Harris v. CRST Expedited, Inc
Filing
58
ORDER on Motions in Limine: The 34 Motion in Limine filed by CRST Expedited, Inc., is granted in part and denied in part. With respect to other exhibits not previously disclosed, the court reserves ruling. The 35 Motion in Limine filed by Arth ur Harris is granted in part and denied in part. With respect to Harris's criminal history, except for the mortgage fraud and felon in possession convictions, the court reserves ruling (see text of Order). Signed by Chief Judge Linda R Reade on 1/20/2015. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
ARTHUR HARRIS,
Plaintiff,
No. 13-CV-119-LRR
vs.
ORDER
CRST VAN EXPEDITED, INC.,
Defendant.
____________________
TABLE OF CONTENTS
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
RELEVANT PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A.
B.
CRST Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.
Involvement in other lawsuits . . . . . . . . . . . . . . . . . . . . . . 4
2.
Other unrelated claims or settlements . . . . . . . . . . . . . . . . . 4
3.
Not calling witnesses to testify . . . . . . . . . . . . . . . . . . . . . . 4
4.
Number of attorneys or personnel and
amount of available resources . . . . . . . . . . . . . . . . . . . . . . 5
5.
Financial condition of CRST and related references . . . . . . . 5
6.
Reference to any related corporations . . . . . . . . . . . . . . . . . 5
7.
Settlement discussions in the instant action . . . . . . . . . . . . . 5
8.
Statements or reports made or drafted by individuals not
testifying at trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9.
Suggestions regarding testimony of witnesses not
called to testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10. Demands or requests for items not the subject of discovery . . . 8
11. Expert witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12. Exhibits or witnesses not previously disclosed . . . . . . . . . . . . 9
Harris Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.
Settlement negotiations . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
Unemployment insurance benefits . . . . . . . . . . . . . . . . . . 11
3.
Harris’s pursuit of a worker’s compensation claim . . . . . . . 11
4.
5.
IV.
Iowa Civil Rights Commission’s screening decision . . . . . . .
Harris’s criminal history . . . . . . . . . . . . . . . . . . . . . . . .
a.
Character evidence . . . . . . . . . . . . . . . . . . . . . . . .
b.
After-acquired evidence doctrine . . . . . . . . . . . . . . .
12
13
13
14
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
I. INTRODUCTION
The matters before the court are Defendant CRST Van Expedited, Inc.’s (“CRST”)
Motion in Limine (“CRST Motion”) (docket no. 34) and Plaintiff Arthur Harris’s Motion
in Limine (“Harris Motion”) (docket no. 35).
II. RELEVANT PROCEDURAL HISTORY
On June 17, 2014, Harris filed an Amended Complaint (docket no. 10) alleging that
CRST interfered with Harris’s Family Medical Leave Act (“FMLA”) leave rights (Count
1), wrongfully discharged him in violation of Iowa public policy (Count 2), discriminated
and retaliated against him in violation of the Americans with Disabilities Act (“ADA”)
(Count 3) and discriminated and retaliated against him in violation of the Iowa Civil Rights
Act (Count 4). On November 26, 2014, the court granted summary judgment in favor of
CRST on Count 2. See November 26, 2014 Order (docket no. 32). On December 4,
2014, CRST filed the CRST Motion. Also on December 4, 2014, Harris filed the Harris
Motion. On December 11, 2014, CRST filed a Resistance to the Harris Motion (docket
no. 36) and Harris filed a Resistance to the CRST Motion (docket no. 37). On December
15, 2014, CRST filed a Reply to the Resistance to the CRST Motion (“CRST Reply”)
(docket no. 44). On December 17, 2014, Harris filed a Reply to the Resistance to the
Harris Motion (“Harris Reply”) (docket no. 46). On December 18, 2014, the court held
a Final Pretrial Conference (“Hearing”) and heard arguments on the Motions. See
December 18, 2014 Minute Entry (docket no. 47). The Motions are fully submitted and
ready for decision.
2
III. ANALYSIS
The court will first address the CRST Motion and then will address the Harris
Motion.
