Smith et al v. Family Video Movie Club, Inc.
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 2/13/17.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DARVETTE SMITH, NATALIE
HODOROVYCH, ERIN BOX, and
BLAKE BREZINSKY, individually,
and on behalf of all others similarly
FAMILY VIDEO MOVIE CLUB, INC.,
11 C 1773
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Defendant Family Video Movie Club, Inc. is a video rental chain that
operates stores in nineteen states, including 115 stores in Illinois. Plaintiffs are
former Family Video employees who claim that Family Video underpaid them in
violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the
Illinois Minimum Wage Law (IMWL), 820 Ill. Comp. Stat. 150/1 et seq. In support
of these claims, Plaintiffs allege that Family Video underpaid them by excluding
commissions in calculating their overtime wages. They further allege that Family
Video failed to compensate them for off-the-clock time spent making bank deposits
on Family Video’s behalf.
After Plaintiffs filed this lawsuit, Family Video added a new code to its
timekeeping system. The code allows employees to add fixed amounts of time to
their time cards in order to account for time spent making bank deposits after
clocking out. These fixed amounts of time are listed in a report that the parties
refer to as the “Time Study.” Family Video has filed a motion in limine seeking to
exclude the Time Study under Federal Rules of Evidence 401, 403, and 407. For the
reasons set forth below, the motion is granted in part and denied in part.
Plaintiffs filed this lawsuit on March 24, 2011, on behalf of themselves and
all others similarly situated. They bring claims under the FLSA and the IMWL. In
March 2015, the Court issued an order allowing Plaintiffs to proceed with their
FLSA claims as a collective action.
The collective action is divided into two
subclasses, the “Commission Class” and the “Bank Deposit Class,” which the Court
respectively defined as follows:
All opt-in Plaintiffs who worked more than 40 hours in a workweek
without receiving applicable overtime premiums that included
commission pay from March 14, 2008, through March 14, 2011.
All opt-in Plaintiffs who worked more than 40 hours in a workweek
that took Family Video’s bank deposits off the clock from March 14,
2008, through March 14, 2011.
Smith v. Family Video Movie Club, Inc., No. 11 C 1773, 2015 WL 1542649, at *9
(N.D. Ill. Mar. 31, 2015).
In November 2015, the Court granted Plaintiffs’ motion for class certification
of their IMWL claims using substantially the same subclass definitions that the
Court approved with respect to the FLSA claims. See Smith v. Family Video Movie
Club, Inc., 311 F.R.D. 469, 473, 483 (N.D. Ill. 2015). In certifying these subclasses,
the Court noted that Plaintiffs had proposed to rely solely upon Family Video’s own
records to ascertain which employees were eligible for class membership by virtue of
having worked more than 40 hours in a workweek. Id. at 474, 478–79.
After the Court certified these subclasses, however, a dispute arose as to
precisely how Plaintiffs were to calculate whether employees had worked more than
40 hours in a workweek in order to fall within the class. According to Plaintiffs,
both the on-the-clock time recorded in Family Video’s records as well as the
unrecorded off-the-clock time that employees spent making bank deposits were to
be taken into account in calculating how many hours employees had worked. See
Pls.’ Mot. Clarification at 1, ECF No. 436. By contrast, Family Video maintained
that unrecorded off-the-clock time should be left out of this calculation. See Family
Video’s Opp. at 2, ECF No. 439.
In light of this dispute, the Court amended the definitions of the two
subclasses certified in its November 2015 order. The amended definitions read as
All current and former employees of Family Video retail stores in Illinois who
were paid on an hourly basis and who, according to Family Video’s records,
worked more than 40 hours in a workweek without receiving applicable
overtime premiums that included commission pay from March 14, 2008,
through March 14, 2011.
All current and former employees of Family Video retail stores in Illinois who
were paid on an hourly basis, worked more than 40 hours in a workweek
(according to Family Video’s records), and took Family Video’s bank deposits
while off-the-clock between March 14, 2008, through March 14, 2011.
ECF No. 448 (emphases added).
These amendments did not put the parties’ dispute fully to rest. They still
disagree as to whether Family Video’s Time Study counts as a “Family Video
record” that may be used in determining which employees “worked more than 40
hours in a workweek” under the class definitions. As noted above, the Time Study
is a report that lists the amount of time it takes to make bank deposits from each
Family Video store. This amount of time varies from store to store, depending on
factors such as a given store’s distance from the store’s preferred bank. Family
Video created the Time Study in May 2011—after this lawsuit was filed—in order to
develop a new code for use in its timekeeping system. Upon entering this new code,
Family Video employees can now receive an automatic time credit for any bank
deposits that they plan to make after clocking out.
