Kennedy v. County of Contra Costa

• Court: District Court, N.D. California
• Decided: January 21, 2021
• Docket: 3:19-cv-04280
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOHL JONATHAN KENNEDY, 7 Case No. 19-cv-04280-JSC Plaintiff, 8 v. AMENDED PRETRIAL ORDER 9 COUNTY OF CONTRA COSTA, et al., 10 Defendants. 11

12 Following the Further Case Management Conference held on January 21, 2021, IT IS 13 ORDERED THAT: 14 I. DISCOVERY 15 Plaintiff’s motion to compel responses to interrogatories (Dkt. No. 72) is DENIED as the 16 interrogatories were served well after the fact discovery deadline. 17 II. SUMMARY JUDGMENT 18 Motion for Summary Judgment Due: May 6, 2021 19 Opposition to Motion for Summary Judgment Due: June 3, 2021 20 Reply to Motion for Summary Judgment Due: June 17, 2021 21 Hearing on Motion for Summary Judgment: July 8, 2021 at 9:00 a.m. 22 Plaintiff is advised that a motion for summary judgment under Rule 56 will, if granted, end 23 your case. Rule 56 tells you what you must do in order to oppose a motion for summary 24 judgment. Generally, summary judgment must be granted when there is no genuine issue of 25 material fact—that is, if there is no real dispute about any fact that would affect the result of your 26 case, the party who asked for summary judgment is entitled to judgment as a matter of law, which 27 will end your case. When a party makes a motion for summary judgment that is properly 1 says. Instead, you must set out specific facts in declarations, depositions, answers to 2 interrogatories, or authenticated documents, as provided in Rule 56(e), that contradicts the facts 3 shown in the Defendant’s declarations and documents and shows that there is a genuine issue of 4 material fact for trial. If you do not submit your own evidence in opposition, summary judgment, 5 if appropriate, may be entered against you. If summary judgment is granted, there will be no trial. 6 Rand v Rowland, 154 F.3d 952, 962-63 (9th Cir. 1998) (en banc) (App A). 7 III. TRIAL DATE 8 A. Jury trial will begin on December 6, 2021, at 8:30 a.m., in Courtroom E, 15th 9 Floor, U.S. District Court, 450 Golden Gate, San Francisco, California. 10 B. The Court is expecting the length of the trial to not exceed 5 court days. 11 IV. PRETRIAL CONFERENCE 12 A Final Pretrial Conference shall be held on November 18, 2021, at 2:00 p.m., in 13 Courtroom E, 15th Floor. Lead trial counsel for each party shall attend. 14 A. At least seven days prior to date of the Final Pretrial Conference the parties shall do 15 the following: 16 1. In lieu of preparing a Joint Pretrial Conference Statement, the parties shall 17 meet and confer in person, and then prepare and file a jointly signed Proposed Final Pretrial Order 18 that contains: (a) a brief description of the substance of claims and defenses which remain to be 19 decided; (b) a statement of all relief sought; (c) all stipulated facts; (d) a joint exhibit list in 20 numerical order, including a brief description of the exhibit and Bates numbers, a blank column 21 for when it will be offered into evidence, a blank column for when it may be received into 22 evidence, and a blank column for any limitations on its use; and (e) each party’s separate witness 23 list for its case-in-chief witnesses (including those appearing by deposition), including, for all such 24 witnesses (other than party plaintiffs or defendants), a short statement of the substance of his/her 25 testimony and, separately, what, if any, non-cumulative testimony the witness will offer. For each 26 witness, state an hour/minute time estimate for the direct examination (only). Items (d) and (e) 27 should be submitted as appendices to the proposed order. The proposed order should also state 1 2. File a joint set of proposed instructions on substantive issues of law 2 arranged in a logical sequence. If undisputed, an instruction shall be identified as “Stipulated 3 Instruction No. ____ Re ___________,” with the blanks filled in as appropriate. If disputed, each 4 version of the instruction shall be inserted together, back to back, in their logical place in the 5 overall sequence. Each such disputed instruction shall be identified as, for example, “Disputed 6 Instruction No. ____ Re ____________ Offered by _________________,” with the blanks filled 7 in as appropriate. All disputed versions of the same basic instruction shall bear the same number. 8 Any modifications to a form instruction must be plainly identified. If a party does not have a 9 counter version and simply contends that no such instruction in any version should be given, then 10 that party should so state (and explain why) on a separate page inserted in lieu of an alternate 11 version. With respect to form preliminary instructions, general instructions, or concluding 12 instructions, please simply cite to the numbers of the requested instructions in the current edition 13 of the Ninth Circuit Model Jury Instructions. Other than citing the numbers, the parties shall not 14 include preliminary, general, or concluding instructions in the packet. 15 3. File a separate memorandum of law in support of each party’s disputed 16 instructions, if any, organized by instruction number. 17 4. File a joint set of proposed voir dire questions supplemented as necessary 18 by separate requests. 19 5. File trial briefs on any controlling issues of law. 20 6. File proposed verdict forms, joint or separate. 21 7. File and serve any objections to exhibits. 