Del Rosario Gutierrez v. Galiano Enterprises of Miami et al

Filing 79

ORDER granting in part and denying in part 72 Plaintiffs' Motion in Limine. Signed by Magistrate Judge Edwin G. Torres on 7/23/2019. See attached document for full details. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-24081-Civ-TORRES
OMELIA DEL ROSARIO GUTIERREZ,
ANA M. CASTILLO, CECILA RAMIREZ
BRITO, and all others similarly situated
under 29 U.S.C. 216(b),
Plaintiffs,
v.
GALIANO ENTERPRISES OF MIAMI,
CORP., d/b/a GALIANO RESTAURANT,
SULTAN MAMUN,
Defendants.
___________________________________________/
ORDER ON PLAINTIFFS’ MOTION IN LIMINE
This matter is before the Court on Omelia Del Rosario Guiterrez’s (“Ms.
Guiterrez”), Ana M. Castillo’s (“Ms. Castillo), and Cecila Ramirez’s (Ms. Ramirez”)
(collectively, “Plaintiffs”) motion in limine against Galiano Enterprises of Miami
d/b/a Galiano Restaurant (“Galiano Restaurant”) and Sultan Mamun (“Mr.
Mamun”) (collectively, “Defendants”).

[D.E. 72].

Defendants responded to

Plaintiffs’ motion on July 8, 2019 [D.E. 76] to which Plaintiff replied on July 15,
2019. [D.E. 77]. Therefore, Plaintiffs’ motion is now ripe for disposition. After
careful review of the motion, response, reply, relevant authority, and for the reasons
discussed below, Plaintiffs’ motion is GRANTED in part and DENIED in part.1

On April 2, 2018, the parties consented to the jurisdiction of the undersigned
Magistrate Judge. [D.E. 42].
1

1

I.

BACKGROUND

Plaintiffs filed this action on November 7, 2017 for (1) overtime wages
pursuant to the Fair Labor Standards Act (“FLSA”), (2) federal minimum wage
violations, and (3) Florida minimum wage violations. [D.E. 1]. Plaintiffs allege that
Galiano Restaurant is a company that regularly transacts business in Miami-Dade
County and that Mr. Mamun is a corporate officer/manager of the corporation.
Between 2011 to 2017, Plaintiffs claim that they worked more than forty hours per
week, and that Defendants failed to compensate them as required under the FLSA.
Plaintiffs also allege that they worked for roughly two dollars per hour in violation
of the minimum wage provisions of the FLSA and Florida law. Because Defendants
failed to compensate Plaintiffs for overtime hours worked and paid Plaintiffs below
the federal and state minimum wage, Plaintiffs request damages, fees, court costs,
and interest.
II.

APPLICABLE PRINCIPLES AND LAW

“The purpose of an in limine motion is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as
to issues that are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp.
2d 173, 176 (S.D.N.Y. 2008) (citing Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
1996)).

Under the Federal Rules, evidence is considered relevant if it has the

tendency to make a fact of consequence more or less probable. See Fed. R. Evid.
401(a)-(b). The Rules permit the exclusion of relevant evidence when the probative

2

value is substantially outweighed by danger of unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, and/or needlessly presenting
cumulative evidence. Fed. R. Evid. 403 (emphasis added). Courts are cautioned to
use Rule 403 sparingly, see, e.g., United States v. King, 713 F.2d 627, 631 (11th Cir.
1983), in part because the federal rules favor admission of evidence and in part
because relevant evidence is inherently prejudicial to a defendant. See id. (citing to
other sources).
The term Aunfair prejudice@ in and of itself speaks to the ability of a piece of
relevant evidence to lure the fact finder into declaring a defendant=s guilt on
grounds other than specific proof of the offense charged. See Old Chief v. United
States, 519 U.S. 172, 180 (1997). It also signifies an undue tendency to suggest
guilt on an improper basis, commonly an emotional one. See id. In the context of a
Rule 403 balancing test, the more essential the piece of evidence is to a case, the
higher its probative value; the higher a piece of evidence=s probative value, the less
likely it should be excluded on 403 grounds. See King, 713 F.2d at 631.
III. ANALYSIS
Plaintiffs seek to preclude Defendants from presenting testimony or evidence
on (1) attorneys’ fees and costs, (2) liquidated damages, (3) Plaintiffs’ counsel, (4)
Plaintiffs’ payment or non-payment of federal income taxes, (5) Plaintiffs’ arrests,
convictions, pleas, and pending criminal cases, (6) Plaintiffs’ prior litigation against
Defendants, and (7) Plaintiffs’ immigration status. Defendants do not oppose most
of the relief sought and only object to the introduction of evidence related to

3

Plaintiffs’ payment of federal income taxes and Plaintiffs’ prior litigation against
Defendants. Accordingly, Plaintiffs’ motion to exclude any testimony or evidence
related to the categories enumerated above – except for the fourth and sixth
categories – is GRANTED. We will consider the remaining issues in turn.
A.

