1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

REGINA BLACKHURST, )

) 2:04-cv-2191-GEB

Plaintiff, )

)

v. ) TENTATIVE FINAL PRETRIAL ORDER

)

TRINITY CHURCH, and DONNA )

HARRELL, )

) 

Defendants. )

)

This Tentative Final Pretrial Order will be used at the

Final Pretrial Conference scheduled for Monday, December 12, 2005,

at 1:30 p.m. in Courtroom 10.

I. DISPUTED EVIDENTIARY ISSUES

Any evidentiary dispute capable of being resolved in

limine shall be addressed using the following procedure. Counsel

for the parties are required to meet and confer about the dispute. 

If the meeting fails to resolve the dispute, the parties are to set

forth their respective positions on the dispute in a document

entitled "Stipulation Re: Evidentiary Disagreements," that shall

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 1 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 Since the judge disfavors side-bar conferences during

trial, counsel may be informed of this waiver in front of the jury.

Evidentiary disputes addressed in limine need not be included in

trial briefs as required by Local Rule 16-285(a)(3) (requiring that

"reasonably anticipated disputes concerning admissibility of

evidence" be included in trial briefs). 

2

be signed by counsel for the parties and filed no later than twenty

(20) court days before trial (“Stipulation”).

In the Stipulation, after the movant states the legal and

factual basis for opposing admission of a clearly-identified,

specific item of evidence, the nonmovant shall state its position.

Failure to state a basis for admissibility or non-admissibility of

disputed evidence constitutes a waiver or abandonment of that

basis. If the same argument or a portion thereof applies to a

dispute over other evidence, that argument may be incorporated by

reference where that other disputed evidence is argued. 

 This procedure is intended to expedite the trial by

allowing the judge to understand the factual context involving

disputed evidence and to make binding pretrial rulings. The

parties are cautioned that failure to utilize this procedure to

resolve an evidentiary issue which is capable of resolution in an

in limine motion may be deemed a waiver of objection to such

evidence, or could result in a ruling excluding the evidence.1

II. FACTUAL AND LEGAL CONTENTIONS

A. The Final Pretrial Order supersedes the pleadings

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

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

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 2 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

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. In the Joint Pretrial Statement (“JPS”) the parties

have agreed that the below-listed claims and defenses are to be

tried to a jury. Therefore, the following issues are preserved for

trial provided that jury instructions are submitted as required by

Section X of this Order:

1. Plaintiff’s Contentions: 

a. Plaintiff claims Defendant Trinity Church

discriminated against her on the basis of her gender in violation

of Title VII, 42 U.S.C. § 2000, because her pregnancy was a

motivating factor in Defendant’s decision to terminate Plaintiff’s

employment. 

b. Plaintiff claims Defendant Trinity Church

discriminated against her in violation of Title VII, 42 U.S.C. §

2000, because her gender was a motivating factor in Defendant’s

decision to pay Plaintiff $1.50 per hour less than a male teacher

who performed the same job as Plaintiff and who was less or equally

qualified as Plaintiff. 

c. Plaintiff claims Defendant Trinity Church

retaliated against her in violation of Title VII, 42 U.S.C. § 2000,

because (1) after Plaintiff opposed what Plaintiff characterizes

as a demotion to a “floating” teacher Defendant Harrell terminated

Plaintiff, and (2) after Plaintiff complained that her termination

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 3 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

was discriminatory Defendant Trinity Church published a defamatory

memorandum that falsely accused Plaintiff of inflicting corporal

punishment on a child. 

d. Plaintiff claims Defendant Trinity Church

violated the Equal Pay Act, 29 U.S.C. § 206, and California Labor

Code § 1197.5 by paying her $1.50 per hour less than a male teacher

who performed the same job as Plaintiff and who was less or equally

qualified as Plaintiff. 

e. Plaintiff claims Defendant Trinity Church

wrongfully terminated her in violation of public policy as

expressed in the California Constitution Article I, section 8, and

in Title VII 42, U.S.C. § 2000, since she was terminated because of

her pregnancy.

f. Plaintiff claims Defendant Trinity Church

and Defendant Harrell defamed Plaintiff’s reputation when Defendant

Harrell sent a memorandum to others within Trinity Church and to

the Department of Heath and Human Services which falsely stated

that Plaintiff had engaged in corporal punishment of a child and

was insubordinate. 

g. Plaintiff claims Defendant Trinity Church

and Defendant Harrell are liable for defamation for Plaintiff’s

republication of the false statements because it was foreseeable

that Plaintiff would have to republish the allegations while

pursuing subsequent employment after her termination. 

