Hunter v. Radioshack Corporation
Filing
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SCHEDULING CONFERENCE ORDER, signed by Judge Oliver W. Wanger on 6/10/2011. (Discovery Cut-Off: 12/15/2011, Non-Dispositive Motion Filing Deadline: 1/6/2012, Non-Dispositive Motion Hearing set 2/10/2012 at 9:00 AM in Courtroom 7 (SMS) before Magis trate Judge Sandra M. Snyder, Dispositive Motion Filing Deadline: 2/6/2011, Dispositive Motion Hearing set for 3/12/2012 at 10:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Settlement Conference set for 1/10/2012 at 10:30 AM in Courtroom 7 (SMS) before Magistrate Judge Sandra M. Snyder, Pretrial Conference set for 4/16/2012 at 11:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger, Jury Trial set for 5/30/2012 at 09:00 AM in Courtroom 3 (OWW) before Judge Oliver W. Wanger.)(Gaumnitz, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERALD L. HUNTER,
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Plaintiff,
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v.
RADIOSHACK CORPORATION,
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Defendant.
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1:10-cv-2297 OWW OWW SMS
SCHEDULING CONFERENCE ORDER
Discovery Cut-Off: 12/15/11
Non-Dispositive Motion
Filing Deadline: 1/6/12
Non-Dispositive Motion
Hearing Date: 2/10/12 9:00
Ctrm. 7
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Dispositive Motion Filing
Deadline: 2/6/12
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Dispositive Motion Hearing
Date: 3/12/12 10:00 Ctrm. 3
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Settlement Conference Date:
1/10/12 10:30 Ctrm. 7
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Pre-Trial Conference Date:
4/16/12 11:00 Ctrm. 3
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Trial Date: 5/30/12 9:00
Ctrm. 3 (JT-5 days)
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I.
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Date of Scheduling Conference.
June 8, 2011.
II.
Appearances Of Counsel.
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Richard L. Moser, Esq., appeared on behalf of Plaintiff.
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Law Offices of Walter W. Whelan by Brian D. Whelan, Esq.,
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appeared on behalf of Defendant.
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III.
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Summary of Pleadings.
A.
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Plaintiff’s Factual Contentions.
1.
From on or about November 3, 2006 through June 9,
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2010, Plaintiff was employed as a sales clerk by RadioShack at
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the Oakhurst store.
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2.
Plaintiff was employed pursuant to an oral
agreement.
3.
Plaintiff performed satisfactorily all of the
duties and conditions under the oral agreement.
4.
Plaintiff was terminated on June 9, 2010, because
of his age.
5.
As a result of Defendant’s conduct, Plaintiff
sustained severe and serious injury to his person.
6.
As a result of Defendant’s conduct, Plaintiff
suffered humiliation, embarrassment and mental anguish.
7.
Because of Defendant’s conduct, Plaintiff will be
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required to employ the services of physicians, nurses and other
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health care professionals in the future.
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8.
Plaintiff has been unable to engage in his
employment since his termination.
9.
Plaintiff will be unable to perform his usual and
customary employment for an indefinite period.
10.
The conduct of Defendant RadioShack was without
good, just or legitimate cause.
11.
Plaintiff’s termination was done with the intent
to cause injury to Plaintiff.
12.
In terminating Plaintiff, Defendant acted
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maliciously, oppressively and despicably.
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The employment agreement between Plaintiff and
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RadioShack contained an implied covenant of good faith and fair
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dealing obligating Defendant RadioShack to act in good faith and
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fairly towards Plaintiff.
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14.
Defendant RadioShack breached the implied covenant
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of good faith and fair dealing by causing Plaintiff’s termination
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in bad faith and for reasons extraneous to the contract.
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15.
Plaintiff was terminated without good, just or
legitimate cause.
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16.
Plaintiff was terminated because of his age.
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17.
Plaintiff was assured by Defendant through
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Defendant’s actions, statements and conduct that Plaintiff would
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not be terminated arbitrarily.
