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28 The caption has been changed to reflect the Order filed *

December 21, 2005. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JAVIER RAIGOZA, )

) 2:04-cv-1208-GEB-KJM

Plaintiff, )

)

v. ) FINAL PRETRIAL ORDER

)

ARAMARK CORPORATION; )

ARAMARK UNIFORM AND CAREER )

APPAREL, INC.; ARAMARK )

UNIFORM AND CAREER APPAREL )

GROUP, INC.; and BILL )

VERVALIN, )

)

Defendants. )

*

)

The final pretrial conference scheduled for February 13,

2006, is vacated because of the issuance of this Order. The

hearing on the Order to Show Cause is rescheduled for commencement

at 3:30 p.m. on March 20, 2006.

I. JURY/NON-JURY

All issues shall be tried to a jury.

II. FACTUAL AND/OR LEGAL CONTENTIONS

A. The Final Pretrial Order supersedes the pleadings

and controls the facts and claims which may be presented at trial. 

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Any legal theory of relief or affirmative defense asserted in the

pleadings but not preserved for trial in this section of the Final

Pretrial Order cannot be raised during the trial. Therefore, to

preserve an issue for trial, and to be entitled to jury

instructions on that issue, the issue shall be identified and

preserved in this section of the Order. Failure to do so

dismisses, waives or abandons that issue, claim or defense. 

Hotel Emp., et al. Health Tr. v. Elks Lodge 1450, 827 F.2d 1324,

1329 (9th Cir. 1987) (“Issues not preserved in the pretrial order

are eliminated from the action.”).

B. The following issues are preserved for trial provided

jury instructions are submitted as required by section “IX” of this

Order:

Plaintiff’s claims

(1) That Defendant Vervalin violated 42 U.S.C.

section 1981 by taking a portion of Plaintiff’s bonus in August of

2002.

(2) That Defendants Aramark Uniform and Career

Apparel, Inc.; Aramark Uniform Services; Aramark; Aramark

Corporation; and Aramark Uniform and Career Apparel, Inc. are

liable for Defendant Vervalin’s violation of 42 U.S.C. section 1981

on the basis of vicarious liability and/or respondeat superior.

Affirmative defenses 

The defenses asserted in the parties’ Joint Pretrial

Statement have not been preserved either because they did not

constitute affirmative defenses, Zivkovic v. Southern Cal. Edison

Co., 302 F.3d 1080, 1088 (9th Cir. 2002), or because they were not

presented in a filed motion before the law and motion deadline

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passed, see U.S. v. Hartford Fire Ins. Co., 112 F. Supp. 2d 1023,

1028-29 (D. Haw. 2000).

C. In addition to the matters set forth in Local Rule

16-285, the parties shall brief the following point of law in their

trial briefs. 

(1) The elements, standards, and burdens of proof as

to Plaintiff’s cause of action, including citations of authority in

support thereof.

Notwithstanding Local Rule 16-285, trial briefs shall be

filed with the Court no later than twenty (20) court days prior to

the date of trial. A joint or partial joint trial brief is

permitted. All legal positions briefed in the trial brief shall be

supported with case and applicable statutory authority. See Local

Rule 16-285. If separate or partial separate trial briefs are

submitted, responding briefs, if any, shall be filed with the Court

no later than five (5) court days prior to trial. The trial

brief(s) must include “a summary of points of law, including

reasonably anticipated disputes concerning admissibility of

evidence, legal arguments, and citations of authority in support

thereof.” Local Rule 16-285(a)(3).

III. WITNESSES

A. Plaintiff expects to call as witnesses, either in

person or by deposition, some or all of the persons listed in

Exhibit A, attached hereto.

B. Defendant expects to call as witnesses, either in

person or by deposition, some or all of the persons listed in

Exhibit B, attached hereto.

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C. Each party may call a witness designated by the

other.

D. No person, other than those named on these witness

lists, will be permitted to testify unless:

(1) The party offering the witness demonstrates that

the witness is for the purpose of rebutting evidence which could

not reasonably be anticipated at the pretrial conference; or

(2) The witness was discovered after the pretrial

conference and the proffering party makes the showing required in

“E”, below.

E. If a witness is discovered after the pretrial

conference, counsel for the party offering the witness shall

promptly inform the Court and opposing parties of the existence of

the unlisted witness so that the Court may consider at trial

whether the witness shall be permitted to testify. The witness

will be not be permitted to testify unless:

(1) The witness could not reasonably have been

discovered prior to pretrial;

(2) The Court and opposing counsel were promptly

notified upon discovery of the witness;

(3) If time permitted, counsel offered the witness

for deposition; and

(4) If time did not permit, a reasonable summary of

the witness' testimony was provided to opposing counsel.

