Brisbin v. Vulcan Materials Company

Filing 63

AMENDED PRETRIAL ORDER; RULES of CONDUCT, signed by District Judge Anthony W. Ishii on 7/8/13. Motions in Limine and Trial Confirmation Hearing set for 10/28/2013 at 01:30 PM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii; Jury Trial set for 11/13/2013 at 08:30 AM in Courtroom 2 (AWI) before District Judge Anthony W. Ishii. (Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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JOHN C. BRISBIN dba CONSTRUCTION )
DEVELOPMENT SYSTEMS,
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Plaintiff,
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v.
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VULCAN MATERIALS COMPANY;
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and DOES 1-100, inclusive,
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Defendants.
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____________________________________)
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UNITED STATES OF AMERICA for
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use and benefit of CALMAT CO. dba
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VULCAN MATERIALS COMPANY –
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WESTERN DIVISION; CALMAT CO.,
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dba VULCAN MATERIALS COMPANY )
– WESTERN DIVISION,
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Counter-claimant
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and Use Counter)
Claimant,
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v.
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JOHN C. BRISBIN dba CONSTRUCTION )
DEVELOPMENT SYSTEMS;
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WESTERN SURETY COMPANY,
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Counter-defendants. )
____________________________________)

1:11-cv-00568-AWI-SKO
AMENDED PRETRIAL ORDER
Motions In Limine Hearing and
Trial Confirmation:
October 28, 2013
1:30 p.m., Courtroom 2
Trial: November 13, 2013
8:30 a.m., Courtroom 2
RULES OF CONDUCT

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The pretrial conference was held on Wednesday, June 26, 2013. The trial in this matter is set for

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Wednesday, November 13, 2013. The parties currently estimate that the trial shall take six (6) days.

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I. Jurisdiction and Venue

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There are no disputes regarding jurisdiction or venue in this action.

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II. Jury Trial

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The parties request a jury trial on all triable issues.

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III. Facts

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A. Undisputed Facts
1.

Plaintiff/Cross-defendant John C. Brisbin is an individual residing and conducting business

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in the County of Fresno, State of California, and does business under the fictitious business

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names of Construction Development Systems (“CDS”).

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2.

Defendant/Cross-complainant CalMat Co. is a Delaware corporation which does business

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in the State of California under fictitious name of Vulcan Materials Company - Western

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Division (“Vulcan”).

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3.

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Cross-defendant Western Surety Company (“Western”) is a South Dakota corporation which
conducts business in the State of California as a corporate surety.

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In March 2009, CDS entered into a written contract with the Untied States Department of

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Federal Highways Administration (“FHWA”) to construct a federal work of improvement

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known as the “General Highway Road Rehabilitation, Sequoia National Park.”

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5.

The Contract between CDS and the FHWA is identified as Contract Number

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DTFH68-09-C-00013. Pursuant to 40 U.S.C. Section 3131 et seq. (The Miller Act”), CDS,

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as contractor, was required to execute and deliver to the FHWA a payment bond with respect

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to the Project.

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6.

On or about March 20, 2009, CDS, as principal, and Western, as surety, executed and

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delivered to the FHWA, Payment Bond Number 58638739(“Payment Bond”).

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B. Disputed Facts

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I. Brisbin/CDS
1.

Vulcan disputes every claim by Brisbin in any way relating to “Assured but Unapplied

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Credits” and “Set-offs.” Brisbin denies that Vulcan is entitled to any recovery of attorney’s

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fees.

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2.

Whether Vulcan provided materials that met all specifications.

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ii. Vulcan
1.

Vulcan disputes each and every claim by plaintiff CDS in its complaint for “assured but

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unapplied credits” and “set-offs.” Vulcan contends that each of these items is wholly without

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merit.

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iii. Western
1.

Western is aware from Vulcan’s separate pre-trial conference statement that it disputes each

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and every claim by plaintiff CDS described as “assured but unapplied credits” and “set-offs.”

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As the bond issuer, Western adopts the position of its bond principal as to its credits and

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setoffs because, if proved, they will reduce the amount for which Western might otherwise

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be obligated under its bond obligation.

