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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 NO. CIV. 2:10-629 WBS EFB EDISON MAYO, 13 Plaintiff, FINAL PRETRIAL ORDER 14 15 16 v. RECYCLE TO CONSERVE, INC., Defendant. / 17 18 19 ----oo0oo---A Final Pretrial Conference was held in this matter, 20 pursuant to the provisions of Rule 16(d) of the Federal Rules of 21 Civil Procedure and Local Rule 282, on September 6, 2011. 22 Louis Bolanos appeared as counsel for plaintiff; Kelli Michelle 23 Kennaday appeared as counsel for defendant. 24 hearing, the court enters this Final Pretrial Order: Aldon Following the 25 I. Jurisdiction-Venue 26 Jurisdiction is predicated upon federal question 27 jurisdiction, 28 U.S.C. § 1331, because plaintiff has brought a 28 claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 1 1 §§ 2000e-2, 2000e-3. 2 Venue is undisputed and is hereby found to be proper. 3 II. Jury-Nonjury 4 The parties have demanded a jury trial. 5 the action shall be tried, pursuant to Federal Rule of Civil 6 Procedure 48, before a jury consisting of no less than six and no 7 more than twelve members. Accordingly, 8 III. Jury Instructions and Proposed Form of Verdict 9 No later than ten court days before the trial date, 10 counsel for plaintiff shall lodge and serve, pursuant to Local 11 Rule 163, copies of all jury instructions that plaintiff requests 12 be given on plaintiff’s claim. 13 plaintiff shall also file and serve a copy of a proposed form of 14 verdict. At that time, counsel for No later than seven court days before the trial date, 15 16 counsel for defendant shall file and serve any objections to the 17 instructions proposed by plaintiff. 18 for defendant shall lodge and serve, pursuant to Local Rule 163, 19 copies of any and all jury instructions not already proposed by 20 plaintiff, which defendant requests be given. 21 counsel for defendant shall file and serve a copy of any proposed 22 form of verdict and shall also file any objections to plaintiff’s 23 proposed form of verdict. At the same time, counsel Also at that time, No later than four court days before the trial date, 24 25 counsel for plaintiff shall file and serve any objections to the 26 instructions proposed by defendant and to any proposed form of 27 verdict. 28 Pursuant to Local Rule 163, any other instructions 2 1 thereafter presented will be refused unless it is shown either: 2 (1) that the necessity for the request arose in the course of 3 trial; could not reasonably have been anticipated prior to trial 4 from the pleadings, discovery, or nature of the action; and the 5 request for such additional instructions is presented to the 6 court as promptly as possible; or (2) that the refusal to give 7 such instructions would constitute plain error. 8 9 Likewise, any objections to proposed instructions not made in accordance with this Order will be overruled as untimely 10 unless it is shown either: 11 in the course of trial and the intention to make such objections 12 is communicated to the court as promptly as possible, or (2) that 13 the giving of such instructions would constitute plain error. (1) that the grounds therefor arose 14 IV. 15 No later than fourteen days before the trial date, Voir Dire Questions 16 counsel for each party shall submit all proposed jury voir dire 17 questions. 18 V. 19 No later than fourteen days before the trial date, Trial Briefs/Motions in Limine 20 counsel for each party shall file trial briefs, which shall 21 include any motions in limine, pursuant to Local Rule 285. 22 later than seven days before trial, the parties may file 23 oppositions, if any, to the motions in limine. No 24 VI. Remaining Claim 25 After the court’s Order granting in part defendant’s 26 motion for summary judgment, the sole remaining claim for trial 27 is plaintiff’s claim for race discrimination under Title VII. 28 /// 3 1 VII. 2 (A) 3 Plaintiff anticipates calling the witnesses identified at Exhibit “A” attached hereto. (B) 4 5 Witnesses Defendant anticipates calling the witnesses identified at Exhibit “B” attached hereto. 6 (C) 7 trial unless: (1) all parties stipulate that the witness may (2) 8 9 No other witnesses will be permitted to testify at the party offering the witness demonstrates testify; 10 11 that the witness is for the purpose of rebutting evidence which 12 could not have been reasonably anticipated at the time of the 13 Pretrial Conference; or (3) 14 15 16 the witness was discovered after the Pretrial Conference. (D) Testimony of a witness not designated in this 17 Order, which is offered under paragraph VII(C)(3), above, upon 18 the grounds that the witness was discovered after the Pretrial 19 Conference, will not be permitted unless: (1) 20 21 reasonably have been discovered prior to the Pretrial Conference; 22 23 the testimony of the witness could not (2) the court and opposing counsel were promptly notified upon discovery of the testimony; and (3) 24 counsel proffered the witness for deposition 25 if time permitted or provided opposing counsel a reasonable 26 summary of the testimony if time did not permit a deposition. 27 VIII. 28 (A) Exhibits Plaintiff intends to offer the exhibits identified 4 1 at Exhibit “C” attached hereto. 2 3 (B) at Exhibit “D” attached hereto. 4 5 (C) (D) No other exhibits will be received in evidence unless: 8 9 Each party may offer any exhibit designated by any other party. 6 7 Defendant intends to offer the exhibits identified (1) all parties stipulate that the exhibit may be received in evidence; 10 (2) the party offering the exhibit demonstrates 11 that the exhibit is for the purpose of rebutting evidence which 12 could not have been reasonably anticipated at the time of the 13 Pretrial Conference; or 14 15 16 (3) the exhibit was discovered after the Pretrial Conference. (E) An exhibit not designated in this Order, which is 17 offered under paragraph VIII(D)(3), above, upon the grounds that 18 the exhibit was discovered after the Pretrial Conference, will 19 not be received in evidence unless: 20 21 (1) discovered prior to the Pretrial Conference; 22 23 the exhibit could not reasonably have been (2) the court and opposing counsel were promptly notified upon discovery of the exhibit; and 24 (3) counsel provided copies of the exhibit to 25 opposing counsel if physically possible or made the exhibit 26 reasonably available for inspection by opposing counsel if 27 copying was not physically possible. 28 (F) Each party shall exchange copies of all exhibits 5 1 identified in this Order, or make them reasonably available for 2 inspection by all other parties, no later than seven calendar 3 days before the trial date. 4 exhibits shall be filed and served not later than four calendar 5 days before the trial date. 6 (G) Any and all objections to such The attorney for each party is directed to appear 7 before trial and present an original (and if physically possible 8 one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at 9 8:30 a.m. on the date of trial. 10 (H) Each exhibit which has been designated in this 11 Order and presented on the morning of the date of trial shall be 12 pre-marked by counsel. 13 defendant’s exhibits shall bear letters. 14 been made to such exhibit pursuant to paragraph VIII(F), above, 15 such exhibit will require no further foundation and will be 16 received in evidence upon the motion of any party at trial. Plaintiff’s exhibits shall bear numbers; If no objection has 17 IX. Further Discovery and Motions 18 No further motions shall be brought before trial except 19 upon order of the court and upon a showing of manifest injustice. 20 Fed. R. Civ. P. 16(e). 21 except by the express stipulation of all parties or upon order of 22 the court and upon a showing of manifest injustice. No further discovery will be permitted Id. 23 X. Use of Depositions or Interrogatories 24 No later than twenty calendar days before the trial 25 date, counsel for each party shall file and serve a statement 26 designating all answers to interrogatories and all portions of 27 depositions intended to be offered or read into evidence, with 28 the exception of portions to be used only for impeachment or 6 1 rebuttal. 2 counsel for any other party may file and serve a 3 counter-designation of other portions of the same depositions 4 intended to be offered or read into evidence and may file 5 evidentiary objections to any other parties’ designation. 6 later than seven calendar days before the trial date, the parties 7 may file evidentiary objections to any other party’s 8 counter-designation. 9 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 10 11 Courtroom No. 5. The court estimates that the trial will last 12 between three and five court days. 13 XII. Daubert Procedure 14 Any challenges based on Daubert v. Merrell Dow 15 Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. 16 Carmichael, 526 U.S. 137 (1999), will be raised and resolved 17 outside the presence of the jury just prior to when the 18 challenged expert will be called to give testimony. 19 challenged expert shall be present for such a challenge, and 20 shall be available for questioning. Any 21 XIII. Evidence Presentation Equipment 22 The court has new technical equipment, but may not have 23 all of the “state-of-the-art” audio visual equipment and may not 24 have support personnel necessary for the effective presentation 25 of evidence by electronic means. 26 encouraged to present their documentary evidence by conventional 27 means. 28 necessary, they should contact the Courtroom Deputy prior to Counsel are therefore If any party feels that electronic presentation is 7 1 trial to determine what equipment the court has and how to use 2 that equipment or bring their own audio visual equipment to the 3 courtroom and be prepared to operate it themselves. 