Plaintiffs propose to use the times listed in the Time Study to calculate the
number of hours employees worked, both to determine as a threshold matter which
employees are eligible for class membership and ultimately to measure class
members’ damages. See Pls.’ Status Report at 1–4, ECF No. 451; Pls.’ Opp. at 5,
ECF No. 464. Plaintiffs reason that, because the Time Study is part of “Family
Video’s records,” use of the Time Study is fair game for the purpose of making these
calculations. See id. For its part, Family Video contends that Plaintiffs should not
be permitted to use the Time Study for this (or any other) purpose. Family Video
has accordingly filed a motion in limine seeking to exclude the Time Study.
“Although the Federal Rules of Evidence do not explicitly authorize in limine
rulings, the practice has developed pursuant to the district court’s inherent
authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4
Rulings in limine avoid delay and allow the parties the opportunity to
prepare themselves and witnesses for the introduction or exclusion of the applicable
evidence. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); United States
v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Trial courts have broad discretion in
ruling on evidentiary issues before trial. See United States v. Chambers, 642 F.3d
588, 594 (7th Cir. 2011); Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 426 (7th Cir.
2000). The Court will grant a motion in limine only when the evidence is clearly
inadmissible for any purpose. See Jonasson v. Lutheran Child & Family Servs., 115
F.3d 436, 440 (7th Cir. 1997); Betts v. City of Chi., Ill., 784 F. Supp. 2d 1020, 1023
(N.D. Ill. 2011). Furthermore, rulings on motions in limine are “subject to change
when the case unfolds.” Luce, 469 U.S. at 41; see also Farfaras v. Citizens Bank &
Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006).
Indeed, “even if nothing
unexpected happens at trial, the district judge is free, in the exercise of sound
judicial discretion, to alter a previous in limine ruling.” Luce, 469 U.S. at 41–42.
In support of its motion in limine, Family Video primarily argues that the
Time Study should be excluded under Federal Rule of Evidence (“Rule”) 407 as a
subsequent remedial measure. It also argues that the Time Study should be barred
under Rules 401 and 403. The Court will address each of these arguments below.
Rule 407: Subsequent Remedial Measures
Rule 407 provides that “[w]hen measures are taken that would have made an
earlier injury or harm less likely to occur, evidence of the subsequent measures is
not admissible to prove . . . culpable conduct.” Fed. R. Evid. 407; see also Pugh v.
Tribune Co., 521 F.3d 686, 695 (7th Cir. 2008). Subsequent measures barred for the
purpose of proving culpable conduct may nevertheless be admissible “for another
purpose, such as impeachment or—if disputed—proving ownership, control, or the
feasibility of precautionary measures.” Fed. R. Evid. 407. As a matter of policy,
Rule 407 aims to incentivize socially beneficial activity on the part of defendants
where such activity might lead to an inference that defendants’ pre-litigation
conduct was legally culpable.
See Fed. R. Evid. 407 advisory committee’s note;
Markadonatos v. Vill. of Woodridge, 760 F.3d 545, 550 (7th Cir. 2014).
Although Rule 407 is most frequently invoked to exclude evidence of
subsequent repairs in product liability cases, the Seventh Circuit has made clear
that the rule encompasses subsequent remedial measures well beyond those that
involve “‘repair’ in the literal sense.” Pastor v. State Farm Mut. Auto. Ins. Co., 487
F.3d 1042, 1045 (7th Cir. 2007).
For example, Rule 407 has been held to bar
evidence of an insurer’s contract revisions for the purpose of proving the insurer’s
contractual liability. See id. It has also been held to bar evidence of a change in a
prison’s policy for the purpose of proving that the prison’s pre-litigation policies
violated inmates’ civil rights. See Ford v. Schmidt, 577 F.2d 408, 410–11 (7th Cir.
1978). In sum, when a subsequent remedial measure is offered “as evidence of
liability,” Rule 407 bars its use. Pugh, 521 F.3d at 695.
Here, Family Video’s new timekeeping code and the underlying Time Study
were not developed until after this lawsuit was filed. If this timekeeping code had
been implemented at an earlier time, Plaintiffs’ alleged harms would have been less
likely to occur, because Plaintiffs would have been able to use the code to earn time
credits for time spent making bank deposits. As such, the Court finds that the Time
Study is a subsequent remedial measure falling within the scope of Rule 407.