A. CRST Motion
In the CRST Motion, CRST seeks to prevent Harris from offering evidence
regarding:
(1)
That [CRST] has been involved in other lawsuits as
plaintiff, defendant prior or subsequent to this lawsuit.
(2)
That [CRST] has been a party to other unrelated claims or settlements
made either prior or subsequent to this lawsuit, or the amount sought
or paid therein.
(3)
That [CRST] has not called to testify at trial any witness equally
available to [Harris] in this action.
(4)
The number of attorneys or personnel practicing in the law firm
representing [CRST] or the amount of resources available to conduct
the investigation and defense of this case.
(5)
The financial condition of [CRST], including any reference to
information which would tend to suggest to the jury that [CRST] is
‘wealthy’ and/or ‘powerful’ including information and documents
relating to [CRST]’s financial statements and income tax returns.
(6)
Reference to any corporations to which [CRST] is related as a parent,
subsidiary or sister corporation, which are not parties to this lawsuit.
(7)
Any attempts or efforts by [CRST] to settle or any settlement
discussions or negotiations entered into by [CRST], or any conduct
of [CRST] during such negotiations.
(8)
Any statements or reports made or drafted by any person not present
to testify or not subject to cross-examination on the contents of such
statement or report.
3
(9)
Any suggestion to the jury, by argument or otherwise, what would
have been the testimony of any witness not actually called to testify.
(10)
Any demands or requests before the jury for items contained in the
files of [CRST] which have not been the subject of discovery in this
case.
(11)
Opinions, statements, or testimony by any expert witness for [Harris]
other than those disclosed in discovery.
(12)
Any exhibit or witness not previously disclosed to [CRST] through
[Harris’s] discovery responses in this matter.
CRST Motion at 2-3 (formatting omitted). The court will address each of CRST’s requests
in turn.
1.
Involvement in other lawsuits
Harris does not resist this portion of the CRST Motion. Accordingly, the court
shall grant this portion of the CRST Motion.
2.
Other unrelated claims or settlements
Harris does not resist this portion of the CRST Motion. Accordingly, the court
shall grant this portion of the CRST Motion.
3.
Not calling witnesses to testify
CRST requests that the court bar Harris from referencing the fact that CRST “has
not called to testify at trial any witness equally available to [Harris]” as such evidence
would confuse the issues, mislead the jury and unduly prejudice CRST. Brief in Support
of the CRST Motion (docket no. 34-1) at 2. Harris argues that there is nothing inherently
improper about referencing individuals who have not been called to testify and that
whether to make such references is a matter of strategy. The court finds that a party’s
decision to call or not to call certain witnesses is relevant and admissible. Accordingly,
the court shall deny this portion of the CRST Motion.
4
4.
Number of attorneys or personnel and amount of available resources
Harris does not resist this portion of the CRST Motion. Accordingly, the court
shall grant this portion of the CRST Motion.
5.
Financial condition of CRST and related references
CRST requests that the court bar any mention of CRST’s financial condition and any
reference suggesting that the company is wealthy or powerful, pursuant to Federal Rules
of Evidence 401-403. Harris argues that “CRST’s financial condition and/or ability to pay
are legitimate factors for the jury to consider . . . in the context of punitive damages.”
Resistance to the CRST Motion at 3.
As stated at the Hearing, references to CRST’s financial status will not be permitted
unless and until the jury returns a verdict for Harris. Accordingly, the court shall grant
this portion of the CRST Motion. If the jury returns a verdict that would support an award
of punitive damages, the court will permit the parties to present additional evidence and
argument on the issue of punitive damages.
6.
Reference to any related corporations
Harris does not resist this portion of the CRST Motion. Accordingly, the court
shall grant this portion of the CRST Motion.
7.
Settlement discussions in the instant action
Harris does not resist this portion of the CRST Motion. Accordingly, the court
shall grant this portion of the CRST Motion.
8.
Statements or reports made or drafted by individuals not testifying at trial
CRST requests that the court prevent Harris from offering into evidence, reading
from or referring to “any statements or reports of individuals not present to testify at
trial.” Brief in Support of the CRST Motion at 3.
CRST requests that the court bar Harris from introducing medical records and
reports because Harris did not identify the treating physicians or makers of the records as
5
witnesses. However, the physicians are identified in the parties’ Proposed Final Pretrial
Order and their testimony was discussed at the Hearing. Therefore, the court shall deny
this portion of the CRST Motion regarding Harris’s medical records.
CRST also argues that the written statement of Joe Christian is inadmissible hearsay
and should be excluded. Harris concedes that this statement is hearsay, but argues that it
should be admitted under the residual hearsay exception, contained in Federal Rule of
Evidence 807.
Federal Rule of Evidence 807 states that
a hearsay statement is not excluded by the rule against hearsay
even if the statement is not specifically covered by a hearsay
exception in Rule 803 or 804 [if] . . . the statement has
equivalent circumstantial guarantees of trustworthiness; . . . it
is offered as evidence of a material fact; . . . it is more
probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable
efforts; and . . . admitting it will best serve the purposes of
[the Federal Rules of Evidence] and the interests of justice.
Fed. R. Evid. 807. However, “the residual hearsay exception [is] to ‘be used very rarely,
and only in exceptional circumstances.’” United States v. Peneaux, 432 F.3d 882, 893
(8th Cir. 2005) (quoting S. Rep. No. 1277, 93d Cong., 2d Sess., at 20 (1974)). The
residual hearsay exception “appl[ies] only when certain exceptional guarantees of
trustworthiness exist and when high degrees of probativeness and necessity are present.”
United Technologies Corp. v. Mazer, 556 F.3d 1260, 1279 (11th Cir. 2009) (quoting
United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004)) (alteration in original) (internal
quotation marks omitted).
“[T]rustworthiness is analyzed under a broad totality of the circumstances test.”
United States v. Halk, 634 F.3d 482, 489 (8th Cir. 2011) (quoting United States v. Shields,
497 F.3d 789, 794 (8th Cir. 2007)) (alteration in original) (internal quotation marks
omitted).
To determine whether a statement has “circumstantial guarantees of
6
trustworthiness . . . courts should inquire into the reliability of and necessity for the
statement.” United States v. Earles, 113 F.3d 796, 800 (8th Cir. 1997) (quoting United
States v. Carlson, 547 F.2d 1346, 1354 (8th Cir. 1976)) (internal quotation marks
omitted); see also United States v. Hughes, 535 F.3d 880, 882 (8th Cir. 2008) (rejecting
an out of court statement that lacked “indicia of reliability” and “was cumulative of [the
defendant’s] own testimony and added little to the [defendant’s] claim”); Stokes v. City of
Omaha, 23 F.3d 1362, 1366-67 (8th Cir. 1994) (finding that an affidavit “lack[ed] the
sufficient guarantees of trustworthiness required by [the residual hearsay exception]”
because it did not include context, times and locations for the alleged statements, despite
being sworn under oath).
The statement at issue was apparently written by Joe Christian, a former employee
of CRST, before he died. Resistance to the CRST Motion at 3-5. It recounts his
interactions with Harris and various CRST employees and alleges that he was terminated
by CRST along with Harris. Statement of Joe Christian (docket no. 37-2). The statement
was notarized on February 22, 2013. Harris argues that the statement should be admitted
because “one of the hotly disputed facts at trial will be whether Operations Manager
Marcus Schneider terminated Harris’[s] employment” and Joe Christian’s statement will
show that both Joe Christian and Harris were terminated on the same day. Resistance to
the CRST Motion at 4. Harris argues that Joe Christian’s statement meets each prong of
Federal Rule of Evidence 807.
The court disagrees.
