Opinion
NO. CIV. 2:10-629 WBS EFB.
September 6, 2011
FINAL PRETRIAL ORDER
A Final Pretrial Conference was held in this matter, pursuant to the provisions of Rule 16(d) of the Federal Rules of Civil Procedure and Local Rule 282, on September 6, 2011. Aldon Louis Bolanos appeared as counsel for plaintiff; Kelli Michelle Kennaday appeared as counsel for defendant. Following the hearing, the court enters this Final Pretrial Order:
I. Jurisdiction-Venue
Jurisdiction is predicated upon federal question jurisdiction, 28 U.S.C. § 1331, because plaintiff has brought a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e- 2, 2000e-3. Venue is undisputed and is hereby found to be proper.
II. Jury-Nonjury
The parties have demanded a jury trial. Accordingly, the action shall be tried, pursuant to Federal Rule of Civil Procedure 48, before a jury consisting of no less than six and no more than twelve members.
III. Jury Instructions and Proposed Form of Verdict
No later than ten court days before the trial date, counsel for plaintiff shall lodge and serve, pursuant to Local Rule 163, copies of all jury instructions that plaintiff requests be given on plaintiff's claim. At that time, counsel for plaintiff shall also file and serve a copy of a proposed form of verdict.
No later than seven court days before the trial date, counsel for defendant shall file and serve any objections to the instructions proposed by plaintiff. At the same time, counsel for defendant shall lodge and serve, pursuant to Local Rule 163, copies of any and all jury instructions not already proposed by plaintiff, which defendant requests be given. Also at that time, counsel for defendant shall file and serve a copy of any proposed form of verdict and shall also file any objections to plaintiff's proposed form of verdict.
No later than four court days before the trial date, counsel for plaintiff shall file and serve any objections to the instructions proposed by defendant and to any proposed form of verdict.
Pursuant to Local Rule 163, any other instructions thereafter presented will be refused unless it is shown either: (1) that the necessity for the request arose in the course of trial; could not reasonably have been anticipated prior to trial from the pleadings, discovery, or nature of the action; and the request for such additional instructions is presented to the court as promptly as possible; or (2) that the refusal to give such instructions would constitute plain error.
Likewise, any objections to proposed instructions not made in accordance with this Order will be overruled as untimely unless it is shown either: (1) that the grounds therefor arose in the course of trial and the intention to make such objections is communicated to the court as promptly as possible, or (2) that the giving of such instructions would constitute plain error.
IV. Voir Dire Questions
No later than fourteen days before the trial date, counsel for each party shall submit all proposed jury voir dire questions.
V. Trial Briefs/Motions in Limine
No later than fourteen days before the trial date, counsel for each party shall file trial briefs, which shall include any motions in limine, pursuant to Local Rule 285. No later than seven days before trial, the parties may file oppositions, if any, to the motions in limine.
VI. Remaining Claim
After the court's Order granting in part defendant's motion for summary judgment, the sole remaining claim for trial is plaintiff's claim for race discrimination under Title VII.
VII. Witnesses
(A) Plaintiff anticipates calling the witnesses identified at Exhibit "A" attached hereto.
(B) Defendant anticipates calling the witnesses identified at Exhibit "B" attached hereto.
(C) No other witnesses will be permitted to testify at trial unless:
(1) all parties stipulate that the witness may testify;
(2) the party offering the witness demonstrates that the witness is for the purpose of rebutting evidence which could not have been reasonably anticipated at the time of the Pretrial Conference; or
(3) the witness was discovered after the Pretrial Conference.
(D) Testimony of a witness not designated in this Order, which is offered under paragraph VII(C)(3), above, upon the grounds that the witness was discovered after the Pretrial Conference, will not be permitted unless:
(1) the testimony of the witness could not reasonably have been discovered prior to the Pretrial Conference;
(2) the court and opposing counsel were promptly notified upon discovery of the testimony; and
(3) counsel proffered the witness for deposition if time permitted or provided opposing counsel a reasonable summary of the testimony if time did not permit a deposition.
VIII. Exhibits
(A) Plaintiff intends to offer the exhibits identified at Exhibit "C" attached hereto.
(B) Defendant intends to offer the exhibits identified at Exhibit "D" attached hereto.
