery). Motion for leave for more than 10 depositions. Already has been deposed in the case. 2

9 Before conferring under 26(d). b) Rule 30(d)(3) Must file motion to terminate or limit a deposition. Deposition must be suspended to allow party to file the motion. c) Rule 35(b)(5) 13. Rule 11 Sanctions 14. Types of Motions a) Rule 12(b) b) Rule 12(c) c) Rule 12(d) d) Rule 12(e) 15. Pre-Trial Motions To file or not to file. (1) Lack of subject matter jurisdiction (2) Lack of personal jurisdiction (3) Improper venue (4) Insufficient process (5) Insufficient service of process (6) Failure to state a claim for which relief can be granted (7) Failure to join a party under Rule 19 Judgment on Pleadings Motions which address matters not in pleadings must be treated as a summary judgment motion. Motion to Strike 3

10 a) Motions in Limine b) Daubert (1) Judge Trial (2) Jury Trial c) Timing of Motions d) Rule 23 Class Actions 16. Educate the Judge Motions? 17. Address all Contested Facts (1) Motions for Certification (2) Motions for Appointment of Committee/Class Counsel Are educate the judge motions a good idea? Are there any alternatives? For example, in the BP Oil Spill MDL, Judge Barbier permitted the parties to file 10 page submissions to chambers that were not filed into the record on anything they wanted. This was done to educate the Court without the filing of hundreds of pages of motions and exhibits. Make sure all contested facts are addressed when responding to a MSJ. LR 56.2: Any opposition to a motion for summary judgment must include a separate and concise statement of the material facts which the opponent contends present a genuine issue. All material facts in the moving party s statement will be deemed admitted, for purposes of the motion, unless controverted in the opponent s statement. 4