Plaintiffs are accordingly barred from using the Time Study for the purpose of
proving Family Video’s liability. Cf. Torres v. Rock & River Food Inc., No. CV 1522882, 2016 WL 4440509, at *1 (S.D. Fla. Aug. 19, 2016) (holding that Rule 407
barred evidence of defendants’ new timecard and record-keeping procedures for
purposes of proving liability in FLSA collective action).
Plaintiffs nevertheless argue that they should be permitted to use the Time
Study to show “how much off-the-clock bank deposit work each employee engaged
in,” on the ground that the amount of time it takes employees to make bank
deposits bears on damages rather than liability.
Pls.’ Opp. at 5.
amount of time it takes to make bank deposits does speak in part to damages, and
Rule 407 does not preclude Plaintiffs from using the Time Study for the purpose of
proving the measure of damages during the damages phase of trial.
amount of time it takes employees to make bank deposits also speaks in part to
liability. This is because, under Plaintiff’s proposed method for identifying potential
class members, Plaintiffs’ use of the Time Study directly triggers Family Video’s
potential liability with respect to any individuals for whom the Time Study is
dispositive of class membership. Using the Time Study to expand Family Video’s
liability in this way comports with neither Rule 407 nor the policy underlying it, see
Pugh, 521 F.3d at 695, and Plaintiffs cite no authority suggesting otherwise. For
these reasons, Rule 407 precludes Plaintiffs from using the Time Study for the
purpose of calculating how many hours individuals worked in determining those
individuals’ eligibility for membership under either subclass. 1
Rule 401: Relevance
Next, Family Video contends that the Time Study is inadmissible for any
purpose because it is not relevant under Rule 401. Under Rule 401, evidence is
relevant as long as it has “any tendency” to make a fact of consequence “more or less
probable than it would be without the evidence.” Fed. R. Evid. 401. It is well
established that relevance is a liberal standard. See, e.g., Stollings v. Ryobi Techs.,
Inc., 725 F.3d 753, 768 (7th Cir. 2013).
In arguing that the Time Study is not relevant, Family Video points out that
the Time Study was not created until after this lawsuit was filed, that the Time
Study does not necessarily reflect Plaintiffs’ personal experiences, and that there
are discrepancies between the times reported in the Time Study and class members’
individualized testimony. Mem. Supp. at 6–8. But each of these issues speaks to
the Time Study’s probative value rather than to its relevance.
weaknesses may be, the Time Study is clearly relevant to the issues in this case.
Rule 401 therefore offers no basis for excluding the Time Study from evidence.
In its reply brief, Family Video suggests that Rule 407 should also bar Plaintiffs
from using the Time Study in litigating against Family Video’s de minimis defense. Reply
at 3–5, ECF No. 466. Because Family Video raised this issue only in its reply brief,
Plaintiffs have not had an opportunity to tell the Court how, or even whether, they would
propose to use the Time Study in litigating against this defense. The Court therefore
declines to rule at this time on the extent to which Rule 407 would permit Plaintiffs to rely
upon the Time Study in rebutting a de minimis defense.
Rule 403: Excluding Evidence for Unfair Prejudice or Confusion
Family Video also argues that the Time Study should be barred under Rule
403. Under Rule 403, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
According to Family Video, the Time Study should be barred under Rule 403
because its admission would distract jurors from Plaintiffs’ testimony, confuse the
issue of how much time it takes to make bank deposits with the issue of how much
time is legally compensable, and unduly persuade the jury on issues that Plaintiffs
bear the burden of proving. Mem. Supp. at 10. These arguments do not convince
the Court that the Time Study’s probative value is “substantially outweighed” by
unfair prejudice or risk of confusion under Rule 403. Any prejudice to Family Video
is mitigated by the Court’s ruling that the Time Study is inadmissible for the
purpose of proving liability under Rule 407, see supra.
Moreover, any risk of
prejudice or confusion can be addressed closer to trial by, for example, the use of a
limiting instruction or the exclusion of the Time Study from the liability phase of
trial. See, e.g., Adams v. Ameritech Servs., Inc., 231 F.3d 414, 428 (7th Cir. 2000)
(“[N]ormally the balancing process contemplated by [Rule 403] is best undertaken
at the trial itself.”). For these reasons, Family Video’s motion to exclude the Time
Study under Rule 403 is denied.
For the reasons stated herein, Family Video’s motion in limine to exclude the
Time Study  is granted in part and denied in part. Plaintiffs are hereby barred
under Rule 407 from using the Time Study to determine which individuals are
eligible for class membership under the class definitions or to otherwise prove
Family Video’s liability. In all other respects, Family Video’s motion is denied.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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