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Because of Defendant’s conduct and statements,
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Plaintiff was led to conclude that Defendant entered into an
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implied contract with Plaintiff not to discharge Plaintiff unless
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there was good cause to do so.
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19.
Plaintiff received regular raises and promotions
as a result of his job performance.
20.
During the time Plaintiff was employed by
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Defendant, Plaintiff received no disciplinary action, including,
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but not limited to, warnings against him.
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21.
Plaintiff has an implied contract with Defendant
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that he would be employed by Defendant as long as his performance
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was satisfactory and that Defendant would not cause him to be
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discharged without good and just cause.
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22.
Plaintiff performed all of the duties and
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conditions of his employment agreement.
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Plaintiff had fulfilled all of the duties and conditions of the
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employment agreement with RadioShack.
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23.
Defendant knew that
Without misconduct on the part of Plaintiff, and
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without good cause, Defendant breached the employment agreement
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by engaging in conduct separate and apart from the performance of
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obligations of the agreement and without good cause.
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24.
As a result of the Plaintiff not being able to
obtain comparable employment, following his termination, he has
sustained substantial lost wages and benefits.
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25.
Defendant’s conduct in terminating Plaintiff
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without good cause was intentional, extreme, outrageous and done
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with the intent to cause emotional distress to Plaintiff.
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26.
as a result of Defendant’s conduct.
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27.
Plaintiff has suffered damages in a sum within the
jurisdiction of this Court, i.e., in excess of $75,000.
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Plaintiff has suffered severe emotional distress
28.
Plaintiff continues to suffer substantial losses
in income, earnings and benefits.
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29.
Plaintiff was denied the terms and conditions of
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his employment because of his age in violation of Govt. Code
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§ 12940.
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30.
On or about June 9, 2010, Plaintiff’s employment
was terminated because of his age.
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31.
Plaintiff is a member of the class of persons
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protected from age discrimination in that he is over the age of
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40.
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32.
Defendant RadioShack regularly employs five or
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more persons.
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33.
Within one year from the date of the most recent
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act of discrimination, Plaintiff filed a charge of age
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discrimination with the California Department of Fair Employment
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and Housing and the Equal Employment Opportunity Commission.
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34.
On or about August 3, 2010, Plaintiff received a
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Right-To-Sue Notice from the Equal Employment Opportunity
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Commission.
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35.
As a direct and proximate result of Defendant’s
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age discrimination, Plaintiff has suffered severe and serious
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injury to his person, all to his damage in a sum within the
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jurisdiction of this Court.
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36.
In addition, as a result of Defendant’s age
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discrimination, Plaintiff has suffered and continues to suffer
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substantial losses in income, earnings and benefits.
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37.
In engaging in unlawful age discrimination,
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Defendant RadioShack acted maliciously, despicably and
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intentionally.
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B.
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Plaintiff’s Legal Contentions.
1.
That Plaintiff was wrongfully terminated in
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violation of the public policy against age discrimination set
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forth in Govt. Code § 12940.
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2.
That, in terminating Plaintiff, Defendant breached
the implied covenant of good faith and fair dealing.
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3.
That, in terminating Plaintiff, Defendant breach
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the implied covenant not to terminate Plaintiff except for good
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cause.
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4.
That, in its treatment of Plaintiff, Defendant
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engaged in intentional infliction of emotional distress.
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5.
That, in denying Plaintiff the terms and
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conditions of his employment because of his age, Defendant
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engaged in unlawful age discrimination in violation of Govt. Code
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§ 12940.
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6.
That Defendant’s conduct toward Plaintiff was
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despicable, oppressive, malicious and intentional, warranting
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punitive damages.
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C.
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Defendant’s Factual Contentions.
1.
Plaintiff was terminated because of unsatisfactory
job performance.
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2.
Plaintiff was not terminated because of his age.
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3.
