Houston v. Mississippi Department of Human Services

Filing 51

ORDER granting in part and denying in part 47 Motion in Limine for the reasons stated in the Order. Signed by District Judge Daniel P. Jordan, III on December 2, 2015. (RZ)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
NORA HOUSTON

PLAINTIFF

v.

CIVIL ACTION NO. 3:13cv773-DPJ-FKB

MISSISSIPPI DEPARTMENT OF HUMAN SERVICES

DEFENDANT

ORDER
This employment dispute is before the Court on the Motion in Limine [47] filed by
Plaintiff Nora Houston. Having fulling considered the premises, and having discussed the
motions with the parties during the pretrial conference (PTC), the Court finds as follows:
I.

Standard
As summarized by the Fifth Circuit Court of Appeals:
A motion in limine is a motion made prior to trial for the purpose of prohibiting
opposing counsel from mentioning the existence of, alluding to, or offering
evidence on matters so highly prejudicial to the moving party that a timely motion
to strike or an instruction by the court to the jury to disregard the offending matter
cannot overcome its prejudicial influence on the jurors’ minds.

O’Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (citation and internal
quotation marks omitted). As with all in limine orders, the non-prevailing party may revisit the
issue at trial, but it must do so outside the jury’s presence. See Jackson-Hall v. Moss Point Sch.
Dist., No. 3:11–cv–42–DPJ–FKB, 2012 WL 1098524, at *4 (S.D. Miss. Apr. 2, 2012).
II.

Analysis
Houston seeks to prevent the admission of evidence, or any reference to, five categories

of evidence. They will be taken in turn.
A.

Dismissed Claims

In a prior order, this Court dismissed several of Houston’s claims. She now seeks to
exclude any reference to the Court’s ruling on those claims. During the PTC, Defendant stated

that the request was too broad but acknowledged that it did not presently know how the Court’s
rulings might become relevant.
Informing the jury regarding dismissal of other claims has no apparent relevance in this
case, and it would otherwise lead to unfair prejudice and confusion of the issues. See Fed. R.
Evid. 401, 402, 403; see also Johnson v. Watkins, No. 3:07CV621 DPJ–JCS, 2010 WL 2671993,
at *5 (S.D. Miss. June 30, 2010) (holding that dismissed claims are not properly before the jury).
The motion is granted.
B.

Financial-Related Matters

Plaintiff seeks to exclude evidence or argument related to applicable insurance coverage;
whether any recovery would be taxable; the effect of a plaintiff’s verdict on Defendant’s
operations; when Plaintiff retained counsel and her financial arrangement with counsel; the
source of funds Plaintiff has used for payment of fees and expenses; the effect of a plaintiff’s
verdict on Defendant’s insurance rates, premiums, charges, taxes, or operations; and whether
Plaintiff would be entitled to attorney’s fees or expenses. Defendant essentially conceded the
motion during the PTC. The motion is granted.
C.

EEOC Determination

Houston filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) and thereafter received a form Dismissal and Notice of Rights. That
document checked the box that states: “[T]he EEOC is unable to conclude that the information
obtained establishes violation of statutes. This does not certify that the respondent is in
compliance with the statutes. No finding is made as to any other issues that might be construed
as having been raised by this charge.” Pl.’s Mot. [47], Ex. 1. Houston seeks to exclude this
document.

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Defendant opposes the motion and notes cases holding that certain EEOC determinations
are probative and can be admissible. See, e.g., McClure v. Mexia Indep. Sch. Dist., 750 F.2d
396, 400 (5th Cir. 1985) (holding that “under precedents of this circuit, EEOC determinations
and findings of fact, although not binding on the trier of fact, are admissible as evidence in civil
proceedings as probative of a claim of employment discrimination at issue in civil
proceedings”).
McClure and other similar cases involved actual EEOC findings. In the present case, the
EEOC merely checked a box indicating that it was “unable to conclude” that a violation
occurred, but that it was not “certify[ing] that the respondent is in compliance with the statutes.”
Pl.’s Mot. [47], Ex. 1. This bare conclusion offers little probative value, and any probative value
that might exist would be substantially outweighed by the risk of unfair prejudice, confusion,
and delay. See Fed. R. Evid. 403; see also Smith v. Tower Auto. Operations, USA, 1, LLC, No.
3:13–CV–00967–CWR–FKB, 2014 WL 1404734, at *1–2 (S.D. Miss. Apr. 10, 2014) (excluding
similar EEOC notice) (citing Cortes v. Maxus Exploration Co., 977 F.2d 195, 202 (5th Cir.
1992) (finding no abuse in excluding EEOC determination containing some factual findings)).
The motion is granted.
D.

Pre-Trial Matters and Absent Witnesses

Houston seeks to exclude pre-trial matters and reference to the failure to call a witness
available to both parties. The request is denied as overly broad with respect to pre-trial matters.
Regarding missing witnesses, “this circuit has long recognized that a party’s failure to call
available witnesses or produce evidence that would clarify or explain disputed factual issues can
give rise to a presumption that the evidence, if produced, would be unfavorable to that party.”
United States v. Wilson 322 F.3d 353, 363 (5th Cir. 2003) (citations omitted). “The Court can

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only draw a negative inference when the missing witness has information peculiarly within his
knowledge . . . .” Id. “There is, however, an important exception to the applicability of the
presumption: if the witness is ‘equally available’ to both parties, any negative inference from
one party’s failure to call that witness is impermissible.” Id. at 364 n.14 (quoting McClanahan
v. United States, 230 F.2d 919, 925 (5th Cir. 1956)). Thus, there are times when a jury may
properly consider the absence of a witness. The motion is denied.
E.

Prior Lawsuits, Prior Claims, and Prior Bankruptcy

Plaintiff clarified in her reply that she seeks to exclude evidence pertaining to a carwreck-related lawsuit in the mid-1990s and a bankruptcy that occurred in 2002. With this
additional information, Defendant conceded the point during the PTC. The motion is granted.
III.

Conclusion
Based on the foregoing, the Court finds that Plaintiff’s Motion in Limine [47] should be

granted in part and denied in part.
SO ORDERED AND ADJUDGED this the 2nd day of December, 2015.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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