Castronovo v. The County of Winnebago, Illinois et al
Filing
105
MEMORANDUM Opinion and Order Signed by the Honorable Frederick J. Kapala on 10/2/2013: Plaintiff's motion in limine 88 is denied. Defendants' motions in limine numbers 1 and 5 97 are granted. Defendants' motion in limine numbers 2, 3, and 4 97 103 are denied. Mailed notice (jp, )
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Michael Thomas Castronovo,
Plaintiff,
v.
The County of Winnebago, et al.,
Defendants.
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Case No: 11 C 50046
Judge Frederick J. Kapala
ORDER
Plaintiff’s motion in limine [88] is denied. Defendants’ motions in limine numbers 1 and 5 [97] are
granted. Defendants’ motion in limine numbers 2, 3, and 4 [97] [103] are denied.
STATEMENT
Plaintiff runs his business out of the home he owns on Harrison Avenue in Rockford, Illinois.
In May 2008, the median on Harrison Avenue was removed during construction, which permitted
plaintiff for the first time to access his property from both the east- and west-bound lanes of Harrison
Avenue. In May 2009, as part of the design specifications for the construction on Harrison Avenue,
a median was reinstalled which once again blocked plaintiff’s access to and from the east-bound lane
of Harrison Avenue. Beginning in April 2009, plaintiff began attending, and speaking at,
Winnebago County Board (“the Board”) meetings and meetings of the Board’s public works
committee to request that he retain access from the east-bound lane of Harrison Avenue to his
property. Based on those meetings, plaintiff, in Count II of his pro se complaint, alleged that the
defendants—including Winnebago County; Scott Christiansen, the Chairman of the Board; and
Board members Pearl Hawks, Kyle Logan, and Dave Tassoni—violated his First Amendment rights.
Specifically, plaintiff alleges, and defendants deny, that Christiansen informed plaintiff prior to
plaintiff’s two speeches to the Board, in August 2009 and February 2011, that plaintiff could not give
specific people’s names in his speeches. Plaintiff also alleges that he attended two meetings held
by Winnebago County public works committee, which is comprised of Hawks, Logan, and Tassoni.
At those meetings, where the committee considered and voted to deny his proposal to leave an
opening in the median of Harrison Avenue, plaintiff alleges he was not permitted to speak. The
remainder of the claims, and a number of other defendants, included in plaintiff’s complaint have
been dismissed in previous orders.
Pending before the court is the parties’ final pretrial order, including six motions in limine.
Judges have broad discretion when ruling on motions in limine. Jenkins v. Chrysler Motors Corp.,
316 F.3d 663, 664 (7th Cir. 2002). Evidence should be excluded under an order in limine only
where it is clearly inadmissible for all purposes, otherwise evidentiary rulings should be deferred
until trial. Alexian Bros. Health Providers Ass’n, Inc. v. Humana Health Plan Inc., 608 F. Supp. 2d
1018, 1021 (N.D. Ill. 2009). Therefore, the party moving to exclude evidence in limine has the
burden of establishing that the evidence is not admissible for any purpose. Euroholdings Capital &
Inv. Corp. v. Harris Trust & Savings Bank, 602 F. Supp. 2d 928, 934 (N.D. Ill. 2009). Denial of a
motion in limine seeking the exclusion of evidence does not mean the evidence will necessarily be
admitted at trial but, rather, denial indicates that the court could not determine the issue in advance
of trial. Id. A ruling in limine is not final and is subject to change as the case unfolds. Id. at 935.
A. Plaintiff’s Motion in Limine
Plaintiff, in his only motion in limine, seeks to prevent defendants from arguing that the
Winnebago County public works committee meetings were anything other than public fora for First
Amendment purposes based on this court’s previous order. Although this court did assert, in its
ruling on the motion for summary judgment, that the committee meetings were public fora based on
5 ILCS 120/0.06(g), the court reconsidered that ruling in response to defendants’ motion for
reconsideration. See Castronovo v. Winnebago Cnty., No. 11 C 50046, slip op. at 3 (N.D. Ill. Feb.
