Kouba v. Renzenberger, Inc. et al

Filing 156

ORDER granting in part and denying in part 92 Motion for Summary Judgment; granting in part and denying in part 131 MOTION to Deny Defendants Motion for Summary Judgment ; striking 135 MOTION re: Plaintiff's Motion to Addendum a Few Sta tements and Exhibits ; granting 137 Motion to Strike ; granting 143 Motion to Strike ; accepted and adopting Report and Recommendations re 146 Report and Recommendations, Renzenberger's motion is granted on sexual harassment claim and t he wages claim beginning January 1,2009. Partial summary judgment is granted on the wages claim before January 1, 2009 Kouba's damages cannot exceed $1,197, plus interest. Renzenberger's motion is denied on the on-call claim.; denying 154 Motion for Extension of Time to File Response/Reply. The Clerk of the Court shall strike Kouba's motion to add an addendum and the addendum (Docs. 135,136), and strike Kouba's sur-reply(Doc.142). The Clerk of the Court shall strike Plaintiff's reply (Doc.155) to transcript from the record. Parties shall file a proposed Joint Pretrial Order on or before 3/9/2012. Case referred to Magistrate Judge Edmonds.. Signed by Senior Judge Frank R Zapata on 2/6/2012.(JKM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Albert Walter Kouba,
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Plaintiff,
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vs.
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Renzenberger, Inc.
Defendant.

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No. CV 10-159-TUC-FRZ (GEE)
ORDER

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Pending before the Court is a Report and Recommendation issued by Magistrate Judge
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Edmonds. In her Report and Recommendation, Judge Edmonds recommends that the Court
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enter an Order granting in part and denying in part Defendant’s motion for summary
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judgment; it also resolves several related miscellaneous motions. As the Court finds that the
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Report and Recommendation appropriately resolved the motions, the parties’ objections are
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denied.1

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Accordingly, IT IS HEREBY ORDERED as follows:
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(1) Magistrate Judge Edmonds’ Report and Recommendation (Doc. 146) is accepted and
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adopted.
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The Court reviews de novo the objected-to portions of the Report and Recommendation.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to
portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739
(7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). To the extent
there were objections to some of Judge Edmonds’ discussion of the facts, a review of the underlying
record adequately supported her factual determinations.

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(2) Renzenberger’s motions to strike (Docs. 137, 143) are granted; the Clerk of the Court

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shall strike Kouba’s motion to add an addendum and the addendum (Docs. 135, 136), and

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strike Kouba’s sur-reply (Doc. 142).

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(3) Renzenberger’s motion for summary judgment and Kouba’s motion (Docs. 92 and 131)

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are granted in part and denied in part as discussed in the text of the Report and

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Recommendation. Renzenberger’s motion is granted on the sexual harassment claim and the

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wages claim beginning January 1, 2009. Partial summary judgment is granted on the wages

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claim before January 1, 2009. Kouba’s damages cannot exceed exceed $1,197, plus interest.

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Renzenberger’s motion is denied on the on-call claim.

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(4) Plaintiff’s “motion, request for extension of time to read and reply to court’s adding

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transcripts of deposition to the record” (Doc. 154) is denied. The Clerk of the Court shall

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strike Plaintiff’s reply (Doc. 155) to transcript from the record. The Court ordered

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Renzenberger to file one deposition with the Court to simply allow the Court to look at one

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issue raised in an objection in further detail. The Court did not Order the deposition filed to

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spawn another few rounds of satellite litigation which would occur if Plaintiff’s motion was

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granted. As the voluminous record in this case reflects, Plaintiff has had ample opportunity

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to oppose Renzenberger’s motion for summary judgment in this case. The discovery

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deadline and dispositive motion deadline has expired, a Report and Recommendation as to

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the dispositive motion was issued several months ago, the parties had an opportunity to

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object, the Report and Recommendation has been adopted, and a joint pretrial order and

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motions in limine pertaining to trial are due in approximately 30 days. Plaintiff’s motion is

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denied.

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(5) The parties shall file a proposed Joint Pretrial Order on or before 3/9/12, which shall

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include, but not be limited to, that prescribed in the form of Joint Pretrial Order attached.