Plaintiff was not subjected to unlawful age
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discrimination at any time during his employment at RadioShack.
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4.
RadioShack did not breach the covenant of good
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faith and fair dealing or any other contractual covenant in
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terminating Plaintiff.
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5.
Defendant RadioShack did not engage in intentional
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infliction of emotional distress in the way it treated Plaintiff
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or in the way it terminated Plaintiff.
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D.
Defendant’s Legal Contentions.
1.
That Defendant RadioShack did not engage in
unlawful age discrimination.
2.
That Defendant RadioShack did not wrongfully
terminate Plaintiff’s employment.
3.
That RadioShack did not breach any implied or
express contractual covenants owed to Plaintiff.
4.
That RadioShack did not engage in intentional
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infliction of emotional distress towards Plaintiff.
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5.
That to the extent Plaintiff’s claims are based on
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Defendant’s conduct about which Plaintiff never complained and
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for which Plaintiff sat on his rights, the doctrine of laches
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bars Plaintiff’s recovery.
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6.
That, to the extent any of the conduct on the part
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of RadioShack on which Plaintiff complains is based on conduct
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occurring beyond the applicable statute of limitations,
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Plaintiff’s claims based on such conduct are barred.
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7.
In failing and refusing to perform adequately his
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job duties, Plaintiff engaged in unclean hands and is, to that
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extent, barred from any recovery.
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8.
That Plaintiff is and was at all times an at-will
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employee of RadioShack and that, therefore, his termination did
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not violate any of Plaintiff’s contractual rights.
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IV.
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Orders Re Amendments To Pleadings.
1.
The parties do not anticipate amending the pleadings at
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this time.
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V.
Factual Summary.
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A.
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Proceedings.
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1.
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Admitted Facts Which Are Deemed Proven Without Further
RadioShack Corporation is a corporation
incorporated under the laws of the State of Delaware.
2.
From on or about November 3, 2006 through June 9,
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2010, Plaintiff was employed as a sales clerk by RadioShack at
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the Oakhurst store.
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3.
Plaintiff is a member of the class of persons
protected from age discrimination in that he is over the age of
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40.
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4.
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more persons.
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B.
Defendant RadioShack regularly employs five or
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Contested Facts.
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1.
Plaintiff was employed pursuant to an oral
agreement.
2.
Plaintiff performed satisfactorily all of the
duties and conditions under the oral agreement.
3.
Plaintiff was terminated on June 9, 2010, because
of his age.
4.
As a result of Defendant’s conduct, Plaintiff
sustained severe and serious injury to his person.
5.
As a result of Defendant’s conduct, Plaintiff
suffered humiliation, embarrassment and mental anguish.
6.
Because of defendant’s conduct, Plaintiff will be
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required to employ the services of physicians, nurses and other
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health care professionals in the future.
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7.
Plaintiff has been unable to engage in his
employment since his termination.
8.
Plaintiff will be unable to perform his usual and
customary employment for an indefinite period.
9.
The conduct of Defendant RadioShack was without
good, just or legitimate cause.
10.
Plaintiff’s termination was done with the intent
to cause injury to Plaintiff.
11.
In terminating Plaintiff, Defendant acted
maliciously, oppressively and despicably.
12.
The employment agreement between Plaintiff and
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RadioShack contained an implied covenant of good faith and fair
2
dealing obligating Defendant RadioShack to act in good faith and
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fairly towards Plaintiff.
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13.
Defendant RadioShack breached the implied covenant
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of good faith and fair dealing by causing Plaintiff’s termination
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in bad faith and for reasons extraneous to the contract.
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14.
Plaintiff was terminated without good, just or
legitimate cause.
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15.
Plaintiff was terminated because of his age.
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16.
Plaintiff was assured by Defendant through
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defendant’s actions, statements and conduct that Plaintiff would
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not be terminated arbitrarily.
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17.
Because of Defendant’s conduct and statements,
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Plaintiff was led to conclude that Defendant entered into an
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implied contract with Plaintiff not to discharge Plaintiff unless
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there was good cause to do so.
