Mehta et al v. Foskey et al

Filing 140

ORDER AFFIRMING the Magistrate Judge's Orders re: 133 & 135 Motions in Limine. Signed by Chief Judge Lisa G. Wood on 5/10/2013. (csr)

in the linfteb Otatto Ditritt Court
for the Soutbern flitrfrt of Otorgia
aptro
ibtion
ATITH H. MEHTA; CK GAS, LLC dlb/a 3-D *
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CHEVRON STATION,
*

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Plaintiffs,

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vs.

CV 510-001

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*
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RICHARD R. FOSKEY; and JOHN M.
BLOOD WORTH,

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*

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Defendants.

ORDER

Presently before the Court are two appeals of the
Magistrate Judge's orders on the motions in lirnine. See Dkt.
Nos. 137, 138. Both Plaintiffs and Defendants filed motions in
limine seeking to exclude certain evidence from trial. See Dkt.
Nos. 118, 124. Both Plaintiffs and Defendants appeal portions
of the Magistrate Judge's determinations. For the reasons
stated below, the Magistrate Judge's orders are AFFIRMED.

Dkt.

Nos. 133, 135.
I. Testimony of Taylor Boatright

Plaintiffs appeal the Magistrate Judge's determination that
Taylor Boatright may testify. Plaintiffs state "the record is
clear: The defendants did not interview Boatright before
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searching the motel room or arresting Mehta." Dkt. No. 137.
The record, however, does not support that statement. There is
testimony from Officer Bloodworth, Angie Cox, and Boatright
suggesting that the interview occurred the same day Boatright
received the cigarette box at the Convenience Store.
In his deposition, Officer Bloodworth gave the following
testimony:
Q: I asked you earlier if there was anything else you
did to investigate the crime—let's call it that— .
A: Right.
before applying for the warrant, and you said
"No." Am I understanding that you had never had an
opportunity to speak with Taylor [Boatright] before
applying for the warrant?
A: I did talk to Taylor [Boatright] before I applied
for the warrant.
Q: Okay. Why didn't you include that in your report?
A: It is in the report. And I may have met Taylor
after the search. I'm not sure.
Q: Okay.
A: I do know that I spoke with Taylor .
Q: Okay.
A: . . . about it.
Q: And I'm focused—right now, I'm focused on before
you applied for the search warrant of Atith [Mehta].
A: Yeah.
Dkt. No. 72, Ex. 11, 49:18-25, 50:1-15.
Cox also testified that, the same day that Boatright told
her about the incident, Officer Bloodworth talked to Boatright
at Cox's salon.

Dkt. No. 76, 39:1-25, 40:1-25, 41:1-25, 42:1-

25. Cox stated she called Officer Bloodworth to her salon
"right then" after Boatright had relayed her story and that

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"[it didn't take him long to get there." Dkt. No. 76, 39:7-8,
40:22-32, 41:6-17.
Furthermore, Boatright herself, in her deposition, stated
the following:
Q: Okay.
So -you're talking-you're talking to Angie
[Cox], tell her basically everything that happened,
right?
A: Right. Just like I-yeah.
Q: And she says, "Honey, I'll take care of it"?
A: Uh-huh.
Q: Is that right?
A: Yeah.
Q: Anything else that you recall?
A: That was pretty much it. And then the next day she
called me over and - or that afternoon, or a little
bit after that - I can't remember - and, you know,
told me that somebody wanted to talk to me, which was
John [Bloodworth].
Q: Okay. Was that the next day?
A: No, it wasn't the next day. It had to be a little
bit after that because the next day that happened.
Q: What happened?
A: They busted him.
Q: Okay. So you went to the 3-D store, this happened,
and then the next day is when the arrest .
A: Right. tjh-huh.
Dkt. No. 82, 34:1-25.
Later in Boatright's deposition, the following exchange
occurred between Boatright and Plaintiffs' counsel.
Q: Any chance that [Cox] called you the next day to
come up to the store?
A: No.
Q: It was the same day?
A: Same day.
Dkt. No. 82, 40:18-22.

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As noted in the Magistrate Judge's Order, Plaintiffs, in
their Motion in Limine, requested reservation of Boatright as a
rebuttal witness "if otherwise needed for rebuttal." Dkt. No.
124, at 4. "A court has the power to exclude evidence in limine
only when evidence is clearly inadmissible on all potential
grounds." Lacy v. Wallace, No. CV211-067, 2012 WL 1601067 (S.D.
Ga. May 7, 2012) . Boatright's testimony cannot be excluded as
inadmissible on all potential grounds when Plaintiffs themselves
might seek to call her as a witness. Accordingly, the
Magistrate Judge's determination on this issue is AFFIRD.
II. Sheriff's Operation Procedures

Plaintiffs object to the exclusion of the Sheriff's
Operation Procedures. See Dkt. No. 137. Under Federal Rule of
Civil Procedure 72, a District Judge reviews a Magistrate
Judge's determination on non-dispositive matters and reverses
the ruling if the Magistrate Judge's determination is "clearly
erroneous or contrary to law." Fed. R. Civ. P. 72(a).
Plaintiffs state they "understand this Court's position on this
issue" and do not advance any argument for why the Magistrate
Judge's determination is clearly erroneous or contrary to law.
Dkt. No. 137 at 2. The Magistrate Judge's exclusion of this
evidence is, therefore, AFFIRMED.