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C. Disputed Evidentiary Issues

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None.
D. Special Factual Information
Pursuant to Local Rule 16-281(b)(6), the following special factual information pertains to this action:

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Brisbin/CDS: Vulcan contends that the contract between the parties consists of the Credit

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Application, price quotation and subsequent modifications. Brisbin contends that he is entitled to

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Set-Offs and Assured but Unapplied Credits. Brisbin contends that there were misrepresentations

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regarding pricing and credits. Brisbin contends that Vulcan breached the contract by failing to apply

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the Assured by Unapplied Credits and the Set-Offs. The amount of damages is in dispute.

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Vulcan: Vulcan contends that the contract consists of the terms and conditions contained in the

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credit application dated March 20, 2002 and the specific price for the materials contained in the

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quotation from Vulcan to CDS, and the subsequent modifications agreed upon by the parties.

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Vulcan contends there that there were no misrepresentations of fact, mistakes or other matter

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affecting the validity of the contract. Vulcan contends that CDS breached the contract by failing to

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pay Vulcan for the invoices sent to CDS for the deliveries of materials for use in the construction

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of the Project. Vulcan believes that there was no issues relating to waiver or estoppel. Vulcan is

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seeking damages from CDS. The damages sustained by Vulcan are the principal amount of

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$385,755.73, together with interest thereon at the rate of 1.5% per month, attorneys’s fees and costs.

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Western: As the bond surety, Western adopts the position of its bond principal with respect to all

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claims against Vulcan which, if proved, reduce or eliminate the amount of money which Vulcan

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claims is otherwise due it by Plaintiff and Western.

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IV. Relief Sought
A. Brisbin/CDS

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Vulcan’s cross-complaint seeks the principal amount of $385,755.73, together with interest thereon

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at the rate of 18% per annum, attorneys’ fees and costs of suit against CDS and Western. Brisbin

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contends that he does not owe any money to Vulcan. Vulcan also requests the dismissal with

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prejudice of CDS’s complaint.

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B. Vulcan

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Vulcan seeks the principal amount of $385,755.73, together with interest thereon at the rate of 18%

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per annum, attorneys’ fees and costs of suit against CDS and Western. Vulcan also requests the

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dismissal with prejudice of CDS’s complaint.

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C. Western
Western adopts the position of its principal that it is not indebted to Vulcan.

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V. Points of Law

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A. Brisbin’s/CDS’s Contentions

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Brisbin’s legal theory against Vulcan is based primarily in breach of contract. Vulcan’s legal theory

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against CDS is based upon breach of contract and common counts for the material delivered by

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Vulcan to CDS. Vulcan’s legal theory against Western is based upon the Miller Act Payment Bond

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executed by CDS and Western with respect to the subject work of improvement. Vulcan is not aware

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of any substantive procedural points of law that are expected to be in controversy.

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B. Vulcan’s Contentions

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Vulcan’s legal theory against CDS is based upon breach of contract and common counts for the

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material delivered by Vulcan to CDS. Vulcan’s legal theory against Western is based upon the

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Miller Act Payment Bond executed by CDS and Western with respect to the subject work of

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improvement. Vulcan is not aware of any substantive or procedural points of law that are expected

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to be in controversy.

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C. Western’s Contentions

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Plaintiff’s theories of recovery in its complaint against Vulcan are breach of contract, declaratory

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relief and breach of the covenant of good faith and fair dealing. At this time Western is not aware

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of any substantive or procedural points of law that are expected to be in controversy.

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VI. Abandoned Issues

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None.

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VII. Witnesses

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The following is a list of witnesses that the parties expect to call at trial, including rebuttal and

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impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION,

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MAY BE CALLED AT TRIAL UNLESS STIPULATED TO BY THE PARTIES OR UPON A

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SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST

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INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 16-281(b)(10).

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A. Brisbin’s/CDS’s Witnesses

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1.

Angela Bailey, Vulcan Materials Company

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2.

Marcos Galaviz, Vulcan Materials Company

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3.

Gary Dunkel, Vulcan Materials Company

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4.