Plaintiffs’ Taxes

The first issue is whether Defendants should be precluded from presenting
any evidence related to Plaintiffs’ payment or non-payment of federal income taxes.
Plaintiffs argue that evidence related to their taxes should be excluded under Rule
403 because any probative value is substantially outweighed by the danger of unfair
prejudice and confusion of the issues.

Plaintiffs also claim that any evidence on

this issue is irrelevant and creates undue prejudice in the minds of the jury:
[T]he undersigned concludes that Defendants shall be precluded from
suggesting that Plaintiffs failed to pay income taxes because such
evidence will likely create undue prejudice in the minds of the jurors;
and, it will likely give rise to collateral disputes—including the extent
of Plaintiffs’ reporting obligations regarding such taxes—that will
cause undue delay and confusion of the issues. Thus, Plaintiffs’ motion
in limine to preclude Defendants from introducing evidence that
Plaintiffs failed to pay income taxes is GRANTED.
Ortiz v. Santuli Corp., 2009 WL 2382144, at *1 (S.D. Fla. Aug. 3, 2009); see also
Torres v. Rock & River Food Inc., 2016 WL 8716674, at *3 (S.D. Fla. May 11, 2016)
(“In this case, the Court is not faced with a plaintiff who falsified tax returns or was
convicted of tax fraud or tax evasion. Although the Court does not condone the
Plaintiff's actions, his failure to pay income taxes has only minor probative value to
his character for truthfulness. That probative value, however, is substantially

4

outweighed by confusion of the issues and misleading the jury.”) (emphasis in
original).
On the other hand, Defendants rely on cases where courts have allowed
defendants to inquire about a plaintiff’s failure to pay income taxes to attack a
plaintiff’s credibility under Federal Rule of Evidence 608(b).2 See Rakip v. Paradise
Awnings Corp., 2011 WL 6029981, at *3 (S.D. Fla. Nov. 30, 2011); Barrera, No. 09–
cv–21841, ECF No. 291 at *4 (S.D. Fla. Jan. 26, 2011); Palma, 2011 WL 6030073, at
*1; Chamblee v. Harris & Harris, Inc., 154 F. Supp. 2d 670, 681 (S.D.N.Y.
2001) (“Evidence that a witness has failed, for years, to file a tax return is a matter
which affects the witness’s credibility.”). Because the question of whether Plaintiffs
paid federal income taxes is allowed for impeachment purposes under the Federal
Rules of Evidence and it relates to the question of whether Plaintiffs worked for
other employers during the same period for which they are seeking overtime and
minimum wage compensation, Defendants conclude that this inquiry should be
allowed given the facts of this case.
We agree with Defendants that whether Plaintiffs paid federal income taxes
is allowed for impeachment purposes because it is probative of Plaintiffs’ character
for truthfulness. See Solano v. A Navas Party Prod., Inc., 2010 WL 11505479, at *2
Federal Rule of Evidence 608(b) prohibits the use of extrinsic evidence to
“prove specific instances of a witness’s conduct in order to attack or support the
witness’s character for truthfulness.” Fed. R. Evid. 608(b). A court, however, “may,
on cross-examination, allow them to be inquired into if they are probative of the
[witness’s] character for truthfulness or untruthfulness.” Id. Extrinsic evidence
may also be admitted “where it is introduced to disprove a specific fact material to
the defendant’s case.” United States v. Calle, 822 F.2d 1016, 1021 (11th Cir.
1987) (“[E]vidence relevant to a material issue is not rendered inadmissible
because it happens to include references to specific bad acts of a witness.”).
2

5

(S.D. Fla. July 12, 2010) (“If Plaintiff never paid taxes, that too, may be probative of
his truthfulness.”) (citing See Chamblee v. Harris & Harris, Inc., 154 F. Supp. 2d
670, 681 (S.D.N.Y. 2001) (“Evidence that a witness has failed, for years, to file a tax
return is a matter which affects the witness’s credibility.”); Mischalski v. Ford
Motor Co., 935 F. Supp. 203, 208 (E.D.N.Y. 1996) (failure to pay income taxes bears
“directly on a plaintiff's propensity for truthfulness and must be admitted for
impeachment purposes if plaintiff takes the stand.”)); see also Tapia, 2013 WL
12198827, at *1 (“Plaintiff seeks to preclude questions about his federal income
taxes; in particular, whether he filed tax returns and whether he reported all
income on his returns. We deny Plaintiff's request because evidence that he failed
to file tax returns or report all his income is relevant for impeachment purposes.”).
While Plaintiffs claim that questions related to federal income taxes may be
prejudicial, that argument is unpersuasive and circular because impeachment
evidence is by definition prejudicial. The only question is whether the probative
value is outweighed by the danger of unfair prejudice and we conclude that it is not.
Defendants are entitled for impeachment purposes to attack the truthfulness of
Plaintiffs if the latter failed to complete all the required information on their federal
income taxes.