The statement does not have sufficient guarantees of
trustworthiness to justify admitting it at trial. Although the statement was notarized, it was
not made under penalty of perjury. Furthermore, CRST did not have the opportunity to
cross examine Joe Christian before his death. These factors weigh against the reliability
of the statement and, consequently, the court finds that the statement is not sufficiently
trustworthy to qualify for admission under the residual hearsay exception. Additionally,
7
although the statement may be relevant, it is not “more probative on the point for which
it is offered than any other evidence.” Fed. R. Evid. 807. Indeed, the relevant portions
of Joe Christian’s statement would be cumulative of other evidence. Harris can testify to
the facts underlying his employment status, as well as his knowledge of Joe Christian’s
employment to the extent that Joe Christian’s employment is relevant. Harris can also
cross examine CRST’s witnesses regarding the relevant facts at issue. Finally, although
Harris argues that the statement is necessary to rebut Schneider’s testimony about Harris’s
employment status, Harris himself will be able to offer such testimony.
Because Joe Christian’s statement does not meet the test specified in Federal Rule
of Evidence 807, it constitutes inadmissible hearsay. Accordingly, the court shall grant
this portion of the CRST Motion regarding the statement of Joe Christian.
9.
Suggestions regarding testimony of witnesses not called to testify
CRST requests that the court bar the testimony of “Patty Christian, the widow of
Joe Christian, . . . regarding Mr. Christian’s employment with [CRST].” Brief in Support
of the CRST Motion at 4. CRST argues that Patty Christian’s testimony would constitute
inadmissible hearsay. In light of the court’s analysis in subsection 12, the court shall deny
this portion of the CRST Motion as moot.
10.
Demands or requests for items not the subject of discovery
Harris states that he “does not intend to make discovery requests of CRST at trial.”
Resistance to the CRST Motion at 6. Accordingly, the court shall grant this portion of the
CRST Motion.
11.
Expert witnesses
CRST requests that the court exclude the testimony of any experts who were not
previously disclosed. Neither side has designated any experts for trial. Harris does not
resist this portion of the CRST Motion, but notes that he intends to call doctors as treating
physicians. Accordingly, the court shall grant this portion of the CRST Motion. To the
8
extent that any party views certain testimony as constituting expert testimony, the parties
may object at trial and the court will rule at that time.
12.
Exhibits or witnesses not previously disclosed
CRST requests that the court bar the testimony of any witness or exhibit not
previously disclosed by Harris.1 Harris argues that Patty Christian should be permitted to
testify, despite the late disclosure, because Harris only recently became aware of Patty
Christian’s importance as a witness and her testimony is not hearsay. Resistance to the
CRST Motion at 5-7. Harris also argues that it would be inappropriate for the court to
exclude any evidence previously undisclosed, as there may be some evidence for which
disclosure was not required or where the parties disagree as to whether disclosure
occurred.
Federal Rule of Civil Procedure 26 requires disclosure of evidence. “If a party fails
to provide information or identify a witness as required by [Federal Rule of Civil
Procedure] 26(a) or (e), the party is not allowed to use that information or witness to
supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1); Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir.
1998) (stating that the Federal Rules of Civil Procedure “permit a court to exclude
untimely evidence unless the failure to disclose was either harmless or substantially
justified”). Disclosure is required even if witnesses were “known to [a party] either
through [the party’s] own discovery disclosures and responses or through [the opposing
party’s] discovery responses.” Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200,
1205 (8th Cir. 2002).
1
CRST argued in subsection 8 that Patty Christian’s testimony constitutes
inadmissible hearsay. In light of the court’s decision regarding Patty Christian’s
testimony, the court will not address whether her testimony would constitute hearsay.
9
Harris argues that his nondisclosure of Patty Christian does not prejudice CRST
because “CRST has had notice of her husband’s statement since Harris’[s] unemployment
claim proceedings” and her testimony should, therefore, not be a surprise. Resistance to
the CRST Motion at 6. CRST argues that it would be prejudiced “because [it] has not had
the opportunity to fully and adequately conduct discovery.” CRST Motion at 5. The fact
that CRST was aware of Joe Christian’s statement does not excuse Harris’s responsibility
to disclose Patty Christian as a witness. As stated at the Hearing, the failure to disclose
was due to Harris not realizing the importance of Patty Christian’s testimony. This is not
a substantial justification for late disclosure. Moreover, the court provided Harris an
opportunity to supplement the record with regard to his efforts to contact Patty Christian.