Rita Leahy

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Don Berry, Don Berry Construction

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Ian Beatty, Krazen & Associates

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Scott Wolfert, Federal Highways Administration

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Chris Franks, West Coast Sand & Gravel

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John C. Brisbin

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Brian Hall

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Tim Kempkes

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B. Vulcan’s Witnesses

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1.

Angela Bailey, Vulcan Materials Company

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2.

Marcos Galaviz, Vulcan Materials Company

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Gary Dunkel, Vulcan Materials Company

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Rita Leahy

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Don Berry, Don Berry Construction

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Ian Beatty, Krazen & Associates

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Scott Wolfert, Federal Highways Administration

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Chris Franks, West Coast Sand & Gravel

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C. Western’s Witnesses

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John Brisbin

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Brian Hall

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Tim Kempkes

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Any witness named in Brisbin’s/CDS’s witness list

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VIII. Exhibits
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The following is a list of documents or other exhibits that the parties expect to offer at trial. NO
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EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS
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STIPULATED TO BY THE PARTIES OR UPON A SHOWING THAT THIS ORDER SHOULD
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BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 1610
281(b)(11).
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A. Brisbin’s/CDS’s Exhibits
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Brisbin submits the following list of exhibits that it expects to offer at trial in support of its claims.
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This list does not include any exhibits solely intended to be used on rebuttal and Brisbin reserves the
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right to use said rebuttal exhibits.
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1.

Credit Application dated March 20, 2002

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Summary of Vulcan’s invoices to CDS and CDS’s payments to Vulcan and balance

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due.
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3.

Vulcan’s unpaid invoices, with delivery tickets.

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Vulcan’s paid invoices, with delivery tickets.

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Vulcan’s credit memo dated January 31, 2010.

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Vulcan’s pre-bid quotation to CDS.

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Vulcan’s pre-bid quotations to other bidders.

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CDS’s letter to Vulcan dated April 30, 2010.

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CDS’s checks to Vulcan.

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B. Vulcan’s Exhibits
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Vulcan submits the following list of exhibits that it expects to offer at trial in support of its
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counterclaims. This list does not include any exhibits solely intended to be used on rebuttal and

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Vulcan reserves the right to use said rebuttal exhibits.

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1.

Credit Application dated March 20, 2002

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2.

Summary of Vulcan’s invoices to CDS and CDS’s payments to Vulcan and balance

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due.

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3.

Vulcan’s unpaid invoices, with delivery tickets.

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Vulcan’s paid invoices, with delivery tickets.

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5.

Vulcan’s credit memo dated January 31, 2010.

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Vulcan’s pre-bid quotation to CDS.

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Vulcan’s pre-bid quotations to other bidders.

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CDS’s letter to Vulcan dated April 30, 2010.

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CDS’s checks to Vulcan.

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C. Western’s Exhibits

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Western incorporates by reference all exhibits listed by its principal and reserves the right to use

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them as evidence at trial.

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IX. Discovery Documents To Be Used At Trial (Answers To Interrogatories And Responses

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To Requests For Admissions

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None.

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X. Further Discovery or Motions

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On June 17, 2013, Vulcan filed a motion to compel the attendance of CDS’s expert witnesses at

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deposition or for an order barring CDS from calling expert witnesses at trial, and for sanctions

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against CDS. The hearing on said motion is scheduled for July 3, 2013.

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XI. Stipulations

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None.

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XII. Amendments/Dismissals

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None.

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XIII. Settlement Negotiations

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Brisbin believes that a court-supervised settlement conference involving all parties would be

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appropriate.

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Vulcan believes that a court settlement conference between itself and Western would be productive.

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Vulcan does not believe CDS’s attendance at a settlement conference would productive.

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Western believes that a court-supervised settlement conference involving all parties would be

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appropriate.

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XIV. Agreed Statement

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The parties do not believe that a presentation of all or part of the action upon an Agreed Statement

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of Fact is feasible or advisable.

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XV. Separate Trial Of Issues

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The parties do not seek a separate trial of issues.

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XVI. Impartial Experts - Limitation Of Experts

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The parties do not believe that court appointment of experts or a limitation on the number of experts

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is advisable.

