Feezor v. Golden Bear Restaurant Group, Inc. et al

Filing 111

ORDER ON MOTIONS IN LIMINE signed by Judge Garland E. Burrell, Jr on 7/11/12 ORDERING 69 70 71 72 74 76 77 Motions are denied; 75 78 Motions are granted. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARY FEEZOR,

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Plaintiff,

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v.

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GOLDEN BEAR RESTAURANT GROUP,
INC. dba ARBY'S; A & R
INVESTMENT COMPANY; CARISCH,
INC. dba ARBY’S; CARISCH
BROTHERS, L.P. dba ARBY’S,

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Defendants.
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AND RELATED CROSS-CLAIM
________________________________

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Plaintiff

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and

2:09-cv-03324-GEB-CMK
ORDER ON MOTIONS IN LIMINE

Defendant/Cross-Claimant

A

&

R

Investment

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Company (“A & R”) move in limine for an order seeking to preclude the

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admission

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addressed below.

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A.

of

certain

evidence

at

trial.

The

parties’

motions

are

Plaintiff’s Motions in Limine

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Motion in Limine No. 1

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Plaintiff

seeks

to

prevent

defense

counsel

“from

making

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disparaging remarks against the plaintiff, his counsel, their motives,

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or ADA litigation in general in the presence of the jury.” (Pl.’s Mot.

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in Limine (“MIL”) No. 1, 4:6-9.)

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Since it is unclear what evidence is involved in this motion,

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it is DENIED. See United States v. Perry, No. CR-06-0098-EFS, 2007 WL

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655507, at *4 (E.D. Wash. Feb. 27, 2007)(denying motion in limine which

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concerned “misleading” evidence as “too vague”); see also Weiss v. La

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Suisse, Society D’Assurances Sur La Vie, 293 F. Supp. 2d 397, 407-08

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(S.D.N.Y. 2003)(denying motion to exclude evidence for a “lack[] of

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specificity[,]” stating “[n]o particular documents or testimony have

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been identified in the motion”).

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Motion in Limine No. 2

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Plaintiff seeks to exclude “testimony or evidence regarding

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[Plaintiff’s past Americans with Disabilities Act (“ADA”)] lawsuits and

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prior settlements,” arguing such evidence “is not relevant to any claim

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or contention in the present case.” (Pl.’s MIL No. 2, 2:18-20, 3:3-4.)

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Plaintiff also argues such evidence should be excluded under Federal

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Rule of Evidence (“FRE”) 403 because of its prejudicial nature and the

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consumption of time that would be necessitated by Plaintiff having to

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“discuss the validity and merits of each of those lawsuits.” Id. at

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4:15-19, 8:2-13.

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A & R rejoins that “Plaintiff’s motion seeks to prevent

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Defendant A & R from negating one of the elements that Plaintiff must

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prove

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discriminated

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enjoyment of the goods, services, . . . or accommodations of any place

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of public accommodation[.]” (Opp’n to Pl.’s MIL No. 2, 2:7-10 (internal

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quotation marks omitted).) A & R argues, “Plaintiff Lary Feezor is a

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vexatious litigant. He cannot prove he intended to use and ‘enjoy’ the

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goods and services at Arby’s on the day in question, which is part of

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the essential elements of his case in chief.” Id. at 3:19-21. A & R

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further counters that Plaintiff’s “litigiousness is admissible because

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it is relevant to [his] state

in

order
“on

to

prevail

the

basis

on

his

claim[,]”

of

disability

in

i.e.
the

that

full

he

and

was
equal

of mind[,] . . . as well as his

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2

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credibility

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businesses under the ADA).” Id. at 4:16-24.

and

modus

operandi

(i.e.

[he]

makes

a

living

suing

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“As a general matter, unless . . . prior lawsuits have been

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shown to be fraudulent, the probative value of evidence pertaining to a

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plaintiff’s litigation history is substantially outweighed by the danger

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of jury bias.” Henderson v. Peterson, No. C 07-2838 SBA (PR), 2011 WL

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2838169, at *5 (N.D. Cal. July 15, 2011); see also Moleski v. M.J.

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Cable, Inc., 481 F.3d 724, 728 n.3 (9th Cir. 2007)(commenting on the

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trial court’s admission of the plaintiff’s ADA litigation history and

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stating that such evidence “appear[s] to be irrelevant or at least far

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more prejudicial than probative”).

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“The charge of litigiousness is a serious one,
likely to result in undue prejudice against the
party charged, unless the previous claims made by
the party are shown to have been fraudulent[. A]
plaintiff's litigiousness may have some slight
probative value, but that value is outweighed by
the substantial danger of jury bias against the
chronic litigant. The trial court has a duty to
prevent exploitation of this prejudice[.]”

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Seals v. Mitchell, No. CV 04-3764 NJV, 2011 WL 1399245, at *5 (N.D. Cal.

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Apr. 13, 2011)(quoting Outley v. City of New York, 837 F.2d 587, 592 (2d

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Cir. 1988))(internal quotation marks, ellipses and brackets omitted).