See December 29, 2014 Order (docket no. 48). Harris submitted nothing, and the deadline
to do so has passed. Therefore, because Harris’s nondisclosure was not substantially
justified and allowing Patty Christian’s testimony would result in unfair prejudice to
CRST, the court shall grant this portion of the CRST Motion and shall not permit Patty
Christian to testify.
With respect to other exhibits, CRST states that it has “not been provided with the
records which [Harris] contends are his ‘complete medical records.’” CRST Reply at 7.
To the extent that records were not disclosed to CRST in violation of Federal Rule of Civil
Procedure 26, that information will be excluded. However, the court shall reserve ruling
on this portion of the CRST Motion until trial.
B. Harris Motion
In the Harris Motion, Harris seeks to prevent CRST from offering evidence
regarding:
(1)
Any settlement negotiations and/or inquiries about
potential settlement;
(2)
Harris’[s] receipt of unemployment insurance benefits
and/or the amount thereof;
10
(3)
Harris’[s] pursuit of a worker’s compensation claim
against an employer subsequent to CRST;
(4)
The Iowa Civil Rights Commission’s screening
decision; and
(5)
Any criminal charges brought against Harris.
Harris Motion at 2. The court will address each of Harris’s requests in turn.
1.
Settlement negotiations
CRST does not resist this portion of the Harris Motion. Accordingly, the court
shall grant this portion of the Harris Motion.
2.
Unemployment insurance benefits
CRST does not resist this portion of the Harris Motion. Accordingly, the court
shall grant this portion of the Harris Motion.
3.
Harris’s pursuit of a worker’s compensation claim
Harris argues that CRST should not be allowed to introduce evidence that Harris
pursued a worker’s compensation claim against another employer because it “is irrelevant,
unduly prejudicial[] and inadmissible prior act evidence.” Brief in Support of the Harris
Motion (docket no. 35-1) at 6 (formatting omitted). In response, CRST contends that it
“intends to offer this evidence solely with respect to [Harris’s] alleged damages and not
as evidence of his character.” Resistance to the Harris Motion at 2. CRST contends that
“[e]vidence of [Harris’s] workers’ compensation claim following his separation from
employment” is relevant because the jury may consider such evidence to determine “what
[Harris] would have earned had he remained employed.” Id. Harris argues that evidence
of his subsequent worker’s compensation claim is irrelevant to a potential damages
calculation because he “would never have been forced into the circumstances that caused
his injury, but for CRST’s illegal discrimination and violation of the FMLA.” Harris
Reply at 3.
11
Once discrimination has been found, there is a strong presumption that the plaintiff
is “entitled to a back pay award on the basis of what [he] would have earned absent the
discrimination, less any amount [he] could have earned in mitigation.” E.E.O.C. v.
Delight Wholesale Co., 973 F.2d 664, 670 (8th Cir. 1992). The collateral source rule
prohibits deducting worker’s compensation benefits from an employee’s back pay award.
Moysis v. DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002). This rule not only supports
the policy of ensuring that victims are made whole, but deters future discrimination by
employers. Id. The collateral source rule appears to bar any deduction of worker’s
compensation, even when an injury is sustained following subsequent employment. See
Thurman v. Yellow Freight Sys, Inc., 90 F.3d 1160, 1171 (6th Cir. 1996) (rejecting the
argument that worker’s compensation received after an injury sustained through subsequent
employment constituted “interim earnings paid in lieu of income after termination” rather
than a collateral source of income). Therefore, even if an employee suffers an injury
during subsequent employment and receives worker’s compensation, the amount received
for worker’s compensation is not deductible from back pay under the collateral source
rule.
Here, Harris sustained his injury during subsequent employment and received
worker’s compensation as a result. If CRST is found liable, the amount Harris received
from worker’s compensation cannot be used to calculate back pay. Accordingly, the court
shall grant this portion of the Harris Motion. CRST may not introduce evidence that
Harris pursued a worker’s compensation claim against another employer.
4.
Iowa Civil Rights Commission’s screening decision
CRST does not resist this portion of the Harris Motion. Accordingly, the court
shall grant this portion of the Harris Motion.
12
5.
Harris’s criminal history
Harris requests that the court bar evidence or argument of any crimes he allegedly
committed. He argues that such evidence is impermissible character evidence and, to the
extent that his crimes are relevant to the after-acquired evidence doctrine, CRST failed to
plead it as an affirmative defense.
a.
Character evidence
Harris argues that evidence of his criminal history is inadmissible under Federal
Rules of Evidence 403 and 404(b)(1). Under Federal Rule of Evidence 404(b) “[e]vidence
of a crime, wrong, or other act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). CRST states that it will not “offer evidence of [Harris’s] prior
criminal charges to show that he acted in conformity therewith,” but to reflect on Harris’s
character for truthfulness pursuant to Federal Rule of Evidence 609. Resistance to the
Harris Motion at 3-4. At the Hearing, Harris conceded that two felonies (mortgage fraud
and felon in possession of a firearm) are admissible under Federal Rule of Evidence 609.
Therefore, CRST may present evidence of these two crimes consistent with Federal Rule
of Evidence 609. Accordingly, the court shall deny this portion of the Harris Motion with
respect to Harris’s two felony convictions.
Harris did not concede that evidence of a conviction for driving under the influence
or any other criminal history would be admissible at trial. Under Federal Rule of
Evidence 609, a party may “attack[] a witness’s character for truthfulness by evidence of
a criminal conviction” only for crimes punishable by imprisonment of more than one year
or for crimes involving “a dishonest act or false statement.” Fed. R. Evid. 609. Harris
argues that any admission of this evidence would result in unfair prejudice pursuant to
Federal Rule of Evidence 403. With respect to these other convictions, the court does not
13
have enough information to rule on this portion of the Harris Motion. Accordingly, the
court shall reserve ruling with respect to this portion of the Harris Motion.
b.
After-acquired evidence doctrine
At the Hearing, Harris argued that CRST should not be permitted to present
evidence of Harris’s criminal history pursuant to the after-acquired evidence doctrine
because CRST did not plead after-acquired evidence as an affirmative defense. CRST
argues that Harris failed to disclose that he had been convicted of certain crimes prior to
his employment with CRST and “provid[ing] false information on an employment
application[] is a dischargeable action.” Resistance to the Harris Motion at 3.
The after-acquired evidence doctrine permits a reduction in damages for employees
found to have engaged in misconduct. Under the after-acquired evidence doctrine, “even
though the employer has violated [the law] . . . the employee’s wrongdoing bears on the
specific remedy to be ordered.” McKennon v. Nashville Banner Publ’g Co., 513 U.S.
352, 360 (1995)). “[A]fter-acquired evidence of employee on-the-job misconduct, which
would have resulted in that employee’s discharge had the employer known of it,” does not
preclude recovery by the employee, but is relevant to determining remedies. Sellers v.
Mineta, 358 F.3d 1058, 1061 (8th Cir. 2004). In that instance, if the employer is found
liable for the employee’s termination, “back pay should be awarded, but only ‘from the
date of the unlawful discharge to the date the new information [of the employee’s
misconduct] was discovered.’” E.E.O.C. v. Dial Corp., 469 F.3d 735, 745 (8th Cir.
2006) (quoting McKennon, 513 U.S. at 362).
The employer bears the burden of
establishing that “the wrongdoing was of such severity that the employee in fact would
have been terminated on those grounds alone.” McKennon, 513 U.S. at 362-63; see Scott
v. City of Sioux City, Iowa, 23 F. Supp. 3d 1017, 1022-23 (N.D. Iowa 2014) (noting that
the after-acquired evidence “defense applies when (1) an employee is discharged for an
14
allegedly-unlawful reason and (2) the employer later learns of other misconduct that, by
itself, would have resulted in discharge had it come to the employer’s attention”).