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XVII. Attorneys’ Fees

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Brisbin/CDS and Western do not seek an award of attorneys’ fees. Vulcan seeks an award of

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attorneys’ fees.

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XVIII. Trial Exhibits

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The parties are not aware of any need for the special handling of exhibits.

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XIX. Trial Protective Order

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N/A.

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XX. Further Trial Preparation
A. Final Witness List

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The parties are ordered to file and serve their final list of witnesses by Thursday, November 7, 2013.

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Additionally, at that time the parties shall disclose the order of witnesses so that the opposing parties

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will be prepared for cross-examination. Except upon the showing set forth above in section VII, a

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party may not add witnesses to the final list of witnesses, or to any other updated witness list, who

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are not disclosed in this Order in Section VII.

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B. Trial Briefs

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The parties may file and serve a Trial Brief by Tuesday, October 15, 2013. Local Rule 16-285.

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Responding briefs may be filed by Monday, October 21, 2013. The parties need not include in the

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Trial Brief any issue that is adequately addressed in a motion in limine or in an opposition brief to

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a motion in limine.

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C. Duty of Counsel to Pre-Mark Exhibits

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The parties are ordered to confer at their earliest convenience for the purposes of pre-marking and

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examining each other’s exhibits. All joint exhibits must be pre-marked with numbers preceded by

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the designation JT/-- (e.g., JT/1, JT/2). All of Plaintiff’s/Cross-Defendants’ exhibits shall be pre-

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marked with numbers. All of Defendant’s/Cross-complainant’s exhibits shall be pre-marked with

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letters.

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1. Counsel shall create four (4) complete, legible sets of exhibits in binders as follows:

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(a) Two sets of binders to be delivered to Courtroom Clerk Harold Nazaroff by

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Thursday, November 7, 2013, one for use by the Courtroom Clerk and the other for the Court; and

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(b) One set for each counsel’s own use.
If the parties desire, they may have a fifth set of binders to be used for the purposes of
questioning witnesses.

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2. Counsel are to confer and make the following determination with respect to each proposed

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exhibit to be introduced into evidence, and to prepare separate indexes - one listing joint exhibits,

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and one listing each party’s separate exhibits:

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(a) Duplicate exhibits, i.e., documents which both sides desire to introduce into

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evidence, shall be marked as a joint exhibit, and numbered as directed above. Joint exhibits shall

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be listed on a separate index, and shall be admitted into evidence on the motion of any party, without

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further foundation.

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(b) As to exhibits that are not jointly offered, and to which there is no objection to

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introduction, those exhibits will likewise be appropriately marked, e.g., Plaintiff’s Exhibit 1 or

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Defendant’s Exhibit A, and shall be listed in the offering party’s index in a column entitled

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“Admitted In Evidence.” Such exhibits will be admitted upon introduction and motion of the party,

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without further foundation.

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(c) Those exhibits to which the only objection is a lack of foundation shall be marked

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appropriately, e.g., Plaintiff’s Exhibit 2 - For Identification, or Defendant’s Exhibit B - For

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Identification, and indexed in a column entitled “Objection Foundation.”

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(d) Remaining exhibits as to which there are objections to admissibility not solely

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based on a lack of foundation shall likewise be marked appropriately, e.g., Plaintiff’s Exhibit 3 - For

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Identification or Defendant’s Exhibit C - For Identification, and indexed in a third column entitled

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“Other Objection” on the offering party’s index.

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3. Each separate index shall consist of the exhibit number or letter, a brief description of the
exhibit, and the three columns outlined above, as demonstrated in the example below:

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INDEX OF EXHIBITS

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EXHIBIT #

DESCRIPTION

ADMITTED
INTO EVIDENCE

OBJECTION
FOUNDATION

OTHER
OBJECTION

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Two sets of the completed joint index and the separate indexes shall be delivered to the
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Courtroom Clerk with the two sets of binders.
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The Court has no objection to counsel using copies. However, the copies must be legible.
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If any document is offered into evidence that is partially illegible, the Court may sua sponte exclude
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it from evidence.
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D. Discovery Documents
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N/A.
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E. Motions In Limine Hearing and Briefing Schedule
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The hearing for motions in limine will be held on Monday, October 28, 2013 at 1:30 p.m. In
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addition to addressing any filed motions in limine, at that time the Court will also settle, to the extent
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possible, any other matter pertaining to the conduct of the trial. Counsel are expected to be fully
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cognizant of the legal issues involved in the case by the date of the hearing for motions in limine.
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By 4:00 p.m. on Tuesday, October 1, 2013, all motions in limine, with supporting points and
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authorities, shall be filed and served either personally or by facsimile upon opposing counsel.
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By 4:00 p.m. on Tuesday, October 15, 2013, opposition to any motion in limine shall be filed
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and served either personally or by facsimile upon opposing counsel. If a party does not oppose a
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motion in limine, that party shall file and serve in the same manner a Statement of Non-Opposition
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to that motion in limine.

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By 12:00 p.m. on Monday, October 21, 2013, any reply to an opposition shall be filed and

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served either personally or by facsimile upon opposing counsel. Because the Court will need time

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to prepare for the hearing on October 28, 2013, the Court is not inclined to consider late reply briefs.

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F. Morning Conferences During Trial

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During the trial, it is the obligation of counsel to meet with the Court each morning to advise the

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Court and opposing counsel as to what documents are proposed to be put into evidence that have not

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previously been admitted by stipulation, court order, or otherwise ruled upon. The Court will rule

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on those documents, to the extent possible, prior to the commencement of trial each day out of the

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presence of the jury. If the ruling depends upon the receipt of testimony, the Court will rule as

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requested upon the receipt of such testimony.

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The Court shall consider any other legal matter at morning conferences as well. The Court

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does not wish to recess the trial to hear legal argument outside of the presence of the jury, and proper

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preparation by counsel will eliminate the need for that result.

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G. Use Of Videotape and Computers

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Any party wishing to use a videotape for any purpose during trial shall lodge a copy of the videotape

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with the Courtroom Clerk by 4:00 p.m. on Thursday, November 7, 2013. If a written transcript of

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audible words on the tape is available, the court requests that the transcript be lodged with the court,

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solely for the aid of the court.

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If counsel intends to use a laptop computer for presentation of evidence, they shall contact

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the courtroom deputy clerk at least one week prior to trial. The courtroom deputy clerk will then

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arrange a time for counsel to bring the laptop to the courtroom, and meet with a representative of the

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Information and Technology Department and receive a brief training session on how counsel’s

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equipment interacts with the court’s audio/visual equipment. If counsel intends to use PowerPoint,

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the resolution should be set no higher than 1024 x 768 when preparing the presentation.

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H. Order Of Witnesses

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In order to make the trial operate efficiently and smoothly, each counsel has the continuing

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obligation to advise opposing counsel as to what witnesses he or she intends to call twenty-four (24)

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hours prior to calling that witness.

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I. Proposed Jury Instructions

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The parties shall file and serve proposed jury instructions by 4:00 p.m. on Monday, October 21,

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2013. A copy of the instructions, preferably formatted for Microsoft Word 2010, should be emailed

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to [e-mail]. All proposed jury instructions shall be in duplicate. One set shall

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indicate the party proposing the instruction, with each instruction numbered or lettered, shall cite

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supporting authority, and shall include the customary “Given, Given as Modified, or Refused,”

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showing the court’s action with regard to each instruction. The other set shall be an exact copy of

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the first set, but shall be a “clean” copy that does not contain the identification of the offering party,

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instruction number or letter, supporting authority, or reference to the court’s disposition of the

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proposed instruction.

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The parties are ordered to confer after the trial confirmation hearing to determine which

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instructions they agree should be given. As soon as possible thereafter, the parties shall submit a list

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of joint, unopposed instructions. As to those instructions to which the parties dispute, the court will

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conduct its jury instruction conference during trial at a convenient time.

