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Combs v. The Cordish Companies, Inc.

United States District Court, W.D. Missouri, Western Division

March 23, 2018

DANTE A.R. COMBS, Plaintiff,
v.
THE CORDISH COMPANIES, INC., et al., Defendants.

          ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS IN LIMINE, AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS IN LIMINE

          ORTRIE D. SMITH, SENIOR JUDGE.

         Pending are Plaintiff's Motions in Limine (Doc. #343), and Defendants' Motions in Limine (Doc. #344). As set forth below, both motions are granted in part and denied in part. The parties are reminded these rulings are interlocutory. Thus, the denial of a request to bar evidence at this juncture preserves nothing for review, and the parties may re-assert their objections at trial if they deem it appropriate to do so. Evidence barred by this Order shall not be discussed in the jury's presence (including during opening statements) without leave of the Court. The parties are free to suggest (out of the jury's presence) that something has occurred during the trial justifying a change in the Court's interlocutory ruling.

         Plaintiff's Motions in Limine

         (1) Dismissed Parties

         Plaintiff seeks to exclude evidence pertaining to parties that have been dismissed. Defendants object to this motion, arguing it may be appropriate for Defendants to mention or explain the role absent parties may have played after the Mosaic Lounge incident. Defendants maintain the preclusion of this argument would hinder their ability to defend this case. Defendants also believe Plaintiff may call witnesses who were employed by First Response to testify at trial, and if Plaintiff's motion is granted, Defendants would be precluded from mentioning First Response while questioning someone who worked for First Response.

         The parties are precluded from presenting evidence or inquiring about claims against parties that are no longer parties in this action. The parties will be permitted to set forth evidence and elicit testimony regarding the actions or inactions of dismissed parties, but there shall be no reference to claims that have been dismissed. For these reasons, Plaintiff's motion is granted in part, and denied in part.

         (2) Dismissed Claims

         Plaintiff asks the Court to prohibit references to any causes of action alleged by Plaintiff that were subsequently dismissed. Defendants generally do not oppose the motion, but object to the motion to the extent it seeks to preclude Defendants from mentioning, presenting evidence, or making argument regarding allegations and facts related to the remaining claim in this case. Plaintiff's motion is granted, and Defendants' request is granted.

         (3) Lawsuit Brought as Class Action, and Failure to Obtain Class Certification

         Plaintiff moves to exclude references to the lawsuit being initiated as a purported class action, and Plaintiff's failure to obtain class certification. In Defendants' Motion in Limine No. 36, they seek to exclude, among other things, the Court's denial of Plaintiff's motion for class certification. But in response to Plaintiff's motion, Defendants argue they should be permitted to refer to the absence of witnesses corroborating the alleged discriminatory denial of entry to the Mosaic Lounge. Plaintiff's motion is granted. Defendants' request, although unrelated to the fact that this matter was brought as a class action and certification for class certification was denied, is granted.

         (4) Plaintiff Williams

         Plaintiff seeks to exclude references to Plaintiff Williams or his claims. Plaintiff contends references to the other plaintiff in this matter is not relevant to his remaining claim, and introduction of evidence related to Williams could be prejudicial to Plaintiff. Defendants generally do not oppose the motion, and agree they will not mention Williams was a previous plaintiff in this matter. Defendants object to this motion to the extent it seeks to preclude Defendants from referencing, presenting evidence, or making arguments about allegations or supposed facts regarding Williams that relate to the remaining claim. Plaintiff's motion is granted, and Defendants' request is granted.

         (5) Appeal to the Eighth Circuit and Subsequent Decision

         Plaintiff requests the Court preclude references to his appeal to the Eighth Circuit Court of Appeals, and that Court's decision. Defendants do not oppose this motion. Accordingly, this motion is granted.