Federal Rule of Civil Procedure 8(c) requires that “[i]n responding to a pleading,
a party must affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P.
8(c). This “pleading requirement is intended to give the opposing party both notice of the
affirmative defense and an opportunity to rebut it.” First Union Nat’l Bank v. Pictet
Overseas Trust Corp., 477 F.3d 616, 622 (8th Cir. 2007). The Eighth Circuit Court of
Appeals has not identified a test for what constitutes an affirmative defense, but has stated
that “if the defense involved is one that merely negates an element of the plaintiff’s prima
facie case . . . it is not truly an affirmative defense and need not be pleaded despite
[Federal Rule of Civil Procedure] 8(c).” Sanden v. Mayo Clinic, 495 F.2d 221, 224 (8th
Cir. 1974) (quoting 2A J. Moore, Moore’s Federal Practice P8.27(2), at 1843 (2d ed.
1974)). Additionally, “[a]n affirmative defense has been described as ‘[a]ny matter that
does not tend to controvert the opposing party’s prima facie case as determined by the
applicable substantive law.’” Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.
1988) (quoting 2A J. Moore, Moore’s Federal Practice ¶ 8.27[3] (2d ed. 1985)) (second
alteration in original). “In determining whether a particular argument is an affirmative
defense, courts consider ‘the logical relationship between the defense and the cause of
action,’ and the likelihood that the plaintiff will be unfairly surprised if the defense does
not appear in the pleadings.” Id. (quoting Ingraham v. United States, 808 F.2d 1075,
1079 (5th Cir. 1987)). The First Circuit Court of Appeals states that the “test for whether
a given defense falls within [Federal Rule of Civil Procedure] 8(c) . . . is whether the
defense ‘shares the common characteristic of a bar to the right of recovery even if the
general complaint were more or less admitted to.’” Wolf v. Reliance Standard Life Ins.
Co., 71 F.3d 444, 449 (1st Cir. 1995) (quoting Jakobsen v. Mass Port Auth., 520 F.2d
810, 813 (1st Cir. 1975)). “[F]ailure to plead . . . an affirmative defense results in a
15
waiver of that defense and its exclusion from the case.” Sayre v. Musicland Grp, Inc.,
850 F.2d 350, 354 (8th Cir. 1988). However,
[t]he general rule of waiver is more easily applied when a
party fails to set forth one of the nineteen defenses specifically
listed in [Federal Rule of Civil Procedure] 8(c); waiver
becomes less clear when a party fails to assert affirmatively
some ‘other matter’ that pre-existing federal case law has not
clearly construed as ‘constituting an avoidance or affirmative
defense’ under [Federal Rule of Civil Procedure] 8(c).
Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1351 (11th Cir. 2007).
The Eighth Circuit has not explicitly addressed whether the after-acquired evidence
doctrine constitutes an affirmative defense that must be pleaded. See Sellers, 358 F.3d at
1061 (stating that “[e]ven if the after-acquired evidence theory . . . is an affirmative
defense that must be pleaded . . . ,” the failure to plead the defense was excusable when
the after-acquired evidence was discovered after filing an answer and the party alerted the
court to its existence); see also Harris v. Chand, 506 F.3d 1135, 1138-39 (8th Cir. 2007)
(upholding the admissibility of after-acquired evidence on the issue of damages when the
defendant learned of the relevant misconduct during discovery). However, after-acquired
evidence appears to fall within the category of matters that do not “tend to controvert the
opposing party’s prima facie case” and is “a bar to the right of recovery even if the general
complaint were more or less admitted to.” Hassan, 842 F.2d at 263 (quoting 2A J.
Moore, Moore’s Federal Practice ¶ 8.27[3] ) (internal quotation marks omitted); Wolf, 71
F.3d at 449 (quoting Jakobsen, 520 F.2d at 813) (internal quotation marks omitted). The
after-acquired evidence of Harris’s misconduct does not bear directly on whether CRST
violated the law by terminating Harris. Rather, it bears on the extent of damages should
CRST be found liable. Therefore, the court will assume that the after-acquired evidence
doctrine constitutes an affirmative defense for the purposes of the Harris Motion.
