Love et al v. Retzer Resources Inc et al

Filing 181

ORDER: The Court appreciates the parties' suggestions about jury instructions and voir dire areas. The Court is attaching its current working drafts of the key parts of the voir dire, the preliminary instructions, the final instructions, and the verdicts. Please file any objections to the preliminary instructions by the close of business Friday, February 5. There's no need to comment or object yet on the final instructions or the verdicts. We'll work on those drafts throughout the trial. The Court will instruct about depositions when it comes up during trial. Signed by Judge D. P. Marshall Jr. on 2/4/2016. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(jak)

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the
beginning of the trial and during the trial remain in effect. I now
give you some additional instructions on the law that applies to this
case. You must, of course, continue to follow all the instructions I
gave you earlier, as well as those I give you now.
The instructions I am about to give you now are in writing and
will be available to you in writing in the jury room. I emphasize,
however, that this does not mean they are more important than my
earlier instructions. Again, all my instructions, whether given in
writing or spoken from this bench, must be followed.
It is your duty as jurors to follow the law as stated in the
instructions, and to apply the given rules of law to the facts as you
find them to be from the evidence in this case.

Court’s Draft Final Instructions
4 February 2016

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You are not to single out one instruction alone as stating the
law, but must consider the instructions as a whole.
Neither are you to be concerned with the wisdom of any rule
of law as stated by the Court. Regardless of any opinion you may
have as to what the law ought to be, it would be a violation of your
sworn duty to base a verdict upon any view of the law other than
that given in the instructions of the Court; just as it would be a
violation of your sworn duty, as judges of the facts, to base a verdict
upon anything but the evidence in the case.
Don’t take anything I say in the instructions as an indication
that I have any opinion about the facts of the case, or what that
opinion is. It is not my function to determine the facts. You will
determine the facts. During this trial I have occasionally asked
questions of witnesses.

Do not assume that because I asked

questions I hold any opinion on the matters to which my questions

Court’s Draft Final Instructions
4 February 2016

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related.
Justice through trial by jury must always depend on the
willingness of each individual juror to seek the truth about the facts
from the same evidence presented to all the jurors; and to arrive at
a verdict by applying the same rules of law as given in the Court’s
instructions.
Statements and arguments of counsel are not evidence in the
case. When the lawyers on both sides stipulate or agree on the
existence of a fact, however, the Jury must accept the stipulation and
regard that fact as proved. The evidence in the case always consists
of the sworn testimony of the witnesses, regardless of who may have
called them and any documents, photographs, or other items that
are received by the Court, and all facts that may have been admitted
or stipulated. Any evidence on which an objection was sustained by

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4 February 2016

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the Court—and any witness statement or tangible item that was
stricken by the Court—must be entirely disregarded.
Anything you may have seen or heard outside this courtroom
is not evidence, and it must be entirely disregarded.

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4 February 2016

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INSTRUCTION NO. 2
In conducting your deliberations and returning your verdict,
there are certain rules you must follow.
First, when you go to the jury room, you must select one of
your members as your foreperson. That person will preside over
your discussions and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one
another in the jury room. You should try to reach agreement if you
can do so without violence to individual judgment, because a verdict
must be unanimous.
Each of you must make your own conscientious decision, but
only after you have considered all the evidence, discussed it fully
with your fellow jurors, and listened to the views of your fellow
jurors.
Do not be afraid to change your opinions if the discussion
persuades you that you should. But do not come to a decision
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simply because other jurors think it is right, or simply to reach a
verdict. Remember at all times that you are not partisans. You are
judges—judges of the facts. Your sole interest is to seek the truth
from the evidence in the case.
Third, if you need to communicate with me during your
deliberations, you may send a note to me, through the court security
officer, that is signed by one or more jurors. I will respond as soon
as possible either in writing or orally in open court. Remember that
you should never tell anyone—including me—how your votes stand
numerically.
Fourth, your verdict must be based solely on the evidence and
on the law that I have given to you in my instructions. The verdict
must be unanimous. Again, nothing I have said or done is intended
to suggest what your verdict should be—that is entirely for you to
decide.

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4 February 2016

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INSTRUCTION NO. 3
You are the sole judges of the credibility of the witnesses and
the weight and value to be given to their testimony. In deciding
what the facts are, you may have to decide what testimony you
believe and what testimony you do not believe. You may believe all
of what a witness said, or only part of it, or none of it.
In deciding what testimony to believe, consider several things:
the witness’s intelligence; the opportunity the witness had to see or
hear the things about which he or she testified; the witness’s
memory; any motives a witness may have for testifying a certain
way; the manner and demeanor of the witness while testifying;
whether the witness said something different at an earlier time; the
general reasonableness or unreasonableness of the testimony; and
the extent to which the testimony is consistent with any other
evidence that you believe.

Court’s Draft Final Instructions
4 February 2016

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In deciding whether or not to believe a witness, keep in mind
that people sometimes hear or see things differently and sometimes
forget things.