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In light of these FRE 403 considerations, and since A & R has

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not shown that any of Plaintiff’s past ADA lawsuits were fraudulent, the

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motion is GRANTED.

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Motion in Limine No. 3

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Plaintiff seeks to exclude “evidence regarding the amount of

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statutory . . . damages he will receive if [Defendants] are found liable

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for violating state and federal disabled access standards[.]” (Pl.’s MIL

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No. 3, 2:3-6.) Plaintiff states “[he] is seeking the statutory minimum

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amount of damages he is entitled to receive under California law for
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each occasion that his rights were violated[, which] . . . is not a

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question of fact but, rather, a conclusion of well-established law.” Id.

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at 2:11-14. Plaintiff argues “[t]he jury’s only function is to determine

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the number of occasions that [Plaintiff] was denied public accommodation

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on the basis of disability[.]” Id. at 2:16-19. Once that is determined,

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Plaintiff argues “the amount of statutory damages [Plaintiff] receives

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becomes a simple question of multiplication.” Id. at 2:22-24. Plaintiff

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further argues that if the jury knows the amount of minimum statutory

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damages he will automatically receive per occasion, “the risk of jurors

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impermissibly focusing on the amount of damages [he] will receive -

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instead of the number [of] occasions he was discriminated against -

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increases dramatically.” Id. at 2:25-3:2.

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A & R rejoins that Plaintiff provides no authority to support

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his position, and that his “motive is transparent[; h]e simply wants to

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maximize the damages for his client.” (Opp’n to Pl.’s MIL No. 3, 2:3-4,

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2:7.) A & R further argues that “[i]t is . . . counterintuitive that a

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jury cannot assess damages” since they “perform that function all the

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time.” Id. at 2:11-12.

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Although Plaintiff states in this in limine motion that he is

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seeking the statutory minimum amount of damages he is entitled to

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recover under California law, the parties’ proposed Joint Statement of

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the Case, which was filed after Plaintiff filed this in limine motion,

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indicates that Plaintiff is seeking damages for “an actual injury

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(emotional distress)[.]” (ECF No. 88, 2:16-19.)

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Since it is unclear whether Plaintiff is seeking to recover

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actual damages greater than the statutory minimum permitted under state

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law, the Court does not reach the merits of Plaintiff’s arguments.

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Therefore, the motion is DENIED.
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Motion in Limine No. 4

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Plaintiff seeks to prevent “Arby’s . . . from presenting any

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evidence

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affirmative defense, but for which they failed to plead.” (Pl.’s MIL No.

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4, 3:15.)

that

relates

to

any

defense

that

should

be

pled

as

an

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It is unclear against which defendants this in limine motion

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is directed. Further, the motion is vague and overbroad; no particular

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testimony or documents are sought to be excluded. Therefore, the motion

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is DENIED.

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Motion in Limine No. 5

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Plaintiff requests “an Order preventing testimony or evidence

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regarding [potential court-awarded] attorney fees[.]” (Pl.’s MIL No. 5,

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2:12-17.) Plaintiff argues such evidence is irrelevant “to any claim or

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contention in the present case[,]” should be precluded under Rule 403,

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and is “improper for attorney[] . . . comment” under Ninth Circuit law,

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Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991). Id. at 2:19-26,

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4:3-7.

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A & R counters that “[t]he jury should be informed of the

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consequences of its decision . . . [to] help them make an informed

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decision.” (Opp’n to Pl.’s MIL No. 5, 2:3-4.) A & R further argues that

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it “should be able to mention attorney’s fees to the jurors” since

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“Courts recognize that the ADA is often used as a scheme to extort quick

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settlements and provide plaintiff’s attorneys exorbitant fees[.]” Id. at

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3:4-6.

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As stated by the Ninth Circuit in the context of a § 1983

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civil rights action, “[t]he award of attorneys' fees is a matter of law

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for the judge, not the jury.” Brooks, 938 F.2d at 1051.

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The jury's role is to determine liability and the
amount of damages. These determinations are
distinct from the awarding of fees. By informing
the jury of the plaintiff's right to seek
attorneys' fees . . . , the court invite[s] the
jury to factor in a subsequent step-the court's
calculation of the ultimate judgment-that ha[s] no
relevance to the jury's determination of liability
and damages.

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Furthermore, . . . informing the jury of the
possibility of fees could result in prejudice to
the plaintiff[.]

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Id.; see also Redwood Christian Schools v. Cnty. of Alameda, No. C-01-

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4282 SC, 2007 WL 214317, at *2 (N.D. Cal. Jan. 26, 2007)(granting motion

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in limine to exclude evidence of availability of attorneys fees, stating

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“[such] evidence is irrelevant and . . . unfairly prejudicial”).

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For the stated reasons, the motion is GRANTED.

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B.

A & R’s Motions in Limine

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Motion in Limine No. 1

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A & R seeks to “forbid[] Cross-Defendants Carisch, Inc., DBA

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Arby’s[;]

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Restaurant

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. . . which was withheld from [A & R] during discovery[,]” arguing

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“evidence wrongfully withheld . . . during discovery cannot be used

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against A & R at trial.” (A & R’s MIL No. 1, 2:2-6.)