22 8. File a joint simplified Statement of the Case to be read to the jury during 23 voir dire as part of the proposed jury instructions. Unless the case is extremely complex, this 24 statement should not exceed one page. 25 B. Any motions in limine shall be submitted as follows: at least twenty (20) calendar 26 days before the conference, the moving party shall serve, but not file, the opening brief. At least 27 ten (10) calendar days before the conference, the responding party shall serve the opposition. 1 motion and the opposition together, back-to-back, and then file the paired sets at least seven (7) 2 calendar days before the conference. Each motion should be presented in a separate memorandum 3 and properly identified, for example, “Plaintiff’s Motion in Limine No. 1 to Exclude . . . .” Each 4 party is limited to bringing five motions in limine. The parties are encouraged to stipulate where 5 possible, for example, as to the exclusion of witnesses from the courtroom. Each motion should 6 address a single, separate topic, and contain no more than seven pages of briefing per side. 7 C. Hard-copy courtesy copies of the above documents shall be delivered by NOON 8 the day after filing. The Joint Proposed Final Pretrial Order, jury instructions, and verdict form 9 shall be submitted via e-mail as attachments to JSCpo@cand.uscourts.gov. The Court requests that 10 all hard-copy submissions be three-hole-punched. 11 V. PRETRIAL ARRANGEMENTS 12 A. Should a daily transcript and/or real-time reporting be desired, the parties shall 13 make arrangements with Rick Duvall, Supervisor of the Court Reporting Services, at 14 (415) 522-2079, at least ten (10) calendar days prior to the trial date. 15 B. During trial, counsel may wish to use overhead projectors, laser-disk/computer 16 graphics, poster blow-ups, models, or specimens of devices. Equipment should be shared by all 17 counsel to the maximum extent possible. The Court provides no equipment other than an easel. 18 The United States Marshal requires a court order to allow equipment into the courthouse. For 19 electronic equipment, parties should be prepared to maintain the equipment or have a technician 20 handy at all times. The parties shall tape extension cords to the carpet for safety. The parties may 21 work with the deputy clerk, Ada Means (415-522-2015), on all courtroom-layout issues. 22 SCHEDULING 23 Trial will be conducted from 8:30 a.m. to 2:30 or 3:00 p.m., depending on the availability 24 of witnesses, Monday through Friday. Counsel must arrive by 8:15 a.m., or earlier as needed, for 25 any matters to be heard out of the presence of the jury. The jury will be called at 8:30 a.m. 26 THE JURY 27 In civil cases, there are no alternate jurors and the jury is selected as follows: 1 given numbers (1 through 20). The remaining potential jurors will be seated in the public benches. 2 Hardship excuses will usually be considered at this point. The Court will then have each juror 3 orally answer a set of written questions (attached to this Order as Exhibit A) and will itself ask 4 questions of those in the box and in the front of the bar. Counsel may then conduct a limited voir 5 dire. Challenges for cause will then be addressed out of the presence of the potential jurors. The 6 Court will consider whether to fill in the seats of the stricken jurors. If so, questions will be asked 7 of the additional jurors and cause motions as to them will be considered. After a short recess, each 8 side may exercise its allotment of peremptory challenges out of the presence of the potential 9 jurors. The eight (or such other size as will constitute the jury) surviving the challenge process 10 with the lowest numbers become the final jury. For example, if the plaintiff strikes 1, 5, and 7 and 11 the defendant strikes 2, 4, and 9, then 3, 6, 8, 10, 11, 12, 13, and 14 become the final jury. If more 12 (or fewer) than eight jurors are to be seated, then the starting number will be adjusted. So too if 13 more than a total of six peremptories are allowed. Once the jury selection is completed, the jurors’ 14 names will be read again and they will be seated in the jury box and sworn. The Court may alter 15 this procedure in its discretion and after consultation with the parties. 16 WITNESSES 17 At the close of each trial day, all counsel shall exchange a list of witnesses for the 18 next two full court days and the exhibits that will be used during direct examination (other than 19 for impeachment of an adverse witness). Within 24 hours of such notice, all other counsel shall 20 provide any objections to such exhibits and shall provide a list of all exhibits to be used with the 21 same witness on cross-examination (other than for impeachment). The first notice shall be 22 exchanged prior to the first day of trial. All such notices shall be provided in writing. 23 EXHIBITS 24 A. Prior to the Final Pretrial Conference, counsel must meet and confer in person to 25 consider all exhibit numbers and objections and to eliminate duplicate exhibits and confusion over 26 the precise exhibit. 27 B. Use numbers only, not letters, for exhibits, preferably the same numbers as were 1 Plaintiff has 1 to 100, Defendant A has 101 to 200, Defendant B has 201 to 300, etc.). A single 2 exhibit should be marked only once. If the plaintiff has marked an exhibit, then the defendant 3 should not re-mark the exact document with another number. Different versions of the same 4 || document, e.g., a copy with additional handwriting, must be treated as different exhibits with 5 different numbers. To avoid any party claiming “ownership” of an exhibit, all exhibits shall be 6 marked and referred to as “Trial Exhibit No. .’ not as “Plaintiff’?s Exhibit” or “Defendant’s 7 || Exhibit.” 8 C. The exhibit tag shall be in the following form: 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA TRIAL EXHIBIT 100 12 Case No.

