Walker et al v. Performance Contracting, Inc. et al

Filing 39

PRETRIAL ORDER, signed by Magistrate Judge Jennifer L. Thurston on 8/15/2016. Motions in Limine: Filed by 9/9/2016; Opposition by 9/16/2016; Hearing set for 9/26/2016 at 10:00 AM in Bakersfield at 510 19th Street (JLT) before Magistrate Judge Jennifer L. Thurston. Trial Submissions due by 9/30/2016. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GERALD GLENN WALKER, RAY
STEWARD, and FOSTER BROWN,

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Plaintiffs,
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v.
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PERFORMANCE CONTRACTING, INC.
and VANCE MANNING,
Defendant.

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Case No.: 1:15-cv-01206- JLT
PRETRIAL ORDER
Deadlines:
Motions in Limine Filing: 9/9/16
Oppositions to Motions in Limine: 9/16/16
Hearing on Motions in Limine: 9/26/16, 10:00 a.m.
Trial Submissions: 9/30/16

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Plaintiffs assert they are former employees of Performance Contracting, Inc. and worked under

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the supervision of Vance Manning. Plaintiffs contend their employment was wrongfully terminated on

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the basis of their race, so that they could be replaced by Hispanic employees. Therefore, they assert

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Defendants are liable for violations of 42 U.S.C. § 1981, California’s Fair Employment and Housing

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Act, failure to take all reasonable steps to prevent discrimination, and a violation of public policy.

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A.

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JURISDICTION/ VENUE
This court has jurisdiction over the claims involving alleged violations of 42 U.S.C § 1981

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pursuant to its federal question jurisdiction. This court has supplemental jurisdiction over the claims

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brought under California law pursuant to 28 U.S.C. § 1367. Further, the plaintiffs’ claims arise out of

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events that occurred in Kern County, California. Accordingly, venue is proper in the United States

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District Court for the Eastern District of California sitting in Bakersfield. See 28 U.S.C. § 1391.
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B.

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JURY TRIAL
Plaintiffs and Defendants made timely demands for a jury trial on all issues. Thus, the trial will

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be by jury.

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C.

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UNDISPUTED FACTS
a.

Plaintiff Gerald Walker (“Walker”) was hired by Defendant Performance Contracting,

Inc. (“PCI”) on or about February 21, 2014;

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b.

Plaintiff Ray Steward (“Steward”) was hired by PCI on or about March 28, 2014;

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c.

Plaintiff Foster (“Brown”) was hired by PCI on or about March 18, 2014.

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D.

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DISPUTED FACTS
All other facts in this case remain in dispute including but not limited to all facts relating to the

following:

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a.

Whether Walker resigned his employment or was discharged by PCI;

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b.

If Walker was discharged and did not resign, whether said discharge from PCI was

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based on his race;

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c.

Whether Steward was discharged from his employment with PCI based on race;

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d.

Whether Brown was discharged from his employment with PCI based on race; and

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e.

Whether Vance Manning uttered a racial slur toward Steward and Brown;

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E.

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Those set forth in the motions in limine to be filed.
F.

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DISPUTED EVIDENTIARY ISSUES

SPECIAL FACTUAL INFORMATION
None.

G.

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RELIEF SOUGHT
Plaintiffs seek economic damages, damages for emotional distress and mental anguish, and

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punitive damages. They also seek attorney fees and costs. (Doc. 1 at 7) Defendants seek dismissal of

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the claims and costs of suit. (Doc. 25 at 10)

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H.

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POINTS OF LAW
The matters at issue in this litigation arise from or involve the following points of law: 42

U.S.C. 1981, and Cal. Gov. Code sections 12940(a) & (k). Defendants intend to raise the after2

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acquired evidence defense as well as the mixed-motive defense, per Harris v. City of Santa Monica

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(2013) 56 Cal.4th 203 and Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

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I.

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ABANDONED ISSUES
None.

J.

WITNESSES
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 THE PARTIES STIPULATE OR UPON A SHOWING

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THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R.

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Civ. P. 16(e); Local Rule 281(b)(10).

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Plaintiffs’ Witness List:

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1. Gerald Walker

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2. Ray Steward

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3. Foster Brown

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4. Vance Manning

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5. Thomas Limbrick

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6. Shalia Simclair

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7. Shephard Brevil

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8. Pamela Baker

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9. Theodoshia Steward

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Defendants’ Witness List:

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1. Gerald Walker

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2. Ray Steward

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3. Foster Brown

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4. Vance Manning

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5. Thomas Limbrick

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6. Alan Manning

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7. Gerald Cox
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8. Sean Illig

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9. Eric Marquez

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10. Alberto Laredo

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11. Manuel Duran

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12. Jessica Gutierrez

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13. Michael Metcalf

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14. Robin Kavanagh

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15. Danny Harper (or other custodian of records for Southwest Regional Council of Carpenters)

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16. Jeff Jordan

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17. Gary Klawitter
K.

EXHIBITS, SCHEDULES AND SUMMARIES
The following is a list of documents or other exhibits that the parties expect to offer at trial.

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NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED

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UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE

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MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local Rule 281(b)(11).

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Plaintiffs’ Exhibits

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1.

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Production of Documents.
2.

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Documents Bates stamped 1-22 attached to Gerald Walker’s Response to Request for

Documents Bates stamped 1-11 attached to Foster Brown’s Response to Request for
Production of Documents.

3.

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Documents Bates stamped 1-21 attached to Ray Steward’s Response to Request for
Production of Documents.

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4.

Defendant’s Response to interrogatories of Plaintiff Gerald Walker.

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5.

Defendant’s Response to request for Production of Documents of Plaintiff Gerald Walker

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6.

Defendant’s Response to Interrogatories of Plaintiff Ray Steward.

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Defendant’s Response to Request for Production of Documents of Plaintiff Ray Steward.

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8.

Defendant’s Response to Interrogatories of Plaintiff Foster Brown.

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Defendant’s Response to Request for Production of Documents of Plaintiff Foster Brown.
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10. Plaintiffs reserve the right to utilize any and all documents produced by defendants,

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including those found in their personnel file as well as the applicable CBA.

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Defendants’ Exhibits

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1.

Personnel file of Gerald Walker

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2.

Personnel file of Ray Steward

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3.

Personnel file of Foster Brown

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4.

Contents of file maintained by Southwest Regional Council of Carpenters concerning

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Gerald Walker
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Contents of file maintained by Southwest Regional Council of Carpenters concerning Ray
Steward

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Contents of file maintained by Southwest Regional Council of Carpenters concerning
Foster Brown

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Civil Complaint in Case No. 1:09-cv-01183-LJO-JLT, Walker v. Brand Energy Services

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Records provided through Counties of Los Angeles, Kern, and Riverside concerning

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criminal convictions of Foster Brown.
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Records provided through Counties of Los Angeles, Kern, and Riverside concerning
criminal convictions of Ray Steward.

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10. Foreman job description

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11. Employment records from CLP Resources regarding Gerald Walker

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12. Timesheets from Defendant PCI reflecting work of Plaintiffs

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13. Master Labor Agreement for Southwest Regional Council of Carpenters, and

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14. Memorandum Agreement for Scaffolding Contractors

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On or before September 6, 2016, counsel SHALL meet and confer to discuss any disputes

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related to the above listed exhibits and to pre-mark and examining each other’s exhibits.
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At the exhibit conference, counsel will determine whether there are objections to the

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admission of each of the exhibits and will prepare separate indexes; one listing joint exhibits, one

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listing Plaintiff’s exhibits and one listing Defendant’s exhibits. In advance of the conference, counsel

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must have a complete set of their proposed exhibits in order to be able to fully discuss whether
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evidentiary objections exist. Thus, any exhibit not previously provided in discovery SHALL be

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provided at least five court days in advance of the exhibit conference.

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2.

At the conference, counsel shall identify any duplicate exhibits, i.e., any document

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which both sides desire to introduce into evidence. These exhibits SHALL be marked as a joint exhibit

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and numbered as directed above. Joint exhibits SHALL be admitted into without further foundation.
All Joint exhibits will be pre-marked with numbers preceded by the designation “JT” (e.g. JT/1,

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JT/2, etc.). Plaintiff’s exhibits will be pre-marked with numbers beginning with 1 by the designation

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PX (e.g. PX1, PX2, etc.). Defendant’s exhibits will be pre-marked with numbers beginning with 501

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preceded by the designation DX (e.g. DX501, DX502, etc.). The Parties SHALL number each page of

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any exhibit exceeding one page in length (e.g. PX1-1, PX1-2, PX1-3, etc.).

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If originals of exhibits are unavailable, the parties may substitute legible copies. If any
document is offered that is not fully legible, the Court may exclude it from evidence.

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Each joint exhibit binder shall contain an index which is placed in the binder before the

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exhibits. The index shall consist of a column for the exhibit number, one for a description of the

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exhibit and one column entitled “Admitted in Evidence” (as shown in the example below).

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INDEX OF EXHIBITS

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ADMITTED
EXHIBIT#

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3.