h. Plaintiff claims that Defendant Trinity

Church and Defendant Harrell are liable for intentional infliction

of emotional distress because Defendants intentionally or

recklessly engaged in outrageous conduct that caused Plaintiff to

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 4 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

suffer severe emotional distress. This claim is based on all or

part of the following allegations:

i. after it became known Plaintiff was

pregnant, Harrell removed Plaintiff from the lead Jr. Kindergarten

teacher position previously promised to Plaintiff, stating to

Plaintiff that now she was pregnant, a more responsible teacher was

needed; 

ii. two weeks later, Harrell hired

Plaintiff's pregnancy-leave replacement before discussing with

Plaintiff her pregnancy or her needs, then requesting Plaintiff

train the replacement for six months, creating fear Plaintiff's

employment was tenuous because she was pregnant;

iii. after hiring Plaintiff's replacement,

requesting Plaintiff work less than full-time without health

insurance and a written guarantee of future full employment while

her "replacement" took over her full-time position, creating even

more fear;

iv. telling Plaintiff it was unwise not

to take the part-time position, then stating a veiled threat that

Plaintiff would be expected to act like all other teachers who were

not pregnant; 

v. terminating Plaintiff because of her

pregnancy, stating she appeared stressed because of her pregnancy

or marriage; 

vi. falsely insinuating/accusing

Plaintiff of engaging in corporal punishment and using force to

discipline a child under her care to justify the termination,

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 5 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 Those defenses which do not constitute affirmative

defenses have not been listed. Zivkovic v. Southern Cal. Edison

Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“A defense which

demonstrates that plaintiff has not met its burden of proof is not

an affirmative defense. . . [A] defense which points out a defect

in the plaintiff’s prima facie case is not an affirmative defense.”

6

thereby substantially decreasing Plaintiff's ability to seek and

obtain future employment as a preschool teacher; 

vii. gratuitously publicizing those same

allegations to a state agency for inclusion in their permanent

file, perpetuating Plaintiff's inability to seek and obtain future

employment as a preschool teacher;

viii. failing to follow through with her

promise to give a good recommendation for Plaintiff once the baby

was born, thereby giving credence to the corporal punishment

allegations. 

i. Plaintiff’s claims of defamation and

intentional infliction of emotional distress are asserted against

Defendant Trinity Church under the doctrine respondeat superior.

j. Plaintiff claims that she is entitled to

recover punitive damages for violation of Title VII, 42 U.S.C.

§ 2000, for wrongful termination in violation of public policy, for

intentional infliction of emotional distress, and for defamation.

2. Defendants’ Contentions:

2

a. Defendants claim Plaintiff failed to

mitigate her damages for all claims except the Family Medical Leave

Act claim because Plaintiff did not seek other employment after her

termination. 

b. Defendants claim that Plaintiff cannot

recover general damages (for depression, anxiety, sleeplessness,

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 6 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 The parties were warned in the Status (Pretrial

Scheduling) Order filed March 22, 2005, that 

“since [the] process [of having them delineate trial

issues] is designed to promote efficiency and conserve

judicial resources, ‘there is no reason to require that

the elimination of non-trialworthy claims await a

formal motion for summary judgment.’” Berkovitz v. Home

Box Office, Inc., 89 F.3d 24, 29 (1st Cir. 1996). "If

the pretrial [statement] discloses that no material

facts are in dispute and that the undisputed facts

entitle one of the parties to judgment as a matter of

law," the Court may summarily dispose of the case or

issue. Portsmouth Square v. Shareholders Protective

Comm., 770 F.2d 866, 868-69 (9th Cir. 1985) (emphasis

added). 

(Order at 9.)

7

humiliation loss of self esteem, etc.) for violation of Title VII,

42 U.S.C. § 2000, for wrongful discharge in violation of public

policy, for defamation, and for intentional infliction of emotional

distress, because any such damages Plaintiff suffered were brought

upon herself by her inappropriate actions which led to her

termination, and/or other events in her personal life.

c. Defendant Trinity Church claims it is not

liable for retaliation under Title VII, 42 U.S.C. § 2000, for

publishing a memorandum stating that Plaintiff had inflicted

corporal punishment on a child because all of the allegations in

the memorandum were true. 

d. Defendants claim they are not liable for

defamation because the contents of the memorandum stating that

Plaintiff had inflicted corporal punishment on a child were

truthful. 

C. The following issues are not preserved for trial:3

1. Plaintiff claims Defendant Trinity Church and

Defendant Donna Harrell interfered with her right to take leave

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 7 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8

under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-

2654, by (1) failing to properly advise Plaintiff of her rights

under the FMLA, (2) misleading Plaintiff as to her rights under the

FMLA in its employee handbook, (3) requesting that Plaintiff reduce

her hours so that she would not qualify for FMLA leave, and (4)

terminating Plaintiff’s employment in order to prevent Plaintiff

from obtaining the benefits of FMLA leave. 

This claim is not preserved for trial because

nothing in the JPS reasonably indicates Plaintiff sought to invoke

her rights under the FMLA. Bailey v. Southwest Gas Co., 275 F.3d

1181, 1186 (9th Cir. 2002) (stating that defendant did not

interfere with plaintiff’s rights under the FMLA because plaintiff

never sought to invoke her rights). The JPS does not indicate

Plaintiff requested leave for her pregnancy, expressly or

otherwise, but rather that Plaintiff told her employer she desired

to continue employment as the “head teacher” throughout her

pregnancy. See id. (stating that plaintiff did not invoke her

rights under the FMLA “expressly or otherwise” because plaintiff

never requested leave and would not have taken leave if offered). 

