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Petersen v. Bitters

United States District Court, D. Nebraska

July 3, 2018

ESTATE OF JOYCE ROSAMOND PETERSEN, Plaintiff,
v.
WILLIAM E. BITTERS and JOHN L. HENRY, Defendants.

          SUPPLEMENTAL ORDER ON PRETRIAL CONFERENCE

          Robert F. Rossiter, Jr. United States District Judge

         A final pretrial conference was held on June 26, 2018. Prior to the conference and at the conference, the magistrate judge[1] instructed plaintiff Estate of Joyce Rosamond Petersen (the “estate”) and defendant William E. Bitters (“Bitters”)[2] to jointly draft controverted and unresolved issues. See NECivR 16.2(a)(2)(C). Instead, the estate and Bitters drafted detailed but unnecessary “controverted facts.”[3] Accordingly, the Order on Final Pretrial Conference (Filing No. 234) will be amended to reflect the issues which the Court has determined are the issues left for trial - setting forth the elements.[4] Section (C) of that Order[5] is amended to conform to Local Rules and now reads as follows:

         (C) Controverted and Unresolved Issues.

         The issues remaining to be determined and unresolved matters for the Court's attention are:

         1. The Estate's Claims Against Bitters

         (a) Breach of Fiduciary Duty

         As to the estate's claim against Bitters for breach of fiduciary duty:

• Whether Bitters owed the estate[6] a fiduciary duty;
• Whether Bitters breached that duty;
• Whether that breach was the proximate cause of some damage to the estate;
• The nature and extent of the estate's damages (see Damages below).

         (b) Negligence and/or Gross Negligence

         As to the estate's claim against Bitters for negligence and/or gross negligence:

• Whether Bitters owed a duty to the estate;
• Whether Bitters breached that duty;
• Whether that breach was the proximate cause of some damage to the estate;
• The nature and extent of the estate's damages (see Damages below).

         (c) Professional Negligence

         As to the claim that Bitters committed professional negligence:[7]

• Whether Bitters was a professional;
• Whether Bitters owed a duty as a professional to the estate;
• Whether Bitters breached that duty;
• Whether that breach was the proximate cause of some damage to the estate;
• The nature and extent of the estate's damages (see Damages below).

         (d) Breach of Contract

         As to the estate's claim against Bitters for breach of contract:

• Whether a contract existed between the estate and Bitters relating to Bitters's status as a financial advisor;
• The terms of the contract;
• Whether Bitters breached the contract in one or more of the ways claimed by the estate;
• Whether this breach of contract was a proximate cause of some damage to the estate;
• The nature and extent of that damage. (see Damages below).

         (e) Breach of Implied Duty of Good Faith and Fair Dealing

         As to the estate's claim against Bitters for breaching the implied ...


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