Hammer v. JP's Southwestern Foods, LLC et al

Filing 427

ORDER granting in part and denying in part 426 plaintiff's motion in limineNo. 8; plaintiff's motion for pre-trial ruling on use of leading questions 399 is provisionally denied; plaintiff's motion for pretrial ruling on admissibil ity of business records 401 is sustained as to authenticity; plaintiff's motion for pre-trial ruling on the authenticity of documents 402 is sustained as to authenticity; plaintiff's motion for ruling on use of testimony as party admissions 405 is provisionally denied; plaintiff's motion to publish undisputed facts 400 is denied. Signed on 6/16/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
STEVEN E. HAMMER,

)
)
Plaintiff,
)
vs.
) No. 08-0339-CV-W-FJG
JP=S SOUTHWESTERN FOODS, L.L.C.
)
d/b/a JOSE PEPPER=S BORDER GRILL &
)
CANTINA; and DOES 1 through 10, inclusive, )
)
Defendants. )

ORDER
Pending before the Court are plaintiff’s numerous motions (Doc. Nos. 426, 399,
401, 402, 405, and 400). The Court rules as follows:

I.

Plaintiff=s Motion in Limine No. 8 to Exclude Evidence or References to
Medical Condition (Doc. No. 426)

Plaintiff seeks an order instructing the parties and counsel to not mention any evidence or
reference relating to the medical condition of an party or witness in this case, specifically
Steven E. Hammer or Edward Gieselman. Plaintiff argues their medical conditions are
irrelevant under FRE 402, and the probative value outweighed by the danger of unfair
prejudice, confusion of issues, or misleading the jury under FRE 403.
Defendant has no objection to excluding evidence relating to plaintiff’s medical condition;
however, defendant objects to plaintiff’s attempt to exclude evidence relating to Mr.
Gieselman’s medical condition, as Mr. Gieselman is unable to appear at trial due to his
health condition. Defendant argues the jury is entitled to hear evidence of his medical
condition to explain why he is not testifying live at trial, and that this evidence meets the
test for relevance under FRE 401.
Ruling: Sustained as to Steven Hammer; overruled in part as to Ed Gieselman.
Given that Mr. Gieselman will be unable to be present at trial, the jury is entitled to
hear a limited description of the reason why. The parties and counsel will be
allowed to inform the jury that Mr. Gieselman is unable to attend trial due to a
health condition.

II.

Plaintiff=s Motion for Pre-Trial Ruling on Use of Leading Questions During
Direct Examination of Matt Hench (Doc. No. 399)

Plaintiff seeks an order allowing him to use leading questions in direct examination of Matt
Hench. Plaintiff argues that Hench is a hostile witness and strongly identified with an
adverse party. Hench also told plaintiff he would need to subpoena him to testify.
Defendant argues this motion is without merit for the following reasons: (1) Hench was
not a former employee of defendant JPs, but was employed by North Star only; (2) Hench
is not hostile to plaintiff, and in fact Hench was fired by North Star under hostile
circumstances; (3) testimony that he would need to be subpoenaed to testify at trial only
establishes that Mr. Hench required Plaintiff to follow the law.
Ruling: Plaintiff’s motion is provisionally denied, subject to reconsideration as
events unfold at trial.

III.

Plaintiff=s Motion for Pre-Trial Ruling on Admissibility of Business Records
under Federal Rules of Evidence 803(6) and 902(11) (Doc. No. 401)

Plaintiff seeks an order on the admissibility of business records of Heartland Payment
Systems, Inc. (“Heartland”), which were produced by Heartland to the parties pursuant to
subpoena duces tecum served on Heartland in 2009 (Bates Nos. HPS00001-HPS581).
Plaintiff argues that FRE 803(6) provides an exception to the rule against hearsay for
certain types of business records, such as the ones in this case. Plaintiff also has sought
certification of a custodian of records that complies with Rule 902(11), see Declaration of
Anne C. Gordon, Doc. No. 401, Ex. A. Plaintiff also filed a Notice of Intent to
Authenticate Business Records by Declaration on October 10, 2013. See Doc. No. 373.
Plaintiff argues that defendant was given reasonable written notice of the intent to offer
the record and a fair opportunity to challenge them, pursuant to FRE 902(11); and,
defendant has not challenged or objected to the notice.
Defendant responds that (1) the records produced by Heartland are not admissible
because they are not relevant; (2) the issue of whether the records fall under the business
records exception requires foundational testimony at trial, and a declaration/affidavit is
not admissible at trial; and (3) Ms. Gordon’s declaration does not satisfy Rule 902(11), as
the declaration fails to establish that Ms. Gordon is familiar with the creation and
maintenance of the subject records.
Ruling: Plaintiff’s motion is sustained as to authenticity, and no records custodian
will be needed to testify in person at trial. However, the Court is concerned that
relevance will be an issue for the reasons stated by the defendant, and the Court
will take up the relevance issue as such evidence is presented at trial.
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IV.

