Moore et al v. Deer Valley Trucking, Inc.

Filing 55

MEMORANDUM DECISION AND ORDER : Plaintiffs' Motion in Limine (Dkt. 32 ) is GRANTED in part and DENIED in part. 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 (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHAWN A. MOORE and DEDE
JARDINE,

Plaintiffs,

Case No. 4:13-cv-00046-BLW
MEMORANDUM DECISION AND
ORDER

v.
DEER VALLEY TRUCKING, INC.,
Defendant.

The Court has before it Plaintiffs’ Motion in Limine (Dkt. 32). Plaintiffs ask the
Court to prohibit Deer Valley Trucking (“DVT”) from (1) presenting evidence at trial
regarding ten specific statements listed in its motion, (2) calling witnesses who were not
properly disclosed, and (3) presenting witness testimony from Tracey Tremelling about
what “pushers” do generally and what Plaintiffs did specifically in their jobs.
1.

Ten Statements
Plaintiffs ask the Court to prohibit DVT from presenting testimony at trial that: (1)

Plaintiffs were paid four times their value; (2) Plaintiffs were paid $300 per day even on
days when they did not work; (3) Plaintiffs received housing subsidies or were living in
company housing; (4) Plaintiffs were independent contractors; (5) Plaintiffs caused DVT
to lose contracts or lose work; (6) DVT is having financial difficulties; (7) DVT does not
want to set a precedent regarding payment of overtime; (8) Plaintiffs were earning more

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than others similarly situated; (9) It is the “industry standard” to not pay overtime when
paying day rates; and (10) No other trucking companies in North Dakota pay overtime
wages to truck pushers.
At first blush, it would appear that the ten statements which concern the Plaintiffs
would be irrelevant, and potentially prejudicial. However, motions like this are not easy
for the Court to answer outside the context of trial. On the other hand, the Court also
understands Plaintiffs’ concern that when irrelevant evidence is presented to the jury, it is
often difficult to unring that bell. And the Court notes that DVT does not necessarily
argue that the ten statements are relevant, but only suggest that the motion is premature.
Under these circumstances, the Court will neither grant nor deny Plaintiffs’ motion
that the ten statements be excluded. Instead, the Court will instruct counsel that they are
not to allow their witnesses to offer such testimony without first notifying opposing
counsel and the Court so that the admissibility of the testimony can be resolved outside
the presence of the jury. The Court will likely be in a better position to make a ruling at
that point.
2.

Witnesses
Plaintiffs ask the Court to preclude DVT from calling any witnesses at trial who

were not properly disclosed in DVT’s initial disclosures under Rule 26(a)(1)(A)(i). Rule
26(a)(1)(A)(i) requires a party to disclose “the name, and if known, the address and
telephone number of each individual likely to have discoverable information – along with
the subjects of that information – that the disclosing party may use to support its claims

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or defenses, unless the use would be solely for impeachment.” Rule 37(c) states that “[i]f
a party fails to provide information or identify a witness as required by Rule 26(a) or (e),
the party is not allowed to use that information or witness to supply evidence . . . at trial,
unless the failure was substantially justified or is harmless. In addition to or instead of
this sanction, the court on motion or after giving an opportunity to be heard: (A) may
order payment of the reasonable expenses, including attorney’s fees, caused by the
failure; (B) may inform the jury of the party’s failure; and (C) may impose other
appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A) (i)-(vi).” Fed.
R. Civ. P. 37 (emphasis added).
DVT argues that, in its initial disclosures, it properly disclosed the names of the
witnesses which it intends to use at trial to support its defenses. However, it makes no
real attempt to deny Plaintiffs’ claim that it failed to provide the subjects of the
discoverable information known to each individual DVT intended to call as a witness in
support its defense. DVT also does not contend that its lack of disclosure was
substantially justified. Its only argument is that the failure to disclose was harmless – for
a number of reasons.
First, DVT suggests that Plaintiffs had “more than enough time to depose Mr.
Chapman, who is the owner of DVT, had they wanted to ascertain the subject matter of
his testimony.” Def. Resp. Br., p. 3, Dkt. 49. Second, DVT argues that Plaintiffs cannot
claim prejudice as to Leann Sauer, Seth Driggs and Noah Wells because the Plaintiffs
themselves disclosed these individuals as potential witnesses in either their initial

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disclosures or at other times during discovery. Finally, DVT suggests that Plaintiffs
cannot claim prejudice “when they did not perform even the most basic of discovery as to
individuals with knowledge of what potential testimony would be at trial.” Id. DVT then
explains how the initial disclosure rule only states that the parties identify the general
subject of discoverable information, and suggests that it did not need to disclose the
subject matter because Plaintiffs already had the information.
The problem with DVT’s argument is that it misapprehends the standard. Rule
26(a)(1)(A)(i) plainly states that a party must provide the subjects of the discoverable
information “without awaiting a discovery request. . . .” FRCP 26(a)(1)(A)(i). Indeed,
one of the obvious purposes of the initial disclosure rule is to provide each party with
enough information to make an informed decision as to whether they want to incur the
substantial expense of deposing a disclosed witness or engaging in other types of
discovery to determine the specifics of that witness’s knowledge about the case. DVT’s
argument would be inconsistent with that goal and would run afoul of the command of
Rule 1, that the Rules are to be construed and administered to secure the “just, speedy,
and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
The resolution of this matter is fairly straightforward. Under these circumstances,
the Court finds that if Plaintiffs were, in fact, aware of the subject matter each of these
witnesses would testify about then the failure to disclose was harmless. Thus, DVT may
call these witnesses to testify – but only as to the subject matter Plaintiffs listed as to each

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witness. However, DVT may not call the witnesses to testify to any subject matter not
listed by Plaintiffs in their disclosures.
3.

Tracey Tremelling
Plaintiffs ask the Court to preclude Tremelling from testifying about what Pushers

do generally, and what Plaintiffs did specifically. Obviously, Tremelling cannot testify as
to matters where he has no personal knowledge. Thus, if he has no personal knowledge
about what Plaintiffs did specifically, which DVT does not appear to deny, he cannot
testify to such. On the other hand, if he does have personal knowledge, then counsel for
DVT will be required to ask foundational questions to establish that personal knowledge
before asking Tremelling about what the Plaintiffs actually did as part of their work
responsibilities.
Whether Tremelling may testify as to what Pushers do generally is more nuanced.
As Judge Bryan noted in his opinion denying summary judgment in this case, the title of
an employee is not material; rather his or her status is determined by the actual duties
performed. 29 C.F.R. 782.2(b)(2); Porter v. Poindexter, 158 F.2d 759, 761 (10th Cir.
1947). Both parties appear to agree with this statement of the law. However, Plaintiffs
ask the Court to preclude Tremelling, DVT’s financial director, from testifying about
what a Pusher’s typical duties are because it will confuse the jury about what Plaintiffs
actually did. At this point, the Court disagrees. Giving the jury background information
about DVT’s understanding of a Pusher may provide the jury with proper context.
Moreover, the Court will give the jury the proper jury instructions about what they should

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evaluate in determining whether Plaintiffs are exempt from the FLSA. The Court may
reconsider this ruling during trial if it appears there is confusion or if the testimony
provided by Tremelling is irrelevant, and the Court may give a limiting instruction that
such testimony is only to provide background, and is not evidence of what work the
Plaintiffs, or other Pushers, actually performed. But for now the Court will deny
Plaintiffs’ request.
ORDER
IT IS ORDERED:
1. Plaintiffs’ Motion in Limine (Dkt. 32) is GRANTED in part and DENIED
in part as explained above.

DATED: October 2, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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