City of Seattle v. Professional Basketball Club LLC

Filing 89

REPLY, filed by Plaintiff City of Seattle, TO RESPONSE to 60 MOTIONS IN LIMINE to Exclude Statements of Individual Seattle City Council Members, to the Extent Offered as Admissions Purporting to Bind the City (Lawrence, Paul)

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City of Seattle v. Professional Basketball Club LLC Doc. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 THE CITY OF SEATTLE'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE CONCERNING STATEMENTS OF INDIVIDUAL COUNCIL MEMBERS - 1 Case No. C07-01620-MJP K:\2065932\00001\20516_HAH\20516P227D The Honorable Marsha J. Pechman UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE CITY OF SEATTLE, a first-class charter city, Plaintiff, v. PROFESSIONAL BASKETBALL CLUB, LLC, an Oklahoma limited liability company, Defendant. No. C07-01620-MJP THE CITY OF SEATTLE'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE CONCERNING STATEMENTS OF INDIVIDUAL COUNCIL MEMBERS Note on Motion Calendar: June 6, 2008 I. SUMMARY OF REPLY The Professional Basketball Club, LLC's ("PBC's") Opposition to the City of Seattle's Motion to Exclude Statements of Individual Seattle City Council Members (Dkt. No. 77) ("PBC's Opposition") ventures off on a tangent about the differences between Washington's Rule of Evidence 801(d)(2) and Federal Rule of Evidence ("F.R.E.") 801(d)(2)(D) in an effort to preserve its right to introduce out-of-court statements made by City Council members Nick Licata and Richard Conlin. PBC's approach is misguided. The City argued that the admission of prior statements or testimony from individual Council members must be predicated on the well-supported and self-evident caveat that such KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP 925 FOURTH AVENUE SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 623-7580 FACSIMILE: (206) 623-7022 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 statements do not constitute the binding admissions of the City. The City did not raise any hearsay objections, making PBC's decision to dedicate nine pages of discussion to hearsay superfluous. II. ARGUMENT PBC's Opposition misses the point by focusing on the differences between Washington's Rule of Evidence 801(d)(2) and F.R.E. 801(d)(2)(D). The point of the City's motion is not that the out-of-court statements by the council members are inadmissible, but rather that those statements do not bind the City. The City's motion merely requested that the Court "exclude evidence of statements made by individual Seattle City Council members to the extent they are offered as admissions purporting to bind the City. Such statements, if offered, may only be admitted as non-binding opinion statements of individual legislators." The City of Seattle's Motion in Limine to Exclude Statements of Individual Seattle City Council Members, to the Extent Offered as Admissions Purporting to Bind the City (Dkt. No. 60), at 1. The Court considers Washington state law only to explain the non-binding nature of any statements or testimony of individual City Council members because the City Council members' relationship with the City is defined by state law and the City Charter. The motion did not ask the Court to exclude the statements completely. F.R.E. 801(d)(2)(D) permits the admission of out-of-court statements as admissions of a party-opponent even when the declarant's "employee" or "agent" relationship with the party-opponent does not permit the declarant to bind the party-opponent. See Big Apple BMW, Inc. v. BMW of N. Amer., Inc., 974 F.2d 1358, 1372 (3d Cir. 1992) ("the vicarious admission rule of Federal Rule of Evidence 801(d)(2)(D) does not require that a declarant have authority to bind its employer"). The City also understands that some courts have interpreted F.R.E. 801(d)(2)(D) to permit the admission of out-of-court statements THE CITY OF SEATTLE'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE CONCERNING STATEMENTS OF INDIVIDUAL COUNCIL MEMBERS - 2 Case No. C07-01620-MJP K:\2065932\00001\20516_HAH\20516P227D KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP 925 FOURTH AVENUE SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 623-7580 FACSIMILE: (206) 623-7022 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 "concerning" an individual employee's or agent's "scope of employment" even when that individual declarant does not have the sole or direct authority to make a binding decision on the litigated issue. See Maher v. City of Chicago, 406 F. Supp. 2d 1006, 1020 (N.D. Ill. 2006) ("[I]t is not necessary for a statement to be within the scope of the declarant's agency or employment that the declarant be a direct decision-maker. . . . if the declarant was an advisor or other significant participant in the decision making process that is the subject matter of the statement, the declarations by that person qualify as party admissions."). These interpretations of F.R.E. 801(d)(2)(D), however, simply underscore the entire thrust of the City's Motion--to the extent the City Council member's individual statements are admitted, they are non-binding based on the state laws and City Charter that establish the relationship between the declarant and party-opponent in this case. The City reserves its right to object to the admission of the statements depending on the purpose for which they are offered. III . CONCLUSION For the foregoing reasons, the City respectfully requests that this Court grant its Motion in Limine that statements made by individual Seattle City Council members are not binding admissions on behalf of the City, but rather non-binding statements of individual legislators. DATED this 4th day of June, 2008. KIRKPATRICK & LOCKHART PRESTON GATES ELLIS, LLP By: /s/ Paul J. Lawrence Slade Gorton, WSBA No. 20 Paul J. Lawrence, WSBA No. 13557 Jeffrey Johnson, WSBA No. 23066 Jonathan Harrison, WSBA No. 31390 Michelle Jensen, WSBA No. 36611 Attorneys for Plaintiff City of Seattle THE CITY OF SEATTLE'S REPLY IN SUPPORT OF ITS MOTION IN LIMINE CONCERNING STATEMENTS OF INDIVIDUAL COUNCIL MEMBERS - 3 Case No. C07-01620-MJP K:\2065932\00001\20516_HAH\20516P227D THOMAS A. CARR Seattle City Attorney Gregory C. Narver, WSBA No. 18127 Assistant City Attorney Attorneys for Plaintiff City of Seattle KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP 925 FOURTH AVENUE SUITE 2900 SEATTLE, WASHINGTON 98104-1158 TELEPHONE: (206) 623-7580 FACSIMILE: (206) 623-7022