Pablo v. ServiceMaster Global Holdings, Inc. et al

Filing 339


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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 RUBEN PABLO, BONNIE COURSEY and JOHN BAHR, No. C 08-3894 SI 8 9 United States District Court For the Northern District of California 10 11 FINAL PRETRIAL SCHEDULING ORDER Plaintiffs, v. SERVICEMASTER GLOBAL HOLDINGS, INC., et al., Defendants. 12 / 13 On October 11, 2011, the Court held a final pretrial conference in the above captioned matter, 14 which is set for jury trial beginning October 24, 2011. All parties were represented by counsel. The 15 following matters were resolved: 16 17 1. Number of jurors and challenges: There shall be a jury of 7 members. Each side shall 18 have up to four peremptory challenges. 19 20 2. Voir dire: Voir dire and jury selection will occur on October 18, 2011, at 9:00 a.m. 21 The court will conduct general voir dire, and counsel for each side shall have up to 30 minutes total to 22 question the panel. Opening statements and testimony will begin on Monday, October 24, 2001. 23 24 3. Jury instructions: Counsel have submitted certain joint proposed jury instructions, and 25 separate sets of contested instructions. No later than Thursday, October 20, 2011, counsel shall submit 26 one complete set of proposed instructions, containing both agreed upon instructions (which shall be so 27 noted), and contested instructions, all in the order in which they should be read to the jury. Where 28 1 contested instructions are included, they should be annotated both with the proponent’s authority for 2 seeking the instruction and the opponent’s reason for opposition. 3 instructions addressing the same point shall be included together in the single set of proposed 4 instructions. The final submission shall be filed in hard copy and also submitted to the court on disk, 5 suitable for reading by WordPerfect 10 (windows) on or before October 20, 2011. Where feasible, competing 6 7 4. Trial exhibits: No later than Friday, October 21, 2011, the parties shall submit their trial exhibits, in binders with numbered tabs separating and identifying each exhibit. The court shall be 9 provided with three sets (for the court, the file and the witness) and each side shall provide one set for 10 United States District Court For the Northern District of California 8 the other side. To the extent that original documents are to be used as exhibits in the case, they should 11 be included in the set of exhibits for the court. 12 13 5. Timing of trial: The parties estimated that the trial should take approximately 4 days. 14 Based on this estimate, each side shall have 30 minutes for opening statements; each side shall have 8 15 hours total for presentation of evidence, which includes direct and cross-examination and presentation 16 of all exhibits; and each side shall have up to 45 minutes for closing argument. 17 18 6. Trial schedule: Jury trials are generally conducted Monday through Thursday; jury 19 trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on 20 Fridays. The trial day runs from 8:30 a.m. until 4:30 p.m., with a 15 minute break at 10:00 a.m., a 45 21 minute break at 12:00 noon and a 15 minute break at 2:00 p.m., all times approximate. 22 23 24 7. Motions in limine: The parties filed numerous motions in limine, as follows: A. Plaintiffs filed motions to preclude evidence, argument, or inference: 25 I. That Plaintiffs Earned Commissions (Dkt. 262) - DENIED. 26 ii. To Limit Scope of Cross-Examination re: time spent “selling” while 27 performing inspections (Dkt. 267) - DENIED. 28 iii. That Plaintiffs Were Over-Reimbursed for Mileage in Any Month (Dkt. 2 1 273) - DENIED. 2 iv. That Plaintiffs were Paid in Accordance with Signed Compensation Plans 4 v. Regarding Defendant's Affirmative Defense: Administrative Exemption 5 (Dkt. 278) - GRANTED. 6 vi. Regarding Plaintiff's income (Dkt. 279) - DENIED. 7 vii. That the Purpose of Termite Inspections is to Determine What Termite 3 8 (Dkt. 275) - DENIED. Treatments and Plans Should be Offered to a Prospective Customer (Dkt. 281) - DENIED. 