Goold v. Hilton Worldwide, Inc. et al

Filing 89

ORDER GRANTING Plaintiff's Motion to Exclude Brad Hutton as a Witness; ORDER GRANTING Defendants' Motion to Exclude Evidence of Other Acts, signed by Magistrate Judge Jennifer L. Thurston on 9/29/2014. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN GOOLD, Plaintiff, 12 v. 13 14 HILTON WORLDWIDE, et al., Defendants. 15 ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-00438 - JLT ORDER GRANTING PLAINTIFF’S MOTION TO EXCLUDE BRAD HUTTON AS A WITNESS ORDER GRANTING DEFENDANTS’ MOTION TO EXCLUDE EVIDENCE OF OTHER ACTS 16 17 Plaintiff alleges Defendants fired him in retaliation for complaining about sexual harassment 18 suffered by another employee and complaining that the other employee’s firing was unlawful. During 19 this ongoing trial, issues related to the admissibility of the testimony of Brad Hutton and other acts 20 evidence will be permitted. For the reasons set forth below, the Court ORDERS Brad Hutton will not 21 be allowed to testify based upon Defendants’ failure to time identify him as a witness and the other acts 22 evidence, related to Diane Clayton and Mark Erickson will not be admitted.1 23 A. “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the 24 25 Legal Standards practice has developed pursuant to the district court’s inherent authority to manage the course of 26 27 28 1 The Court has previously determined that the evidence related to Gino Majalca would not be admitted because there was no evidence that his termination was retaliatory. Instead, the evidence showed that the entire valet department was terminated when Defendants decided to issue a contract to an outside provider for this service. 1 1 trials.” Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). The Ninth Circuit explained motions in 2 limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present 3 potentially prejudicial evidence in front of a jury.” Brodit v. Cabra, 350 F.3d 985, 1004-05 (9th Cir. 4 2003) (citations omitted). Likewise, the Seventh Circuit found motions in limine are “an important 5 tool available to the trial judge to ensure the expeditious and evenhanded management of the trial 6 proceedings.” Jonasson v. Lutheran Child & Family Services, 115 F.3d 436, 440 (7th Cir. 1997). Generally, motions in limine that seek exclusion of broad and unspecific categories of evidence 7 8 are disfavored. See Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A 9 court “is almost always better situated during the actual trial to assess the value and utility of 10 evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007). Therefore, the Sixth 11 Circuit explained, “[A] better practice is to deal with questions of admissibility of evidence as they 12 arise [in trial].” Sperberg, 519 F.2d at 712. 13 B. 14 Testimony of Brad Hutton Plaintiff complains that the testimony of Brad Hutton should not be permitted because he was 15 not identified timely in Rule 26 disclosures and was not identified in discovery as one who contributed 16 to the decision to terminate Plaintiff until it was served by mail two days before the discovery 17 deadline. Defendants’ counter that Mr. Hutton’s name was raised in a memo disclosed to Plaintiff on 18 December 30, 2013 and was identified as one of the decision makers related to Plaintiff’s firing in 19 Defendants’ supplemental responses to discovery. 20 Federal Rules of Civil Procedure 26(e) requires a party who has responded to an interrogatory 21 or who has made a disclosure under Rule 26(a) to supplement its response in a timely manner if the 22 party learns that its response is incomplete and if the additional information has not otherwise been 23 made known to the other party during the discovery process. A party is prohibited from using at trial 24 information or witnesses not disclosed during the discovery period unless the failure to supplement 25 was substantially justified or harmless. Fed.R.Civ.P. 37(c)(1); R & R Sails, Inc. v. Ins. Co. of the State 26 of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir.2012) (the party facing the preclusion of evidence 27 under Rule 37 “bears the burden of proving that its failure to disclose the required information was 28 substantially justified or is harmless”). Notably, Rule 26(a) refers to the party’s initial disclosures and 2 1 Rule 26(e) refers to the obligation to supplement these disclosures unless the correction or addition to 2 the initial disclosures “has not otherwise been made known to the other parties during the discovery 3 process or in writing . . .” 