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18.
Plaintiff received regular raises and promotions
as a result of his job performance.
19.
During the time Plaintiff was employed by
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Defendant, Plaintiff received no disciplinary action, including,
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but not limited to, warnings against him.
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20.
Plaintiff has an implied contract with Defendant
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that he would be employed by Defendant as long as his performance
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was satisfactory and that Defendant would not cause him to be
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discharged without good and just cause.
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21.
Plaintiff performed all of the duties and
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conditions of his employment agreement.
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Plaintiff had fulfilled all of the duties and conditions of the
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Defendant knew that
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employment agreement with RadioShack.
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22.
Without misconduct on the part of Plaintiff, and
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without good cause, Defendant breached the employment agreement
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by engaging in conduct separate and apart from the performance of
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obligations of the agreement and without good cause.
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23.
As a result of the Plaintiff not being able to
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obtain comparable employment, following his termination, he has
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sustained substantial lost wages and benefits.
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24.
Defendant’s conduct in terminating Plaintiff
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without good cause was intentional, extreme, outrageous and done
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with the intent to cause emotional distress to Plaintiff.
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25.
as a result of Defendant’s conduct.
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26.
Plaintiff has suffered damages in a sum within the
jurisdiction of this Court, i.e., in excess of $75,000.
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Plaintiff has suffered severe emotional distress
27.
Plaintiff continues to suffer substantial losses
in income, earnings and benefits.
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28.
Plaintiff was denied the terms and conditions of
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his employment because of his age in violation of Govt. Code
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§ 12940.
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29.
On or about June 9, 2010, Plaintiff’s employment
was terminated because of his age.
30.
Within one year from the date of the most recent
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act of discrimination, Plaintiff filed a charge of age
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discrimination with the California Department of Fair Employment
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and Housing and the Equal Employment Opportunity Commission.
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31.
On or about August 3, 2010, Plaintiff received a
Right-To-Sue Notice from the Equal Employment Opportunity
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1
Commission.
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32.
As a direct and proximate result of Defendant’s
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age discrimination, Plaintiff has suffered severe and serious
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injury to his person, all to his damage in a sum within the
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jurisdiction of this Court.
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33.
In addition, as a result of Defendant’s age
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discrimination, Plaintiff has suffered and continues to suffer
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substantial losses in income, earnings and benefits.
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34.
In engaging in unlawful age discrimination,
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Defendant Radioshack acted maliciously, despicably and
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intentionally.
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35.
Plaintiff was terminated because of unsatisfactory
job performance.
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36.
Plaintiff was not terminated because of his age.
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37.
Plaintiff was not subjected to unlawful age
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discrimination at any time during his employment at RadioShack.
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38.
RadioShack did not breach the covenant of good
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faith and fair dealing or any other contractual covenant in
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terminating Plaintiff.
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39.
Defendant RadioShack did not engage in intentional
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infliction of emotional distress in the way it treated Plaintiff
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or in the way it terminated Plaintiff.
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VI.
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Legal Issues.
A.
Uncontested.
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1.
Jurisdiction exists under 28 U.S.C. § 1332.
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2.
Venue is proper under 28 U.S.C. § 1392.
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3.
The parties agree that the substantive law of the
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State of California provides the rule of decision in this case.
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B.
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Contested.
1.
Whether Plaintiff’s claims are barred because of
an at-will agreement between the parties.
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2.
Whether or not the Fair Employment and Housing
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Act, Govt. Code § 12940, et seq., was violated by Defendant’s
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conduct.
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3.
Whether Defendant engaged in actionable and
intentional infliction of emotional distress.
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4.
Whether the affirmative defenses of laches,
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unclean hands or failure of consideration apply.
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VII. Consent to Magistrate Judge Jurisdiction.
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1.
The parties have not consented to transfer the
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case to the Magistrate Judge for all purposes, including trial.