IV. EXHIBITS

A. Plaintiff intends to offer in evidence the exhibits

described in Exhibit C, attached hereto.

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B. Defendant intends to offer in evidence the exhibits

described in Exhibit D, attached hereto.

C. No other exhibits will be permitted to be introduced

unless:

(1) The party seeking to use the unlisted exhibit

demonstrates that the exhibit is being used to rebut evidence which

could not reasonably have been anticipated at the pretrial

conference; or

(2) The unlisted exhibit was discovered after the

pretrial conference and the offering party makes the showing

required in paragraph “D”, below.

D. Any party proposing to introduce an exhibit which was

discovered after the pretrial conference shall promptly notify the

Court and opposing counsel of the existence of such exhibit. The

Court will not permit any such exhibit to be introduced unless it

finds:

(1) That the exhibit could not reasonably have been

discovered prior to the pretrial conference;

(2) The Court and counsel were promptly informed of

the exhibit’s existence; and

(3) That the offering party has delivered a copy of

the exhibit to opposing counsel, or, if the exhibit may not be

copied, that the offering counsel has made the exhibit reasonably

available for inspection by opposing counsel. 

E. Plaintiff’s exhibits shall be numbered and marked

with colored stickers provided by the Court while Defendant's

exhibits shall be designated by alphabetical letter also marked

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28 The parties have leave to file joint exhibits. The above 1

procedure is designed for separate exhibits.

6

with colored stickers provided by the Court. To obtain stickers,

parties should contact the Clerk of Court at (916) 930-4000.

The parties are directed to exchange with each other, at

least twenty (20) court days prior to trial, copies of all of their

respective exhibits, marked with exhibit stickers provided by the

Court. Within five (5) court days after receipt and examination of

the exhibits, each party shall file with the Court and serve upon

opposing counsel objections, if any, to the exhibits, referencing

the exhibits as marked by exhibit sticker and specifying the basis

for each objection. Failure to exchange exhibits as ordered could 1

result in the exhibit not being used at trial and/or the imposition

of sanctions. The failure to make objections in the manner

prescribed by this section shall constitute a waiver of objections. 

A party seeking to admit into evidence an exhibit to which no

objection was made must identify said exhibit for the record and

then move it into evidence. 

Counsel shall produce all exhibits to the Clerk’s Office

on the Friday before the before trial date, no later than 4:00 p.m. 

At that time, the parties shall also furnish the Court with a copy

of each exhibit, unless the exhibit is physically incapable of

being reproduced. Failure to produce exhibits as ordered could

result in waiver of the right to offer those exhibits. Each party

submitting exhibits shall furnish a list to the Court, the

courtroom deputy and opposing counsel itemizing the exhibits. 

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Counsel for the parties are required to meet and confer 2

on whether it is appropriate to submit any documents to the judge

prior to trial. If the parties decide this is appropriate, they

shall reflect their agreement in a stipulation which has attached

thereto whatever documents they agree can be considered by the

judge before trial. The stipulation should be filed and submitted

to the judge’s chambers at the parties’ earliest convenience.

7

V. FURTHER PREPARATION FOR USE OF DISCOVERY DOCUMENTS2

A. It is the duty of counsel to ensure that any

depositions which are to be used at trial for any purpose shall

have been filed with the clerk, and counsel are cautioned that a

failure to discharge this duty may result in preclusion of the use

of the unfiled depositions or in the imposition of such other

sanctions as the Court deems appropriate.

B. No later than twenty (20) court days before the trial

commencement date, counsel for each party shall serve on the other

parties a statement designating all answers to interrogatories and

all portions of depositions (except for passages to be used solely

for refreshing recollection, impeachment or rebuttal). No later

than ten (10) court days before the trial commencement date,

counter-designations of other portions of these discovery documents

may be served. No later than five (5) court days before trial, the

parties shall file and serve any preserved evidentiary objections

to any designated discovery, or said objections are waived.

VI. AGREED STATEMENT

The parties shall submit a short, jointly-prepared

statement concerning the nature of this case that can be read to

the jury at the commencement of trial. The statement shall be

provided to the Court no later than ten (10) court days before the

commencement of trial. If the parties fail to do this, they may be

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required to give their respective opening statements before voir

dire. Separate statements shall be submitted if agreement is not

reached.

VII. SEPARATE TRIAL OF ISSUES

The trial will be conducted in two phases: liability and

punitive damages. If the jury finds punitive damages are

recoverable in the liability phase, trial on the amount of punitive

damages will immediately occur. During the first phase of the

trial, the jury will be given a liability instruction on punitive

damages along with the other closing instructions and a verdict

form which will include the question whether punitive damages

should be awarded. If the answer is yes, the second phase of the

trial would then occur with the presentation of financial condition

evidence pertinent to the amount of punitive damages, following

which the parties would present closing argument on that issue and

a second phase jury instruction would be given to the jury on the

issue. The jury would then deliberate on the issue and fill in a

punitive damages verdict form.

VIII. JURY INSTRUCTIONS, VOIR DIRE, AND VERDICT FORMS

A. The parties are to prepare jury instructions, in the

manner specified in paragraph B below. Counsel shall tailor all

general instructions to the facts and issues in suit.

B. Counsel are directed to confer and to attempt to

agree upon a joint set of jury instructions. All instructions,

both general and specific, shall be submitted in the exact

numerical order counsel desires them given to the jury and shall be

tailored to the facts and issues in suit.

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The joint set of instructions shall be filed with the

court clerk fifteen (15) court days prior to the date of the trial

and shall be identified as the “Jury Instructions Without

Objection.” See L.R. 51-163(b). As to instructions on which there

is dispute, the parties shall adhere to the following procedure: 

1) the party offering the disputed instruction(s) shall submit the

instruction(s) as its package of proposed jury instructions, shall

submit a brief memorandum in support of the proposed instruction(s)

and shall number the disputed instruction in a manner that shows

where each disputed instruction should be placed in the tendered

agreed upon instructions. The contested instruction(s) and

memorandum in support shall be filed with the joint set of

instructions fifteen (15) court days prior to the date of the

trial; 2) the party opposed to the contested instruction(s) shall

submit a brief memorandum succinctly stating the legal basis of the

objection(s); 3) the memoranda in opposition to the contested

instruction(s) shall be filed ten (10) court days prior to the date

of the trial.

C. All instructions shall be, to the extent possible,

concise, understandable, and neutral statements of law. They shall

be prepared in accordance with Local Rule 51-163. Ninth Circuit

Pattern Instructions are preferred.

D. It is the parties’ responsibility to ensure that

jury instructions are submitted on all issues preserved for trial

in accordance with the schedule set forth above. Pursuant to Local

Rule 51-163, instructions not presented in accordance with this

Order will be refused unless it is shown either (1) that the

necessity for the request arose in the course of trial; the

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instructions could not reasonably have been anticipated prior to

trial from the Final Pretrial Order; 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 manifest injustice under Rule 16(e). 

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.

E. Most of the examination of prospective jurors is

conducted by the Court. The parties are directed to meet and

confer and attempt to agree upon a joint set of proposed voir dire

questions. These questions shall include any voir dire questions

supplied by the Court that the parties believe are necessary. The

joint set of voir dire questions shall be filed with the Court

fifteen (15) court days prior to the date of the trial. Parties

may also submit proposed voir dire questions which are disputed. 

Disputed voir dire questions shall be filed with the Court fifteen

(15) court days prior to the date of the trial and shall be

accompanied by an explanation as to the need for the question and

supporting case authority when available. The opposing party shall

respond with reasons for the opposition and any supporting case

authority no later than ten (10) court days prior to the date of

trial. Each side is granted ten (10) minutes to conduct voir dire

following the Court’s examination of prospective jurors.

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F. The parties shall file a joint verdict form

concurrently with proposed jury instructions fifteen (15) court

days prior to the commencement of trial. See L.R. 51-163(e). A

special verdict or interrogatories shall be included for all

factual disputes submitted to the jury that must be resolved before

questions of law can be decided, and for any other issue on which

specific responses are desired. The verdict form shall be prepared

in accordance with Local Rule 51-163(e). At the same time, where

disagreements exist, the parties shall explain the disagreement and

submit points and authorities supporting their respective

positions.

At the time of electronically filing the jury

instructions and verdict form, counsel shall also submit a copy of

the sanitized joint jury instructions, the sanitized disputed jury

instructions, and the joint verdict form to the Court by email to

geborders@caed.uscourts.gov in accordance with L.R. 51-163(b)(1).

G. The failure of one or more of the parties to

participate in the preparation of joint jury instructions, proposed

voir dire questions, or verdict form does not excuse the other

parties from their obligation to timely file these documents with

the Court in accordance with this Order. In the event that a party

fails to participate as ordered, the party timely submitting these

documents shall include a declaration explaining why it was unable

to obtain the cooperation of the other party or parties.

///

///

///

///

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As explained in United States v. Blouin, 666 F.2d 796, 3

798 (2d Cir. 1981), “the goal of the ‘struck jury’ system is to

whittle down an initially selected group . . . [to the amount of

jurors] who will serve as the petit jury.” The selected group

consists of the jurors who will hear the case, plus the number of

jurors required to enable the parties to use the combined number of

peremptory challenges allotted to both sides for striking jurors

from the group. Typically extra jurors are included in the select

group in the event the minimum amount of jurors required for the

“struck system” is reduced “for cause” or some other reason.

More could be seated. 4

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IX. USE OF STRUCK JURY SELECTION SYSTEM

Eight jurors will be impaneled. The “struck jury” system

will be used to select the jury. At the beginning of the voir 3

dire process, eighteen prospective jurors, randomly selected by the

Jury Administrator, will be seated for voir dire. The order of 4

the jurors’ random selection is reflected by the order in which

they will be seated. The first randomly selected juror will be in

jury seat number one, which is at the extreme right-hand side of

the jury box in the top row as the jury box is viewed from the well

of the courtroom. The eighth juror will be in the eighth seat. 

The ninth selected juror will occupy the seat located at the

extreme right-hand side of the jury box in the bottom row. The

fifteenth seat will be in the left-hand side of that row. Three

chairs will be placed in front of the jury box. The sixteenth

juror will occupy the seat on the right and the eighteenth juror

will occupy the seat on the left. The first eight jurors on a

list, which shall be given to counsel, will constitute the petit

jury unless one or more of those jurors is excused for some reason. 

Assuming that the first and fifth jurors on the list are excused,

the second listed juror becomes the first, and the other jurors’

numbers are changed accordingly, with the ninth juror on the list

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During the questioning, the attached Query Re Excuse 5

Potential Jurors form could be given to the parties to determine if

a particular juror should be excused. The attached for cause form

will also be used. 

For example, assuming Plaintiff elects to strike the 6

juror in seat number 6, that strike will be exercised and then the

strike sheet is given to defense counsel. Assuming defense counsel

then strikes the juror in seat 4, the first line of the strike

sheet will appear as follows:

Plaintiff 1 6 Defendant 1 4 

Defense counsel would then give the strike sheet back to Plaintiff

so he could exercise his second strike.

13

becoming seventh on the list; however, the jurors continue to be

identified by their original numbers.

Following the voir dire questioning, each side will

exercise its three allowed peremptory strikes. A copy of the 5

“strike sheet” which will be used is attached to this Order. 

Generally, the potential jurors are given a break for the amount of

time the parties estimate it will take them to exercise peremptory

strikes. Therefore, before the striking process begins, the

parties are requested to provide an estimate of how long it will

take to exercise their peremptory strikes so the potential jurors

can be allowed to take a break for that amount of time. Peremptory

strikes will be exercised silently, by passing the strike sheet

between the parties, with the Plaintiff going first. To use a

strike, write the seat number of the juror above the line where the

strike is required to be designated. A party who does not use a 6

strike waives any further right to exercise that strike and is

required to reflect this waiver by writing the word “pass” on the

strike sheet where the strike was supposed to have been exercised.

///

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The parties are required to meet and confer about the 7

length of the trial and to file a document no later than twenty

(20) court days before trial in which the length of trial is

estimated.

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X. ATTORNEYS FEES

The parties are referred to Local Rule 54-293 concerning

the post-trial procedure for seeking an award of attorney's fees. 

XI. JURY INSTRUCTION AND VERDICT FORM CONFERENCE

A jury instruction and verdict form conference will be

scheduled if necessary. See Local Rule 51-163(f). The attorney

who will try the case for each party shall attend the conference. 

The purpose of the conferences is to finalize these matters, to the

extent possible, before trial. The possibility of conferences

being scheduled does not relieve the parties from their obligation

to comply with all provisions of this Order.

XI. TRIAL DATE

Trial to a jury is set for March 28, 2006. A trial day 7

will commence at 9:00 a.m. and will adjourn at approximately 4:30

p.m. At the first phase of the trial, each side has ten (10)

minutes within which to make an opening statement to the jury and

forty-five (45) minutes within which to make a closing argument. 

If trial proceeds to the second phase, each side has ten (10)

minutes within which to make a closing argument on the punitive

damage issue. Counsel are to call Shani Furstenau, Courtroom

Deputy, at (916) 930-4114, one week prior to trial to ascertain the

status of the trial date.

XII. COMMUNICATION WITH JURY

The Court intends to communicate the following to the

jury just before it retires to deliberate:

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1. Is the United States Marshal’s representative 

present who will take charge of the jury?