         (6) Other Lawsuits Involving Plaintiff and Plaintiff's Financial Condition

         Plaintiff moves to exclude references to or evidence of any other lawsuit to which he has been a party. Defendants oppose this motion, arguing other lawsuits to which Plaintiff was a party may be relevant to the claims, defenses, and legal theories in this matter. Defendants point specifically to Plaintiff's voluntary petition for bankruptcy filed in the United States District Court for the District of Kansas, and the fact that the bankruptcy petition was pending when the incident at issue occurred. Defendants also argue Plaintiff alleges Defendants caused his immediate and extreme emotional distress, and Defendants should be permitted to present evidence about other events in his life that caused him stress and/or affected his emotional well-being. Plaintiff admitted during his deposition that his bankruptcy proceeding and the judgment against him were stressors. Doc. #354-1, at 4-8.

         To the extent Plaintiff testifies at trial that he suffered emotional distress as a result of Defendants' actions, he opens the door to inquiries into other events in his life, including his bankruptcy and the judgment against him, that may have caused or contributed to his emotional distress. Accordingly, this motion is denied.

         (7) Evidence of Events Leading to Plaintiff Declaring Bankruptcy

         Plaintiff asks that evidence of the events concerning the personal reasons that led Plaintiff to file for bankruptcy be excluded because the events are irrelevant. Plaintiff states his wife suffered from severe bouts of post-partum depressions, which prevented her from working for some time, leading to the bankruptcy. Plaintiff argues it would invade his privacy and his wife's privacy by divulging this personal reason for filing for bankruptcy protection. Defendants oppose this motion for the same reasons as it opposed Plaintiff's Motion in Limine No. 6.

         To the extent Plaintiff testifies he suffered emotional distress as a result of Defendants' actions, he opens the door to inquiries about other events that may have caused or contributed to his emotional distress. Accordingly, this motion is denied.

         (8) Plaintiff Filing Bankruptcy

         Plaintiff asks the Court to preclude reference to and evidence of Plaintiff filing for bankruptcy. Defendants oppose this motion for the same reasons they opposed Plaintiff's Motion in Limine No. 6. To the extent Plaintiff testifies Defendants' actions caused him emotional distress, he opens the door to inquiries about other events that may have caused or contributed to his emotional distress. Accordingly, this motion is denied.

         (9) Plaintiff Socializing with Clients/Friends During Wife's Post-Partum Depression

         Plaintiff seeks to exclude any mention that he went out with clients/friends while his wife was suffering from post-partum depression on the night Defendants allegedly discriminated against him. Defendants object to this motion, arguing this evidence is relevant to Plaintiff's supposed emotional distress damages. Plaintiff claims the incident at issue in this case caused him “dread and worry regarding work, along with the shame, deeply damages esteem, hopelessness, helplessness, agony, anger and more.” Doc. #354-2, at 12. But Plaintiff also testified his wife's post-partum depression contributed to his financial stressors because she was unable to earn income while suffering from post-partum depression.

         Defendants also maintain the evidence is relevant to Plaintiff's credibility because, although he alleged the Mosaic incident resulted in worry and anxiety for his wife and family, he admitted he would go out with friends while his wife was suffering from post-partum depression. Defendants also argue the evidence goes to Plaintiff's perception of discrimination at the time of the incident.

         Although the Court doubts the evidence that Plaintiff's wife was suffering from post-partum depression could be relevant to Plaintiff's perception of discrimination of the incident, the Court finds the circumstances surrounding the incident, including stressors at home, are relevant and admissible. Therefore, Plaintiff's motion is denied.

         (10) Plaintiff's Nicknames

         Plaintiff asks the Court to prohibit reference to any of his nicknames. Defendants object to this motion because putative jurors may know Plaintiff by his nicknames, and therefore, the issue should be a permitted line of inquiry during voir dire. To the extent Defendants want to inquire with the jury panel about jurors' knowledge of a person with a nickname, Defendants may do so, but they must not identify that the nickname relates to Plaintiff. If a juror indicates he or she knows of a person with that nickname, the Court will have the juror approach the bench.

         (11) Plaintiff's Use of Valtrex and/or its Possible Medical Indications

         Plaintiff requests the Court exclude evidence or reference to his prescription for Valtrex and/or one of the prescription's indicated uses. Defendants oppose this motion because the evidence it seeks to preclude is relevant to Plaintiff's alleged emotional distress. Absent a showing that Plaintiff was taking this medication or was suffering from a condition for which the medication was prescribed at the time of the incident, this evidence is not relevant. Accordingly, Plaintiff's motion is granted.