Therefore, Plaintiff’s claim that Defendant Trinity Church

interfered wither her rights under the FMLA is dismissed. 

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

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

their trial briefs. 

1. The elements, standards, and burdens of proof as

to each of Plaintiff’s causes of action, including citations of

authority in support thereof.

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 8 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

2. The elements, standards, and burdens of proof

as to each of Defendant’s defenses, 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

“Attachment 2: Plaintiff’s Witness List” attached to the parties’

JPS. 

B. Defendants expect to call as witnesses, either in

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

“Defendants’ Witness List” attached to the parties’ JPS. 

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:

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 9 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10

(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 “Attachment 1: Plaintiff’s Exhibits” attached to the

parties’ JPS.

B. Defendants intend to offer in evidence the exhibits

described in “Defendants’ Trial Exhibits” attached to the parties’

JPS.

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 10 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

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

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

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

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 11 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4 The parties have leave to file joint exhibits. The above

procedure is designed for separate exhibits.

12

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.4 Failure to exchange exhibits as ordered could

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. 

///

///

///

///

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 12 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 Counsel for the parties are required to meet and confer

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.

13

V. FURTHER PREPARATION FOR USE OF DISCOVERY DOCUMENTS5

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. FURTHER DISCOVERY OR MOTIONS

Pursuant to the Court's Pretrial Scheduling Order, all

discovery and law and motion was to have been completed prior to

the date of the final pretrial conference. That order is

confirmed. The parties are, of course, free to conduct any

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 13 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

additional discovery they desire pursuant to informal agreement. 

However, any such agreement will not be enforceable in this Court.

VII. SETTLEMENT NEGOTIATIONS

No settlement conference is scheduled in this matter. If

the parties believe that a settlement conference would be

productive and facilitate resolution of this case, the parties may

contact the Court. If the Court schedules a settlement conference

at the request of the parties, each party would be directed to have

a principal with authority to settle the case on any terms present

at the settlement conference. 

In addition, each party would have to submit a settlement

conference statement directly to the chambers of the settlement

judge, five (5) court days prior to the settlement conference. 

Such statements would not have to be filed with the clerk nor

served on opposing counsel. However, each would be required to

notify the other party or parties that the statement was submitted

to the judge’s chambers.

VIII. 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

required to give their respective opening statements before voir

dire. Separate statements shall be submitted if agreement is not

reached.

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 14 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

15

IX. 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.

X. 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.

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

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 15 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

16

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

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

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 16 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

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 fifteen (15) minutes to conduct voir

dire following the Court's examination of prospective jurors.

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

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 17 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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

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

(continued...)

18

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.

XI. USE OF STRUCK JURY SELECTION SYSTEM

Eight (8) jurors will be impaneled. The “struck jury”

system will be used to select the jury.6 At the beginning of the

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 18 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6(...continued)

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.

7 More could be seated.

8 During the questioning, the attached Query Re Excuse

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

(continued...)

19

voir dire process, eighteen prospective jurors, randomly selected

by the Jury Administrator, will be seated for voir dire.7 The

order of 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 (8) jurors on a

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

jury unless one or more of those eight (8) 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 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.8 A copy of the

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 19 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8(...continued)

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

will also be used. 

9 For example, assuming Plaintiff elects to strike the

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

strike sheet is give 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 she could exercise her second strike.

20

“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.9 A party who does not use a

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.

XII. ATTORNEYS FEES

The parties are referred to Local Rule 54-293 concerning

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

////

////

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 20 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10 The parties are required to meet and confer about the

length of the trial and to file a document no later than 20 court

days before trial in which the length of trial is estimated.

21

XIII. 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.

Trial to a jury is set for February 28, 2006.

10 A trial

day 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 fifteen

(15) minutes within which to make an opening statement to the jury

and sixty (60) 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.

XIV. COMMUNICATION WITH JURY

The Court intends to communicate the following to the

jury just before it retires to deliberate:

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.

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 21 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

22

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

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

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 22 of 28
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

23

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.

Dated: December 9, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 23 of 28
24

STRIKE SHEET

Plaintiff 1 Defendants 1 

 2 2 

 3 3 

 

Case 2:04-cv-02191-GEB-GGH Document 25 Filed 12/09/05 Page 24 of 28
25

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-02191-GEB-GGH Document 25 Filed 12/09/05 Page 25 of 28
26

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-02191-GEB-GGH Document 25 Filed 12/09/05 Page 26 of 28
27

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-02191-GEB-GGH Document 25 Filed 12/09/05 Page 27 of 28
28

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-02191-GEB-GGH Document 25 Filed 12/09/05 Page 28 of 28