DESCRIPTION

IN EVIDENCE

As to any exhibit which is not a joint exhibit but to which there is no objection to its

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introduction, the exhibit will likewise be appropriately marked, i.e., as PX1, or as DX501 and will be

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indexed as such on the index of the offering party. Such exhibits will be admitted upon introduction

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and motion of the party, without further foundation.

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4.

Each exhibit binder shall contain an index which is placed in the binder before the

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exhibits. Each index shall consist of the exhibit number, the description of the exhibit and the three

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columns as shown in the example below.

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INDEX OF EXHIBITS

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ADMITTED
EXHIBIT#

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DESCRIPTION

OBJECTION

OTHER

IN EVIDENCE

FOUNDATION

OBJECTION

On the index, as to exhibits to which the only objection is a lack of foundation, counsel

will place a mark under the column heading entitled “Admissible but for Foundation.”

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6.

On the index, as to exhibits to which there are objections to admissibility that are not

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based solely on a lack of foundation, counsel will place a mark under the column heading entitled

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“Other Objections.”

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After the exhibit conference, Plaintiff and counsel for the defendants SHALL develop four

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complete, legible sets of exhibits. The parties SHALL deliver three sets of their exhibit binders to the

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Courtroom Clerk and provide one set to their opponent, no later than 4:00 p.m., on August 5, 2016.

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Counsel SHALL determine which of them will also provide three sets of the joint exhibits to the

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Courtroom Clerk.

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7.

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L.

The Parties SHALL number each page of any exhibit exceeding one page in length.

DISCOVERY DOCUMENTS
The following is a list of discovery documents – portions of depositions, answers to

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interrogatories, and responses to requests for admissions – that the parties expect to offer at trial.

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NO DISCOVERY DOCUMENT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE

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ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER

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SHOULD BE MODIFIED TO PREVENT “MANIFEST INJUSTICE.” Fed. R. Civ. P. 16(e); Local

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Rule 281(b)(12).

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Responses to Defendant PCI’s Interrogatories to Plaintiff Gerald Walker, Set One;

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2.

Responses to Defendant PCI’s Interrogatories to Plaintiff Foster Brown, Set One;

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3.

Responses to Defendant PCI’s Interrogatories to Plaintiff Ray Steward, Set One;

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4.

Responses to Defendant Manning’s Interrogatories to Plaintiff Gerald Walker, Set One;

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Responses to Defendant Manning’s Interrogatories to Plaintiff Foster Brown, Set One

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6.

Responses to Defendant Performance Contracting Inc.’s Request for Production of

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Documents to Plaintiff Ray Steward, Set One;
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Request for Production of Documents to Plaintiff Gerald Walker, Set One;

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Responses and production arising relating to Defendant PCI’s Request for Production

of Documents Plaintiff Foster Brown, Set One;

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Responses and production arising relating to Defendant Performance Contracting Inc.’s

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Responses and production arising relating to PCI’s Request for Production of

Documents to Plaintiff Ray Steward, Set One;

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10.

Deposition of Gerald Walker (and related exhibits), taken April 13, 2016;

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Deposition of Ray Steward (and related exhibits), taken April 14, 2016;

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Deposition of Thomas Limbrick (and related exhibits), taken June 9, 2016;

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Deposition of Thomas Limbrick (and related exhibits), taken June 9, 2016;

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Defendant PCI’s responses to interrogatories propounded by all three plaintiffs; and

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Defendant PCI’s responses to requests for production of documents propounded by all

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three plaintiffs.

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In the event the parties wish to admit any portion of a discovery document, the specific

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discovery request, e.g., interrogatory, request for admission, must be redacted so that any extraneous

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request/response is omitted.

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M.

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FURTHER DISCOVERY OR MOTIONS
No further discovery is sought by either party.

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MOTIONS IN LIMINE
Any party may file motions in limine. The purpose of a motion in limine is to establish in

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advance of the trial that certain evidence should not be offered at trial. “Although the Federal Rules of

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Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the

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district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38,

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40 n. 2 (1984); Jonasson v. Lutheran Child and Family Services, 115 F. 3d 436, 440 (7th Cir. 1997).

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The Court will grant a motion in limine, and thereby bar use of the evidence in question, only if the

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moving party establishes that the evidence clearly is not admissible for any valid purpose. Id.

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In advance of filing any motion in limine, counsel SHALL meet and confer to determine
whether they can resolve any disputes and avoid filing motions in limine. Along with their
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motions in limine, the parties SHALL file a certification demonstrating counsel have in good

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faith met and conferred and attempted to resolve the dispute. Failure to provide the

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certification may result in the Court refusing to entertain the motion.