9 United States District Court For the Northern District of California 10 viii. That Plaintiffs Were Referred to by Defendants, or any other Entity, or any person, as Outside Salespersons or OSPs (Dkt. 284) - DENIED. 11 ix. 12 or Sales-Related Activity (Dkt. 286) - DENIED. 13 x. 14 Less than the IRS Rate (Dkt. 287) - DENIED. 15 xi. Using Commission Exemption as an Affirmative Defense (Dkt. 318) - 17 xii. Regarding Plaintiffs' Sales Training (Dkt. 320) - DENIED. 18 xiii. Regarding Defendants' Lack of Control over Plaintiffs' Work Schedules 20 xiv. Regarding Defendants' Idealized Job Descriptions (Dkt. 322) - DENIED. 21 xv. To Preclude or Limit Testimony of Defense Experts Aubry and Zoltners 16 19 That Any Activity Labeled By the Court as Non-Sales Activity is a Sales That Plaintiffs should be Reimbursed for Mileage Expenses at any Rate GRANTED. (Dkt. 321) - DENIED. 22 (Dkt. 323) - DENIED as overbroad and unspecified, without prejudice to specific objections to specific 23 questions at trial. 24 25 b. Defendants filed motions to preclude evidence, argument, or inference: 26 27 28 I. Characterizing Plaintiffs or their Job Titles as "Inspectors" (Dkt. 259) - ii. Regarding Testimony of Undisclosed Witnesses (Dkt. 261) - DENIED DENIED. 3 1 as overbroad and unspecified, without prejudice to specific objections to specific questions at trial. 2 iii. Regarding the Issue of Whether Plaintiffs were Misclassified When they 3 were Trainees, given Resolution and Settlement of that Issue (Dkt. 264) - GRANTED, insofar as 4 plaintiffs may not introduce evidence of or allude to settlement between defendants and the trainee 5 subclass. 6 iv. Regarding Evidence of Subsequent Remedial Measures (Dkt. 264) - 7 DENIED as overbroad and unspecified, without prejudice to specific objections to specific questions 8 at trial. 9 United States District Court For the Northern District of California 10 v. Regarding The Number or Fact of Plaintiffs' Counsels' Prosecution of Related Claims (Dkt. 266) - GRANT. 11 vi. Regarding Defendants' Net Worth (Dkt. 268) - GRANTED. 12 vii. Regarding the Court's Orders on the Summary Judgment Motions as to 13 Coursey and Bahr (Dkt. 269) - GRANTED, insofar as neither side may introduce this Court’s prior 14 orders as evidence in the case. However, if an expert were to “attempt to testify to impermissible legal 15 conclusions” inconsistent with prior orders of this Court, such an expert might be cross-examined on 16 or challenged with the prior orders. 17 18 viii. and Hour Claims (Dkt. 271) - GRANTED. 19 20 ix. Involving Cumulative Expert Testimony (Dkt. 272) - DENIED as overbroad and unspecified, without prejudice to specific objections to specific questions at trial. 21 22 Regarding Previous Settlements Paid by Terminix to Resolve other Wage x. Involving Lay Witnesses from Offering Expert Opinion (Dkt. 274) - GRANTED, without prejudice to plaintiffs making an offer of proof on a witness-by-witness basis. 23 xi. Regarding Reference to John Bahr's Re-employment with Terminix After 24 August 2008 (Dkt. 326) - GRANTED; however, Bahr may instead elect to arbitrate both pre- and post- 25 2008 claims together if he chooses. 26 27 28 8. Other Motions: A. Plaintiffs filed motions to bifurcate the issue of classification of work activities 4 1 as sales or non-sales activity, and to bifurcate the calculation of plaintiffs rate of pay. Those motions 2 are DENIED. 3 B. Defendants filed a motion to compel arbitration of the claims by plaintiff Bahr. 4 As to Bahr’s claims through August, 2008, defendant has waived arbitration and the motion is DENIED. 5 As to claims post-August, 2008, the motion is GRANTED. Bahr may elect to arbitrate both sets of 6 claims if he chooses. 7 8 C. Plaintiffs filed a motion to amend to add claims for punitive damages on behalf of plaintiffs Pablo and Coursey. That motion is DENIED as untimely. 9 United States District Court For the Northern District of California 10 IT IS SO ORDERED. 11 12 Dated: October 12, 2011 _____________________________ SUSAN ILLSTON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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