Marzetta v. Comcast

Filing 38

FINAL PRETRIAL ORDER signed by Judge Garland E. Burrell, Jr on 9/11/14: The final pretrial conference scheduled for 9/15/14 is vacated. Settlement Conference set for 10/14/2014 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. Jury Trial set for 11/4/2014 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr.. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LA CHANDRA MARZETTA,

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No.

2:13-cv-00598-GEB-DAD

Plaintiff,

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v.

FINAL PRETRIAL ORDER

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COMCAST, a corporation,

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Defendant.

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The final pretrial conference scheduled for September

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15, 2014, is vacated since the parties’ Joint Pretrial Statement

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(“JPS”) indicates this Final Pretrial Order should issue.
JURY/NON-JURY

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All issues shall be tried to a jury. (JPS 2:10, ECF No.

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10.)
CLAIMS & AFFIRMATIVE DEFENSES

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The

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following

claims

and

affirmative

defenses

are

preserved for trial:
A.

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Claims
1)

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Disability

discrimination

under

the

Fair

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Employment & Housing Act (“FEHA”), Cal. Gov. Code '' 12940, et

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seq.;
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2)

under FEHA, Cal. Gov. Code ' 12940(n);

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3)

Failure to accommodate Plaintiff’s disability

under FEHA, Cal. Gov. Code ' 12940(m); and

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Failure to engage in the interactive process

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Wrongful termination in violation of public

policy.

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B.

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Affirmative Defenses
1)

Failure to mitigate damages.

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ABANDONED ISSUES

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Defendant
with

the

has

abandoned

affirmative

twenty-first

affirmative

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defense, failure to mitigate damages. (Id. at 4:10-11.)

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its

its

defenses

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of

of

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exception

each

UNDISPUTED FACTS
The undisputed facts are stated in section 3 of the
JPS, as follows:
(a) Plaintiff was hired by Defendant on
December 11, 2006 as a Customer Account
Executive (“CAE”) in the Natomas Call Center
in Sacramento.
(b) In 2009, Plaintiff became a virtual CAE,
which meant that she worked out of her home.
(c) Plaintiff’s employment
effective June 21, 2012.

was

terminated

(Id. at 2:14-19.)
DISPUTED FACTUAL ISSUES
The disputed factual allegations and contentions are
stated in section 4 of the JPS, as follows:
(a) What Plaintiff’s work restrictions were
at the time her employment was terminated.
(b) What the content of the communications
were between Plaintiff and Defendant with
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regard
to
her
accommodations.

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injury

and

possible

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(c) What accommodations were considered by
Defendant.

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(d) What positions Plaintiff could
performed within her restrictions.

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(Id. at 2:20-26.)
DISPUTED EVIDENTIARY ISSUES

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The parties shall meet and confer for the purpose of

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have

resolving

evidentiary

disputes.

Any

unresolved

evidentiary

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dispute capable of being resolved in limine shall be set forth in

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an in limine motion filed no later than twenty-five (25) court

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days

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statement of non-opposition to any filed in limine motion shall

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be filed no later than fifteen (15) court days before the trial

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commencement date; any reply shall be filed no later than ten

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(10) court days before the trial commencement date. The failure

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to state a basis for the admissibility or non-admissibility of

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disputed evidence constitutes a waiver or abandonment of that

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basis.

before

the

trial

commencement

date;

an

opposition

or

TRIAL BRIEFS

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Notwithstanding Local Rule 285, trial briefs shall be

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filed no later than twenty (20) court days prior to the trial

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commencement date. The trial briefs must include “a summary of

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points

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concerning

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citations of authority in support thereof.” E.D. Cal. R. 285.

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///

of

law,

including

admissibility

of

reasonably
evidence,

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anticipated
legal

disputes

arguments,

and

WITNESSES1

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A.

in section 9(a) of the JPS.

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B.

C.

Each party may call a witness designated by the

opposing party.

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Defendant anticipates calling the witnesses listed

in section 9(b) of the JPS.