4 Notably, the memo provided on December 30, 2013, failed to detail Hutton’s involvement in 5 the firing decision. Moreover, on this same date, Defendants provided responses to interrogatories in 6 which they excluded Hutton as a decision maker. Thus, the Court concludes that as of that date, 7 Plaintiff did not have reason to know that Hutton was a decision maker. Moreover, Defendants’ 8 counsel have failed to explain why they believed by February 26, 2014 that Hutton was, in fact, a 9 decision maker or when, exactly, they learned this. They provided no explanation of what occurred in 10 the 60 days after their December 30, 2013 discovery response that alerted them to Hutton’s role. 11 Moreover, in their February 26, 2014 discovery response, Defendants failed to explain his role—by 12 supplementing their initial Rule 26 disclosures or otherwise—such to alert Plaintiff to the importance 13 of his information. Indeed, the supplemental Rule 26 disclosure was not made until July 2014. At that 14 time, the topics outlined related to his area of knowledge was so broad and vague as to fail to alert 15 Plaintiff as to truly what he knew. 16 The importance of Hutton’s information was not demonstrated to Plaintiff until the deposition 17 of Bill Murray, which was taken in April 2014—months after the discovery deadline, due to a 18 prolonged illness of the deponent—at which Murray explained that Hutton told him to fire Plaintiff. 19 Notably, this was contrary to Murray’s testimony in December 2012 in the Kern County Superior 20 court that Murray decided to terminate Plaintiff. 21 Moreover, the disclosure of Hutton’s identity as a decision maker in the supplemental 22 interrogatory responses mail-served two days before the close of discovery does not comply with Rule 23 26(e) and does not avoid the Rule 37 sanction. Even if received by Plaintiff at the very moment it was 24 mail-served, there was insufficient time for Plaintiff to notice a deposition of this witness. When 25 signing a discovery response, counsel certify that they have conducted a reasonable inquiry to ensure 26 the response is accurate. Fed. R. Civ. P. 26(g)(1). Thus, in light of the December 30, 2013 disclosure 27 and the response to interrogatories made on that same date, the Court must accept that counsel did 28 inquire at that time and determined that Brad Hutton was not a decision maker despite that he and 3 1 another person, Patrick Voltz, were identified as having some involvement in Plaintiff’s firing. Thus, 2 the supplementation on February 26, 2014—especially in light of the fact that Defendants’ has no 3 recollection of how or when he learned that Hutton was, in fact, a decision maker—is troubling and 4 perplexing. In light of the discovery deadline which would pass a mere two days after Defendants provided 5 6 their supplement responses to interrogatories—which did not allow Plaintiff time to notice the 7 deposition of Hutton—and their failure to supplement their disclosures for five months after the 8 discovery cut-off, the Court finds that Defendants failed to timely disclose this witness and that this 9 was done without substantial justification and was not harmless. 10 To determine whether to preclude the introduction of evidence under Rule 37, the Court 11 considers: “(1) the surprise to the party against whom the evidence would be offered; (2) the ability of 12 that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt trial; (4) the 13 importance of the evidence; and (5) the nondisclosing party’s explanation for it[s] failure to disclose 14 the evidence.” San Francisco Baykeeper v. West Bay Sanitary Dist., 791 F.Supp.2d 719, 733 15 (N.D.Cal.2011) (quoting Dey. L.P. v. Ivax Pharms., Inc., 233 F.R.D. 567, 571 (C.D.Cal.2005)). Here, the Court offered Plaintiff’s counsel the ability to depose Hutton over the weekend 16 17 during trial and counsel did so. Plaintiff’s counsel argued that, though this alerted him as to what 18 Hutton would say, there was no time to verify the accuracy of his account through other efforts such as 19 obtaining phone records such to challenge Hutton’s memory on the topic. On the other hand, the Court has been provided no reason to believe that Hutton’s testimony 20 21 would be different from that of John Sommer. When asked, Defendants’ counsel was unable to 22 describe any substantive differences except that Hutton could verify the testimony of Murray that, 23 indeed, Hutton told him to fire Plaintiff. While the Court appreciates the desire of Defendants to 24 bolster their witnesses’ account of the events, at best this evidence is cumulative.2 Thus, the Court 25 concludes that the testimony would not be important to the outcome of the trial. Finally, Defendants’ 26 27 28 2 Defendants’ counsel argued also that he anticipated that statements of Sommer in his expected testimony would draw hearsay objections. However, that counsel cannot think of an alternative method of introducing this evidence is not sufficient grounds for the Court to find the evidence is not cumulative. 