United States District Court, W.D. Missouri, Western Division
DANTE A.R. COMBS, Plaintiff,
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
D. SMITH, SENIOR JUDGE.
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.
Motions in Limine
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.
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.
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.
Lawsuit Brought as Class Action, and Failure to Obtain Class
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.
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.
Appeal to the Eighth Circuit and Subsequent Decision
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.
Other Lawsuits Involving Plaintiff and Plaintiff's
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.
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.
Evidence of Events Leading to Plaintiff Declaring
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.
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.
Plaintiff Filing Bankruptcy
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.
Plaintiff Socializing with Clients/Friends During Wife's
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
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.
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.
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.
Plaintiff's Use of Valtrex and/or its Possible Medical
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.
Previous Lawyers Retained by Plaintiff in This
moves to exclude references to the attorneys he previously
retained in this matter. Defendants do not oppose this
motion. Accordingly, this motion is granted.
Lawsuit Brought by Defendants Against Linda Dickens
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
Case is Lawyer-Driven
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.
Witnesses Not Listed in Defendants' Rule 26
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.
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
Fact and Timing of Plaintiff Contacting and/or Retaining an
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.
How Plaintiff Retained Linda Dickens as Trial
moves to exclude evidence related to how he retained Linda
Dickens. Defendants do not oppose this motion. Accordingly,
this motion is granted.
Settlement Negotiations and Plaintiff's Valuation of
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
Other Cases Settled Against Defendants
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.
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.
Plaintiff's Uncle's Friendship with David
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.
Awards Received by the Cordish Company and its Officers or
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.
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.
Cordish Family's Philanthropic Work
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.
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
Investigation by NAACP and Philadelphia Clergy
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.
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.
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.
Zed Smith's Statements About Cordish and
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
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 ...