Pablo v. ServiceMaster Global Holdings, Inc. et al

Filing 339

FINAL PRETRIAL SCHEDULING ORDER (SI, COURT STAFF) (Filed on 10/12/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RUBEN PABLO, BONNIE COURSEY and
JOHN BAHR,

No. C 08-3894 SI

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United States District Court
For the Northern District of California

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FINAL PRETRIAL SCHEDULING
ORDER

Plaintiffs,
v.
SERVICEMASTER GLOBAL HOLDINGS,
INC., et al.,
Defendants.

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On October 11, 2011, the Court held a final pretrial conference in the above captioned matter,
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which is set for jury trial beginning October 24, 2011. All parties were represented by counsel. The
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following matters were resolved:
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1.

Number of jurors and challenges: There shall be a jury of 7 members. Each side shall

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have up to four peremptory challenges.
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2.

Voir dire: Voir dire and jury selection will occur on October 18, 2011, at 9:00 a.m.

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The court will conduct general voir dire, and counsel for each side shall have up to 30 minutes total to
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question the panel. Opening statements and testimony will begin on Monday, October 24, 2001.
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3.

Jury instructions: Counsel have submitted certain joint proposed jury instructions, and

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separate sets of contested instructions. No later than Thursday, October 20, 2011, counsel shall submit
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one complete set of proposed instructions, containing both agreed upon instructions (which shall be so
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noted), and contested instructions, all in the order in which they should be read to the jury. Where
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contested instructions are included, they should be annotated both with the proponent’s authority for

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seeking the instruction and the opponent’s reason for opposition.

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instructions addressing the same point shall be included together in the single set of proposed

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instructions. The final submission shall be filed in hard copy and also submitted to the court on disk,

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suitable for reading by WordPerfect 10 (windows) on or before October 20, 2011.

Where feasible, competing

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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

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provided with three sets (for the court, the file and the witness) and each side shall provide one set for

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United States District Court
For the Northern District of California

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the other side. To the extent that original documents are to be used as exhibits in the case, they should

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be included in the set of exhibits for the court.

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5.

Timing of trial: The parties estimated that the trial should take approximately 4 days.

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Based on this estimate, each side shall have 30 minutes for opening statements; each side shall have 8

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hours total for presentation of evidence, which includes direct and cross-examination and presentation

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of all exhibits; and each side shall have up to 45 minutes for closing argument.

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6.

Trial schedule: Jury trials are generally conducted Monday through Thursday; jury

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trials are generally not conducted on Fridays, although deliberating juries are free to deliberate on

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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

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minute break at 12:00 noon and a 15 minute break at 2:00 p.m., all times approximate.

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7.

Motions in limine: The parties filed numerous motions in limine, as follows:
A. Plaintiffs filed motions to preclude evidence, argument, or inference:

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I.

That Plaintiffs Earned Commissions (Dkt. 262) - DENIED.

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ii.

To Limit Scope of Cross-Examination re: time spent “selling” while

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performing inspections (Dkt. 267) - DENIED.

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iii.

That Plaintiffs Were Over-Reimbursed for Mileage in Any Month (Dkt.
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273) - DENIED.

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iv.

That Plaintiffs were Paid in Accordance with Signed Compensation Plans

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v.

Regarding Defendant's Affirmative Defense: Administrative Exemption

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(Dkt. 278) - GRANTED.

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vi.

Regarding Plaintiff's income (Dkt. 279) - DENIED.

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vii.

That the Purpose of Termite Inspections is to Determine What Termite

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(Dkt. 275) - DENIED.

Treatments and Plans Should be Offered to a Prospective Customer (Dkt. 281) - DENIED.

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United States District Court
For the Northern District of California

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viii.

That Plaintiffs Were Referred to by Defendants, or any other Entity, or

any person, as Outside Salespersons or OSPs (Dkt. 284) - DENIED.

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ix.

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or Sales-Related Activity (Dkt. 286) - DENIED.

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x.

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Less than the IRS Rate (Dkt. 287) - DENIED.

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xi.

Using Commission Exemption as an Affirmative Defense (Dkt. 318) -

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xii.

Regarding Plaintiffs' Sales Training (Dkt. 320) - DENIED.

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xiii.

Regarding Defendants' Lack of Control over Plaintiffs' Work Schedules

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xiv.

Regarding Defendants' Idealized Job Descriptions (Dkt. 322) - DENIED.

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xv.

To Preclude or Limit Testimony of Defense Experts Aubry and Zoltners

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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.

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(Dkt. 323) - DENIED as overbroad and unspecified, without prejudice to specific objections to specific

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questions at trial.

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b. Defendants filed motions to preclude evidence, argument, or inference:

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I.

Characterizing Plaintiffs or their Job Titles as "Inspectors" (Dkt. 259) -

ii.

Regarding Testimony of Undisclosed Witnesses (Dkt. 261) - DENIED

DENIED.

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as overbroad and unspecified, without prejudice to specific objections to specific questions at trial.

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iii.

Regarding the Issue of Whether Plaintiffs were Misclassified When they

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were Trainees, given Resolution and Settlement of that Issue (Dkt. 264) - GRANTED, insofar as

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plaintiffs may not introduce evidence of or allude to settlement between defendants and the trainee

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subclass.

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iv.

Regarding Evidence of Subsequent Remedial Measures (Dkt. 264) -

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DENIED as overbroad and unspecified, without prejudice to specific objections to specific questions

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at trial.

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United States District Court
For the Northern District of California

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v.

Regarding The Number or Fact of Plaintiffs' Counsels' Prosecution of

Related Claims (Dkt. 266) - GRANT.

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vi.

Regarding Defendants' Net Worth (Dkt. 268) - GRANTED.

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vii.

Regarding the Court's Orders on the Summary Judgment Motions as to

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Coursey and Bahr (Dkt. 269) - GRANTED, insofar as neither side may introduce this Court’s prior

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orders as evidence in the case. However, if an expert were to “attempt to testify to impermissible legal

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conclusions” inconsistent with prior orders of this Court, such an expert might be cross-examined on

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or challenged with the prior orders.

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viii.

and Hour Claims (Dkt. 271) - GRANTED.

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ix.

Involving Cumulative Expert Testimony (Dkt. 272) - DENIED as

overbroad and unspecified, without prejudice to specific objections to specific questions at trial.

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Regarding Previous Settlements Paid by Terminix to Resolve other Wage

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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.

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xi.

Regarding Reference to John Bahr's Re-employment with Terminix After

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August 2008 (Dkt. 326) - GRANTED; however, Bahr may instead elect to arbitrate both pre- and post-

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2008 claims together if he chooses.

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8.

Other Motions:
A.

Plaintiffs filed motions to bifurcate the issue of classification of work activities
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as sales or non-sales activity, and to bifurcate the calculation of plaintiffs rate of pay. Those motions

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are DENIED.

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B.

Defendants filed a motion to compel arbitration of the claims by plaintiff Bahr.

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As to Bahr’s claims through August, 2008, defendant has waived arbitration and the motion is DENIED.

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As to claims post-August, 2008, the motion is GRANTED. Bahr may elect to arbitrate both sets of

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claims if he chooses.

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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.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: October 12, 2011
_____________________________
SUSAN ILLSTON
United States District Judge

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