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Plaintiff anticipates calling the witnesses listed

D.

No person, other than those named on these witness

lists, will be permitted to testify unless:

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(1)

The party offering the witness demonstrates

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that the witness is for the purpose of rebutting evidence which

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could not reasonably be anticipated at the pretrial conference;

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or

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(2)

The witness was discovered after the pretrial

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conference and the proffering party makes the showing required in

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“E,” below.

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E.

If

a

witness

is

discovered

after

the

pretrial

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conference, the party offering the witness shall promptly inform

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the Court and the opposing party of the existence of the unlisted

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witness so that the Court may consider at trial whether the

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witness shall be permitted to testify. The witness will not be

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permitted to testify unless:

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(1)

The witness could not reasonably have been

discovered prior to the pretrial conference;

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(2)

The

Court

and

the

opposing

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were

promptly notified upon discovery of the witness;

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party

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This portion of the Order does not affect the parties’ obligations to
timely comply with witness disclosure requirements provided in the Federal
Rules of Civil Procedure, the Local Rules, or by Order of this Court.

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(3)

the witness available for deposition; and

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If time permitted, the offering party made

(4)

If time did not permit, a reasonable summary

of the witness’s testimony was provided to the opposing party.
EXHIBITS2

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A.

in Attachment A to the JPS.

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Plaintiff anticipates offering the exhibits listed

B.

Defendant anticipates offering the exhibits listed

in Attachment B to the JPS.

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C.

No

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(1)

exhibits

will

be

permitted

to

be

introduced unless:

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other

The party seeking to use the unlisted exhibit

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demonstrates that the exhibit is being used to rebut evidence

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which could not reasonably have been anticipated at the pretrial

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conference; or

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(2)

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pretrial

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required in paragraph “D,” below.

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conference

The unlisted exhibit was discovered after the

D.

and

the

offering

party

makes

the

showing

Any party proposing to introduce an exhibit which

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was

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notify the Court and the opposing party of the existence of such

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exhibit.

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introduced unless it finds:

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The

after

Court

(1)

the

will

pretrial

not

permit

conference

any

such

shall

promptly

exhibit

to

be

That the exhibit could not reasonably have

been discovered prior to the pretrial conference;

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discovered

(2)

The

Court

and

2

the

opposing

party

were

This portion of the Order does not affect the parties’ obligations to
timely comply with disclosure requirements provided in the Federal Rules of
Civil Procedure, the Local Rules, or by Order of this Court.

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promptly informed of the exhibit’s existence; and

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(3)

That the offering party has delivered a copy

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of the exhibit to the opposing party, or, if the exhibit may not

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be

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reasonably available for inspection by the opposing party.

copied,

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that

E.

the

offering

Plaintiff’s

exhibits

made

shall

exhibits

be

shall

the

exhibit

numbered

be

with

stickers,

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alphabetical letters, also marked with stickers. The parties may

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obtain exhibit stickers by contacting the Clerk’s Office.
F.

Defendant’s

has

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while

party

designated

by

The parties shall exchange with each other, at

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least twenty (20) court days prior to the trial commencement

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date, copies of all of their respective exhibits, marked with

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exhibit stickers. Within five (5) court days after receipt and

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examination of the exhibits, each party shall file with the Court

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and serve upon the opposing party objections, if any, to the

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exhibits, referencing the exhibits as marked by exhibit sticker

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and specifying the basis for each objection.3 Failure to exchange

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exhibits as ordered could result in the exhibit(s) not being used

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at trial and/or the imposition of sanctions. The failure to make

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objections

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constitute a waiver of objections. A party seeking to admit into

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evidence an exhibit to which no objection was made must identify

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said exhibit for the record and then move it into evidence.

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in

G.

the

The

manner

parties

prescribed

shall

by

produce

this

all

section

exhibits

shall

to

the

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Courtroom Deputy at the commencement of trial. At that time, the

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parties shall also furnish the Court with a copy of each exhibit,

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The parties have leave to file joint exhibits. The above procedure is
designed for separate exhibits.