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Even assuming that after-acquired evidence is an affirmative defense that must be
pleaded under Federal Rule of Civil Procedure 8(c), failure to assert a defense “is not fatal
when the defense is raised in the trial court in a manner that does not result in unfair
surprise.” United States ex rel. Kraxberger v. Kansas City Power and Light Co., 756 F.3d
1075, 1082 (8th Cir. 2014) (“[O]ne month’s notice [is] ‘sufficient to preclude unfair
surprise.’”) (quoting First Union Nat’l Bank, 477 F.3d at 623) (internal quotation marks
omitted); First Union Nat’l Bank, 477 F.3d at 623 (“We have . . . eschewed a literal
interpretation of the Rule that places form over substance, and instead have held that
‘[w]hen an affirmative defense is raised in the trial court in a manner that does not result
in unfair surprise, . . . technical failure to comply with Rule 8(c) is not fatal.’”) (quoting
Fin. Timing Publ’ns, Inc. v. Compugraphic Corp., 893 F.2d 936, 944 n.9 (8th Cir. 1990))
(second and third alterations in original) (internal citations and quotation marks omitted).
Additionally, waiver of an affirmative defense “is not absolute and . . . inclusion of an
otherwise-waived issue in a final pre-trial order may, in some cases, preserve or revive the
issue for trial.” Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 808 (8th Cir.
2013) (discussing failure to plead mitigation of damages). “An unpled affirmative defense
identified in the pretrial order is no exception to the rule that issues identified in the
pretrial order supersede the pleadings. Its absence from the original pleadings therefore
does not work a forfeiture of the right to assert the defense at trial.” Friedman &
Friedman, Ltd. v. Tim McCandless, Inc., 606 F.3d 494, 498 (8th Cir. 2010).
CRST did not identify after-acquired evidence as an affirmative defense in the
Answer. Answer (docket no. 11) at 5-6. CRST stated that it discovered Harris’s
misconduct only “recently.” Resistance to the Harris Motion at 3. However, CRST listed
after-acquired evidence as an issue in the pretrial order and it was discussed at the
Hearing. Final Pretrial Order (docket no. 53) at 8 (“The introduction of after-acquired
evidence regarding Harris’[s] prior criminal convictions to establish that CRST would have
17
terminated Harris for providing false information on his job application.”). The proposed
pretrial order was submitted by the parties on December 15, 2014, more than one month
prior to the trial date. Therefore, although CRST did not plead after-acquired evidence
as an affirmative defense, it is listed as an issue in the pretrial order and Harris has not
suffered an “unfair surprise” with regard to the defense. Accordingly, CRST shall be
permitted to argue after-acquired evidence despite not pleading it as an affirmative defense.
The court finds that Harris’s nondisclosure of his criminal history is relevant under
the after-acquired evidence doctrine to calculate damages if CRST can establish the
requisite elements of the after-acquired evidence doctrine. Therefore, because afteracquired evidence was asserted in the pretrial order and it is relevant, CRST may argue
after-acquired evidence as a defense with regard to damages. Accordingly, the court shall
deny this portion of the Harris Motion with respect to the after-acquired evidence doctrine.
IV. CONCLUSION
Consistent with the foregoing, CRST’s Motion in Limine (docket no. 34) is
GRANTED IN PART and DENIED IN PART. With respect to other exhibits not
previously disclosed, the court RESERVES RULING. Harris’s Motion in Limine (docket
no. 35) is GRANTED IN PART and DENIED IN PART. With respect to Harris’s
criminal history, except for the mortgage fraud and felon in possession convictions, the
court RESERVES RULING. Each party is charged with the responsibility of cautioning
its witnesses as to the substance of this order. If during the presentation of evidence a
party believes that a prohibited subject has become relevant, the party may request an
opportunity to argue relevance outside the presence of the jury.
IT IS SO ORDERED.
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DATED this 20th day of January, 2015.
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