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VIII.
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1.
Corporate Identification Statement.
Any nongovernmental corporate party to any action in
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this court shall file a statement identifying all its parent
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corporations and listing any entity that owns 10% or more of the
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party's equity securities.
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its initial pleading filed in this court and shall supplement the
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statement within a reasonable time of any change in the
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information.
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IX.
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A party shall file the statement with
Discovery Plan and Cut-Off Date.
1.
Plaintiff plans to take the depositions of the managers
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and co-employees of Plaintiff at the RadioShack store in
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Oakhurst, as well as any other percipient witnesses identified by
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Defendant in response to discovery requests.
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2.
Defendant intends to take the depositions of Plaintiff
and of other percipient witnesses identified by Plaintiff in
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response to written discovery.
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comprehensive written discovery including interrogatories,
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document requests and requests for admissions.
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Plaintiff’s responses, Defendant RadioShack may seek an
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independent psychological examination of the Plaintiff.
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3.
Defendant plans to propound
Depending on
The parties are ordered to complete all non-expert
discovery on or before November 30, 2011.
4.
The parties are directed to disclose all expert
witnesses, in writing, on or before October 14, 2011.
Any
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rebuttal or supplemental expert disclosures will be made on or
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before November 15, 2011.
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provisions of Federal Rule of Civil Procedure 26(a)(2) regarding
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their expert designations.
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the written designation of experts shall be made pursuant to F.
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R. Civ. P. Rule 26(a)(2), (A) and (B) and shall include all
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information required thereunder.
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compliance with this order may result in the Court excluding the
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testimony or other evidence offered through such experts that are
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not disclosed pursuant to this order.
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5.
The parties will comply with the
Local Rule 16-240(a) notwithstanding,
Failure to designate experts in
The parties are ordered to complete all expert
discovery on or before December 15, 2011.
6.
The provisions of F. R. Civ. P. 26(b)(4) shall
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apply to all discovery relating to experts and their opinions.
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Experts shall be fully prepared to be examined on all subjects
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and opinions included in the designation and their reports, which
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shall include every opinion to be rendered and all reasons for
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each opinion.
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sanctions.
Failure to comply will result in the imposition of
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X.
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Pre-Trial Motion Schedule.
1.
All Non-Dispositive Pre-Trial Motions, including any
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discovery motions, shall be filed on or before January 6, 2012,
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and heard on February 10, 2012, at 9:00 a.m. before Magistrate
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Judge Sandra M. Snyder in Courtroom 7.
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2.
In scheduling such motions, the Magistrate
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Judge may grant applications for an order shortening time
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pursuant to Local Rule 142(d).
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obtain an order shortening time, the notice of motion must comply
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However, if counsel does not
with Local Rule 251 and this schedule.
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3.
All Dispositive Pre-Trial Motions are to be
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filed no later than February 6, 2012, and will be heard on March
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12, 2012, at 10:00 a.m. before the Honorable Oliver W. Wanger, in
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Courtroom 3, 7th Floor.
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shall comply with Local Rule 230.
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XI.
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In scheduling such motions, counsel
Pre-Trial Conference Date.
1.
April 16, 2012, at 11:00 a.m. in Courtroom 3, 7th
Floor, before the Honorable Oliver W. Wanger.
2.
The parties are ordered to file a Joint Pre-
Trial Statement pursuant to Local Rule 281(a)(2).
3.
Counsel's attention is directed to Rules 281
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and 282 of the Local Rules of Practice for the Eastern District
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of California, as to the obligations of counsel in preparing for
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the pre-trial conference.
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compliance with those rules.
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XII. Motions - Hard Copy.
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1.
The Court insists upon strict
The parties shall submit one (1) courtesy paper copy to
the Court of any motions filed.
Exhibits shall be marked with
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protruding numbered or lettered tabs so that the Court can easily
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identify such exhibits.
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XIII.
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1.
Trial Date.
