Mayo v. Recycle to Conserve

Filing 31

FINAL PRETRIAL ORDER signed by Judge William B. Shubb on 9/6/11, ORDERING that the Trial is SET for 11/1/2011 at 09:00 AM in Courtroom 5 (WBS) before Judge William B. Shubb. A Settlement Conference is SET for 10/20/2011 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. Any objections to this pretrial order shall be filed and served within five court days from the signed date of this order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NO. CIV. 2:10-629 WBS EFB

EDISON MAYO,

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Plaintiff,
FINAL PRETRIAL ORDER

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v.
RECYCLE TO CONSERVE, INC.,
Defendant.
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----oo0oo---A Final Pretrial Conference was held in this matter,

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pursuant to the provisions of Rule 16(d) of the Federal Rules of

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Civil Procedure and Local Rule 282, on September 6, 2011.

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Louis Bolanos appeared as counsel for plaintiff; Kelli Michelle

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Kennaday appeared as counsel for defendant.

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hearing, the court enters this Final Pretrial Order:

Aldon

Following the

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I.

Jurisdiction-Venue

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Jurisdiction is predicated upon federal question

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jurisdiction, 28 U.S.C. § 1331, because plaintiff has brought a

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claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
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§§ 2000e-2, 2000e-3.

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Venue is undisputed and is hereby found to

be proper.

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II.

Jury-Nonjury

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The parties have demanded a jury trial.

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the action shall be tried, pursuant to Federal Rule of Civil

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Procedure 48, before a jury consisting of no less than six and no

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more than twelve members.

Accordingly,

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III. Jury Instructions and Proposed Form of Verdict

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No later than ten court days before the trial date,

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counsel for plaintiff shall lodge and serve, pursuant to Local

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Rule 163, copies of all jury instructions that plaintiff requests

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be given on plaintiff’s claim.

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plaintiff shall also file and serve a copy of a proposed form of

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verdict.

At that time, counsel for

No later than seven court days before the trial date,

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counsel for defendant shall file and serve any objections to the

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instructions proposed by plaintiff.

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for defendant shall lodge and serve, pursuant to Local Rule 163,

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copies of any and all jury instructions not already proposed by

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plaintiff, which defendant requests be given.

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counsel for defendant shall file and serve a copy of any proposed

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form of verdict and shall also file any objections to plaintiff’s

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proposed form of verdict.

At the same time, counsel

Also at that time,

No later than four court days before the trial date,

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counsel for plaintiff shall file and serve any objections to the

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instructions proposed by defendant and to any proposed form of

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verdict.

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Pursuant to Local Rule 163, any other instructions
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thereafter presented will be refused unless it is shown either:

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(1) that the necessity for the request arose in the course of

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trial; could not reasonably have been anticipated prior to trial

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from the pleadings, discovery, or nature of the action; and the

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request for such additional instructions is presented to the

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court as promptly as possible; or (2) that the refusal to give

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such instructions would constitute plain error.

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Likewise, any objections to proposed instructions not
made in accordance with this Order will be overruled as untimely

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unless it is shown either:

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in the course of trial and the intention to make such objections

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is communicated to the court as promptly as possible, or (2) that

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the giving of such instructions would constitute plain error.

(1) that the grounds therefor arose

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IV.

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No later than fourteen days before the trial date,

Voir Dire Questions

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counsel for each party shall submit all proposed jury voir dire

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questions.

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V.

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No later than fourteen days before the trial date,

Trial Briefs/Motions in Limine

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counsel for each party shall file trial briefs, which shall

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include any motions in limine, pursuant to Local Rule 285.

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later than seven days before trial, the parties may file

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oppositions, if any, to the motions in limine.

No

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VI.

Remaining Claim

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After the court’s Order granting in part defendant’s

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motion for summary judgment, the sole remaining claim for trial

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is plaintiff’s claim for race discrimination under Title VII.

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VII.

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(A)

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Plaintiff anticipates calling the witnesses

identified at Exhibit “A” attached hereto.
(B)

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Witnesses

Defendant anticipates calling the witnesses

identified at Exhibit “B” attached hereto.

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(C)

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trial unless:
(1)

all parties stipulate that the witness may

(2)

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No other witnesses will be permitted to testify at

the party offering the witness demonstrates

testify;

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that the witness is for the purpose of rebutting evidence which

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could not have been reasonably anticipated at the time of the

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Pretrial Conference; or
(3)

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the witness was discovered after the Pretrial

Conference.
(D)

Testimony of a witness not designated in this

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Order, which is offered under paragraph VII(C)(3), above, upon

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the grounds that the witness was discovered after the Pretrial

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Conference, will not be permitted unless:
(1)

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reasonably have been discovered prior to the Pretrial Conference;

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the testimony of the witness could not

(2)

the court and opposing counsel were promptly

notified upon discovery of the testimony; and
(3)

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counsel proffered the witness for deposition

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if time permitted or provided opposing counsel a reasonable

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summary of the testimony if time did not permit a deposition.

