Robinson v. Open Top Sightseeing San Francisco, LLC

Filing 200

ORDER by Judge Phyllis J. Hamilton granting in part and denying in part 166 Defendant's Motion in Limine; granting in part and denying in part 168 Plaintiffs' Motion in Limine (pjhlc2, COURT STAFF) (Filed on 9/14/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD C. ROBINSON, et al.,

v.

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Case No. 14-cv-0852-PJH

Plaintiffs,

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FINAL PRETRIAL ORDER

OPEN TOP SIGHTSEEING SAN
FRANCISCO, LLC

United States District Court
Northern District of California

Defendant.
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Pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, this final pretrial
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order is hereby entered and shall control the course of the trial unless modified by a
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subsequent order.
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I.

MOTIONS IN LIMINE

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A.
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Plaintiffs’ Motion in Limine No. 1

Plaintiffs’ first motion in limine to exclude all evidence regarding issues on which

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summary judgment has already been entered is GRANTED in part and DENIED in part.
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Defendant does not oppose this request to the extent that defendant is still permitted to
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introduce evidence that supports defendant’s defense that its failure to pay overtime

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wages was in a good faith belief that the Motor Carrier Act exemption applied. This is
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relevant to the willfulness issue and, thus, to the extent that plaintiff seeks to exclude this
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evidence, Plaintiffs’ Motion in Limine No. 1 is DENIED. In all other respects the motion is

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GRANTED.
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B.
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Plaintiffs’ Motion in Limine No. 2

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Plaintiffs’ second motion in limine to exclude evidence regarding non-pleaded
affirmative defenses is GRANTED as unopposed.

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C.

Plaintiffs’ Motion in Limine No. 3

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Plaintiffs’ third motion in limine to preclude defendant from calling any fact witness

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other than Andrew Smith and Keith Affolter is DENIED. Defendant objects only to the

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extent it plans to call witnesses Jamie White and Eddie Chavez. Defendant may call

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Jamie White to testify, and Eddie Chavez may testify so long as defendant produces him

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for deposition prior to trial. Defendant may also, of course, call unidentified witnesses for

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impeachment purposes.
D.

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United States District Court
Northern District of California

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Plaintiffs’ fourth motion in limine to exclude “meal break” forms that purport to be

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Plaintiffs’ Motion in Limine No. 4

signed acknowledgements that a “meal break” was received is GRANTED as unopposed.

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E.

Plaintiffs’ Motion in Limine No. 5

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Plaintiffs’ fifth motion in limine to exclude evidence related to “Greenroad” GPS

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and key fob data is DENIED. This evidence is relevant to determining whether an

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employee has taken a rest break.
Plaintiffs’ Motion in Limine No. 6

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F.

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Plaintiffs’ sixth motion in limine to exclude documents and data not disclosed in

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defendant’s Fed. R. Civ. P. 26 disclosure, including documents reflecting advice of

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counsel or contract with a government entity regarding defendant’s Fair Labor Standards

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Act (the “FLSA”) obligations is GRANTED as unopposed.
Plaintiffs’ Motion in Limine No. 7

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G.

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Plaintiffs’ seventh motion in limine to exclude testimony regarding advice sought or

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received from counsel or a government entity is GRANTED as unopposed.
Plaintiffs’ Motion in Limine No. 8

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H.

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Plaintiffs’ eighth motion in limine to exclude testimony regarding damages in

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amounts other than those in defendant’s expert report is DENIED. Objections to

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improper expert testimony by a fact witness may be raised at trial.
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Plaintiffs’ Motion in Limine No. 9

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I.

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Plaintiffs’ ninth motion in limine to preclude defendant from offering evidence that

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defendant informed operators that they would not be paid overtime is DENIED. This

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evidence is relevant because it could support the claim that defendant believed, in good

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faith, that overtime pay was not required by law.
Plaintiffs’ Motion in Limine No. 10

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J.

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Plaintiffs’ tenth motion in limine to exclude evidence of operators’ unsatisfactory

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work performance or criminal history is DENIED. Such evidence may be admissible

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under the Federal Rules of Evidence for impeachment purposes.
Defendant’s Motion in Limine No. 1

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United States District Court
Northern District of California

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Defendant’s first motion in limine to exclude evidence regarding the overtime

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practices of Open Top’s sister companies is DENIED. This evidence is relevant to

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defendant’s knowledge of the FLSA requirements.
Defendant’s Motion in Limine No. 2

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L.