3 Date Entered 14 By 45 Deputy Clerk

16 Counsel preferably will make the tag up in a color that will stand out (yet still allow for 17 photocopying), but that is not essential. Place the tag on or near the lower right-hand corner or, if a 18 photograph, on the back. Counsel should fill in the tag but leave the last two spaces blank. The 19 parties must jointly prepare a single set of all trial exhibits that will be the official record set to be 20 used with the witnesses and on appeal. Each exhibit must be tagged, three-hole-punched, separated 21 with a label divider identifying the exhibit number, and placed in 3-ring binders. Spine labels 22 should indicate the numbers of the exhibits that are in the binders. Each set of exhibit binders 23 should be marked as “Original.” Deposit the exhibits with the deputy clerk seven (7) days before 24 the Pretrial Conference. 25 D. Counsel must consult with each other and with the deputy clerk at the end of each 26 trial day and compare notes as to which exhibits are in evidence and any limitations thereon. If 27 there are any differences, counsel should bring them promptly to the Court’s attention. 28

1 E. In addition to the official record exhibits, three sets of bench binders containing 2 || copies of the exhibits must be provided to the Court seven (7) days before the Pretrial Conference, 3 one should be marked as “Chambers Copies”, and the other two as “Clerk’s Copies.” Each exhibit 4 || must be separated with a label divider identifying the exhibit number. (An exhibit tag is 5 unnecessary for the bench set.) Spine labels should indicate the numbers of the exhibits that are in 6 || the binders. 7 F, Before the closing arguments, counsel must confer with the deputy clerk to make 8 sure the exhibits in evidence are in good order. 9 G. Exhibit notebooks for the jury will not be permitted without prior permission from 10 || the Court. Publication must be by poster blow-up, overhead projection, or such other method as is 11 allowed in the circumstances. It is permissible to highlight, circle or underscore in the 12 || enlargements as long as it is clear that it was not on the original. 5 13 CHARGING CONFERENCE 14 As the trial progresses and the evidence is heard, the Court will fashion a comprehensive 15 set of jury instructions to cover all issues actually being tried. Prior to the close of the evidence, 16 || the Court will provide a draft final charge to the parties. After a reasonable period for review, one 3 17 or more charging conferences will be held at which each party may object to any passage, ask for S 18 modifications, or ask for additions. Any instruction request must be renewed specifically at the 19 conference or it will be deemed waived, whether or not it was requested prior to trial. If, however, 20 a party still wishes to request an omitted instruction after reviewing the Court’s draft, then it must 21 affirmatively re-request it at the charging conference in order to give the Court a fair opportunity 22 || to correct any error. Otherwise, as stated, the request will be deemed abandoned or waived. 23 IT IS SO ORDERED. 24 || Dated: January 21, 2021 f tl 25 JACQUELINE SCOTT CORLE 26 United States Magistrate Judge 27 28

EXHIBIT A 1

2 BACKGROUND

3 HAVE EACH OF THE 20 PROSPECTIVE JURORS ANSWER ALOUD THE GENERAL BACKGROUND QUESTIONS ON THE SHEET THAT HAS BEEN HANDED 4 OUT.

5 1. Please state your name: 6 2. Please state the city in which you live: 7 a. How long have you lived there? 8 b. Where else have you lived in the past 5 years? 9

10 3. What is your current occupation?

11 a. How long have you been so employed?

12 b. What are your previous occupations, if any?

13 c. Have you or any member of your family been employed by a law firm? 14 4. Please give us the following information about your family: 15 a. Are you married? 16 1. If so, what is your spouse’s current occupation and by whom is your 17 spouse employed? 18 b. Do you have any children? 19 If so: 20 1. How many? 2. What ages? 21 3. What are their occupations, if any? 22 5. Are there any other adults living in your household? 23 a. If so, how are they related to you, and what is their age and occupation? 24

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