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VIII.

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(A)

Exhibits
Plaintiff intends to offer the exhibits identified
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at Exhibit “C” attached hereto.

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(B)

at Exhibit “D” attached hereto.

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(C)

(D)

No other exhibits will be received in evidence

unless:

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Each party may offer any exhibit designated by any

other party.

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Defendant intends to offer the exhibits identified

(1)

all parties stipulate that the exhibit may be

received in evidence;

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(2)

the party offering the exhibit demonstrates

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that the exhibit is for the purpose of rebutting evidence which

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could not have been reasonably anticipated at the time of the

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Pretrial Conference; or

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(3)

the exhibit was discovered after the Pretrial

Conference.
(E)

An exhibit not designated in this Order, which is

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offered under paragraph VIII(D)(3), above, upon the grounds that

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the exhibit was discovered after the Pretrial Conference, will

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not be received in evidence unless:

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(1)

discovered prior to the Pretrial Conference;

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the exhibit could not reasonably have been

(2)

the court and opposing counsel were promptly

notified upon discovery of the exhibit; and

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(3)

counsel provided copies of the exhibit to

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opposing counsel if physically possible or made the exhibit

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reasonably available for inspection by opposing counsel if

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copying was not physically possible.

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(F)

Each party shall exchange copies of all exhibits
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identified in this Order, or make them reasonably available for

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inspection by all other parties, no later than seven calendar

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days before the trial date.

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exhibits shall be filed and served not later than four calendar

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days before the trial date.

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(G)

Any and all objections to such

The attorney for each party is directed to appear

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before trial and present an original (and if physically possible

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one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at

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8:30 a.m. on the date of trial.

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(H)

Each exhibit which has been designated in this

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Order and presented on the morning of the date of trial shall be

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pre-marked by counsel.

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defendant’s exhibits shall bear letters.

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been made to such exhibit pursuant to paragraph VIII(F), above,

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such exhibit will require no further foundation and will be

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received in evidence upon the motion of any party at trial.

Plaintiff’s exhibits shall bear numbers;
If no objection has

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IX. Further Discovery and Motions

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No further motions shall be brought before trial except

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upon order of the court and upon a showing of manifest injustice.

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Fed. R. Civ. P. 16(e).

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except by the express stipulation of all parties or upon order of

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the court and upon a showing of manifest injustice.

No further discovery will be permitted

Id.

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X.

Use of Depositions or Interrogatories

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No later than twenty calendar days before the trial

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date, counsel for each party shall file and serve a statement

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designating all answers to interrogatories and all portions of

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depositions intended to be offered or read into evidence, with

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the exception of portions to be used only for impeachment or
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rebuttal.

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counsel for any other party may file and serve a

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counter-designation of other portions of the same depositions

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intended to be offered or read into evidence and may file

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evidentiary objections to any other parties’ designation.

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later than seven calendar days before the trial date, the parties

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may file evidentiary objections to any other party’s

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counter-designation.

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No later than ten calendar days before the trial date,

XI.

No

Date and Length of Trial

The trial is set for November 1, 2011, at 9:00 a.m. in

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Courtroom No. 5.

The court estimates that the trial will last

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between three and five court days.

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XII.

Daubert Procedure

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Any challenges based on Daubert v. Merrell Dow

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Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v.

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Carmichael, 526 U.S. 137 (1999), will be raised and resolved

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outside the presence of the jury just prior to when the

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challenged expert will be called to give testimony.

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challenged expert shall be present for such a challenge, and

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shall be available for questioning.

Any

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XIII. Evidence Presentation Equipment

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The court has new technical equipment, but may not have

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all of the “state-of-the-art” audio visual equipment and may not

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have support personnel necessary for the effective presentation

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of evidence by electronic means.

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encouraged to present their documentary evidence by conventional

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means.

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necessary, they should contact the Courtroom Deputy prior to

Counsel are therefore

If any party feels that electronic presentation is

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trial to determine what equipment the court has and how to use

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that equipment or bring their own audio visual equipment to the

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courtroom and be prepared to operate it themselves.

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XIV. Settlement Conference

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A Settlement Conference is set before Magistrate Judge

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Edmund F. Brennan at 10:00 a.m. on October 20, 2011.

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Each party is ordered to have a principal with full

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settlement authority present at the conference or be fully

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authorized to settle the matter on any terms.

No later than

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seven days before the date of the Settlement Conference, counsel

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for each party shall submit a confidential Settlement Conference

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Statement to the settlement judge.