12, 2013) (“The court agrees that its erroneous reliance on 5 ILCS 120/2.06(g) requires that this
court reconsider whether summary judgment was appropriate.”). In that order, the court noted that
the issue of whether the committee meetings were public fora was a genuine issue of material fact
and subject to proof at trial. Id. at 4 (“Accordingly, because there is evidence in the record
suggesting that the forum was a designated public forum, defendants have not carried their summary
judgment burden on Castronovo’s fourth claim.”). Plaintiff never requested summary judgment on
the issue in his favor. Accordingly, plaintiff’s motion in limine is denied, and the issue of whether
the committee meetings were public fora is subject to dispute at trial.
B. Defendants’ Motion in Limine Number 1
Defendants, in their first motion in limine, seek to prevent plaintiff from testifying that he
has been diagnosed by a “mental health evaluator” with suffering from stress, headaches, anxiety,
bouts of anger, irritable bowel syndrome, loss of sleep, and depression as a result of defendants’
alleged First Amendment violations. Specifically, defendants object that any diagnosis from the
“mental health evaluator” would be hearsay if offered by plaintiff himself.
Hearsay, as defined by the Federal Rules of Evidence, is an out-of-court statement offered
for the truth of the matter asserted. See Fed. R. Evid. 801(c). The general rule is that hearsay is not
admissible as evidence at trial. Fed. R. Evid. 802. But see Fed. R. Evid. 801, 803, 804, 807
(providing many exceptions to the general rule). Any statement from plaintiff concerning a
diagnosis from his “mental health evaluator” would be classical hearsay—the evaluator told plaintiff
something out of court which is now being offered in court for its truth (that plaintiff actually has
the assorted maladies he claims). Plaintiff does not argue that he fits within any of the many
exceptions to the hearsay rule, instead he cites a single case, concerning the in-court statement of an
investigator that relied on—but did not repeat the substance of—out-of-court statements from third
parties, that has nothing to do with the instant issue. See United States v. Albiola, 624 F.3d 431,
440-41 (7th Cir. 2010). Plaintiff provides no explanation as to how Albiola should impact this
court’s analysis. Accordingly, as it is clear that any testimony from plaintiff concerning the “mental
health evaluator’s” diagnoses would be hearsay, and plaintiff has not established that his testimony
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offering the evaluator’s diagnosis fits within any of the exceptions to the hearsay rule, the general
rule prevails and the motion is limine is granted. See Fed. R. Evid. 802. If, however, plaintiff can
properly enter into evidence the diagnosis of the evaluator, he may, of course, reference that
diagnosis in his case.
C. Defendants’ Motion in Limine Number 2
Defendants next seek to prevent plaintiff from testifying that Alanna Conard, allegedly an
employee working in Christiansen’s office, informed plaintiff that he was not to name specific
individuals’ names in his speeches before the Winnebago County Board. Again, defendants seek
to exclude this testimony as hearsay.
Defendants have not carried their burden to exclude plaintiff’s testimony as to what Conard
allegedly told him as hearsay. Rule 801(d)(2) excludes from the hearsay rules statements made by
an opposing party when the statement is offered against that opposing party. As plaintiff correctly
points out, Rules 801(d)(2)(C) and (D) extend that rule to out-of-court statements offered for the
truth of the matter asserted which are made by (1) people authorized to speak on a defendant’s behalf
or (2) individuals in an agency relationship with a defendant. At this time, there is sufficient
evidence on the record to make it appear that Conard was an agent for Christiansen, or at least
authorized to speak on his behalf as to this matter, and therefore her out-of-court statements would
be admissible notwithstanding the hearsay rule. This matter may be revisited at trial, however, if
plaintiff is unable to establish that Conard worked for or with Christiansen. Nevertheless, the motion
in limine is denied.
D. Defendants’ Motion in Limine Number 3
Defendants also seek to bar plaintiff from eliciting testimony from Rita Troeger concerning
statements made to her by plaintiff as hearsay. From the record, Troeger appears to be a friend or
associate of plaintiff that accompanied him to at least some of the Board meetings and was otherwise
privy to plaintiff’s thoughts concerning plaintiff’s various allegations. Plaintiff argues that Troeger
may testify to what plaintiff said to her under the present sense impression of Rule 803(1), which
codifies an exception to the hearsay rule for statements “describing or explaining an event or
condition, made while or immediately after the declarant perceived it.”
