Watson et al v. Surf-Frac Wellhead Equipment Company Inc

Filing 111

ORDER granting in part and denying in part 81 84 110 Motions in Limine. Signed by Judge Kristine G. Baker on 10/18/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
BENNIE WATSON, JASON STILLER, SR.,
JASON STILLER, JR. and
ALVIN “BEAU” BELLAMY,
Each Individually and on Behalf of
Others Similarly Situated
v.

PLAINTIFFS

Case No. 4:11-cv-00843 KGB

SURF-FRAC WELLHEAD EQUIPMENT
COMPANY, INC.

DEFENDANT

ORDER
Before the Court are the parties’ motions in limine. Plaintiffs filed a motion in limine
(Dkt. No. 84) to which defendant responded (Dkt. No. 101) and plaintiffs replied (Dkt. No. 104).
Defendant filed a motion in limine (Dkt. No. 81) to which plaintiffs responded (Dkt. No. 95).
The Court heard additional argument on the motions during the October 17, 2013, pretrial
telephone conference. Subsequent to that conference, defendant filed a supplemental motion in
limine (Dkt. No. 110).
1.

Plaintiffs seek to exclude certain witnesses from testifying at trial who plaintiffs

claim were not disclosed by defendant prior to being identified in pretrial disclosures. Defendant
maintains that many of these witnesses were disclosed in initial disclosures, discovery responses,
or amendments and supplements to these discovery documents. Defendants concede, however,
that not all witnesses were disclosed before being identified in pretrial disclosures. To the extent
any individual was disclosed by defendant in initial disclosures, discovery responses, or
amendments and supplements to these discovery documents, the Court denies plaintiffs’ motion.
Defendant may call these individuals to testify as witnesses at trial. The Court has taken the
issue of excluding Tony McClinton, owner and CEO of defendant SWECO, and Billy Petty,

Chief of Operations of SWECO, as witnesses under advisement, pending a potential agreement
on the issue from the parties. If any other witness aside from Mr. McClinton and Mr. Petty was
identified by defendant for the first time in pretrial disclosures, not during discovery, the Court
grants plaintiffs’ motion; defendants may not call such individuals to testify.
2.

Plaintiffs seek to exclude certain exhibits plaintiffs contend were not timely

disclosed by defendant. The Court understands that, as for documents related to the opt-in
plaintiffs whose claims this Court has dismissed without prejudice, the parties agree such
documents likely are not relevant. To the extent the parties believe such evidence becomes
relevant at trial, the parties are directed to refrain from referring to such evidence in opening
statements and to approach the bench before introducing or eliciting such evidence for any
purpose. As for the time punch cards which were produced for the first time after discovery and
depositions of plaintiffs concluded, the Court grants plaintiffs’ motion; the time punch cards are
excluded.
3.

As for plaintiffs’ request to exclude certain demonstrative summaries, to the extent

the Court excludes documents or evidence based on a motion in limine or an objection by a
party, the Court grants plaintiffs motion; such excluded documents or evidence may not be
introduced through a demonstrative summary.
4.

As for plaintiffs’ request to exclude the testimony of witnesses who did not work

for defendant during the same time as plaintiffs at the same locations as plaintiffs, the Court
construes this as an objection to potential witness testimony based on relevance. The Court
directs that specific objections be made as to each witness to whom plaintiffs determine this
objection applies; the Court will rule on specific objections that are made at trial.

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5.

As for Fair Labor Standards Act exemptions, based on the parties’ stipulated facts,

this motion is moot.
6.

Plaintiffs request that this Court exclude damage estimates. This motion is granted

to the extent these estimates were produced by the parties solely for purposes of communicating
regarding settlement or potential settlement. To the extent these estimates were produced by the
parties in discovery and not solely for the purposes of settlement, the Court has taken the issue
under advisement. The parties are directed to refrain from referring to such evidence in opening
statements and to approach the bench before introducing or eliciting such evidence or testimony
for any purpose.
7.

Plaintiffs request that this Court exclude evidence, testimony, and argument

regarding plaintiffs’ terminations and discipline. Without having the context in which such
evidence may be introduced, the Court will not preclude its introduction prior to trial. The
parties are directed to refrain from referring to such evidence or testimony in opening statements
and to approach the bench before introducing or eliciting such evidence or testimony for any
purpose.
8.

Plaintiffs challenge defendant’s ability to present evidence, testimony, and

argument that, under the law, plaintiffs had a duty to report hours, to keep records, or to inform
defendant of incorrect hours or pay. The Court denies the request in advance of trial and directs
that the parties object and request specific limiting instructions throughout the course of trial as
these issues arise.