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Defendant’s second motion in limine to exclude evidence regarding the rest break

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practices of Open Top’s sister companies is GRANTED as unopposed.
Defendant’s Motion in Limine No. 3

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M.

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Defendant’s third motion in limine to exclude evidence of plaintiff's’ complaints with

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the National Labor Relations Board is GRANTED as unopposed.
Defendant’s Motion in Limine No. 4

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N.

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Defendant’s fourth motion in limine to exclude evidence of any other employment

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claims against Open Top is GRANTED as unopposed.

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II.

EXCERPTS OF VIDEOTAPED DEPOSITIONS
At the pretrial conference, plaintiffs indicated that they planned to use videotaped

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deposition testimony rather than calling Andrew Smith, Keith Affolter, and Filippo

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Amoroso. This request is GRANTED for the reasons and with the qualifications stated

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below.

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Regarding witnesses Smith and Affolter, defendant has made no objection, and
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parties are permitted to present excerpts of videotaped depositions of certain fact

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witnesses under Fed. R. Civ. P. 32(a). This includes the videotaped deposition of “a

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party or anyone who, when deposed, was the party's officer, director, managing agent, or

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designee under Rule 30(b)(6) or 31(a)(4).” Fed. R. Civ. P. 32(c)(3). Both Smith,

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defendant’s general manager and Rule 30(b)(6) designee, and Affolter, defendant’s

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Assistant of Operations, fall under subsection (c)(3). Therefore, plaintiffs are permitted to

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play videotaped excerpts of Smith and Affolter’s deposition testimony.
At the pretrial conference, plaintiffs indicated that a Federal Rule of Civil

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Procedure allows the presentation of excerpts of the videotaped deposition of Amoroso,
defendant’s designated expert witness. Defendant does not object to plaintiffs’ plan.

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United States District Court
Northern District of California

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While the use of videotaped expert testimony is not specifically contemplated by Rule 32,

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it appears to be allowable under subsection (a)(2), which states that “[a]ny party may use

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a deposition . . . for any other purpose allowed by the Federal Rules of Evidence.” For

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this reason, plaintiffs are also permitted to play excerpts of Amoroso’s videotaped

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deposition testimony.

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However, seven days before the beginning of trial, plaintiffs must provide

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defendant with any videotaped deposition testimony that plaintiffs intend to use at trial.

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Further, as the court stated during the pretrial conference, plaintiffs are prohibited from

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both calling a witness and presenting excerpts of that witness’s videotaped deposition to

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support plaintiffs’ case in chief. Plaintiffs are, of course, permitted to do so for rebuttal or

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impeachment purposes.
Finally, parties are reminded that in accordance with Fed. R. Civ. P. 32(c) and as

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stated at the pretrial conference, only videotaped deposition testimony may be presented

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to the jury, transcripts may be used only for impeachment purposes.

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III.

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VOIR DIRE
As discussed at the pretrial conference, the court will include joint questions 1, and

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joint questions 5-10 in its jury questionnaire. Parties will receive twenty minutes per side

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to ask additional questions, these additional questions may include joint questions 2, and
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joint questions 11-13. The court will not permit parties to ask plaintiffs’ three proposed

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questions, which are vague or inappropriate.

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IV.

JURY INSTRUCTIONS

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a.

Joint Instructions

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At the pretrial conference, the court indicated its inclination on the record to accept

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the parties’ jointly submitted jury instructions, but will rule definitively on these instructions

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at the charge conference before the conclusion of the trial. This joint set of instructions,

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subject to alteration at the charge conference, will be used in addition to the standard

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pattern instructions routinely used by the court.
b.

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United States District Court
Northern District of California

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Separate Instructions

The five jury instructions that remain relate to the following: case-specific

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instructions, stipulations of fact, whether Open Top’s failure to pay overtime was willful in

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violation of the FLSA, whether Open Top failed to provide rest breaks, and representative

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testimony.

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The parties’ stipulations of fact only differ on (8) (expert damage calculations) and

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(9) (defendant’s reason for never paying for missed rest breaks). Defendant agreed to

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plaintiffs version of both of these in the joint pretrial statement. At the pretrial conference,

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defendant did not provide any reason it should be allowed to renege on that agreement.

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Plaintiffs’ Stipulation of Fact jury instruction is, therefore, approved.