Carisch

Brothers

L.P.,

DBA

Arby’s[;]

Group, Inc. [(“Cross-Defendants”)]

and

Golden

Bear

from offering evidence,

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This motion is over-broad and vague, and is therefore DENIED.

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See Colton Crane Co., LLC v. Terex Cranes Wilmington, Inc., No. CV 08-

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8525

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2010)(“[M]otions

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categories of evidence, as the court is almost always better situated to

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rule on evidentiary issues in their factual context during trial.”); see

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also Lego v. Stratos Intern., Inc., No. C 02-03743 JW, 2004 WL 5518162,

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at *1 (N.D. Cal. Nov. 4, 2004)(denying motion in limine to preclude

PSG

(PJWx),
in

2010

WL

limine

2035800,
should

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at

rarely

*1

(C.D.

seek

to

Cal.

May

exclude

19,
broad

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opinion testimony by any person who was not properly disclosed as an

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expert as “too vague”).

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Motions in Limine Nos. 2 & 3

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A & R seeks to exclude Plaintiff and Cross-Defendants’ expert

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witness Joe Card under Federal Rule of Civil Procedure (“FRCP”) 37,

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arguing the parties did not “disclose[] [Mr.] Card as a potential

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witness . . . until May 14, 2012, when [they] served [their] pretrial

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disclosures[,]” after discovery had closed.(A & R’s MIL No. 2, 3:14-19;

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A & R’s MIL No. 3, 3:14-21.)

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Plaintiff rejoins that “he was not required to [include]” Mr.

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Card in his initial disclosures since FRCP 26(a)(2)(A)(B)(i)[-](iv)

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governs the “[d]isclosure of expert testimony and witnesses,” and

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Plaintiff “properly disclosed [Mr. Card]” pursuant to these rules.

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(Pl.’s Opp’n to A & R’s MIL No. 2, 2:22-24, 3:21-27, 4:4-6.) Cross-

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Defendants counter that Mr. “Card’s Expert report was served on A & R’s

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counsel on September 8, 2011.” (Cross-Defs.’ Opp’n to A & R’s MIL No. 3,

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2:4-5.)

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In its reply briefs, A & R argues “[w]hile it is true that

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there is a procedure for listing expert witnesses, this does not negate

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[the parties’] obligation to list all known witnesses in their initial

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disclosures.” (A & R’s Reply Brief in Supp. of MIL No. 2, 2:2-3; A & R’s

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Reply Brief in Supp. of MIL No. 3, 2:3-4.) Concerning Cross-Defendants’

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disclosure, A & R further argues that the September 8, 2011 disclosure

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of Mr. Card’s expert report was made solely by Plaintiff; “Cross-

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Defendants never served anything.” (A & R’s Reply Brief in Supp. of MIL

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No. 3, 2:4-8.)

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“[FRCP] 26 requires parties to disclose the identity of any

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expert witness ‘accompanied by a written report’ detailing the opinions

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the expert will express and the data on which he or she will rely, ‘at

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the times and in the sequence that the court orders.’” Jarritos, Inc. v.

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Reyes, 345 Fed. Appx. 215, 217 (9th Cir. 2009)(quoting FRCP 26(a)(2)).

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In this case, the deadline to exchange initial expert disclosures was

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September 8, 2011. See Stipulation and Order to Am. the Scheduling Order

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to Extend Time to Disclose Expert Test., ECF No. 31.

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A & R has not shown that Plaintiff did not timely disclose Mr.

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Card as an expert witness. Further, no party submitted Mr. Card’s expert

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disclosure for the Court’s consideration. Therefore, the Court cannot

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determine whether Cross-Defendants properly disclosed Mr. Card as an

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expert witness. For the stated reasons, the motion is DENIED.

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Motion in Limine No. 4

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A & R seeks to exclude “any testimony, evidence and argument

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regarding architectural features that are unrelated to Plaintiff’s

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disability[,]” arguing “Plaintiff lacks standing to seek relief based on

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alleged ADA violations unrelated to his disability.” (A & R’s MIL No. 4,

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2:2-4, 3:9-10.)

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Plaintiff counters that “A & R simply fails to go beyond their

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blanket assertion to allege which specific barriers they contend to be

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unrelated to Feezor’s disability and why.” (Opp’n to A & R’s MIL No. 4,

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2:10-12.) Plaintiff further rejoins, “[r]egardless, A & R . . . ha[s]

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overlooked the fact that [Plaintiff] nonetheless has standing under the

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pled state law claims to remove even those barriers which are unrelated

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to his disability.” Id. at 2:12-15.

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This in limine motion involves law and motion issues filed

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after the prescribed last hearing date for such matters. Further, it is

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unclear what evidence is involved in this motion, since A & R does not

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identify the alleged architectural barriers at issue or how they are

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unrelated to Plaintiff’s disability. For the stated reasons, the motion

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is DENIED.

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Dated:

July 11, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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