The Court will rule on objections and requests for specific limiting

instructions when made at trial.
9.

Plaintiffs move in limine to exclude evidence, testimony, and argument regarding

payments made by defendant to plaintiffs other than hourly wages. The parties agree not to

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introduce such evidence, testimony, or argument and also agree that vacation pay and PTO is not
subject to this in limine motion. To the extent any party believes such testimony, evidence, or
argument becomes relevant at trial, the parties are directed to refrain from referring to such
evidence in opening statements and to approach the bench before introducing or eliciting such
evidence for any purpose.
10. Plaintiffs request that this Court restrict defendant’s use of plaintiffs’ deposition
transcripts. The Court rules that the parties may use plaintiffs’ deposition transcripts consistent
with the Federal Rules of Evidence. The Court directs that specific objections be lodged by the
parties during the trial as these issues arise.
11. Plaintiffs move in limine to exclude evidence, testimony, and argument related to
plaintiffs’ criminal records. Federal Rules of Evidence 609 and 403 govern. Without having a
description of the specific evidence subject to this motion or the context in which such evidence
may be introduced, the Court will not preclude the introduction of such evidence prior to trial.
The parties are  directed to refrain from referring to such evidence or testimony in opening
statements and to approach the bench before introducing or eliciting such evidence or testimony
for any purpose.
12. Both parties move in limine to exclude evidence, testimony, and argument related to
plaintiffs’ other lawsuits and claims. Without having a description of the specific evidence
subject to this motion or the context in which such evidence may be introduced, the Court will
not preclude the introduction of such evidence prior to trial. The parties are  directed to refrain
from referring to such evidence or testimony in opening statements and to approach the bench
before introducing or eliciting such evidence or testimony for any purpose.

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13. Defendant requests that plaintiffs refrain from presenting any testimony, evidence,
or argument relating to alleged FLSA violations and damages which are alleged to have occurred
outside of defendant’s Arkansas operations. The Court has dismissed without prejudice the
claims of the opt-in plaintiffs. Therefore, the parties represent that this issue is now moot. To
the extent any party believes such testimony, evidence, or argument becomes relevant at trial, the
parties are directed to refrain from referring to such evidence in opening statements and to
approach the bench before introducing or eliciting such evidence for any purpose.
14. Defendant requests that the Court direct plaintiffs to refrain from presenting any
testimony, evidence, or argument relating to general estimates of hours worked that were
uncompensated. This request is denied.
15. Defendant moves in limine to exclude evidence, testimony, and argument suggesting
or inferring that the parties made an offer to effect a compromise and settlement of this lawsuit
or any suggestion or inference that the lawsuit could not be or has not been comprised or
resolved. The parties agree to this request. To the extent any party believes such testimony,
evidence, or argument becomes relevant at trial, the parties are directed to refrain from referring
to such evidence in opening statements and to approach the bench before introducing or eliciting
such evidence for any purpose.
16. Defendant moves in limine to exclude evidence, testimony, and argument regarding
a comparison of the relative wealth of the parties or any indication that any party is wealthy and
would be able to satisfy a money judgment that might be rendered. The parties agree to this
request. To the extent any party believes such testimony, evidence, or argument becomes
relevant at trial, the parties are directed to refrain from referring to such evidence in opening

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statements and to approach the bench before introducing or eliciting such evidence for any
purpose.
17. Defendant moves in limine to exclude evidence, testimony, and argument regarding
alleged financial difficulties experienced or that will be experienced in the future by plaintiffs or
their families. The parties agree to this request. To the extent any party believes such testimony,
evidence, or argument becomes relevant at trial, the parties are directed to refrain from referring
to such evidence in opening statements and to approach the bench before introducing or eliciting
such evidence for any purpose.
18.

Defendant moves in limine to exclude evidence, testimony, and argument that

plaintiffs do not have the resources to present or prove their case. The parties agree to this
request. To the extent any party believes such testimony, evidence, or argument becomes
relevant at trial, the parties are directed to refrain from referring to such evidence in opening
statements and to approach the bench before introducing or eliciting such evidence for any
purpose.
19.

The Court has taken defendant’s supplemental motion in limine under advisement

(Dkt. No. 110). The parties are directed to refrain from referring to the evidence referenced in
that motion in opening statements and to approach the bench before introducing or eliciting such
evidence or testimony for any purpose.
** *
Other than as stated above, the motions in limine are denied without prejudice to the right
of counsel to object at trial.

For the foregoing reasons, plaintiffs’ motion in limine and

defendant’s motion in limine are granted in part and denied in part.

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SO ORDERED this 18th day of October, 2013.

____________________________________
Kristine G. Baker
United States District Judge

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