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The court approves defendant’s jury instruction related to whether Open Top’s

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failure to pay overtime was willful in violation of the FLSA. The parties’ jury instructions

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are identical except that plaintiffs have included a paragraph enumerating facts that

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allegedly prove that the defendant acted willfully. Plaintiffs’ authority does not address

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the inclusion of such a paragraph in jury instructions. The court finds that the inclusion of

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the disputed paragraph is more likely to confuse than help the jury. This is both because

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the jury could find willfulness without the presence of any of the enumerated facts, and

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because the enumerated facts may not be dispositive with respect to defendant’s

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willfulness.
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At the pretrial conference, plaintiffs argued that under the Private Attorney

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General Act (“PAGA”), any member of the FLSA class could also recover in a

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representative action for the rest break violations. Defendant argued that only named

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plaintiffs may recover for PAGA violations for the rest break claim. The outcome of this

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issue is dispositive not only with respect to the rest break and representative testimony

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instructions, but also with respect to the parties’ case-specific instructions, which differ

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only on this issue.
During the pretrial conference, plaintiffs represented that “the only relief that

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plaintiffs are seeking on the rest break claims are penalties under PAGA” and that
plaintiffs only seek penalties for 15 operators who are willing and prepared to testify.

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United States District Court
Northern District of California

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Transcript of Proceedings at 9-10, Sept. 7, 2017. Given this representation and after

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reviewing the parties’ supplemental briefing on this issue, the court holds that plaintiffs

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may pursue the rest break claims for fifteen (15) individuals who have filed consent forms

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to opt-in to the FLSA collective action. Plaintiffs may also use representative testimony to

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support the alleged PAGA rest break violations.
The parties are ordered to submit revised jury instructions in accordance with this

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order. As with the joint instructions, the court will rule definitively on the separate

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instructions at the charge conference before the conclusion of the trial.

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V.

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VERDICT FORM
As with the jury instructions, many of the parties’ proposed verdict form questions

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are identical. Specifically plaintiffs’ proposed questions 1, 4, and 5 match defendant’s

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questions 1, 55, and 56. These questions are approved subject to any definitive ruling

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made at the charge conference before the conclusion of trial.

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Plaintiffs’ verdict form questions 2 and 3 and defendant’s questions 2-54 are at

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odds only as to whether non-Class Representative FLSA class members may recover

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PAGA damages despite no corresponding class certification. As discussed above, the

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weight of authority supports plaintiffs’ position. Plaintiffs’ verdict questions 2-3 are

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therefore approved. Plaintiffs, however, are ordered to submit a revised version that
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reflects that plaintiffs are seeking PAGA penalties for rest break violations as to only

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fifteen individuals. The revised questions will be subject to any definitive ruling made at

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the charge conference before the conclusion of trial.

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VI.

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PLAINTIFFS’ REQUEST FOR A BIFURCATED TRIAL
Plaintiffs' motion to bifurcate the trial is GRANTED as unopposed. The first phase of

trial will be conducted before a jury and shall address the following issues:

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Whether defendant’s federal FLSA violation was willful;

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Whether defendant has failed to provide fifteen operators with ten (10)
minute rest breaks earned after each four (4) hours worked or major

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fraction thereof; and

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

United States District Court
Northern District of California

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Whether defendant failed to provide accurate wage statements.

The second phase will be a bench trial and shall address the following issues:

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Whether defendant is liable under PAGA;

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All damages amounts; and

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Injunctive relief.

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VII.

TRIAL SCHEDULE AND TIME LIMITS
The duration of the trial shall be 7 days commencing on Monday, October 2

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(Monday, Tuesday, Thursday, and Friday, from 8:30 a.m. to 1:30 p.m., with two 15-

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minute breaks each day). Jury selection will occur on the first day, as will opening

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statements and as much of the presentation of evidence as possible by 4:00 p.m. There

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will be approximately 30 hours of trial time, of which 17 hours will be allotted for plaintiff

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and 13 hours for defendant. Final jury instructions and deliberations are not included

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within this allotment.
The bench trial that will address remaining issues regarding the calculation of

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damages and whether injunctive relief is appropriate will be held on Thursday, October

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VIII.

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FINAL COMMENTS
As mentioned above, the parties are to submit the revised jury instructions and
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revised verdict forms. These revised versions should be submitted by September 25,

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2017.

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IT IS SO ORDERED.

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Dated: September 14, 2017

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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