Merges et al v. Aramark Corporation et al
Filing
75
PRETRIAL ORDER: Final Pretrial Conference set for 11/25/2013 02:00 PM before Hon. David G. Larimer. Jury Trial set for 12/9/2013 08:30 AM before Hon. David G. Larimer. Signed by Hon. David G. Larimer on 6/28/13. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
DAVID R. MERGES, et al.,
Plaintiffs
PRETRIAL ORDER
v.
08-CV-6250L
ARAMARK CORPORATION, et al.,
Defendants
________________________________________
This order will control the conduct of the trial in this case.
A. SCHEDULE
This case is hereby ordered for a jury trial on December 9, 2013 at 8:30 a.m. This is a
day-certain trial date which will not be adjourned. The trial has been set far enough in advance
so that all counsel are expected to protect this date with other judges so that they are not
otherwise engaged in any other proceeding.
Counsel must notify this Court immediately if a pretrial resolution of this matter has been
reached.
A pretrial conference is scheduled for November 25, 2013 at 2:00 p.m. in my
chambers. The attorneys who will actually try the case must be present at the pretrial conference.
At the pretrial conference, the Court, together with the parties, will determine the trial
schedule. It is the general practice of the Court to start each day of trial at 8:30 a.m. and run until
1:30 p.m. without a lunch break. In some cases, though, circumstances may dictate that trial be
conducted all day, from 9:00 a.m. until approximately 4:30 p.m.
B. PRETRIAL SUBMISSIONS
Unless otherwise indicated below, the following pretrial submissions MUST BE FILED
with the Clerk of the Court and served on opposing counsel at least THREE WEEKS
before the pretrial conference. See FED. R. CIV. P. 26(a)(3); LOCAL R. CIV. P. 16.1(d).
1. Voir Dire Information
Each party must file a document entitled "Voir Dire Information" containing the
following material, with each category started on a separate page:
a.
A short description of the case to be read to the panel to identify the case
and the claims and defenses at issue.
b.
The name, firm name and business address of the attorney or attorneys
trying the case and the names of any assistants that will be in court at counsel's table.
c.
The full name and address of the client, including the name of any
corporate representative that intends to appear at trial for the client.
d.
A list of prospective witnesses that are expected to be called at trial,
including expert witnesses and adverse party witnesses. Witnesses whose testimony the parties
intend to introduce through depositions should be listed as well and identified as "deposition
witnesses." See FED. R. CIV. P. 26(a)(3)(B) and (C). The Court may preclude the use, in the direct
case, of any witness not identified on the witness list. For proper identification to the panel, the
parties' witness lists should include the following information:
(1)
The full name of the witness.
(2)
The occupational association of the witness, e.g., FBI, Monroe
County Sheriff's Department, Eastman Kodak Company, Delta
Laboratories, etc.
(3)
The address and phone number of the witness.
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(4)
A brief statement of the general subject matter expected to be
covered by the witness (e.g., John Doe - plaintiff will testify about
his injuries; Mary Smith - witness to the incident; Jane Doe, M.D. will offer expert testimony about plaintiff's injuries).
e.
The Court will conduct voir dire by asking a standard list of questions of
the panel. The parties may submit a list of proposed questions they wish the Court to ask the
panel. Failure to do so constitutes a waiver of any requests by that party. Generally, the Court
conducts the entire voir dire but, depending on the circumstances of the case, the Court may
allow counsel to make brief inquiry of the panel.
2. Exhibits
ALL exhibits shall be denominated by number. Plaintiff shall use numbers 1 through
399; defendant shall use numbers 400 through 699; and third-party defendants (if any) shall use
numbers 700 through 899. Each exhibit must be physically tagged with the appropriate colored
sticker (pink for plaintiff, blue for defendant and third-party defendants), and each exhibit must
be physically numbered prior to commencement of trial.
Except for extraordinary cause, the Court will not allow introduction into evidence of
exhibits not listed on the exhibit lists and made part of the exhibit books as follows:
a.