         (12) Previous Lawyers Retained by Plaintiff in This Matter

         Plaintiff moves to exclude references to the attorneys he previously retained in this matter. Defendants do not oppose this motion. Accordingly, this motion is granted.

         (13) Lawsuit Brought by Defendants Against Linda Dickens

         Plaintiff seeks to preclude mention or evidence related to the lawsuit Defendants filed against Plaintiff's counsel, Linda Dickens. Defendants do not oppose this motion, and also seek similar relief in a motion in limine. The Court grants Plaintiff's motion.

         (14) Case is Lawyer-Driven

         Plaintiff moves for exclusion of arguments that this matter is lawyer-driven or fabricated by Plaintiff's counsel to pursue the case. Defendants generally do not oppose Plaintiff's motion. But Defendants object to any limitation to its ability to address the remedies Plaintiff seeks and has sought. Plaintiff's motion is granted. Defendants' request is also granted.

         (15) Witnesses Not Listed in Defendants' Rule 26 Disclosures

         Plaintiff seeks to preclude Defendants from calling any witness who was not listed on Defendants' Rule 26 disclosures. Although they seek similar relief in their Motion in Limine No. 27, Defendants object to this motion because they “should not be precluded from calling witnesses Plaintiff clearly knew about and believed to have information relevant to this case, including but not limited to all those deposed in this case.” Doc. #354, at 7.

         While the parties should have supplemented their Rule 26(a)(1) disclosures to include any witnesses a party intended to call, many witnesses were identified during the course of discovery, including, but not limited to, answers to interrogatories, depositions, and initial and supplemental initial disclosures. Plaintiff's motion is granted but the parties will not be limited to the individuals listed in Rule 26(a)(1) disclosures, so long as the proffered witness was identified to the opposing party during the course of discovery.

         (16) Fact and Timing of Plaintiff Contacting and/or Retaining an Attorney

         Plaintiff asks the Court to preclude inquiries about Plaintiff contacting and eventually retaining counsel, and the timing of those events. Defendants do not object to this motion but reserve the right to present evidence should Plaintiff elicit testimony or present other evidence or argument regarding this topic. Plaintiff's motion is granted.

         (17) How Plaintiff Retained Linda Dickens as Trial Counsel

         Plaintiff moves to exclude evidence related to how he retained Linda Dickens. Defendants do not oppose this motion. Accordingly, this motion is granted.

         (18) Settlement Negotiations and Plaintiff's Valuation of Case

         Pursuant to Rule 408 of the Federal Rules of Evidence, Plaintiff requests evidence of settlement negotiations as well as Plaintiff's valuation of the case be precluded. Defendants seek the same relief in Motion in Limine No. 32, but argues they should not be precluded from discussing the nature and extent of the remedies Plaintiff seeks, including Plaintiff's valuation of his purported damages. This motion is granted but does not limit Defendants from discussing the nature and extent of the remedies Plaintiff seeks, including Plaintiff's valuation of damages made during trial.

         (19) Other Cases Settled Against Defendants

         Plaintiff asks the Court to exclude evidence pertaining to settled cases involving Defendants in this matter. Defendants do not object to this motion to the extent it relates to actual settlements. Defendants argue they should be permitted to inquire about witnesses' lawsuits and/or charges of discrimination against Defendants because such evidence could be used to demonstrate bias and/or attack credibility. The Court agrees with the parties that settlements of cases involving Defendants should be excluded. To the extent Plaintiff was attempting to exclude other evidence in this motion, that request is denied.

         (20) Cusimano Lawsuit

         Plaintiff moves to exclude evidence pertaining to Glen Cusimano's lawsuit against Cordish but does not provide a basis for excluding this evidence. In their Motion in Limine No. 13, Defendants seek exclusion of Cusimano's testimonies from his lawsuits against Defendants. However, Defendants argue that if any of Cusimano's previous testimony is admitted at trial or Cusimano is called to testify in this trial, they should be permitted to ask him about his lawsuits and charges of discrimination against Defendants. They contend this evidence could be used to demonstrate bias and/or attack credibility. Plaintiff's motion is granted. However, if Cusimano is called to testify at trial, Defendants will permitted to question him about his prior lawsuit(s) and charge(s) of discrimination.

         (21) Plaintiff's Uncle's Friendship with David Cordish

         According to Plaintiff, his uncle, Frank Reid, is a prominent figure in Baltimore, and is good friends with David Cordish. Defendants do not object to this motion but reserve the right to present evidence should Plaintiff elicit testimony or present argument or evidence regarding this topic. Plaintiff's motion is granted.

         (22) Awards Received by the Cordish Company and its Officers or Members

         Plaintiff asks the Court to prohibit Defendants from introducing evidence about awards or accolades they (or their officers or members) received because this evidence would be prejudicial to him. Defendants oppose this motion because the information is relevant to their background, and they should be permitted to offer evidence about the context of their organizations.

         Plaintiff's motion is granted in part, and denied in part. The Court will permit evidence about Defendants' awards or accolades specifically related to the Kansas City location that were received close in time to the incident involving Plaintiff. The Court will also permit evidence of awards and accolades received by those individuals connected with the incident involving Plaintiff. Evidence of or reference to other awards and accolades will be excluded.

         (23) Cordish Family's Philanthropic Work

         Plaintiff seeks to exclude references to any philanthropic work in which the Cordish family engages. Plaintiff contends the admission of such evidence amounts to character evidence, and argues this evidence would be prejudicial to Plaintiff. Defendants oppose this motion because it is relevant to Defendants' background, and they should be permitted to offer evidence about the context of their organizations.

         Plaintiff's motion is granted in part, and denied in part. To the extent the Cordish family engaged in philanthropic work in the Kansas City area close in time to the incident involving Plaintiff, the Court will permit evidence of that philanthropic work. Evidence of or reference to other philanthropic work in which the Cordish family engages will be excluded.

         (24) Investigation by NAACP and Philadelphia Clergy

         Plaintiff asks the Court to preclude evidence of an investigation conducted by the NAACP and the Black Clergy in Philadelphia (or any other individual or group) into allegations of race discrimination in places built, maintained, operated and/or overseen by Defendants. He argues this evidence is hearsay, and because the investigations were not conducted by a government agency, the evidence cannot satisfy an exception to the hearsay rule.

         Defendants object to this motion. They argue the evidence tends to make the facts in this case more or less probable, and therefore, relevant and admissible. Defendants suspect Plaintiff will make Mosaic's dress code a central issue in this matter by attempting to show it was discriminatory. If he elicits such evidence, Defendants argue they should be permitted to present evidence to counter those assertions, including the NAACP's and Black Clergy's conclusions that the dress code was not discriminatory. Defendants maintain Zed Smith, an employee of the Cordish Companies, Inc., has personal knowledge of these conclusions and findings, and Defendants should be permitted to present this evidence.

         Although they contend Smith has personal knowledge about the investigations and conclusions, Defendants do not point to anything to support that argument. Unless Smith truly has personal knowledge of the investigations and conclusions, these matters are nothing more than hearsay, and are inadmissible. In addition, these investigations and conclusions do not appear to be relevant to the claim being tried. For these reasons, Plaintiff's motion is granted.

         (25) Zed Smith's Statements About Cordish and Plaintiff

         Plaintiff seeks to preclude reference to or evidence of Zed Smith's statements about Cordish (specifically, that Cordish does not discriminate) and Plaintiff. Plaintiff argues these statements should be excluded because they are conclusions by a nonexpert, would mislead the jury, and would prejudice Plaintiff. He also contends these statements are inadmissible character evidence.

         Defendants oppose this motion, arguing Smith, who is African-American, is the Cordish Companies' Chief Operating Officer, and was involved with the implementation of and issues associated with Mosaic's dress code. According to Defendants, Smith should be permitted to offer his knowledge and opinions about the dress code. Defendants also contend ...


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