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Any motions in limine shall also be filed on or before 3/9/12. As pretrial motions remain

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to be resolved as the Court expects that the parties will file motions in limine, and

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Magistrate Judge Edmonds is very familiar with the unique circumstances in this case,

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this case is referred back to Magistrate Judge Edmonds to issue a Report and
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Recommendation as to any motions in limine (or other pretrial motions). After the

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Court receives the Report and Recommendation, any objections, and issues an Order as to

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the Report and Recommendation, the Court will withdraw the reference to Magistrate Judge

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Edmonds and issue a final pretrial Order setting dates for trial, the pretrial conference, and

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the filing of proposed jury instructions, voir dire and verdict forms.

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DATED this 6th day of February, 2012.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

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Plaintiff(s),
vs.
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Defendant(s).

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CV **-***-TUC-FRZ
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) PROPOSED JOINT PRETRIAL ORDER
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Pursuant to the Scheduling Order previously entered, following is the proposed Joint
Pretrial Order which shall, upon approval of the Court, become the Final Pretrial Order.
I.
IDENTIFICATION OF PARTIES AND COUNSEL

II.
STATEMENT OF JURISDICTION
Briefly state the facts and cite the statutes which give this Court jurisdiction.

III.
NATURE OF ACTION
Provide a concise statement of the type of case, the cause of action, and the relief
sought.

IV.
STIPULATIONS AND UNCONTESTED FACTS

V.
CONTESTED ISSUES OF FACT
The following are issues of fact to be tried and determined upon trial. Each issue of
fact must be stated separately and in specific terms, followed by the parties' contentions as
to each issue.
Issue:
Plaintiff(s) contends:
Defendant(s) contends:

VI.
RELEVANT UNCONTESTED ISSUES OF LAW
(i.e. burdens of proof; standards of review)

VII.
RELEVANT CONTESTED ISSUES OF LAW
The following are issues of law to be tried and determined upon trial. Each issue of
law must be stated separately and in specific terms, followed by the parties' contentions as
to each issue.
Issue:
Plaintiff(s) contends:
Defendant(s) contends:
VIII.
LIST OF WITNESSES
Each party shall provide a list of witnesses intended to be called at trial. Each
witness shall be indicated as either fact or expert. A brief statement as to the testimony of
each expert witness shall also be included.

IX.
LIST OF EXHIBITS
Each party shall provide a list of numbered exhibits.

A statement of either

UNCONTESTED or CONTESTED shall follow each listed exhibit. If contested, a brief
statement of the objection by the opposing party shall follow the listed exhibit.
(eg - 1. Laboratory Report from the Clinical Immunology Diagnostic Laboratory dated June
15, 2004. CONTESTED - Relevance, foundation and hearsay.)

X.
LIST OF DEPOSITIONS
Portions of depositions that will be read at trial must be listed by page and line
number. A statement of either UNCONTESTED or CONTESTED shall follow. If
contested, a brief statement of the objection by the opposing party shall follow the listed
portion of the deposition to be offered.

XI. MOTIONS IN LIMINE
Plaintiff(s) have filed the following Motions in Limine:
Defendant(s) have filed the following Motions in Limine:

XII. JURY TRIAL or BENCH TRIAL
For a Jury Trial
Trial briefs (only upon request of the Court), proposed voir dire, interrogatories to the
jury, stipulated jury instructions and instructions which are not agreed upon, shall be filed
10 days prior to Trial.

For a Bench Trial
Trial briefs (only upon request of the Court), shall be filed 10 days prior to Trial.
Parties are referred to LRCiv 52.1 regarding the filing of proposed findings of fact and
conclusions of law.

XIII. PROBABLE LENGTH OF TRIAL

CERTIFICATION
The undersigned counsel for each of the parties in this action do hereby approve and
certify the form and content of this proposed Joint Pretrial Order.

Attorney for Plaintiff(s)

Attorney for Defendant(s)

This proposed Joint Pretrial Order is hereby approved as the Final Pretrial Order on
this

day of

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FRANK R. ZAPATA
United States District Judge