You need to consider therefore whether a

contradiction is an innocent misrecollection, lapse of memory, or a
lie—and that may depend on whether it has to do with an important
fact or only a small detail.

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4 February 2016

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INSTRUCTION NO. 4
In considering the evidence in this case you are not required to
set aside your common sense or common knowledge. You have the
right to consider all the evidence in light of your own observations
and experiences in the affairs of life.

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4 February 2016

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INSTRUCTION NO. 5
In these instructions you are told that one or the other party has
the burden to prove certain facts. The burden of proving a fact is
placed upon the party whose claim or defense depends upon that
fact. The party who has the burden of proving a fact must prove it
by a preponderance of the evidence. To prove something by the
“preponderance of the evidence” is to prove that it is more likely
true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable.
If, on any issue of fact in the case, the evidence is equally
balanced, you cannot find that fact has been proved. But the
preponderance of the evidence is not necessarily established by the
greater number of witnesses or exhibits a party has presented.
You may have heard of the term “proof beyond a reasonable
doubt.” This is a stricter standard, which applies only in criminal

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cases. It does not apply in civil cases like this one. You should,
therefore, put it out of your minds.

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4 February 2016

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INSTRUCTION NO. 6
Certain charts and summaries—called demonstratives—have
been shown to you in order to help explain the facts disclosed by the
books, records, or other underlying evidence in the case. Those
demonstratives are used for convenience. They are not themselves
evidence or proof of any facts. If any demonstrative does not
correctly reflect the facts shown by the evidence in the case, you
should disregard the demonstrative and determine the facts from
the books, records, or other underlying evidence.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 7
You will remember that other summaries and charts were
admitted in evidence. You may use those summaries and charts as
evidence, even though the underlying documents and records may
or may not be in evidence. It is for you to decide how much weight,
if any, you will give these summaries. In making that decision, you
should consider all the testimony you heard about the way in which
they were prepared and any underlying documents.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 8
It is the sworn duty of the lawyer on each side of the case to
object when the other side offers testimony or exhibits which that
attorney believes are not properly admissible. Only by raising an
objection can a lawyer request and obtain a ruling from the court on
the admissibility of that evidence being offered by the other side.
You should not be influenced against a lawyer or his client because
the lawyer has made objections. Do not attempt, moreover, to
interpret my rulings on objections as somehow indicating to you
who I think should win or lose the case.

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4 February 2016

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INSTRUCTION NO. 9
All parties to a lawsuit are entitled to the same fair and
impartial consideration, whether they are a company such as Retzer
LLC, or an individual, such as each of the former employees and
Michael L. Retzer Sr.
When I use the term “former employee” in these instructions,
I mean each of the four individuals who brought this case—Jonathan
Love, Sheri McWilliams, Tracy Keen, and Robin Love.
When I use the term “Retzer” in these instructions, I mean
Retzer LLC and Michael L. Retzer Sr., both of whom have been sued.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 10
Each of the four former employees asserts a separate claim
against Retzer LLC and Michael L. Retzer Sr. Each person bears the
burden of proving his or her claim that Retzer failed to pay him or
her minimum wages, overtime, or both. You must consider each
person separately, and determine whether he or she has sustained
the burden of proof on his or her claim for minimum wages,
overtime, or both. Your verdict for each of the former employees or
Retzer as to each claim should also be considered separately. Of
course, some evidence may pertain to more than one person or
claim.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 11
The phrase “hours worked” includes all time spent by an
employee that was primarily for the benefit of the employer or the
employer’s business. This time constitutes “hours worked” if the
employer knew or should have known that the work was being
performed. Periods during which an employee is completely
relieved of duty that are long enough to enable the employee to use
the time effectively for his or her own purposes are not “hours
worked.”

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 12
Rest periods of short duration, running from 5 minutes to
about 20 minutes, are common in industry and must be counted as
hours worked. These breaks promote the efficiency of the employee.
An employer, however, can treat a bona fide meal period as
non-working time and does not have to pay wages for the meal
period. A bona fide meal period is a break for the purpose of eating
regular meals. Typically, the meal period runs for thirty minutes or
longer. If the meal period is spent predominately for the benefit of
the employer, it is not bona fide, and the employee must be
compensated for the entire period.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 13
An employer must pay at least minimum wage for all hours
worked by an employee each work week. The minimum wage rate
applicable to this case is $7.25 per hour.
You may have heard about other minimum wage rates that
may be applicable in other states. You must not consider any
minimum wage rate other than $7.25 per hour.

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4 February 2016

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INSTRUCTION NO. 14
The Fair Labor Standards Act requires an employer engaged in
commerce or the production of goods for commerce to pay overtime
compensation to an employee who works more than 40 hours in a
work week. The Act also requires that the overtime compensation
be at a rate not less than one and one-half times the employee’s
regular rate of pay.
If the employee is employed solely at a single hourly rate, the
hourly rate is his regular rate of pay.

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4 February 2016

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INSTRUCTION NO. 15
A “work week” is a regularly recurring period of seven days
or 168 hours as designated by the employer. In this case, the parties
have stipulated—that is, they have agreed—that the work week was
from 12:01 a.m. Monday morning until midnight Sunday night.

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INSTRUCTION NO. 16
Your verdict must be for the former employee and against
Retzer if all of the following elements have been proved:
First, the person was employed by Retzer on or after 10
September 2011. This element is agreed by the parties.
Second, in former employee’s work for Retzer, the former
employee was engaged in commerce or in the production of goods
for commerce or was employed by an enterprise engaged in
commerce or the production of goods for commerce that had annual
gross sales of at least $500,000.This element is agreed by the parties.
Third, Retzer failed to pay the former employee the minimum
wage for all hours worked by him or her in one or more work
weeks.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 17
Your verdict must be for the former employee and against
Retzer if all of the following elements have been proved:
First, the person was employed by Retzer on or after 10
September 2011. This element is agreed by the parties.
Second, in the former employee’s work for Retzer, the former
employee was engaged in commerce or in the production of goods
for commerce or was employed by an enterprise engaged in
commerce or the production of goods for commerce that had annual
gross sales of at least $500,000. This element is agreed by the parties.
Third, Retzer failed to pay the former employee overtime pay
for all hours he or she worked in excess of 40 in one or more work
weeks.

Court’s Draft Final Instructions
4 February 2016

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INSTRUCTION NO. 18
You must determine the number of hours worked by each
former employee based on all of the evidence. Retzer is required by
law to maintain accurate records of its employees’ hours worked.
If you find that Retzer failed to maintain accurate records of the
individual’s hours worked, you must accept the former employee’s
estimate of hours worked unless you find it to be unreasonable.

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4 February 2016

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INSTRUCTION NO. 19
If you find in favor of a former employee under instruction
Nos. 16 or 17, you must award him or her damages in the amount
that he or she should have been paid in minimum wages, overtime,
or both, minus what Retzer actually paid the person.
The minimum wage amount that should have been paid is the
number of hours worked in each work week up to 40 hours, times
the minimum wage applicable to that work week, as set forth in
instruction No. 13.
The overtime amount that should have been paid is the number
of hours worked in excess of 40 hours in each work week, times the
regular rate for that work week times one and one-half, as set forth
in instruction No. 14.
You must calculate these amounts separately for each former
employee for each work week.

Court’s Draft Final Instructions
4 February 2016

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In determining the amount of damages for the former
employee, you may not include or add to the damages any sum to
punish Retzer.

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INSTRUCTION NO. 20
The fact that I have instructed you on the measure of damages
should not be considered by you as suggesting any view of mine on
which side of this litigation is entitled to receive your verdict.
Instructions on the measure of damages are given for your guidance,
as in all cases, in the event you find the issue of liability in favor of
one or more of the former employees on their claims from a
preponderance of the evidence.
The question of damages is entirely distinct and different from
the question of liability. You should not consider whether a former
employee has been damaged until you have first considered and
decided whether Retzer is liable to him or her.

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INSTRUCTION NO. 21
Finally, the verdicts are simply the written notice of the
decisions that you reach in this case. I’ll read them now. There is one
for each former employee. You will take these verdicts to the jury
room, and when each of you has agreed on the answers, your
foreperson will fill in each verdict that you are called upon to
answer to reflect your unanimous decision, sign and date them, and
then advise the court security officer that you are ready to return to
the courtroom.
I add the caution that nothing said in the instructions—and
nothing in the form of the verdicts I’ve prepared for your
convenience—is or was intended to suggest or convey in any way
or manner any intimation as to what answers I think you should
find. How you choose to answer the verdicts shall be the sole and
exclusive responsibility of you, the Jury.

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If it becomes necessary during your deliberations to
communicate with the Court, you may send a note by the court
security officer, signed by your foreperson, or by one or more
members of the Jury. No member of the Jury should ever attempt
to communicate with the Court by any means other than a signed
writing; and the Court will never communicate with any member of
the Jury, on any subject touching the merits of the case, other than
in writing, or orally here in open Court.
You will note from the oath about to be taken by the court
security officer to act as bailiff that he, and all other persons, are
forbidden to communicate in any way or manner with any member
of the Jury on any subject touching the merits of the case. Bear in
mind also that you are never to reveal to any person, not even to the
Court, how the Jury stands, numerically or otherwise, on the issues
presented to you unless or until you reach a unanimous verdict.

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Court security officer, do you solemnly swear to keep this Jury
together in the jury room, and not to permit any person to speak to
or communicate with them, concerning this case, nor to do so
yourself unless by order of the Court or to ask whether they have
agreed on a verdict, and to return them into the Courtroom when
they have so agreed, or when otherwise ordered by the Court, so
help you God?

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