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J. Voir Dire

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The parties shall file and serve proposed voir dire questions, if any, by 4:00 p.m. on Thursday,

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November 7, 2013. Further, in order to aid the court in the proper voir dire examination of the

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prospective jurors, counsel should lodge with the court on the first morning of trial a list of all

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prospective witnesses, including rebuttal witnesses, that counsel reasonably expect to call. The

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purpose of the lists is to advise the prospective jurors of possible witnesses to determine if a

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prospective juror is familiar with any potential witness.

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K. Agreed Summary Of The Case
The parties shall lodge with the Courtroom Clerk a joint agreed summary of the case, briefly

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outlining the positions of the parties by 4:00 p.m. on Thursday, November 7, 2013. The summary

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will be read to the jury panel at the outset of the trial solely for the purposes of assisting in the jury

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selection process. The contents of the summary shall not be deemed to be evidence or an admission

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or stipulation by a party as to any contested fact or issue.

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XXI. Objections to Pretrial Order

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Any party may, within ten (10) calendar days after the date of service of this order, file and serve

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written objections to any of the provisions of this order. Local Rule 16-283. Such objection shall

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specify the requested corrections, additions or deletions.

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XXII. Rules of Conduct During Trial

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A. General Rules

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1. All participants in the trial shall conduct themselves in a civil manner. There shall be no

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hostile interchanges between any of the participants.

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2. All oral presentations shall be made from the podium, unless otherwise permitted by the

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court.

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3. Sidebar conferences are discouraged. Legal arguments or discussion of issues outside the

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presence of the jury should be done during recesses.

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4. Counsel shall advise their respective clients and witnesses not to discuss any aspect of the

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case in the common areas of the courthouse accessible to the jurors, such as the lobby, the

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elevators, the hallways and the cafeteria.

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B. Jury Selection

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1. The court will conduct voir dire to be supplemented by any written questions submitted

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by counsel prior to trial and after the court has concluded its questioning of the jury panel.

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In some circumstances, the court may allow brief direct questioning by counsel.

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C. Opening Statements

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1. Counsel may use visual aids in presenting the opening statement. However, any proposed

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visual aids shall be shown to opposing counsel before opening statement.

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D. Case in Chief

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1. Counsel shall have his/her witnesses readily available to testify so that there are no delays

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in the presentation of evidence to the trier of fact.

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2. At the close of each trial day, counsel shall disclose his/her anticipated witnesses and

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order of presentation for the next day, so that any scheduling or evidentiary issues may be

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raised at that time.

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E. Witnesses

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1. Before approaching a witness, counsel shall secure leave of court to approach the witness.

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2. Before approaching a witness with a writing, counsel shall first show the writing to

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opposing counsel.

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F. Exhibits

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1. All exhibits shall be marked and identified in accordance with the instructions in the

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Pretrial Order.

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2. An exhibit shall not be published to the jury until it has been admitted into evidence and

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counsel has secured leave of court to publish the exhibit.

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3. The Court usually will conduct an on the record review of the exhibits that have been

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admitted in evidence at the conclusion of each party’s case in chief and after each party has

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rested its entire case.

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G. Objections

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1. No speaking objections or arguments are permitted in the presence of the jury. Counsel

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shall state the specific legal ground(s) for the objection, and the court will rule based upon

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the ground(s) stated. The Court will permit counsel to argue the matter at the next recess.

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2. The Court will not assume that any objection made also implies with it a motion to strike

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an answer that has been given. Therefore, counsel who has made an objection, and who also

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wishes to have an answer stricken, shall also specifically move to strike the answer.
H. Closing Argument

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1. Counsel may use visual aids in presenting the closing argument. However, any proposed

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visual aids shall be shown to opposing counsel before closing argument.

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FAILURE TO COMPLY WITH ALL PROVISIONS OF THIS ORDER MAY BE GROUNDS FOR

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THE IMPOSITION OF SANCTIONS, INCLUDING POSSIBLE DISMISSAL OF THIS ACTION

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OR ENTRY OF DEFAULT, ON ANY AND ALL COUNSEL AS WELL AS ON ANY PARTY

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WHO CAUSES NON-COMPLIANCE WITH THIS ORDER.

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IT IS SO ORDERED.

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Dated:
0m8i78

July 8, 2013
SENIOR DISTRICT JUDGE

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