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III. Interior Contents of Seized Magazines and DVDs

As Plaintiffs have positioned the case, CK Gas is currently
only pursuing a challenge to the procedure Defendants utilized
in seizing the materials. In their Motion in Limine, Plaintiffs
stated that "the content of the media has nothing whatever to do
with the damages suffered by the store for the unlawful seizure"
and that "[t]his is not an obscenity trial." Dkt. No. 124 at 3.
Those statements demonstrate quite clearly that CK Gas only
seeks to recover for the procedure Defendants used in seizing
the erotic materials.
A procedural challenge of this nature implicates both First
and Fourth Amendment interests. The procedural protections
afforded to expressive materials apply even if the expressive
materials are obscene, and therefore not actually afforded First
Amendment protections. The United States Supreme Court has
stated these procedural protections apply to "seizures of
presumptively protected material," and "allegedly obscene film,

books, and papers." Maryland v. Macon, 472 U.S. 463, 468 (1985)
(citations omitted) (emphasis added); Lo-Ji Sales, Inc. v. New
York, 442 U.S. 319, 328 (1979) (emphasis added) . This Court
reads that language as meaning even obscene materials are
afforded procedural protections. The scope of materials
afforded these procedural protections is broader than the scope
of materials afforded substantive protections by the First
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Amendment. Thus, if CK Gas only challenges the procedural
aspects of the seizure (as it appears to do), then no finding of
obscenity is necessary because the procedural requirements
remain the same whether or not the materials are, in fact,
obscene.
However, if CK Gas attempts at trial to challenge any
aspect of the seizure apart from the procedure used, then an
obscenity finding would be required and the content of the
materials would be relevant. The First Amendment offers no
substantive protection for obscene materials. Miller v.
California, 413 U.S. 15 (1973); Roth v. United States, 354 U.S.
476 (1957) . CK Gas cannot both exclude the content of the
magazines and the DVDs and attempt to recover for non-procedural
violations of the First Amendment.
The Magistrate Order limiting the admission of the interior
contents of erotic materials seized is therefore AFFIRMED.

See

Dkt. No. 133.
IV. Expert Testimony & Track Record

Defendants contend that Plaintiffs cannot recover damages
for loss of reputation or goodwill because they have not offered
expert testimony and lack a sufficient track record for the
business. Defendants cite a Sixth Circuit case to support the
proposition that expert testimony is required for recovery of
loss or reputation or goodwill. Dkt. No. 138 at 3 (citing
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Roundhouse v. Owens-Illinois, Inc., 604 F.2d 990, 995 (6th Cir.
1979)). That case, however, does not support that conclusion.
The Sixth Circuit in Roundhouse found several deficiencies in
the plaintiffs' claim for loss of reputation and goodwill and
stated "[n]or did plaintiffs offer any testimony valuing
goodwill." Id. at 995. The lack of an expert was an additional
way that the plaintiffs had failed to adequately prove loss of
reputation and goodwill. This Court cannot conclude on the
basis of Roundhouse that expert testimony is the only way to
make such a showing.
There are cases, both state and federal, that have allowed
a plaintiff to seek recovery for lost profits based on testimony
from an owner or someone else involved in the business. See
Miss. Chem. Corp. v. Dresser-Rand Co., 287 F.3d 359, 373 (5th
Cir. 2002) (collecting cases allowing lost profit testimony
where the witness has direct knowledge of the accounts at
issue); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 117476 (3d Cir. 1993) (allowing business owner to give lay testimony
as to damages based on knowledge and participation in day-to-day
affairs); Johnson Cnty. Sch. v. Greater Savannah Lawn Care, 629
S.E.2d 271 (Ga. Ct. App. 2006) (denying recovery of lost
profits, for other reasons, based on the testimony of the
business purchaser); Bowdish v. Johns Creek Assocs., 406 S.E.2d

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502 (Ga. Ct. App. 1991) (finding award of lost profits supported
by plaintiff homebuilder' s own testimony)
Defendants also contend the Convenience Store had an
insufficient track record from which a jury could base an award
because CK Gas only purchased the store 35 days before to the
seizure of the erotic materials. Dkt. No. 138. Prior to trial,
this Court cannot conclude that CK Gas has no way of proving a
sufficient track record. The Convenience Store had been
operating prior CK Gas purchasing it, CK Gas owned another gas
station and convenience store, and CK Gas had other potential
purchasers of the Convenience Store that ultimately backed out.
Defendants are free to challenge at trial the sufficiency
of any evidence submitted as to lost profits, goodwill, or
reputation as too speculative. Prior to hearing CK Gas's
evidence, this Court cannot determine its sufficiency.
CONCLUSION

For the reasons stated above, the Magistrate Judge's orders
on the motions in limine are AFFIR)D.

Dkt. Nos. 135, 133.

SO ORDERED, this 10th day of May, 2013.

L SA GODBEY OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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