To that end, the same holds true for Plaintiffs in undermining

Defendants’ credibility to the extent that they failed to pay income taxes. This
means that impeachment evidence cuts both ways and it is the role of the jury to
make the appropriate credibility determinations.

Therefore, Plaintiffs’ motion to

exclude any evidence related to the payment of federal income taxes is DENIED.

6

B.

Prior Litigation

The final issue is whether any references to Ms. Gutierrez’s and Ms. Brito’s
prior litigation against Defendants should be excluded at trial. Defendants argue
that Ms. Gutierrez and Ms. Brito each filed prior lawsuits against them and that
they should be allowed to cross examine these plaintiffs to determine if (1) there are
any prior inconsistent statements, and (2) whether either plaintiff has any motive
or bias in filing this lawsuit.
It is well settled in the Eleventh Circuit that evidence of other lawsuits is
generally considered to be inadmissible hearsay.

See In re Ethicon, Inc., Pelvic

Repair Sys. Prods. Liab. Litig., 2014 WL 505234, at *5-6 (S.D. W. Va. Feb. 5,
2014) (citing Johnson v. Ford Motor Co., 988 F.2d 573, 579 (5th Cir. 1993)); see
also Steed v. EverHome Mortg. Co., 308 F. App’x 364, 369 n.2 (11th Cir. 2009)
(excluding

a

complaint

hearsay); Roberts

v.

filed

in

Harnischfeger

a

prior

lawsuit

Corp., 901

F.2d

against
42,

defendant

44-45

(5th

as
Cir.

1989) (affidavit summarizing copies of notices of pending litigation against the
defendant properly excluded as hearsay); Amegy Bank Nat’l Ass’n v. DB Private
Wealth Mortg., Ltd., 2014 WL 791505, at *2 (M.D. Fla. Feb. 24, 2014) (excluding any
“references to allegations, petitions, complaints or claims against [defendant] in
other suits” as hearsay); Abu Dhabi Commercial Bank v. Morgan Stanley & Co.,
2013 WL 1155420, at *7 (S.D.N.Y. Mar. 20, 2013) (excluding “[r]eferences to other
lawsuits including their factual allegations and evidence”). The reason evidence of
prior lawsuits is generally not allowed is because evidence of other cases can at

7

times “lead to a series of mini-trials,” and pose a danger of confusing and misleading
the jury “from the task at hand of evaluating plaintiff’s claims,” including a “waste
of time and judicial resources.” Smith v. E-backgroundchecks.com, Inc., 2015 WL
11233453, at *2 (N.D. Ga. June 4, 2015).
In light of that, we agree in some respects that evidence of prior lawsuits
cannot be permitted given the danger of unfair prejudice.

On the other hand,

“depending on the evidence offered at trial, evidence of other lawsuits might be used
for impeachment,” if the evidence is relevant and undermines the allegations
presented (i.e. whether Plaintiffs worked for another employer at the same time
they allege to have worked overtime). Rushing v. Wells Fargo Bank, N.A., 2012 WL
3155790, at *1 (M.D. Fla. Aug. 3, 2012).

We cannot, however, make a final

determination at this time because it is unclear what evidence Defendants
specifically seek to introduce. Accordingly, Plaintiffs’ motion is GRANTED, but
only to the extent that the motion seeks to prohibit any reference to prior lawsuits
for non-impeachment purposes. As for Plaintiffs’ motion to exclude any testimony
or evidence of prior lawsuits for impeachment purposes, Plaintiffs’ motion is
DENIED without prejudice and may be renewed at trial.

8

IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion in limine [D.E. 72] is GRANTED
in part and DENIED in part:
A. Plaintiffs’ motion to exclude any evidence of attorneys’ fees and costs,
liquidated damages, Plaintiffs’ counsel, arrests, convictions, pleas,
pending criminal cases, and Plaintiffs’ immigration status is GRANTED.
B. Plaintiffs’ motion to exclude any evidence of whether Plaintiffs paid
federal income taxes is DENIED.
C. Plaintiffs’ motion to exclude any evidence of prior lawsuits is GRANTED
but only to the extent that the motion seeks to prohibit any reference to
prior lawsuits for non-impeachment purposes. As for Plaintiffs’ motion to
exclude any evidence of prior lawsuits for impeachment purposes,
Plaintiffs’ motion is DENIED without prejudice.
DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of
July, 2019.

/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

9