(C) Each party may offer any exhibit designated by any other party.
(D) No other exhibits will be received in evidence unless:
(1) all parties stipulate that the exhibit may be received in evidence;
(2) the party offering the exhibit demonstrates that the exhibit is for the purpose of rebutting evidence which could not have been reasonably anticipated at the time of the Pretrial Conference; or
(3) the exhibit was discovered after the Pretrial Conference.
(E) An exhibit not designated in this Order, which is offered under paragraph VIII(D)(3), above, upon the grounds that the exhibit was discovered after the Pretrial Conference, will not be received in evidence unless:
(1) the exhibit could not reasonably have been discovered prior to the Pretrial Conference;
(2) the court and opposing counsel were promptly notified upon discovery of the exhibit; and
(3) counsel provided copies of the exhibit to opposing counsel if physically possible or made the exhibit reasonably available for inspection by opposing counsel if copying was not physically possible.
(F) Each party shall exchange copies of all exhibits identified in this Order, or make them reasonably available for inspection by all other parties, no later than seven calendar days before the trial date. Any and all objections to such exhibits shall be filed and served not later than four calendar days before the trial date.
(G) The attorney for each party is directed to appear before trial and present an original (and if physically possible one copy) of each exhibit to Deputy Clerk Karen Kirksey Smith at 8:30 a.m. on the date of trial.
(H) Each exhibit which has been designated in this Order and presented on the morning of the date of trial shall be pre-marked by counsel. Plaintiff's exhibits shall bear numbers; defendant's exhibits shall bear letters. If no objection has been made to such exhibit pursuant to paragraph VIII(F), above, such exhibit will require no further foundation and will be received in evidence upon the motion of any party at trial.
IX. Further Discovery and Motions
No further motions shall be brought before trial except upon order of the court and upon a showing of manifest injustice. Fed.R.Civ.P. 16(e). No further discovery will be permitted except by the express stipulation of all parties or upon order of the court and upon a showing of manifest injustice. Id.
X. Use of Depositions or Interrogatories
No later than twenty calendar days before the trial date, counsel for each party shall file and serve a statement designating all answers to interrogatories and all portions of depositions intended to be offered or read into evidence, with the exception of portions to be used only for impeachment or rebuttal. No later than ten calendar days before the trial date, counsel for any other party may file and serve a counter-designation of other portions of the same depositions intended to be offered or read into evidence and may file evidentiary objections to any other parties' designation. No later than seven calendar days before the trial date, the parties may file evidentiary objections to any other party's counter-designation.
XI. Date and Length of Trial
The trial is set for November 1, 2011, at 9:00 a.m. in Courtroom No. 5. The court estimates that the trial will last between three and five court days.
XII. Daubert Procedure
Any challenges based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), will be raised and resolved outside the presence of the jury just prior to when the challenged expert will be called to give testimony. Any challenged expert shall be present for such a challenge, and shall be available for questioning.
XIII. Evidence Presentation Equipment
The court has new technical equipment, but may not have all of the "state-of-the-art" audio visual equipment and may not have support personnel necessary for the effective presentation of evidence by electronic means. Counsel are therefore encouraged to present their documentary evidence by conventional means. If any party feels that electronic presentation is necessary, they should contact the Courtroom Deputy prior to trial to determine what equipment the court has and how to use that equipment or bring their own audio visual equipment to the courtroom and be prepared to operate it themselves.
XIV. Settlement Conference
A Settlement Conference is set before Magistrate Judge Edmund F. Brennan at 10:00 a.m. on October 20, 2011.
Each party is ordered to have a principal with full settlement authority present at the conference or be fully authorized to settle the matter on any terms. No later than seven days before the date of the Settlement Conference, counsel for each party shall submit a confidential Settlement Conference Statement to the settlement judge. Such statements shall not be filed, but shall be delivered to the chambers of the settlement judge, in hard copy.
XV. Objections to Pretrial Order
Any objections or suggested modifications to this Pretrial Order shall be filed and served within five court days from the signed date of this Order. All references herein to the date of this Order shall refer to the date the tentative order is filed and not to the date any amended order is filed. If no objections or modifications are made, this Order will become final without further order of the court and shall control the subsequent course of the action, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure.