FINAL PRETRIAL ORDER
GARLAND E. BURRELL, Jr., Senior District Judge.
The final pretrial conference scheduled for July 21, 2014, is vacated since the parties' Joint Pretrial Statement ("JPS") filed June 18, 2014, indicates this Final Pretrial Order should issue.
I. JURY/NON-JURY
All issues shall be tried to a jury.
II. CLAIMS & AFFIRMATIVE DEFENSES
The following claim is preserved for trial:
1) Breach of Contract
Since no affirmative defense is identified in the JPS, no affirmative defense is preserved for trial. See Status Order 2:27-3:9, ECF No. 35 ("The joint pretrial statement . . . shall set forth each theory of liability (`claim') and affirmative defense which remains to be tried, and the ultimate facts on which each theory/defense is based. . . . The Court uses the parties' joint pretrial statement to prepare its final pretrial order and could issue the final pretrial order without holding the scheduled final pretrial conference.").
III. UNDISPUTED FACTS
The undisputed facts are stated in section 3 of the JPS, as follows:
A. On February 23, 2007, Defendants executed an Installment Note, Disclosure Statement and Security Agreement (the "note") for the benefit of SunTrust Bank in the original principal amount of $1,561,215.00.
B. The Note was secured by a First Preferred Ship Mortgage (the "Mortgage") dated February 23, 2007 against a vessel known as the "Soul Mates" with Hull Identification Number OAX64121A707 (the "Vessel").
C. Defendants did not make all of the regular monthly payments as they became due.
D. Defendants' last payment was made on January 13, 2011.
E. SunTrust repossessed the Vessel.
F. SunTrust sent notice of its intent to sell the Vessel to the Defendants on June 8, 2011 and June 10, 2011.
G. On October 21, 2011, SunTrust Bank sold the Vessel for $915,000.00.
(JPS 1:23-2:6.)
IV. DISPUTED FACTUAL ISSUES
The parties state the disputed factual issues in section 4 of the JPS, as follows: "The amount due is $640,322.32 plus pre-judgment interest at the rate of 6.87% from November 1, 2011 through the entry of judgment, attorney's fees of $160,080.58." (Id. at 2:8-9.)
V. DISPUTED EVIDENTIARY ISSUES
The parties shall meet and confer for the purpose of resolving evidentiary disputes. Any unresolved evidentiary dispute capable of being resolved in limine shall be set forth in an in limine motion filed no later than twenty-five (25) court days before the trial commencement date; an opposition or statement of non-opposition to any filed in limine motion shall be filed no later than fifteen (15) court days before the trial commencement date; any reply shall be filed no later than ten (10) court days before the trial commencement date. The failure to state a basis for the admissibility or non-admissibility of disputed evidence constitutes a waiver or abandonment of that basis.
VI. TRIAL BRIEFS
Notwithstanding Local Rule 285, trial briefs shall be filed no later than twenty (20) court days prior to the trial commencement date. 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." E.D. Cal. R. 285.
VII. WITNESSES1
A. Plaintiff anticipates calling the witnesses listed in section 9(A) of the JPS.
B. Defendants anticipate calling the witnesses listed in section 9(B) of the JPS.
C. Each party may call a witness designated by the opposing party.
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 the opposing party 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 not be permitted to testify unless:
(1) 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 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.
VIII. EXHIBITS2
A. Plaintiff anticipates offering the exhibits listed in section 10(A) of the JPS.
B. Defendants anticipate offering the exhibits listed in section 10(B) of the JPS.
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 Defendants' 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.
F. The parties shall exchange with each other, at least twenty (20) court days prior to the trial commencement date, 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.3 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.
G. Counsel shall produce all exhibits to the Courtroom Deputy at the commencement of trial. At that time, the parties shall also furnish the Court with a copy of each exhibit, unless the exhibit is physically incapable of being or impracticable to be 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.
IX. FURTHER PREPARATION FOR USE OF DISCOVERY DOCUMENTS
A. Counsel are required to produce to the Courtroom Deputy at the commencement of trial, the original transcript of any deposition which is to be used at trial for any purpose. The original deposition transcript(s) will be returned to counsel at the conclusion of trial. Counsel are cautioned that a failure to discharge this duty may result in preclusion of the use of the deposition(s) 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 fifteen (15) court days before the trial commencement date, counter-designations of other portions of these discovery documents may be served. No later than ten (10) court days before the trial commencement date, the parties shall file and serve any preserved evidentiary objections to any designated discovery, or said objections are waived.
X. FURTHER DISCOVERY OR MOTIONS
Pursuant to the Court's September 22, 2013 Pretrial Scheduling Order, (ECF No. 35), 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 additional discovery they desire pursuant to informal agreement. However, any such agreement will not be enforceable in this Court.
XI. AGREED STATEMENT
The parties shall submit a short, jointly-prepared statement concerning the nature of this case that can be read to the jury during voir dire. The statement shall be filed no later than fifteen (15) court days before the trial commencement date. 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.
XII. JURY INSTRUCTIONS, VOIR DIRE, AND VERDICT FORMS
A. Jury instructions, proposed voir dire, and a verdict form shall be submitted fifteen (15) court days before trial. The parties shall prepare the instructions and verdict forms in accordance with Local Rule 163, and shall tailor all general instructions to the facts and law at issue.
B. The parties shall confer and attempt to agree upon a joint set of jury instructions and verdict form. As to instructions on which there is dispute, the parties shall adhere to the following procedure: the party offering the disputed instruction(s) shall submit the instruction(s) as its proposed jury instruction(s), shall submit authority in support of the proposed instruction(s), and shall number the disputed instruction(s) in a manner that shows where each disputed instruction should be placed in the tendered agreed upon instructions.
C. At the time of electronic filing of the jury instructions and verdict forms, the parties shall also submit a copy of the sanitized joint jury instructions, the sanitized disputed jury instructions, and the joint verdict forms to the Court by electronic mail to geborders@caed.uscourts.gov in accordance with Local Rule 163.
D. Most of the examination of prospective jurors will be conducted by the Court. The parties shall meet and confer and attempt to agree upon a joint set of proposed voir dire questions. Each side is granted ten (10) minutes to conduct voir dire following the Court's examination of prospective jurors.
XIII. USE OF STRUCK JURY SELECTION SYSTEM
Eight (8) jurors will be impaneled. The "struck jury" system will be used to select the jury. At the beginning of the voir dire process, approximately eighteen prospective jurors, randomly selected by the Jury Administrator, will be seated for voir dire. 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 jurors on a list, which shall be given to counsel, will constitute the petit jury unless one or more of those eight 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 take turns exercising its three allotted peremptory strikes. If a side elects to pass rather than exercise a particular peremptory challenge, that challenge is waived.
XIV. ATTORNEY'S FEES
The parties are referred to Local Rule 293 concerning the post-trial procedure for seeking an award of attorney's fees.
XV. SETTLEMENT NEGOTIATIONS
Since the parties indicate in the JPS that a "settlement conference . . . would not be helpful[,]" no conference is scheduled. (JPS 4:2-3.)
XVI. TRIAL DATE
Trial will commence at 9:00 a.m. on October 21, 2014. Trial is held Tuesday, Wednesday, and Thursday of each week from 9:00 a.m. until approximately 4:30 p.m. However, once the jury begins deliberating, counsel shall be available for communication with the jury during the above mentioned times, Monday through Friday.
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.
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.
