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Solomon v. Herminghaus

United States District Court, E.D. California

January 16, 2015

PATRICK WAYNE SOLOMON, Plaintiff,
v.
OFFICER J. HERMINGHAUS, Defendant.

ORDER DENYING TRIAL CONTINUANCE; PROPOSED TRIAL DOCUMENTS

GARLAND E. BURRELL, Jr., District Judge.

On January 15, 2015, Plaintiff filed a motion seeking to continue trial "due to the fact that Plaintiff's father passed away." (Pl.'s Mot. to Continue Trial ("Mot.") 1:22-24, ECF No. 85.) Plaintiff argues:

[Plaintiff's] father passed away and his military memorial service with honors is set in Florida for January 27, 2015, which is the third day set for trial in this matter. Considering jury selection and pretrial motions, it is unlikely that the trial would be complete by the third day. Even so, Mr. Solomon is leaving for Florida to be with family and will not be available for even the first days of trial. Under these circumstances the Court is within its discretion to grant a continuance due to the death in Mr. Solomon's immediate family. Moreover, the Defendant will not be unduly prejudiced by a later court date, whereas, if the continuance is not granted, Plaintiff will prejudiced to the point of being unable to proceed or present his case at all. It would be patently unfair to not grant this Motion and thereby force Plaintiff to choose between being with family at this important time, or forfeit his case.

(Id. at 3:6-19.)

Defendant opposes a continuance, rejoining that this request is the simply another attempt by Plaintiff to avoid trial. (Def.'s Opp'n 2:1-14.) Defendant contends:

Plaintiff's father passed away on December 8, 2014[, ] but not a word was spoken of the death until January 12, 2015. On the contrary, the history of Plaintiff's attempts to continue to trial are completely unrelated to the latest excuse provided by the funeral of Plaintiff's father. For example:
On January 6, 2015, Plaintiff's Attorney Joseph Laub called defense counsel seeking a continuance of trial because a relative of counsel had scheduled an out of town wedding (there was no mention that Plaintiff's father had passed away or of any impending funeral).
When defense counsel would not agree to continue the trial because of the wedding, Attorney Laub asked to continue trial so that the parties could engage in arbitration. Defense counsel declined the invitation and expressed readiness for trial.
On January 12, 2015, Attorney Laub left a voicemail message for defense counsel seeking to continue trial because Plaintiff's father "had just passed away".
After an exchange of voicemails, Defense counsel FAX'd a letter to Plaintiff's counsel seeking verification that Plaintiff's father had in fact "just passed away" due to skepticism resulting from Plaintiff's history.
While defense counsel was traveling to South Carolina for unrelated depositions on January 15, 2015, Plaintiff's counsel provided a copy of the death certificate verifying that Plaintiff's father had passed away on December 8, 2014, as opposed to "just passed away". It was also verified that Plaintiff's father had been cremated and that a memorial service was scheduled for January 27, 2015 (i.e. six weeks after the death and at a time when Plaintiff had known for over a year that trial in this matter has been set for January 21, 2015).

(Id. at 2:26-3:25 (bullets and citations omitted).) Defendant further argues that he "is ready for trial which has been scheduled for over a year[, ]" and

It would be unduly prejudicial to now continue trial because:
Defense counsel has made irrevocable travel arrangements to attend trial as scheduled by the Court and will incur substantial cancellation fees if required to reschedule such arrangements.
Defendant has served subpoenas to witnesses who have adjusted work and personal schedules to accommodate the current trial date.
Defendant has adjusted his own work (and personal) schedule as a police officer and arranged for coverage of his duties to accommodate trial.
Defense counsel has cleared his calendar to conduct this trial as scheduled and, with more than a dozen other federal trials currently scheduled throughout 2015, it would be difficult to clear another date to reschedule this trial.

(Id. at 4:2-16 (bullets omitted).)

Plaintiff's continuance request is untimely; the trial commencement date has been scheduled since April 18, 2013, and Plaintiff's father passed away on December 8, 2014, more than a month before the trial commencement date. Further, a sufficient explanation has not been provided concerning why the memorial service should not have been scheduled on a different date, in light of the known trial date. Also, it appears likely that trial will be completed next week, since only one excessive force claim is being tried.

For the stated reasons, Plaintiff's continuance request is denied. Attached are the Court's proposed voir dire questions and preliminary jury instructions. Any proposed modifications should be submitted as soon as practicable.

As noted in the proposed voir dire, it is anticipated that it will take 2-3 court days for the parties to present evidence and closing arguments. Trial will be conducted on Wednesday and Thursday of next week from 9:00 a.m. to about 4:30 p.m., and Friday from 10:00 a.m. to about 4:30 p.m. Once jury deliberations commence, the jury is expected to deliberate every day except weekends from 9:00 a.m. to about 4:30 p.m.

VOIR DIRE

Good morning and welcome to the United States District Court. Thank you for your presence and anticipated cooperation in the jury selection questioning process we are about to begin. You are performing an important function in our legal system.

The court personnel who will assist me in this trial are on the platform below me. The Courtroom Deputy is Shani Furstenau. Next to her is the Certified Court Reporter.

We are about to begin what is known as voir dire. The purpose of voir dire is to determine whether you can be a fair and impartial juror on this case. Near or at the end of the process, each party can use a certain amount of what are called peremptory challenges, which excuse a potential juror from sitting as a juror on this case. A potential juror can also be excused for other reasons.

1. Ms. Furstenau, please administer the oath to the panel.

2. Counsel, the Jury Administrator randomly selected potential jurors and placed their names on the sheet that has been given to each party in the numerical sequence in which they were randomly selected. Each juror has been placed in his or her randomly-selected seat. The Courtroom Deputy has given each juror a large laminated card on which ...


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