2. Deputy Clerk, please give the oath to the United

States Marshal's representative.

3. The jury may take breaks at will, without advance

permission, under the general supervision of the

United States Marshal's representative.

4. The jury may go to lunch when they desire, without

advance permission, under the general supervision of

the United States Marshal’s representative. When

the jury leaves for lunch, the United States

Marshal's representative shall tell my courtroom

deputy clerk so that I, my staff, the lawyers, and

the parties can be relieved from standby status. 

This allows those on standby status to go to lunch

at the same time the jury has lunch.

5. The jury is authorized to adjourn for the evening

without advance permission, and without having to

return to this courtroom to be excused by me in

front of the parties, but the United States

Marshal’s representative shall tell my deputy

courtroom clerk when the jury adjourns so that the

judge, the judge's staff, the lawyers, and the

parties can be relieved from standby status.

6. When deliberations are continued the day after

evening adjournment, jurors are permitted to proceed

directly to the jury deliberation room. But jurors

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are to wait until all jurors are present before

resuming deliberations.

7. We desire you to deliberate between the hours of

9:00 a.m. and 4:30 p.m., as necessary. However, you

may deliberate for a shorter or longer period if you

desire, provided all of you are in agreement. 

Otherwise, you should let me know about the

disagreement.

8. If you have a cell phone and/or a device with a

wireless internet connection, you must give it to

the United States Marshal’s representative before

you go into the jury deliberation room so that we

can be assured that there is no interference with

your deliberations. That representative will return

it when you leave the jury deliberation room.

9. The United States Marshal’s representative will

maintain a post outside the jury deliberation room

to protect the jury from outside influences or

visitors. That representative shall not communicate

with you about the case or the court system because

such conversations could be misconstrued as a

communication that seeks to influence the jury. 

Stay in the jury room until all jurors are ready to

leave for a break or lunch.

10. Please escort all jurors to the deliberation room.

///

///

///

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FAILURE TO COMPLY WITH ALL PROVISIONS OF THIS ORDER MAY

BE GROUNDS FOR THE IMPOSITION OF SANCTIONS ON ANY AND ALL COUNSEL

AS WELL AS ANY PARTY OR PARTIES WHO CAUSE NON-COMPLIANCE WITH THIS

ORDER.

IT IS SO ORDERED.

Dated: February 10, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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STRIKE SHEET

Plaintiff 1 Defendants 1 

 2 2 

 3 3 

 

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Query re Excuse Potential Juror

Do you Agree that Juror No. ____ should be excused for the reason stated by the juror or

for any other reason? (Check applicable box below)

Plaintiff's Attorney Defendants’

Attorney 

RESPONSE: 9 9 9 9

 Yes No Yes No 

Case 2:04-cv-01208-GEB -KJM Document 103 Filed 02/10/06 Page 19 of 22
Whether Jurors Present During Exercise of Peremptory Challenges

Can the jury be excused for the amount of time it will take to exercise peremptory

challenges? (Set forth response in box below)

Plaintiff's Attorney Defendants’ Attorney 

RESPONSE: 9

 Yes No

9 9

 Yes No

9 

How long do you estimate it will take you to exercise peremptory challenges? (Set forth

minutes in box below)

Plaintiff's Attorney Defendants’ Attorney 

MINUTES: 9 9 

Case 2:04-cv-01208-GEB -KJM Document 103 Filed 02/10/06 Page 20 of 22
FOR CAUSE DOCUMENT

Plaintiff’s Counsel

If you have challenges for cause, state the seat number of the juror

involved and a brief explanation of the reason for the challenge.

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

List seat numbers of other for cause challenges: ____, ____,

____, ____, ____, ____, ____, ____, ____, ____, ____, ____, ____.

CHECK THIS BOX IF YOU HAVE NO CHALLENGES FOR CAUSE: 9

Signed:_____________________

Case 2:04-cv-01208-GEB -KJM Document 103 Filed 02/10/06 Page 21 of 22
FOR CAUSE DOCUMENT

Defendants’ Counsel

If you have challenges for cause, state the seat number of the juror

involved and a brief explanation of the reason for the challenge.

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

Seat ______

Explanation: ___________________________________________________

________________________________________________________________

________________________________________________________________

List seat numbers of other for cause challenges: ____, ____,

____, ____, ____, ____, ____, ____, ____, ____, ____, ____, ____.

CHECK THIS BOX IF YOU HAVE NO CHALLENGES FOR CAUSE: 9

Signed:_____________________

Case 2:04-cv-01208-GEB -KJM Document 103 Filed 02/10/06 Page 22 of 22