4 XIV. Settlement Conference 5 A Settlement Conference is set before Magistrate Judge 6 Edmund F. Brennan at 10:00 a.m. on October 20, 2011. 7 Each party is ordered to have a principal with full 8 settlement authority present at the conference or be fully 9 authorized to settle the matter on any terms. No later than 10 seven days before the date of the Settlement Conference, counsel 11 for each party shall submit a confidential Settlement Conference 12 Statement to the settlement judge. 13 filed, but shall be delivered to the chambers of the settlement 14 judge, in hard copy. Such statements shall not be 15 XV. 16 Any objections or suggested modifications to this Objections to Pretrial Order 17 Pretrial Order shall be filed and served within five court days 18 from the signed date of this Order. 19 date of this Order shall refer to the date the tentative order is 20 filed and not to the date any amended order is filed. 21 objections or modifications are made, this Order will become 22 final without further order of the court and shall control the 23 subsequent course of the action, pursuant to Rule 16(e) of the 24 Federal Rules of Civil Procedure. 25 DATED: September 6, 2011 26 27 28 8 All references herein to the If no 1 Exhibit “A”: Plaintiff’s Witnesses 2 3 A. Edison Mayo 4 B. Joseph Serpo 5 C. Sean O’Dahl (Hostile Witness) 6 D. Kevin Christian (Hostile Witness) 7 E. “Ralph” 8 F. Any witness in defendant’s witness list. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 1 Exhibit “B”: Defendant’s Witnesses 2 3 1. Robert McMullin, 2811 Wilshire Boulevard, Suite 410, Santa Monica, CA 90403. 4 5 2. Sean Odahl, 704 Zephyr Street, Stockton, CA 95206. 6 3. Kevin Christian, 704 Zephyr Street, Stockton, CA 95206. 7 4. Ralph Lantz, 704 Zephyr Street, Stockton, CA 95206. 8 5. Kimberly Mayo, 3406 Mary Avenue, Stockton, CA 95206. 9 6. Elwood Lindsay, 2459 Jensen Court, Valley Springs, CA 95252. 10 7. Rida Hamed, 2811 Wilshire Boulevard, Suite 410, Santa 11 Monica, CA 90403. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 1 Exhibit “C”: Plaintiff’s Exhibits 2 3 1. June 6, 2007, Employee Warning Notice 4 2. October 30, 2009, Separation Notice 5 3. August 18, 2005, Accident Policy 6 4. Ralph Lantz Accident Data, RTC 000138-RTC000145 7 5. Jaunary 9, 2007, Small Claims File Mayo v. Christian. 8 6. June 29, 2007, Employee Warning Notice, RTC0000004. 9 7. January 9, 2001, Employee Commendation, RTC000005. 10 8. September 20, 2006, Rate Increase, RTC000009. 11 9. August 30, 2005, Rate Increase, RTC0000010. 12 10. September 6, 2001, Rate Increase, RTC000012. 13 11. September 30, 2000, Rate Increase, RTC000013. 14 12. October 28, 1998, Medical Coverage Document, RTC000039. 15 13. Direct Deposit Sheet. 16 14. Employment Earnings Verification, RTC000042. 17 15. Blue Cross Application. RTC000049. 18 16. Life Insurance Application. 19 17. Ameritas Group Enrollment Form. 20 18. Employment Application. 21 19. Accident Report. RTC000057-61. 22 20. EDD Letter. 23 21. Dext Job Description and Safety Training. 24 22. Letter from Elwood Lindsey. 25 23. Employee Handbook. RTC000041. RTC000051. RTC000052. RTC000053. RTC000064. RTC000076-77. RTC000080-136. 26 27 28 11 RTC000071-72. 1 Exhibit “D”: Defendant’s Exhibits 2 3 1. Plaintiff’s DFEH Complaint. 4 2. Letter from Kimberly Mayo. (RTC000079) 5 3. Employee Warning Notice dated 7/6/07 (RTC000004) 6 4. Scope Industries’ EEO-1 Report for 2009. (RTC000189-205) 7 5. Recycle to Conserve memo to all drivers from Brian de Kruyf 8 dated 8/18/2005 regarding Accident Policy, signed by Edison 9 Mayo on September 15, 2005. (RTC000001) 10 6. 11 12 2005. (RTC000003) 7. 13 14 8. 9. 10. 11. 12. 13. Employee Acknowledgement form for Employee Handbook, signed by Edison Mayo, on 3/13/02. (RTC000069) 14. 27 28 Scope Products, Inc. Employee Handbook, issue date 1/1/2002. (RTC000080-135) 25 26 Note from Kimberly Mayo to Recycle to Conserve regarding Edison Mayo, received June 2, 2010. (RTC000078) 23 24 Supervisor’s Incident Investigation Report, dated 10/22/09. (RTC000061) 21 22 Accident Report-Wausau Insurance Companies regarding 6/18/07 accident. (RTC000060) 19 20 Automobile Loss Notice, Driver Statement and Diagram, signed by Edison Mayo on 10/22/2009. (RTC000057) 17 18 Employee Separation Notice for Edison Mayo, dated October 30, 2009. (RTC000138) 15 16 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) 15. Faults Information and Oil Analysis for truck driven by 12 1 2 Plaintiff. (RTC000181-183) 16. 3 4 5 Bakery Activity Report for Cottage Bakery route from July 5, 2009 through December 31, 2009. (RTC000184-188) 17. Repair records and damage photographs for truck driven by Plaintiff. (RTC000146-180) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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