Godwin et al v. Kelley et al
ORDERED as follows: the Dfts 74 Motion in Limine is GRANTED as to evidence of liability insurance; GRANTED as to evidence of other lawsuits, complaints, or claims; DENIED as to evidence which supports claims that have been dismissed to the extent t hat the Dfts broadly seek exclusion of all evidence regarding Al Kelley; and is GRANTED to the extent that evidence of lost job opportunities is to be taken up outside of the presence of the jury, as further set out in order. Signed by Honorable Judge W. Harold Albritton, III on 8/27/2013. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
BYRON GODWIN and CHARLES
DOUG BURKHALTER, in his individual
capacity, and CITY OF MILLBROOK,
ALABAMA, a municipal corporation,
Civil Action No. 2:12cv164-WHA-CSC
This cause is before the court on the Defendants’ Motion in Limine (Doc. #74). The
Defendants have moved to exclude the following categories of evidence: liability insurance;
evidence of other lawsuits, complaints, or claims; evidence which supports claims that have been
dismissed; and evidence of lost job opportunities. The court will address each in turn.
1. Liability insurance. The Plaintiffs concede the first category, stating that they agree
not to introduce evidence of or mention liability insurance. (Doc. #76). Therefore, the Motion
in Limine is due to be GRANTED as to evidence of liability insurance.
2. Evidence of other lawsuits. The Plaintiffs contend that they ought to be able to
introduce evidence of a lawsuit filed by a former City of Millbrook employee in which he
contended that he was terminated because he would not give Mayor Al Kelly (“Kelly”) a ride in
his patrol car. The Plaintiffs contend that this evidence is relevant as to Kelly’s official capacity
as Mayor to show a habit of retaliation under Fed. R. Evidence 406.
The Defendants, in turn, characterize the evidence of that law suit as “me too” evidence,
and contend that because case was settled, because Kelly was only sued in his individual
capacity, and the previous suit is dissimilar and remote in time, it is not relevant and not
The role of Kelly in this case is not irrelevant.
The “me too” evidence of another person
contending that Al Kelly retaliated against him through his position with the City, however, is
too dissimilar and too attenuated in time, occurring in 1998, to be anything more than marginally
relevant in this case, particularly because the theory of liability for the City relied on in opposing
summary judgment was ratification, not a policy or custom through notice of previous events.
See Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir. 2008). To the extent
that this evidence has some probative value, after weighing the appropriate factors, Sprint/United
Management Co. v. Mendelsohn, 552 U.S. 379, 388 (2008), the court concludes that this
evidence would be substantially outweighed by the danger of confusion of the issues under Rule
403 of the Federal Rules of Evidence. Also, the evidence of a single, unrelated event is not
sufficient to establish habit under Rule 406. See Goldwmith, 513 F.3d at 1285. Therefore, the
court concludes that the Motion in Limine is due to be GRANTED as to evidence of a prior
settled lawsuit against Al Kelly for termination for failing to allow Al Kelly to ride in a patrol
3. Evidence which supports claims that have been dismissed. The Defendants point out
that summary judgment has been granted as to all claims against Kelly. The Defendants further
state that the only claims remaining are a “class of one” Equal Protection claim against the City
and claims of false arrest and malicious prosecution against Doug Burkhalter. They argue that
the only evidence relevant to the Equal Protection claim concerns a factual disparity between
Burkhalter and Brenda Bellizio about comparator contractors. The Defendants contend that the
only relevant evidence for that claim is whether there was a difference in treatment and whether
there was a rational basis for that difference in treatment. The Plaintiffs respond that without
knowing what evidence the Defendants feel is objectionable, they cannot adequately respond to
the Motion in Limine.
The evidence presented at summary judgment demonstrated that the interaction of Mayor
Kelly and Defendant Doug Burkhalter with Charles Nelson is a part of the background of the
case, and may be relevant to various claims remaining in this case. For example, there may be
relevant evidence of the decision made by Kelly and Doug Burkhalter, and ultimately ratified by
the City Council, to deny Godwin and Nelson a license. There may also be evidence involving
Kelly relevant to an evaluation of a “rational basis” for that decision, and to Burkhalter’s pursuit
of a complaint for the Plaintiffs’ arrest. Without the identification of specific evidence by the
Defendants, the court is unable to conclude, therefore, that all evidence regarding Al Kelly is due
to be excluded. The court will, however, address specifically-identified evidence upon
presentation of a timely, more fully-developed Motion in Limine by the Defendants.
4. Lost job opportunities. The Defendants contend that the Plaintiff cannot present
evidence of lost job opportunities to prove damages because there is no evidence of any lost
opportunities, so such damages would be inadmissibly speculative. That is consistent with the
court’s determination in granting summary judgment on the tortious interference with contract
claims. (Doc. #72 at p. 26). Accordingly, the Motion in Limine is due to be GRANTED. To
the extent that the Plaintiffs contend that they have non-speculative evidence of lost contracts,
they are to take up such evidence outside of the presence of the jury.
For the reasons discussed, it is hereby ORDERED as follows:
The Defendants’ Motion in Limine (Doc. #74) is GRANTED as to evidence of liability
insurance; GRANTED as to evidence of other lawsuits, complaints, or claims; DENIED as to
evidence which supports claims that have been dismissed to the extent that the Defendants
broadly seek exclusion of all evidence regarding Al Kelley; and is GRANTED to the extent that
evidence of lost job opportunities is to be taken up outside of the presence of the jury.
The Defendants are free to file a Motion in Limine as to specific evidence regarding Al
Kelley, or other evidence, in a timely manner.
Done this 27th day of August, 2013.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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