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unless

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impracticable to be reproduced. Failure to produce exhibits as

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ordered

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exhibits. Each party submitting exhibits shall furnish a list to

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the Court, the Courtroom Deputy, and the opposing party itemizing

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the exhibits.

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the

could

is

result

in

physically

waiver

incapable

of

the

right

of

to

being

or

offer

is

those

FURTHER PREPARATION FOR USE OF DISCOVERY DOCUMENTS

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exhibit

A.
Courtroom

The

Deputy

parties
at

the

are

required

commencement

of

to

produce

trial,

the

to

the

original

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transcript of any deposition which is to be used at trial for any

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purpose. The original deposition transcript(s) will be returned

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to

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cautioned that a failure to discharge this duty may result in

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preclusion of the use of the deposition(s) or in the imposition

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of such other sanctions as the Court deems appropriate.

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the

parties

B.

at

the

conclusion

of

trial.

The

parties

are

No later than twenty (20) court days before the

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trial commencement date, each party shall serve on the other

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party a statement designating all answers to interrogatories and

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all

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solely for refreshing recollection, impeachment, or rebuttal). No

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later than fifteen (15) court days before the trial commencement

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date, counter-designations of other portions of these discovery

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documents may be served. No later than ten (10) court days before

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the trial commencement date, the parties shall file and serve any

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preserved evidentiary objections to any designated discovery, or

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said objections are waived.

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portions

of

depositions

(except

7

for

passages

to

be

used

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FURTHER DISCOVERY OR MOTIONS

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Pursuant

to

the

Court’s

June

3,

2013

Status

Order,

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multiple orders extending certain discovery deadlines, and the

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April 28, 2014 Order Amending the Status Order, all discovery and

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law and motion was to have been completed prior to the date of

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the final pretrial conference. Those orders are confirmed.

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AGREED STATEMENT

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The

parties

shall

submit

a

short,

jointly-prepared

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statement concerning the nature of this case that can be read to

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the jury during voir dire. The statement shall be filed no later

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than fifteen (15) court days before the trial commencement date.

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If the parties fail to do this, they may be required to give

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their respective opening statements before voir dire. Separate

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statements shall be submitted if agreement is not reached.

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JURY INSTRUCTIONS, VOIR DIRE, AND VERDICT FORMS

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A.

Jury

instructions,

proposed

voir

dire,

and

a

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verdict form(s) shall be submitted fifteen (15) court days before

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trial. The parties shall prepare the instructions and verdict

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form(s) in accordance with Local Rule 163, and shall tailor all

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general instructions to the facts and law at issue.

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B.

The parties shall confer and attempt to agree upon

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a joint set of jury instructions and verdict form(s). As to

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instructions on which there is dispute, the parties shall adhere

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to

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instruction(s) shall submit the instruction(s) as its proposed

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jury instruction(s), shall submit authority in support of the

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proposed

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instruction(s)

the

following

procedure:

instruction(s),
in

a

the

and

manner

party

shall

that
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shows

offering

number
where

the

disputed

the

disputed

each

disputed

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instruction

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instructions.

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should

C.

At

be

the

placed

time

in

of

the

tendered

electronic

joint

filing

of

set

the

of

jury

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instructions and verdict form(s), the parties shall also submit a

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copy

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disputed jury instructions, and the joint verdict form(s) to the

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Court

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accordance with Local Rule 163.

of

the

by

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sanitized

electronic

D.

joint

mail

jury

to

instructions,

the

sanitized

[e-mail]

in

Most of the examination of prospective jurors will

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be conducted by the Court. The parties shall meet and confer and

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attempt

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questions. Each side is granted fifteen (15) minutes to conduct

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voir

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jurors.

to

dire

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agree

upon

following

a

the

joint

Court’s

set

of

proposed

examination

of

voir

dire

prospective

USE OF STRUCK JURY SELECTION SYSTEM

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Eight (8) jurors will be impaneled. The “struck jury”

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system will be used to select the jury. At the beginning of the