Plaintiff=s Motion for Pre-Trial Ruling on the Authenticity of Documents
Produced by Defendant (Doc. No. 402)

Plaintiff seeks an order authenticating documents produced by defendant during the
discovery process. See Indianapolis Minority Contractors Ass’n, 1998 WL 1988826, at
*6 (S.D. Ind. May 13, 1998) (“The act of production is an implicit authentication of
documents produced . . . . Federal Rule of Evidence 901 provides that ‘[t]he requirement
of authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what its proponent
claims.”) Plaintiff sought a stipulation from defendant as to the authenticity of the
following: (1) insurance policies, upgrade invoice, contracts with Heartland & RBS,
Maintenance Invoice, Aloha Manual, financial documents & tax returns; (2) Agendas; (3)
Heartland documents that your client kept in its own files; (4) JP receipts; and (5) EDC
transaction reports copied from defendant’s storage facility. Defense counsel refused to
stipulate to anything unless plaintiff waived his claim for punitive damages.
Defendant argues the motion is procedurally and substantively improper. Defendant
notes that there is no requirement it stipulate to the authenticity of any document prior to
trial. Defendant states it has not made a contention that the documents it produced in
discovery cannot be used by plaintiff because their authenticity is lacking; instead
defendant states that the large majority of the documents cited by plaintiff in his motion
are not relevant (including over 4,000 customer credit card receipts, contracts with
Heartland and RDS, maintenance invoices, the Aloha manual, financial documents and
tax returns, agendas, Heartland documents, and EDC transaction reports), or have
already been ruled inadmissible by the court’s in limine orders (such as defendant’s
insurance policies).
Ruling: Plaintiff’s motion is sustained as to authenticity. Again, however, the Court
is concerned that relevance will be an issue for the reasons stated by the
defendant, and the Court will take up the relevance issue as such evidence is
presented at trial.
V.

Plaintiff’s Motion for Ruling on Use of Testimony as Party Admissions in
Light of Defendant’s Deposition Designations and Objections (Doc. No. 405)

Plaintiff seeks an order finding the deposition testimony of (a) defendant’s corporate
representative (30(b)(6)) Mitchell Osborn and (b) the individual in charge of managing
defendant’s software, Danni Harrison; to be admissible under 32(a)(3) even though those
individuals will be available to testify live at trial, as Rule 32(a)(3) allows one to “use for
any purpose the deposition of a party or anyone who, when deposed, was the party’s
officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).
In response, defendant notes that both Osborn and Harrison will be witnesses who will
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testify live at trial, and there is no need to read any of their deposition testimony at trial.
Further, defendant argues that if the court allows Mr. Osborn’s testimony to be read to the
jury, defendant requests that the Court require plaintiff to introduce the testimony in its
counter-designations, pursuant to FRCP 32(a)(6), which provides that “If a party offers in
evidence only part of a deposition, an adverse party may require the offeror to introduce
other parts that in fairness should be considered with the part introduced, and any party
may itself introduce any other parts.” Additionally, defendant argues that Ms. Harrison is
not a “managing agent” for defendant, as she has never been an employee of defendant
(and has only been employed by North Star).
Ruling: Plaintiff’s motion is provisionally denied. Plaintiff will be expected to
question these witnesses live at trial. To the extent that plaintiff seeks to offer
these witnesses’ deposition testimony at trial after (or during) their examination,
the Court will rule on the use of plaintiff’s deposition designations at that time.

VI.

Plaintiff=s Motion to Publish Undisputed Facts to the Jury (Doc. No. 400)

Plaintiff seeks an order permitting it to publish certain “undisputed facts” to the jury in the
upcoming trial. In the alternative, plaintiff requests he be permitted to publish “at the very
least the most basic undisputed facts and findings of the Court, such as the provisions of
the statute at issue and the fact of its violation by the Defendant.” Plaintiff notes that
defendant had previously stipulated to some limited facts (see Doc. No. 118, 5/7/10 Joint
Stipulation of Facts); however, now defendant has indicated that it will not stipulate to
virtually any of the underlying facts. Plaintiff suggests that putting on evidence
establishing facts that have already been admitted to and/or agreed-upon in this case will
have the effect of lengthening the trial and wasting the Court’s and the jury’s time.
Plaintiff would like the Court to take “judicial notice” of previously determined facts (from
the Court’s summary judgment order, among other places). Plaintiff also states that the
“law of the case” doctrine should be used to allow underlying facts to be published to the
jury.
Defendant responds that the motion is procedurally and substantively without merit, as
(1) plaintiff has the burden of proof, and defendant is not required to stipulate to anything;
and (2) the motion is based on a false premise, i.e., that defendant has already admitted
these facts or the Court has already found them to be true based on the summary
judgment pleadings, but defendant only conditionally admitted those facts for summary
judgment purposes only, which does not make these facts admitted for purposes of trial.
See Pagan Colon v. Walgreens de San Patricio, Inc., 269 F.R.D. 165, 168 (D. Puerto Rico
2010). See also Riggs v. Shinseki, No. 4:08CV998 FRB, 2010 WL 3584296, *1 (E.D.
Mo. Sept. 7, 2010) (finding uncontroverted facts on summary judgment admitted only for
purposes of summary judgment consideration). Defendant also notes that (1) Mr.
Gieselman’s testimony is not necessary to establish any of the proposed facts; (2) the
finding that the subject receipt was a technical violation of FACTA can be included in the
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jury instructions; (3) many of the “facts” are also matters of law that should be properly
provided in jury instructions; (4) “judicial notice” is not appropriate here; and (5) the law of
the case doctrine does not apply to these proposed facts, and the Court has discretion to
modify its previous summary judgment findings.
Ruling: Plaintiff’s motion is denied. Most of the “facts” plaintiff seeks to
introduce are actually matters of law, and the jury will be instructed on the law.
Defendant is not required to stipulate to facts at trial that were admitted for
purposes of summary judgment briefing. Furthermore, the Court finds judicial
notice and the “law of the case” doctrine to be inapplicable to the facts stated by
plaintiff.
IT IS SO ORDERED.
/s/Fernando J. Gaitan, Jr.
United States District Judge
Dated: June 18, 2014
Kansas City, Missouri

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