The problem with this issue is that neither party has bothered to delineate what testimony
they are arguing about. Defendants attached an affidavit to their motion from Troeger, which
includes a number of instances where Troeger repeated something told to her by plaintiff, but fail
to indicate which of these instances they are seeking to suppress. Similarly, plaintiff indicates that
all of Troeger’s testimony should be admissible as present sense impressions despite that
exemption’s clear inapplicability to many of the instances. Neither party addresses the hearsay
within hearsay issues involved in parts of Troeger’s affidavit, for instance where plaintiff reported
to Troeger things Christiansen allegedly told him. See Fed. R. Evid. 805. In any event, the court
will deny the motion pending trial, where the parties are invited at side bar to provide targeted
argument as to what testimony Troeger may give.
E. Defendants’ Motion in Limine Number 4
Defendants’ fourth motion in limine seeks to bar plaintiff from eliciting any testimony that
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is not relevant to the claims that currently remain before the court. Plaintiff has identified a large
list of witnesses and exhibits which appear at first glance to be completely irrelevant to the question
of plaintiff’s First Amendment rights, and instead go to the dismissed claims concerning plaintiff’s
right to have the median cut which spawned this lawsuit in the first place. However, although the
limits of relevant testimony will be strictly enforced at trial to avoid unnecessary examination into
topics which have been dismissed from this suit, the court cannot say that all of the aforementioned
exhibits and testimony are irrelevant for all purposes. Neither party has attempted to provide any
proffer as to what those witnesses or exhibits might state, so the court is unable to consider the
relevance of any specific witness or exhibit at this time. Additionally, although the issues
surrounding the median cut are largely irrelevant to this trial, and will not be a subject into which
plaintiff will be permitted to elicit significant amounts of testimony, the fact that he was initially
seeking a median cut is still relevant information for the instant suit. In order for the jury to
understand why plaintiff was seeking to speak to the Board and the committee, they will need to
have at least some background into the dispute which brought plaintiff before those bodies.
Accordingly, again largely because defendants paint with too broad a brush in their request, the
motion is denied, but may be revisited at trial.
F. Defendants’ Motion in Limine Number 5
Defendants’ final motion in limine seeks to bar plaintiff from admitting any testimony
concerning damages he claims, including damages for lost wages, business opportunity, and
diminished property value, on account of the county’s failure to grant him a median cut. Plaintiff
argues that the alleged First Amendment violations caused him to lose the opportunity to argue for
the median cut, and therefore all of his damages are appropriate.
Plaintiff has the burden to link all of his alleged damages to defendants’ alleged tortious or
illegal conduct by a preponderance of the evidence. See Dynegy Marketing & Trade v. Multiut
Corp., 648 F.3d 506, 518 (7th Cir. 2011). All of the claims concerning plaintiff’s right to a median
cut have been dismissed, and therefore plaintiff may not include any damages that arise from the
failure to provide a median cut. Plaintiff’s counter-argument is unconvincing—there is no evidence
on the record that had plaintiff been allowed additional opportunities to address the Board or its
public works committee, over and above the many times he was already provided, that the Board
would have changed its mind. Indeed, all of the evidence on the record indicates that the Board
considered plaintiff’s side of the story many times over the years this issue was before the Board and
yet declined to provide him with the median cut. Although defendants may have violated plaintiff’s
First Amendment rights (an issue for the jury to decide), plaintiff has never shown any evidence
linking those alleged violations to the denial of his median cut. Accordingly, defendants’ fifth
motion in limine is granted.
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In conclusion, then, plaintiff’s motion in limine is denied, as are defendants’ motions in
limine 2, 3, and 4. However, defendants’ motions 1 and 5 are granted.
Date: 10/2/2013
ENTER:
_________________________
FREDERICK J. KAPALA
District Judge
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