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voir

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randomly selected by the Jury Administrator, will be seated for

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voir dire. The order of the jurors’ random selection is reflected

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by the order in which they will be seated. The first randomly

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selected juror will be in jury seat number one, which is at the

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extreme right-hand side of the jury box in the top row as the

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jury box is viewed from the well of the courtroom. The eighth

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juror will be in the eighth seat. The ninth selected juror will

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occupy the seat located at the extreme right-hand side of the

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jury box in the bottom row. The fifteenth seat will be in the

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left-hand side of that row. Three chairs will be placed in front

dire

process,

approximately

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eighteen

prospective

jurors,

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of the jury box. The sixteenth juror will occupy the seat on the

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right and the eighteenth juror will occupy the seat on the left.

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The

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counsel, will constitute the petit jury unless one or more of

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those eight is excused for some reason. Assuming that the first

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and fifth jurors on the list are excused, the second listed juror

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becomes the first, and the other jurors’ numbers are changed

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accordingly, with the ninth juror on the list becoming seventh on

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the list; however, the jurors continue to be identified by their

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first

eight

jurors

on

a

list,

which

shall

be

given

to

original numbers.

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Following the voir dire questioning, each side will

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take turns exercising its three allotted peremptory strikes. The

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parties will be given a sheet of paper (“strike sheet”) upon

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which

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commencing with Plaintiff, by passing the strike sheet back and

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forth until all peremptory challenges are used or waived. If a

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side elects to pass rather than exercise a particular peremptory

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challenge, that challenge is waived.4

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they

shall

Any

silently

party

exercise

challenging

their

how

a

peremptory

peremptory

strikes,

strike

is

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exercised under Batson v. Kentucky, 476 U.S. 79, 87-98 (1986),

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shall make the challenge immediately upon it becoming ripe by

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requesting

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peremptory challenge.

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to

approach

the

bench

to

discuss

the

use

of

a

See United States v. Esparza-Gonzalez, 422 F.3d 897, 899 (9th Cir. 2005)
(discussing waiver of peremptory challenges in “struck jury system”); see
generally United States v. Yepiz, 685 F.3d 840, 845-46 (9th Cir. 2012)
(indicating “‘use it or lose it’ voir dire practice” is authorized if “the
composition of the panel” does not change).

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ATTORNEY’S FEES

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The parties are referred to Local Rule 293 concerning

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the post-trial procedure for seeking an award of attorney’s fees.

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SETTLEMENT CONFERENCE

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A

settlement

conference

is

scheduled

before

the

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Honorable Dale Drozd at 10:00 a.m. on October 14, 2014. Each

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party shall have a principal with authority to settle the case on

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any terms present at the settlement conference.

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Further,

each

party

shall

submit

a

settlement

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conference statement directly to the chambers of Judge Drozd via

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email

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settlement conference. Such statements shall not be filed with

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the clerk nor served on the opposing party. However, each party

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shall

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submitted to the settlement judge’s chambers.

at:

[e-mail]

notify

the

other

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party

that

one

the

week

before

statement

has

the

been

TRIAL DATE

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Trial will commence at 9:00 a.m. on November 4, 2014.

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Trial is held Tuesday, Wednesday, and Thursday of each week from

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9:00 a.m. until approximately 4:30 p.m. However, once the jury

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begins deliberating, counsel shall be available for communication

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with the jury during the above mentioned times, Monday through

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Friday.]

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Each side has fifteen (15) minutes within which to make

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an opening statement to the jury and sixty (60) minutes within

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which to make a closing argument. Plaintiff may decide how to

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allocate her total time for closing argument between her opening

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and rebuttal arguments.5

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See

United

States

v.

Patterson,

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678

F.2d

774,

781

(9th

Cir.

1982)

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Counsel are to call Shani Furstenau, Courtroom Deputy,

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at [phone], one week prior to trial to ascertain the

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status of the trial date.

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Dated:

September 11, 2014

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(discussing the district court’s discretion in limiting the length of closing
arguments).

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