USA v. Wilmer et al

Filing 59

ORDER granting in part and denying in part 56 Motion in Limine: Rock Weisstrial exhibits A through Y, inclusive, except for exhibit C, are struck by Magistrate Judge Michael J. Watanabe on 10/4/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02244-CMA-MJW

UNITED STATES OF AMERICA,
Plaintiff(s),
v.
RICHARD WILMER, and
ROCK WEISS,
Defendant(s).

ORDER REGARDING UNITED STATES’ MOTION IN LIMINE
(DOCKET NO. 56)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff United State’s Motion In Limine (docket
no. 56). The court has reviewed the subject motion (docket no. 56) and the response
(docket no. 58). In addition, the court has taken judicial notice of the court’s file and has
considered applicable Federal Rules of Civil Procedure and case law. The court now
being fully informed makes the following findings of fact, conclusions of law, and order.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

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2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That in this civil action, the Plaintiff USA seeks recovery of costs
pursuant to Section 107(a) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. §
9607(a), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (“CERCLA”), and a declaration of
Defendants’ liability for all future response costs to be incurred by
the United States in connection with the release or threatened
release of hazardous substances into the environment at and from
the Cherokee Print Shop Wastes Site [hereinafter “Site”] located at
4411 Cherokee Street, Denver, Colorado;

5.

That on February 23, 2012, a judgment by default was entered
against the Co-Defendant Richard Wilmer. See docket no. 31.
Accordingly, liability has already been determined as to the CoDefendant Richard Wilmer and his ownership and operation of the
Site. In the remainder of this lawsuit against Defendant Rock
Weiss, the trier of fact will determine whether Defendant Weiss is
liable as an arranger for disposal of materials containing hazardous
substances. Moreover, the Plaintiff USA does not contend in this
lawsuit that the Defendant Weiss disposed of any gasoline via the
trailer that was sold to Co-Defendant Wilmer;

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6.

That in the subject motion (docket no. 56), the Plaintiff USA argues
that Defendant Weiss’ trial exhibits identified as Defendant’s
exhibits A through Y, inclusive, are all inadmissible at trial except
for Defendant’s exhibit “C” since such exhibits are irrelevant under
Fed. R. Evid 401 and therefore are inadmissible under Fed. R.
Evid. 402. See docket no. 56-1 for the list of Defendant Weiss’ trial
exhibits. In addition, the Plaintiff USA seeks an Order from this
court striking Defendant Weiss’ endorsed witness Laurianne
Jackson, who is an EPA enforcement attorney who has been
assigned to this matter but has no other connection to the Site, and
therefore the Plaintiff USA argues that Ms. Jackson has no
personal knowledge as required under Fed. R. Evid. 602 and thus
is not a competent witness;

7.

That Defendant Weiss has failed to demonstrate in his Objection
[Response] to United States’ Motion in Limine (docket no. 58) how
any of his trial exhibits A through Y, inclusive, except for exhibit “C,”
are relevant to the issues before this court at trial under Fed. R.
Evid. 401, and therefore the subject motion (docket no. 56) should
be granted as to striking Defendant Weiss’ trial exhibits A through
Y, inclusive, excluding exhibit “C;” and

8.

That Defendant Weiss has proffered, in his Objection [Response] to
United States’ Motion in Limine (docket no. 58), some basis to
allow him an opportunity at trial to attempt to lay a proper

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foundation [ i.e., a showing of personal knowledge by witness
Laurianne Jackson under Fed. R. Evid. 602]. Judge Arguello will
decide whether a proper foundation has been laid at trial for the
testimony of Ms. Jackson.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff United States’ Motion In Limine (docket no. 56) is
GRANTED IN PART AND DENIED IN PART. The subject motion
(docket no. 56) is GRANTED insofar as Defendant Rock Weiss’
trial exhibits A through Y, inclusive, except for exhibit “C,” are
STRUCK as trial exhibits and may not be used by Defendant Weiss
in his case-in-chief. The portion of the subject motion (docket no.
56) requesting that witness Laurianne Jackson be struck is
DENIED. Defendant Weiss will be given an opportunity at trial to
call witness Laurianne Jackson and attempt to lay a proper
foundation [ i.e., a showing of personal knowledge by witness
Laurianne Jackson under Fed. R. Evid. 602]. Judge Arguello will
decide at trial whether a proper foundation has been laid for the
testimony of Ms. Jackson; and

2.

That each party shall pay their own attorney fees and costs for this
motion.

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Done this 4th day of October 2012.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE