Forbes v. Britt's Bow Wow Boutique, Inc et al

Filing 58

ORDER ON JOINT MOTION IN LIMINE granting in part and denying in part 54 Motion in Limine. Signed by Judge Beth Bloom on 8/28/2024. See attached document for full details. (pcs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 23-cv-23216-BLOOM/Torres
ADRIAN FORBES,
Plaintiff,
v.
BRITT’S BOW WOW BOUTIQUE, INC.,
and MERRI COLVARD,
Defendants.
____________________________________/
ORDER ON JOINT MOTION IN LIMINE
THIS CAUSE is before the Court upon the Parties’ Joint Motion in Limine, ECF No.
[54] (“Joint Motion”). The Court has considered the Joint Motion, the record in this case, the
relevant law, and is otherwise fully advised. For the reasons that follow, the Joint Motion is
granted in part and denied in part.
I. BACKGROUND
The Parties filed their Joint Motion pursuant to the Court’s Order Scheduling Trial, ECF
No. [40], on August 26, 2024. Defendants seek to exclude the following evidence or testimony:
(1) any documentary evidence that demonstrates Plaintiff’s overtime work; (2) any evidence that
contradicts Plaintiff’s testimony that he worked 73 hours a week for 33 weeks; and (3) any
evidence from Sydney Keefe’s related case against Defendants. 1 Defendants also seek to prevent

Defendants seek to preclude Plaintiff from introducing evidence of his damages because
Plaintiff failed to include a computation of damages in his Rule 26 disclosures. Defendants argue Plaintiff
should therefore be precluded from introducing evidence of his damages because his disclosures violate
Rule 37 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P 37(c)(1). The Court’s Scheduling
Order, ECF No. [11], provides “[a]ll dispositive pre-trial motions” must be filed by June 5, 2024. Id. at 2.
As the Order made clear, “[t]his deadline does not include motions in limine but includes all other pretrial motions.” Id. (emphasis in original). Defendants did not file any motions to strike nor did the
1

Case No. 23-cv-23216-BLOOM/Torres
Plaintiff from contesting their assertion that Plaintiff billed the federal government 40 hours a
week during the Claim Period for the care he provided to his now-deceased mother.
Plaintiff seeks to exclude the following evidence or testimony: (1) references to
attorney’s fees, costs, or liquidated damages; (2) arguments insinuating Plaintiff misrepresented
the hours spent caring for his now-deceased mother when billing the federal government; and (3)
evidence or argument of Plaintiff using illegal drugs; and (4) any text messages sent outside the
Claim Period.
II. LEGAL STANDARD
“In fairness to the parties and their ability to put on their case, a court should exclude
evidence in limine only when it is clearly inadmissible on all potential grounds.” United States v.
Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010). “The movant has the burden of
demonstrating that the evidence is inadmissible on any relevant ground.” Id. “Unless evidence
meets this high standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy, and potential prejudice may be resolved in proper context.” In re Seroquel
Prods. Liab. Litig., Nos. 06-MD-1769, 07-CV-15733, 2009 WL 260989, at *1 (M.D. Fla. Feb. 4,
2009). Likewise, “[i]n light of the preliminary or preemptive nature of motions in limine, ‘any
party may seek reconsideration at trial in light of the evidence actually presented and shall make
contemporaneous objections when evidence is elicited.’” Holder v. Anderson, No. 16-CV-1307,
2018 WL 4956757, at *1 (M.D. Fla. May 30, 2018) (quoting Miller ex rel. Miller v. Ford Motor
Co., No. 01-CV-545, 2004 WL 4054843, at *1 (M.D. Fla. July 22, 2004)); In re Seroquel Prod.
Liab. Litig., 2009 WL 260989, at *1 (“The court will entertain objections on individual proffers

Defendant seek to have the claimed Rule 26 deficiency heard by the presiding magistrate judge. The
Court declines to entertain Defendants’ untimely motion to strike based on Plaintiff’s Rule 26 disclosures.

2

Case No. 23-cv-23216-BLOOM/Torres
as they arise at trial, even though the proffer falls within the scope of a denied motion in
limine.”) (citing United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989)).
Evidence is admissible if relevant, and evidence is relevant if it has any tendency to prove
or disprove a fact of consequence. Fed. R. Evid. 401, 402; Advisory Comm. Notes, Fed. R.
Evid. 401 (“The standard of probability under the rule is ‘more probable than it would be without
the evidence.’”); United States v. Patrick, 513 F. App’x 882, 886 (11th Cir. 2013). A district
court may exclude relevant evidence under Rule 403 if “its probative value is substantially
outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue
delay, wasting of time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Rule
403 is an extraordinary remedy which the district court should invoke sparingly, and the balance
should be struck in favor of admissibility.” Patrick, 513 F. App’x at 886 (citing United States v.
Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011); United States v. Alfaro-Moncada, 607 F.3d 720,
734 (11th Cir. 2010)). Rule 403’s “major function … is limited to excluding matter of scant or
cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” United
States v. Grant, 256 F.3d 1146, 1155 (11th Cir. 2001).
III. DISCUSSION
A. Defendants’ Motion
Defendants seek to exclude the following evidence or testimony: (1) any documentary
evidence reflecting Plaintiff’s overtime work; (2) any evidence that contradicts Plaintiff’s
testimony that he worked 73 hours a week for 33 weeks; and (3) any evidence from Sydney
Keefe’s related case against Defendants. Defendants also seek to preclude Plaintiff from
contesting the assertion that he billed the federal government about 40 hours a week during the
Claim Period because Plaintiff destroyed his time records.

3

Case No. 23-cv-23216-BLOOM/Torres
i.

Documentary Evidence of Plaintiff’s Overtime Work

Defendants argue Plaintiff should be precluded from introducing any documentary
evidence of his overtime work because he failed to produce any such evidence, instead relying
on his own testimony. For support, Defendants point out this Court observed “Defendants are
correct that Plaintiff lacks documentation of his overtime work[ ]” in its Order on Summary
Judgment. See ECF No. [46] at 24. Defendants also argue this evidence is properly excluded
because Plaintiff failed to fulfill his discovery obligations.
Plaintiff responds that the Court’s observation that Plaintiff did not rely on documentary
evidence to contest Defendants’ motion for summary judgment does not support excluding any
such evidence at trial. Moreover, Plaintiff points out Defendants did not make any requests for
production or propound interrogatories.
The Court agrees with Plaintiff. Defendants fail to support their assertion that Plaintiff
failed to fulfill his discovery obligations. Defendants do not challenge Plaintiff’s representation
that they never made any requests for production or propounded interrogatories. As Plaintiff
points out, he timely disclosed and produced the documents requested in Defendants’ notice of
deposition duces tecum. Moreover, the Court’s observation that Plaintiff did not rely on
documentary evidence to challenge Defendants’ motion for summary judgment fails to show any
such evidence should be excluded at trial. The Motion is therefore denied as to this issue.
ii.

Evidence Contradicting Plaintiff’s Testimony Regarding His Hours

Defendants seek to “limit Plaintiff’s overtime claim to his claim that he averaged 73
hours of work per week for 33 consecutive weeks.” ECF No. [54] at 5. Defendants contend this
is necessary “[t]o avoid trial by ambush and to give meaning to depositions and admissions.” Id.
For support, Defendants again reference Plaintiff’s failure to fulfill his discovery obligations.

4

Case No. 23-cv-23216-BLOOM/Torres
Plaintiff responds that the proper remedy for contradicting his prior testimony is impeachment,
not excluding any such evidence in limine.
Defendants seek an order limiting Plaintiff’s substantive claim at trial. Defendants
provide no support for this position. As Plaintiff correctly points out, the proper mechanism for
challenging inconsistent statements is impeachment. If Plaintiff articulates a different weekly
schedule at trial, Defendants may impeach that testimony with Plaintiff’s prior deposition
testimony and admissions. However, Defendant fails to demonstrate that any such testimony or
other evidence should be excluded in limine. The Joint Motion is accordingly denied as to this
issue.
iii.

Evidence from Sydney Keefe’s Related Case

Defendants next seek to exclude any evidence or argument regarding the jury verdict,
decisions, or other information pertaining to a related case involving Defendants and Sydney
Keefe (“Keefe”), Plaintiff’s former co-worker, in Keefe v. Britt’s Bow Wow Boutique, Inc. et al.,
Case No. 22-cv-62138 (S.D. Fla. 2022). Defendants argue that evidence should be excluded
under Rule 403 because its probative value is substantially outweighed by the risk of unfair
prejudice. Defendants observe it would be prejudicial to argue they must have failed to
compensate Plaintiff for his overtime work because they later failed to compensate Keefe for her
overtime work. Defendants also point out that Keefe’s employment began after the Claim Period
in this case. Plaintiff responds that he should be permitted to admit Keefe’s prior testimony under
oath and discovery responses because that evidence is relevant to the issue of willfulness.
Defendants are correct that any relevance is outweighed by the risk of undue prejudice.
Arguing Defendants must have failed to pay Plaintiff overtime in this case because they later
failed to pay Keefe’s overtime wages is improper. Plaintiff relies on Contreras v. Aventura

5

Case No. 23-cv-23216-BLOOM/Torres
Limousine & Transportation Serv., Inc., No. 13-22425-CIV, 2014 WL 11880996 (S.D. Fla. July
29, 2014) to support his position that this evidence is admissible because it is relevant to the
issue of willfulness. In Contreras, the plaintiff argued “numerous, prior lawsuits by similarlysituated drivers, claiming that they were not independent contractors, should have put
[d]efendants on notice that they were possibly violating the law and constitutes evidence of
[d]efendant’s willful violation of the law.” Id., at *1. The court denied the defendants’ motion in
limine to exclude those prior lawsuits, concluding “the probative value of the number of other
lawsuits outweighs the prejudice[ ]” because those “prior lawsuits arguably put Defendant on
notice of potential FLSA violations.” Id.
While Keefe’s lawsuit also concerned Defendants’ failure to pay her overtime, that
lawsuit concerns events that took place after the Claim Period in this case. Unlike the prior
lawsuits in Contreras, Keefe’s prior lawsuit accordingly cannot demonstrate that Defendants had
notice of potential FLSA violations because their failure to pay Keefe overtime wages occurred
after the events that form the basis of Plaintiff’s overtime claim. The Court accordingly agrees
with Defendants that the risk of unfair prejudice substantially outweighs the probative value of
evidence derived from this related case. The Motion is therefore granted as to this issue.
iv.

Plaintiff Charging the Government for Caring for His Mother

Defendants argue Plaintiff should be prevented from contesting their position that he
billed the federal government approximately 40 hours a week to care for his mother during the
Claim Period. Defendants point out that Plaintiff testified he cared for his mother in addition to
working for Defendants during the Claim Period, and he threw out the records reflecting how
much time he spent doing so. Defendants argue Plaintiff deliberately destroyed this evidence,
which justifies preventing Plaintiff from contesting this argument as a sanction for spoliation of

6

Case No. 23-cv-23216-BLOOM/Torres
evidence. Plaintiff responds that he testified he could not recall how many hours he typically
spent caring for his mother per week, and he threw out records of that time when his mother died
because he “didn’t need them.” ECF No. [30-3] at 31.
Defendants’ argument is without merit. “Spoilation is the destruction or significant
alteration of evidence, or the failure to preserve property for another’s use as evidence in pending
or reasonably foreseeable litigation. Graff v. Baja Marine Corp., 301 (11th Cir. 2009). As
Plaintiff correctly points out, to demonstrate that spoliation occurred, Defendants must show
“first, that the missing evidence existed at one time; second, that the alleged spoliator had a duty
to preserve the evidence; and third, that the evidence was crucial to the movant being able to
prove its prima facie case or defense.” Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736
F. Supp. 2d 1317, 1322 (S.D. Fla. 2010). Moreover, “[a] party’s failure to preserve evidence
rises to the level of sanctionable spoliation ‘only where the absence of that evidence is predicated
on bad faith,’ such as where a party purposely loses or destroys relevant evidence.” Walter v.
Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010) (quoting
Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).
Plaintiff filed this case on August 23, 2023, over a year and a half after his mother died in
February 2022. See ECF No. [1]; ECF No. [30-3] at 31. Defendants have failed to demonstrate
that Plaintiff had a duty to preserve this evidence. Further, Defendants do not point to evidence
suggesting bad faith on Plaintiff’s part. The Motion is accordingly denied as to this issue.

7

Case No. 23-cv-23216-BLOOM/Torres
B. Plaintiffs’ Motion
i.

References to attorney’s fees, costs, or liquidated damages

Plaintiff first argues Defendants should be precluded from referencing to attorney’s fees,
costs, or liquidated damages. Defendants did not respond to Plaintiff’s argument. The Court
grants the Motion as to this issue in the absence of any opposition from Defendants.
ii.

Arguments that Plaintiff Committed Fraud

Plaintiff seeks to prevent Defendants from arguing he committed fraud on the federal
government by billing it for time he spent caring for his mother while falsely claiming he was
working during that time. Plaintiff reiterates that he did not intentionally destroy records
regarding the time he spent caring for his mother and contends Defendants’ argument that he
committed fraud is baseless and highly prejudicial. Defendants respond that it should be
permitted to make this argument because “the evidence shows that Plaintiff (and his attorney) are
committing a fraud on this Court as with Plaintiff working 40 hours per week to help his mother,
he could not have worked an average of 73 hours per week for 33 consecutive weeks.” ECF No.
[54] at 15.
The Court agrees with Plaintiff. Defendants provide no support for their accusation that
Plaintiff deliberately destroyed records of the time he spent caring for his mother. The same is
true regarding Defendants’ assertion that Plaintiff spent approximately 40 hours per work caring
for his mother during the Claim Period. Defendants do not point to any evidence supporting this
assertion. It is certainly true the hours Plaintiff spent caring for his mother—or any other
activity—is relevant to the question of how many hours Plaintiff actually worked for Defendants
during the Claim Period. However, Defendants’ unsupported argument that Plaintiff fraudulently
billed the federal government for about 40 hours a week during the Claim Period lacks support

8

Case No. 23-cv-23216-BLOOM/Torres
and, as such, is highly prejudicial. The Court accordingly agrees the probative value of this
argument, if any, is substantially outweighed by the risk of unfair prejudice. The Motion is
therefore granted as to this issue.
iii.

Plaintiff’s Text Messages Discussing Illegal Drugs

Plaintiff next seeks to exclude Defendants from offering any evidence or argument of any
text messages indicating Plaintiff used or exchanged illegal drugs. Plaintiff argues the text
messages referenced in Defendants’ motion for summary judgment should be excluded because
they are irrelevant, likely to confuse the issues, and cause unfair prejudice. Defendants respond
that Plaintiff’s text messages regarding the use of illegal drugs are relevant because they show
Plaintiff was picking up drugs while “on the clock”. According to Defendants, the probative
value of those message is therefore not substantially outweighed by the risk of unfair prejudice.
Plaintiff is certainly correct that messages sent outside the Claim Period that simply
reflect buying or consuming illegal drugs, without more, are both irrelevant and highly
prejudicial. As the Court observed in its Order on Summary Judgment, the excerpted text
messages relied on by Defendants are incomplete, omit the sender and recipient information,
were sent outside the Claim Period, and contain irrelevant information. See ECF No. [46] at 14;
ECF No. [30-4] ¶ 5. Defendants contend those messages, while admittedly prejudicial, are
relevant because they show Plaintiff was attempting to buy drugs while “on the clock”. However,
the excerpted messages are unclear, incomplete, and fail to demonstrate that Plaintiff was “on the
clock”. Defendants have no support for that assertion, nor do they challenge Plaintiff’s
representation that Defendants lack any other evidence of Plaintiff’s alleged drug use. The Court
accordingly concludes the probative value, if any, of those messages is substantially outweighed

9

Case No. 23-cv-23216-BLOOM/Torres
by the risk of unfair prejudice, misleading the jury, and confusing the issues. The Motion is
accordingly granted as to this issue.
iv.

Plaintiff’s Text Messages Sent Outside the Claim Period

Plaintiff also seeks to exclude Defendants from offering argument or any evidence of text
messages that were sent outside the Claim Period. Defendants respond that at least some of those
messages are relevant to Plaintiff’s overtime claim, and categorically excluding all messages sent
outside the Claim Period is therefore improper.
Defendants accurately point out that text messages sent outside the Claim Period may be
relevant and probative of Plaintiff’s overtime claim. Many messages are presumably irrelevant
and likely to confuse the issues. However, other messages may be relevant and probative of
Plaintiff’s overtime claim. Text messages from outside the Claim Period may be admissible to
show the nature of Plaintiff’s job duties, for example, or because they provide insight into
Plaintiff’s relationship with Colvard. As Defendants observe, the admissibility of Plaintiff’s text
messages cannot be evaluated in a vacuum. The admissibility of a given message must instead be
evaluated based on the context and content of that message. The Court accordingly declines to
categorically exclude any text messages sent outside the Claim Period, and the Motion is denied
as to this issue.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that the Parties’ Joint Motion in
Limine, ECF No. [54], is GRANTED in part and DENIED in part consistent with this Order.

10

Case No. 23-cv-23216-BLOOM/Torres
DONE AND ORDERED in Chambers at Miami, Florida, on August 28, 2024.

________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies to: Counsel of Record

11