Exhibit Lists -- Each party must file an exhibit list containing those
exhibits that the party anticipates introducing in either its direct case, see FED. R. CIV. P.
26(a)(3)(C), or during cross-examination pursuant to FED. R. EVID. 608 or 609. The list must be
prepared on forms supplied by the Clerk's Office and must contain a brief description of the
proposed exhibit.
b.
Exhibit Books -- The parties must prepare and submit to all parties and the
Court exhibit books containing copies of the exhibits listed on their exhibit list. Each exhibit
book must consist of a three-ring binder with separately numbered tabs corresponding to each
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exhibit. The proponent must prepare at least THREE (3) exhibit books -- one for use by the
Court, one for use by witnesses on the stand, and one each for the other party/parties in the
action. The proponent is not required to prepare an exhibit book for the other parties, however, if
the proponent certifies that its exhibits have already been exchanged during discovery, or, if a
particular exhibit cannot be copied, that it is available for inspection by the other parties.
3. Undisputed Facts and Stipulations
The parties must file a list of what they believe to be the undisputed facts in the case.
See LOCAL R. CIV. P. 16.1(d)(a).
The parties should consider appropriate stipulations concerning undisputed facts or
testimony. It is especially troubling to force custodians of business records and chain-of-custody
witnesses to appear.
Any party that wishes to present proof by stipulation must submit to opposing counsel
proposed stipulations of fact or proposed stipulations of testimony at least TWO WEEKS
before the pretrial conference with a request that the party agree to the stipulations.
Counsel shall notify the proponent as soon as possible, but no later than ONE WEEK
before the pretrial conference, whether it will agree to the proposed stipulations.
Proposed stipulations do not have to be filed with the Court.
4. Statement of Claims to be Pursued at Trial
The parties must file a statement containing a list of the specific claims/causes of action
to be pursued at trial. This list should include the name or type of claim and a specific reference
to the part of the pleading in which it was alleged (e.g., Title VII race discrimination, as alleged
in the third claim of plaintiff's complaint; breach of contract, as alleged in the first counterclaim
of defendant's answer; common law indemnification, as alleged in the first claim of third-party
plaintiff's third-party complaint).
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Pleaded claims that will not be pursued at trial, but have not yet been disposed of by
motion or otherwise, must be resolved or dismissed before trial.
5. Damages
Plaintiff (or defendant asserting cross-claims or counterclaims) must file an itemized
statement of each element of special damages.
6. Expert Testimony
The parties must file a brief summary of the qualifications of all expert witnesses, and a
concise statement of each expert's expected opinion testimony and the material upon which that
testimony is expected to be based. See LOCAL R. CIV. P. 16.1(d)(5).
The parties must comply with all expert disclosure requirements and deposition rules,
listed at FED. R. CIV. P. 26(a)(2) and (b)(4), and as ordered by the Court. The testimony of
experts will be limited to the opinions and the grounds for each opinion set forth in the expert's
report and any supplemental disclosure. See FED. R. CIV. P. 26(a)(2) and (e)(1). Failure to
comply may result in preclusion of the testimony.
7. Deposition Testimony
The parties must file an itemized list of deposition testimony (with page and line
references), that they intend to use in their direct case. The parties should attempt to reconcile
and resolve any disputes as to admissibility prior to the pretrial conference. See FED. R. CIV. P.
32.
At least ONE WEEK before the pretrial conference, a party objecting to the use of
deposition testimony must file its objections, setting forth the basis for the objection, supporting
authority, and a copy of the transcript of the objectionable testimony. See FED. R. CIV. P. 32(b).
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If no objections are filed, the party will be deemed to have waived any objections to the proffered
deposition testimony.
8. Legal/Evidentiary Issues and Motions in Limine
The parties have an obligation to advise the Court as soon as possible of any significant
issues of law involved in the case and any unusual questions relative to the admissibility of
evidence, trial procedure or substantive issues.
At least ONE WEEK before the pretrial conference the parties must file any motions
in limine concerning potential legal or evidentiary issues or procedural problems that may arise
during the trial. See FED. R. CIV. P. 26(a)(3).
