Alamar Ranch, LLC v. County of Boise

Filing 177

MEMORANDUM DECISION AND ORDER on Plaintiff's Motions to Exclude, reserving 90 Motion in Limine; granting in part and denying in part 93 Motion in Limine. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

Alamar Ranch, LLC v. County of Boise

Doc. 177

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO

A L A M A R RANCH, LLC, an Idaho lim ite d liability company; and YTC, L L C , an Idaho limited liability company, P la in tif f s , v. C O U N T Y OF BOISE, a political s u b d iv is io n of the State of Idaho, D e f e n d a n t.

C a se No. 1:09-cv-004-BLW M E M O R A N D U M DECISION AND O R D E R ON PLAINTIFFS' M O T I O N S TO EXCLUDE (Dkts. 93, 94)

Before the Court are Plaintiffs' Motions in Limine (Dkts. 93, 94) asking that the C o u rt preclude (1) testimony from the Pereidas, and (2) evidence and argument that P la in tif f s assumed the risk that Defendant would unlawfully discriminate. The motions h a v e been fully briefed. The Court being familiar with the record and pleadings will g ra n t the motions in part, deny in part, and reserve ruling in part, as explained below. A N A L Y S IS 1. M o tio n to Preclude Testimony From the Pereidas R a lp h "Rip" and Chrystal "Chrys" Perieda testified at public hearings in front of, a n d submitted materials to, Boise County regarding the Alamar Ranch project. Plaintiffs
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have been unable to serve the Pereidas with subpoenas for documents and their deposition te s tim o n y, and they appear to be avoiding service. Plaintiffs ask the Court to preclude th e m from testifying at trial, and to preclude any testimony from them during hearings in f ro n t of Boise County, as well as any materials they submitted to Boise County. D e f e n d a n t does not oppose the motion in so far as it seeks to preclude the Pereidas f ro m testifying at trial. That portion of the Plaintiffs' motion will therefore be granted. D e f e n d a n t objects, however, to the extent Plaintiffs ask the Court to exclude re le v a n t portions of the record submitted to Boise County for review of the Alamar Ranch a p p lic a tio n . The Court sees no basis to exclude portions of the record considered by B o is e County in rendering its decision simply because Plaintiffs have been unable to take th e Pereidas' depositions. On the other hand, the Court will instruct the jury that the te s tim o n y of the Pereidas submitted to Boise County for review of the Alamar Ranch a p p lic a tio n is not to be considered for the truth of the matters set forth therein, but only f o r the effect, if any, it may have had upon Boise County in its decision-making process. If circumstances suggest that it should, the Court will also advise the jury that the P e re id a s have apparently sought to avoid being served with a subpoena which would have c o m p e lle d their attendance at a deposition during which their testimony before Boise C o u n ty could be subjected to cross-examination. 2. M o tio n In Limine to Exclude Evidence and Argument That Plaintiffs A s su m e d the Risk That Defendant Would Unlawfully Discriminate

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Plaintiffs ask that Defendant be precluded from arguing or presenting evidence f ro m two of Boise County's experts, Michael Jones and Peter Butler, opining that P la in tif f s should not have purchased or invested in the Alamar Ranch property because of th e risks inherent in the CUP process. Plaintiffs argue that such testimony implies that P la in tif f s "assumed the risk" that Boise County would unlawfully discriminate. Plaintiffs a rg u e that, accordingly, the expert testimony must be precluded because it clearly c o n tra d ic ts established law that the assumption of the risk doctrine does not apply in a F a ir Housing Act case.1 D e f e n d a n t responds that it has no intention of arguing that Plaintiffs should have a s s u m e d the risk of unlawful discrimination, but that Plaintiffs' motion is much broader in the evidence and argument it seeks to preclude. Defendant argues that the risk a s s u m e d by Plaintiffs was in purchasing and investing in the property without c o n d itio n in g the purchase on obtaining zoning sufficient to meet the needs of the project. Defendant cites two other district court cases addressing this concept in the context of the F a ir Housing Act, Woodfield Equities, LLC v. Incorp. Village of Patchogue, 357 F .S u p p .2 d 622, 636 (E.D. N.Y. 2005) and South Camden Citizens in Action v. New Jersey D e p t. Of Environmental Protection, 145 F. Supp.2d 446, 501-02 (D. N.J. 2001).

Plaintiffs also raise objections to the admissibility of the Butler and Jones opinions under Fed. R. Evid. 702. As Plaintiffs acknowledge, these arguments are duplicative of Plaintiffs' arguments in separate motions in limine as to both expert opinions, and are addressed in the Court's Memorandum Decision and Order on Motions in Limine re: Defendant's Experts Peter Butler (Dkt. 103) and Michael Jones (Dkt. 106), and Plaintiffs' Expert Charles Wilhoite (Dkt. 114). MEMORANDUM DECISION & ORDER ON PLAINTIFFS' MOTIONS TO EXCLUDE (DKTS. 93 & 94) - 3

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The Court agrees with Plaintiffs that an "assumption of the risk" defense is in a p p lic a b le in a Fair Housing Act case. However, Defendant has not asked for an " a s s u m p tio n of the risk" instruction, and does not appear to be raising it as a defense. Rather, Defendant's argument ­ albeit loosely termed as assumption of the risk ­ goes to P la in tif f s ' responsibility for taking risks which resulted in injuries not related to any d is c rim in a to ry decision. See, e.g., McKay v. Boise Project Bd. of Control, 111 P.3d 148, 1 5 7 (Idaho 2005) (acknowledging that assumption of the risk does not apply in n e g lig e n c e cases in Idaho, but that the terms "assuming the risk" can apply beyond the c o n te x t of the legal doctrine of assumption of the risk). Obviously, there are circumstances where an application for a resident treatment f a c ility for the handicapped may be turned down for reasons quite unrelated to the c h a ra c te ris tic s of the residents of the proposed facility. Non-compliance with setback re q u ire m e n ts , non-discriminatory density limitations, adequate fire protection re q u ire m e n ts , and applicable building codes are but a few examples of non-discriminatory re a s o n s which may justify a local government in denying such an application. As in the Court's decision regarding limits on experts' testimonies opinions (Dkt. 1 6 9 ), the Court considers how the evidence Plaintiffs seek to exclude here would arise in th e context of trial. Ultimately, the jury will need to determine whether the County's c o n d u c t was motivated by discriminatory reasons or by legitimate, non-discriminatory z o n in g requirements. If the jury determines that the Alamar Ranch development would
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have been approved, but for the County's discriminatory animus, then evidence that the P la in tif f s should have proceeded with caution and not committed to purchase the property u n til they had a CUP in hand would conflict with the remedial provisions of the FHA. On th e other hand, if the jury ultimately determines either (1) that the County was not m o tiv a te d by discriminatory animus or (2) that, if its intent was discriminatory, the project w o u ld have nevertheless been denied for legitimate non-discriminatory reasons, the jury w ill never reach the issue of damages and testimony concerning the Plaintiffs; failure to p ro c e e d with caution would not be relevant. Resolving this issue on a motion in limine poses an obvious challenge. The Court d o e s not have such familiarity with the facts of the case or the parties' factual and legal th e o rie s to be able to predict with certainty that the case will lay out as simply as the f o re g o in g analysis suggests. The Court has tentatively excluded testimony by Butler re g a rd in g mitigation of damages, but invited Plaintiffs to re-raise the issue at trial, noting th e same concerns expressed here. Order, Dkt. 169 at 5. In light of these concerns, the C o u rt will reserve ruling on Plaintiffs' motion to exclude "assumption of risk" testimony u n til the trial is underway and it has had an opportunity to hear counsel further on this is su e . ORDER I T IS ORDERED: 1. P la in tif f s ' Motion in Limine to Prohibit Testimony from the Pereidas (Dkt.

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93) is GRANTED in part, and DENIED in part. The Pereidas may not be c a lle d as witnesses to testify at trial. However, their testimony and s u b m is s io n s to Boise County for review in connection with the Alamar P ro je c t is not precluded if otherwise admissible. 2. T h e Court's Ruling on Plaintiffs' Motion in Limine to Preclude Argument a n d Evidence of Justifications for Imposing Conditions Which Were Not S ta te d in the Decision and Order (Dkt. 90) is RESERVED.

DATED: December 5, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge

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