4 1 explanation that their state of knowledge of this case was “evolving,” is insufficient to explain the 2 failure to provide the discovery timely. Defendants were provided a significant amount of time to 3 discover the case and the Court has been provided no satisfactory reason why this could not have 4 occurred during the allowable discovery period.3 Therefore, after weighing the appropriate factors, the Court ORDERS that Brad Hutton will 5 6 not be allowed to testify due to Defendants’ failure to timely disclose him. 7 C. Previously, the Court determined that evidence related to Diane Clayton and Mark Erickson 8 9 “Other acts” evidence related to Diane Clayton and Mark Erickson could be admitted. The Court had been informed that they had made complaints to John Sommer—a 10 decision maker in Plaintiff’s firing—and that they suffered adverse employment actions as a result. 11 However, the Court has conducted an in camera review of the personnel files of both and has 12 determined that the evidence related to these two former employees would not be probative as to 13 Defendants’ retaliatory motive. Whether “other acts” evidence can be admitted at trial “depends on many factors, including how 14 15 closely related the evidence is to the plaintiff’s circumstances and theory of the case.” Sprint/United 16 Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008). Generally, this evidence may be admitted to 17 demonstrate motive. F. R. E. 404(b); Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 18 (11th Cir. 2008). This is permitted even where the circumstances differ and even where the decision 19 maker is different. Griffin v. Finkbeiner, 689 F.3d 584, 598-99 (6th Cir. 2012). Here, however, there is no evidence that Sommer—or anyone else identified as a decision 20 21 maker in this case—played any role in the decision to terminate either of these employees. Likewise, 22 Clayton and Erickson were employed in different locations and in different cities than Plaintiff and the 23 employment actions as to each occurred after Plaintiff’s firing. Griffin, 689 F.3d at 598-99; Ansell v. 24 Green Acres Contracting Co., 347 F.3d 515, 524-25 (3d Cir. 2003). Most important, there is no 25 26 27 28 3 Defendants continued to provide discovery documents through September 2014—just days before trial began without any substantive explanation for why these records could not have been provided during the discovery period. (Doc. 76 at 4; Doc. 79 at 7) There is no showing that these documents were not within Defendants’ control during the entirety of this case and, it appears, the failure stems from a lack of diligence by Defendants in searching them out. This is unacceptable and the Court relies upon this course of conduct significantly in making its determination here. 5 1 evidence of retaliation related either to Clayton or Erickson. 2 First, Clayton’s complaint of an unlawful employment action was made after she was fired— 3 though on the same date. Likewise, she had been disciplined for months leading up to her firing and 4 had been given a “final warning” before she was fired. In addition, the personnel documents 5 demonstrate that John Sommer played no role in her firing and was not apprised of her employment 6 situation until after the EEOC complaint was received. 7 Second, Mark Erickson had been disciplined many times before he filed his employment 8 complaint related to failing to report to work, for having too many absences within a set period and for 9 other reasons. The discipline imposed after he made his employment complaint was for noting a 10 different start time on his time card than was correct. This was the second time he was disciplined for 11 this same reason; the first occurred about a month before the employment complaint was made. 12 Moreover, there is no evidence that Sommer played any role in the discipline imposed and Erickson 13 separated from Defendants’ employ earlier this year only because he was offered a more-favorable job 14 opportunity. 15 16 Thus, the Court concludes that neither complaint is probative of Defendants’ retaliatory motive and, therefore, will not be admitted. ORDER 17 18 Based upon the foregoing, the Court ORDERS: 19 1. Brad Hutton will not be permitted to testify; 20 2. The “other acts” evidence related to Diane Clayton and Mark Erickson will not be 21 admitted. 22 23 24 25 IT IS SO ORDERED. Dated: September 29, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 26 27 28 6

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