May 30, 2012, at the hour of 9:00 a.m. in Courtroom 3,
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7th Floor, before the Honorable Oliver W. Wanger, United States
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District Judge.
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2.
This is a jury trial.
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3.
Counsels' Estimate Of Trial Time:
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a.
4.
Four to five days.
Counsels' attention is directed to Local Rules
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of Practice for the Eastern District of California, Rule 285.
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XIV. Settlement Conference.
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1.
A Settlement Conference is scheduled for January 10,
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2012, at 10:30 a.m. in Courtroom 7 before the Honorable Sandra M.
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Snyder, United States Magistrate Judge.
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2.
Unless otherwise permitted in advance by the
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Court, the attorneys who will try the case shall appear at the
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Settlement Conference with the parties and the person or persons
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having full authority to negotiate and settle the case on any
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terms at the conference.
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3.
Permission for a party [not attorney] to attend
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by telephone may be granted upon request, by letter, with a copy
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to the other parties, if the party [not attorney] lives and works
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outside the Eastern District of California, and attendance in
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person would constitute a hardship.
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allowed, the party must be immediately available throughout the
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conference until excused regardless of time zone differences.
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Any other special arrangements desired in cases where settlement
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If telephone attendance is
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authority rests with a governing body, shall also be proposed in
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advance by letter copied to all other parties.
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4.
Confidential Settlement Conference Statement.
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At least five (5) days prior to the Settlement Conference the
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parties shall submit, directly to the Magistrate Judge's
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chambers, a confidential settlement conference statement.
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statement should not be filed with the Clerk of the Court nor
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served on any other party.
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marked "confidential" with the date and time of the Settlement
The
Each statement shall be clearly
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Conference indicated prominently thereon.
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request the return of their statements if settlement is not
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achieved and if such a request is not made the Court will dispose
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of the statement.
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5.
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The Confidential Settlement Conference
Statement shall include the following:
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Counsel are urged to
a.
A brief statement of the facts of the
b.
A brief statement of the claims and
case.
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defenses, i.e., statutory or other grounds upon which the claims
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are founded; a forthright evaluation of the parties' likelihood
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of prevailing on the claims and defenses; and a description of
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the major issues in dispute.
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c.
A summary of the proceedings to date.
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d.
An estimate of the cost and time to be
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expended for further discovery, pre-trial and trial.
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e.
The relief sought.
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f.
The parties' position on settlement,
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including present demands and offers and a history of past
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settlement discussions, offers and demands.
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XV.
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Or Other Techniques To Shorten Trial.
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Request For Bifurcation, Appointment Of Special Master,
1.
Neither party requests bifurcation.
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damages are sought.
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No punitive
XVI. Related Matters Pending.
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1.
XVII.
1.
There are no related matters.
Compliance With Federal Procedure.
The Court requires compliance with the Federal
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Rules of Civil Procedure and the Local Rules of Practice for the
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Eastern District of California.
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efficient administration of this case, all counsel are directed
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to familiarize themselves with the Federal Rules of Civil
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Procedure and the Local Rules of Practice of the Eastern District
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of California, and keep abreast of any amendments thereto.
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XVIII.
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1.
To aid the court in the
Effect Of This Order.
The foregoing order represents the best
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estimate of the court and counsel as to the agenda most suitable
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to bring this case to resolution.
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specifically reserved for this case.
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any time that the schedule outlined in this order cannot be met,
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counsel are ordered to notify the court immediately of that fact
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so that adjustments may be made, either by stipulation or by
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subsequent scheduling conference.
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2.
The trial date reserved is
If the parties determine at
Stipulations extending the deadlines contained
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herein will not be considered unless they are accompanied by
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affidavits or declarations, and where appropriate attached
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exhibits, which establish good cause for granting the relief
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requested.
3.
Failure to comply with this order may result in
the imposition of sanctions.
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IT IS SO ORDERED.
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Dated:
June 10, 2011
emm0d6
/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
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