All motions in limine must be accompanied by a memorandum of law which
includes citation to relevant case law to assist the Court in resolving the issues.
I do not intend to waste juror time in dealing with issues that could have been raised and
discussed prior to trial. Surprises and gamesmanship have no place in a trial and benefit neither
side. It is in the parties' interest that the Court be aware of potential problems so that careful
consideration can be given to the parties' respective positions.
Some issues cannot be anticipated, but many evidentiary issues can be anticipated.
Examples of such issues include: objections to the use of deposition testimony under FED. R.
CIV. P. 32(a); objections to the admissibility of evidence based on FED. R. CIV. P. 37; the
potential of witnesses to assert testimonial privileges; impeachment of any witness by evidence
of his/her character or specific instances of conduct, under FED. R. EVID. 608, or by evidence of
prior conviction, under FED. R. EVID. 609; the admissibility of other crimes, wrongs, or acts to
prove intent and motive, etc. under FED. R. EVID. 404(b); authentication of tapes and voice
identification; hearsay problems; prior inconsistent statements; and objections to expert
testimony.
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Objections not so disclosed, other than objections under FED. R. EVID. 402 and 403, may
be waived absent a showing of good cause. See FED. R. CIV. P. 26(a)(3).
The Court may resolve in limine motions at the pretrial conference or schedule argument
on a separate date before trial.
9. Jury Instructions
The Court gives standard jury instructions in every civil case, and the parties are not
required to file proposed instructions concerning these matters. The Court's standard
instructions include:
Province of the Court and Jury
Evidence in the Case
Direct and Circumstantial Evidence
Questions are not Evidence
Jury's Recollection Controls
Court's Questions to Witnesses
Burden of Proof
Preponderance of the Evidence
Credibility of Witnesses
Damages Must be Reasonable and not Speculative
Manner of Deliberations
Plaintiff must file its proposed instructions on the substantive matters raised in the
complaint, that is, the law relating to the causes of action pleaded, including damages. Proposed
jury instructions must be filed in a format that makes them available for selecting, cutting,
copying, and pasting into other applications. Otherwise, plaintiff must submit to the Court a
floppy disk or cd that contains a text version of the proposed instructions.
Each proposed jury instruction must be consecutively numbered and each instruction
must be set forth on a separate page. An index or table of contents for the instructions must be
included. Legal authority or the source for the instruction must be set forth at the end of each
instruction. If the instruction comes from a form book, for example, Sand, Modern Federal Jury
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Instructions; Devitt & Blackmar, Federal Jury Practice and Instructions, or New York Pattern
Jury Instructions (PJI), the parties must advise the Court as to whether the instruction as
presented has been modified from the instruction that appears in the form book. Where no
modification to the form instruction is necessary, it is sufficient to request a particular form
instruction by listing the source, section number and name of the charge.
Defendant must file its own proposed jury instructions, in the form set forth above,
regarding any counterclaim, affirmative defense or other issue on which it has the burden of
proof.
The parties must file any objections or requested modifications to proposed instructions
at least ONE WEEK before the pretrial conference.
Any other proposed jury instructions from either party, based on events occurring during
trial, must be filed as soon as possible.
PREPARATION OF INSTRUCTIONS BEFORE TRIAL IS IMPORTANT BECAUSE
THE COURT USUALLY INSTRUCTS THE JURY ON SOME ISSUES IN THE CASE AT
THE COMMENCEMENT OF THE TRIAL IN ADDITION TO THE CONCLUSION OF THE
TRIAL.
10. Courtesy Copies
Each party should bring to the pretrial conference one (1) courtesy copy of all pretrial
submissions filed pursuant to this Order.
An additional courtesy copy of the pretrial submissions required in Paragraphs B.1. (Voir
Dire Information) and B.2(a) (Exhibit Lists) of this Order must be provided to the court reporter
on the day of the pretrial conference.
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11. Non-Jury Trials
In the case of a non-jury trial, the parties need not prepare the pretrial submissions
required in Paragraphs B.1(a), (b), (c), and (e) (Voir Dire Information) or B.9. (Jury Instructions).
The parties must file all other pretrial submissions required herein, including a witness list in
accordance with Paragraph B.1(d).
C. JURY SELECTION
Concerning jury selection, the parties should be familiar with LOCAL R. CIV. P. 47.1, 28
U.S.C. § 1870, and FED. R. CIV. P. 48. In most civil cases, a jury of eight (8) persons will be
selected. The Court will use the "struck jury system" as described in LOCAL R. CIV. P. 47.1(f).
The Court will allow peremptory challenges as provided in LOCAL R. CIV. P. 47.1, 28 U.S.C. §
1870, and FED. R. CIV. P. 48. Generally, the Court allows four (4) peremptory challenges per
side.
Under this struck-jury system, the clerk will select a panel that equals the total of the
number of jurors (8), plus the combined number of peremptory challenges allowed to the parties
(normally 8). In the normal single-plaintiff, single-defendant case a panel of sixteen (16) jurors
will be selected.
The Court (and, under certain circumstances, counsel) will conduct voir dire of the panel.
The Court will give an opportunity to counsel, outside the presence of the jury, to make
challenges for cause. Jurors on the panel excused for cause will be replaced by new prospective
jurors.
Once the Court has determined that none of the panel should be dismissed for cause, the
parties may exercise their peremptory challenges. Defendant will exercise peremptory challenges
first by writing the name and number of the juror on the strike sheet that will be provided. The
strike sheet will then go to the plaintiff who will make his/her own strike by writing the name
and number of a juror. The strike sheet will then come to the Court who will announce the jurors
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that have been excused. This process will continue against the panel until the parties have either
exhausted or waived the allotted number of peremptory challenges. Plaintiff, who has the burden
of proof at trial, will get the last strike.
If a party does not exercise a challenge during a particular round, the party loses only that
peremptory challenge and may make other peremptory challenges in later rounds against anyone
on the panel.
The first eight (8) panel members remaining will constitute the jury.
Sheets for filling in juror information during voir dire are available from my courtroom
deputy.
D. TRIAL PROCEDURE
The Court will advise counsel of its daily schedule so that arrangements can be made for
witnesses, etc.
The evening before each day's session, counsel will advise the Court and opposing
counsel of the witnesses expected to be called the following day. Counsel are responsible for
having witnesses available as needed.
I expect the parties to cooperate in scheduling witnesses. The Court is not adverse to
taking witnesses out of turn to accommodate experts and other non-party witnesses.
Jury time is valuable time and the Court will not tolerate squandering of this time with
bench conferences and conferences in chambers concerning matters that could be resolved before
the jury is summoned, during breaks, or in the evening.
If the Court recesses to 8:30 a.m., for example, it is expected that we will begin proof at
that time. If the parties even remotely expect problems or need to see the Court, they must make
arrangements to meet with the Court at a time before the jury is scheduled to arrive, or in the
evening after the jury has left. Nothing aggravates jurors more than waiting without
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explanation for long periods of time while counsel resolve matters that could have been
resolved sooner.
The Court may set time limits for opening statements and closing arguments and it is
expected that counsel will adhere to those limits.
All charts not intended to be offered into evidence, other demonstrative evidence or items
of physical evidence, must be made available for inspection and examination in Rochester, or
some other mutually agreeable place, at least two (2) business days before being offered in
evidence or displayed to the jury.
Exhibits that have been marked and received into evidence will be kept during
proceedings on the counter next to the court reporter. In the evenings, each side will be
responsible for maintaining custody of its exhibits and returning them to court the next day
(unless other arrangements are made with the Court).
So that the Court, jurors, all parties and the public can hear the proceedings, counsel
should address questions to witnesses from podiums in the courtroom. I will allow some
peripatetic questioning as long as counsel can be heard.
Counsel need not ask permission to approach a witness with a document, but otherwise
questioning should be done from no closer than the podium.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
June 28, 2013.
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