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Any motions in limine must be filed with the Court by September 9, 2016. The motion must

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clearly identify the nature of the evidence that the moving party seeks to prohibit the other side from

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offering at trial. Any opposition to the motion must be served on the other party, and filed with the

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Court by September 16, 2016. The Court sets a hearing on the motions in limine on September 26,

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2016, at 10:00 a.m. Appearances via Courtcall are authorized.

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The parties are reminded they may still object to the introduction of evidence during trial.
O.

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None.
P.

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Q.

R.

S.

SEPARATE TRIAL OF ISSUES
None.

T.

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AGREED STATEMENT
None

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SETTLEMENT NEGOTIATIONS
None.

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AMENDMENTS/ DISMISSALS
None.

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STIPULATIONS

APPOINTMENT OF IMPARTIAL EXPERTS
None requested.

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ATTORNEYS’ FEES
Both 42 U.S.C. 1988 and the Fair Employment & Housing Act authorize an award attorneys’

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fees to a plaintiff who is the prevailing party. Defendants intend to contest an award of fees under

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California Code of Civil Procedure section 1033(a), Chavez v. City of Los Angeles, 47 Cal.4th 970

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(2010), and Farrar v. Hobby, 506 U.S. 103 (1992). Defendants will seek costs in the event of a

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defense verdict.

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V.

TRIAL DATE/ ESTIMATED LENGTH OF TRIAL

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Jury trial is set for October 10, 2016, at 8:30 a.m. before the Honorable Jennifer L. Thurston at

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the United States Courthouse, 510 19th Street, Bakersfield, California. Trial is expected to last 5 days.

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W.

TRIAL PREPARATION AND SUBMISSIONS

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1.

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The parties are relieved of their obligation under Local Rule 285 to file trial briefs. If any party

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wishes to file a trial brief, they must do so in accordance with Local Rule 285 and be filed on or before

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September 30, 2016.

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2.

Trial Briefs

Jury Voir Dire

The parties are required to file their proposed voir dire questions, in accordance with Local
Rule 162.1, on or before September 30, 2016.

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3.

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The parties shall serve, via e-mail or fax, their proposed jury instructions in accordance with

Jury Instructions & Verdict Form

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Local Rule 163 and their proposed verdict form on one another no later than September 16, 2016. The

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parties shall conduct a conference to address their proposed jury instructions and verdict form no later

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than September 23, 2016. At the conference, the parties SHALL attempt to reach agreement on jury

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instructions and verdict form for use at trial. The parties shall file all agreed-upon jury instructions and

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verdict form no later than September 30, 2016, and identify such as the agreed-upon jury instructions

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and verdict forms. At the same time, the parties SHALL lodge via e-mail a copy of the joint jury

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instructions and joint verdict form (in Word format) to [e-mail].

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If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon

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certain specific jury instructions and verdict form, the parties shall file their respective proposed

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(disputed) jury instructions and proposed (disputed) verdict form no later than September 30, 2016,

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and identify such as the disputed jury instructions and verdict forms. At the same time, the parties

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SHALL lodge via e-mail, a copy of his/their own (disputed) jury instructions and proposed (disputed)

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verdict form (in Word format) to [e-mail].

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In selecting proposed instructions, the parties shall use Ninth Circuit Model Civil Jury

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Instructions or California’s CACI instructions to the extent possible. All jury instructions and verdict
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forms shall indicate the party submitting the instruction or verdict form (i.e., joint, plaintiff’s,

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defendant’s, etc.), the number of the proposed instruction in sequence, a brief title for the instruction

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describing the subject matter, the complete text of the instruction, and the legal authority supporting

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the instruction. Each instruction SHALL be numbered.

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4.

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The parties SHALL file a joint non-argumentative, brief statement of the case which is

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suitable for reading to the jury at the outset of jury selection on or before September 30, 2016. In the

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event they cannot agree on a joint statement, each side SHALL file a non-argumentative, brief

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statement of the case on or before September 30, 2016.

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X.

Statement of the Case

OBJECTIONS TO PRETRIAL ORDER

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Any party may, within 10 days after the date of service of this order, file and serve written

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objections to any of the provisions set forth in this order. Such objections shall clearly specify the

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requested modifications, corrections, additions or deletions.

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Y.

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MISCELLANEOUS MATTERS
None.

Z.

COMPLIANCE
Strict compliance with this order and its requirements is mandatory. All parties and their

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counsel are subject to sanctions, including dismissal or entry of default, for failure to fully comply

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with this order and its requirements.

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IT IS SO ORDERED.
Dated:

August 15, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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