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filed, but shall be delivered to the chambers of the settlement

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judge, in hard copy.

Such statements shall not be

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XV.

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Any objections or suggested modifications to this

Objections to Pretrial Order

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Pretrial Order shall be filed and served within five court days

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from the signed date of this Order.

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date of this Order shall refer to the date the tentative order is

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filed and not to the date any amended order is filed.

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objections or modifications are made, this Order will become

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final without further order of the court and shall control the

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subsequent course of the action, pursuant to Rule 16(e) of the

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Federal Rules of Civil Procedure.

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DATED:

September 6, 2011

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All references herein to the

If no

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Exhibit “A”: Plaintiff’s Witnesses

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A.

Edison Mayo

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B.

Joseph Serpo

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C.

Sean O’Dahl (Hostile Witness)

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D.

Kevin Christian (Hostile Witness)

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E.

“Ralph”

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F.

Any witness in defendant’s witness list.

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Exhibit “B”: Defendant’s Witnesses

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Robert McMullin, 2811 Wilshire Boulevard, Suite 410, Santa
Monica, CA 90403.

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Sean Odahl, 704 Zephyr Street, Stockton, CA 95206.

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3.

Kevin Christian, 704 Zephyr Street, Stockton, CA 95206.

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4.

Ralph Lantz, 704 Zephyr Street, Stockton, CA 95206.

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Kimberly Mayo, 3406 Mary Avenue, Stockton, CA 95206.

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Elwood Lindsay, 2459 Jensen Court, Valley Springs, CA 95252.

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Rida Hamed, 2811 Wilshire Boulevard, Suite 410, Santa

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Monica, CA 90403.

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Exhibit “C”: Plaintiff’s Exhibits

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June 6, 2007, Employee Warning Notice

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October 30, 2009, Separation Notice

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August 18, 2005, Accident Policy

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Ralph Lantz Accident Data, RTC 000138-RTC000145

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Jaunary 9, 2007, Small Claims File Mayo v. Christian.

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June 29, 2007, Employee Warning Notice, RTC0000004.

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January 9, 2001, Employee Commendation, RTC000005.

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September 20, 2006, Rate Increase, RTC000009.

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August 30, 2005, Rate Increase, RTC0000010.

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September 6, 2001, Rate Increase, RTC000012.

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September 30, 2000, Rate Increase, RTC000013.

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October 28, 1998, Medical Coverage Document, RTC000039.

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Direct Deposit Sheet.

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Employment Earnings Verification, RTC000042.

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Blue Cross Application. RTC000049.

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Life Insurance Application.

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Ameritas Group Enrollment Form.

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Employment Application.

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Accident Report. RTC000057-61.

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EDD Letter.

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Dext Job Description and Safety Training.

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Letter from Elwood Lindsey.

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Employee Handbook.

RTC000041.

RTC000051.
RTC000052.

RTC000053.

RTC000064.

RTC000076-77.

RTC000080-136.

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RTC000071-72.

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Exhibit “D”: Defendant’s Exhibits

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Plaintiff’s DFEH Complaint.

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Letter from Kimberly Mayo. (RTC000079)

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Employee Warning Notice dated 7/6/07 (RTC000004)

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4.

Scope Industries’ EEO-1 Report for 2009. (RTC000189-205)

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5.

Recycle to Conserve memo to all drivers from Brian de Kruyf

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dated 8/18/2005 regarding Accident Policy, signed by Edison

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Mayo on September 15, 2005. (RTC000001)

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6.

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2005. (RTC000003)
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Employee Acknowledgement form for Employee Handbook, signed
by Edison Mayo, on 3/13/02. (RTC000069)

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Scope Products, Inc. Employee Handbook, issue date 1/1/2002.
(RTC000080-135)

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Note from Kimberly Mayo to Recycle to Conserve regarding
Edison Mayo, received June 2, 2010. (RTC000078)

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Supervisor’s Incident Investigation Report, dated 10/22/09.
(RTC000061)

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Accident Report-Wausau Insurance Companies regarding 6/18/07
accident. (RTC000060)

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Automobile Loss Notice, Driver Statement and Diagram, signed
by Edison Mayo on 10/22/2009. (RTC000057)

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Employee Separation Notice for Edison Mayo, dated October
30, 2009. (RTC000138)

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Cellphone Use Policy, signed by Edison Mayo on February 16,

Acknowledgment of New or Revised Policy, signed by Edison
Mayo on 8/29/2000. (RTC000073)

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Faults Information and Oil Analysis for truck driven by
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Plaintiff. (RTC000181-183)
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Bakery Activity Report for Cottage Bakery route from July 5,
2009 through December 31, 2009. (RTC000184-188)

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Repair records and damage photographs for truck driven by
Plaintiff. (RTC000146-180)

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