Schwartz v. Clark County et al

Filing 107

ORDER DENYING Clark County's 89 Motion in Limine 1. Clark County's 90 Motion in Limine 2 is GRANTED in part and DENIED in part. Clark County's 91 Motion in Limine 3 is GRANTED in part and DENIED. Plaintiff's 88 Motion to Quash is DENIED. Signed by Judge James C. Mahan on 4/4/2018. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARK J. SCHWARTZ,

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Case No. 2:13-CV-709 JCM (VCF)
Plaintiff(s),

ORDER

v.
CLARK COUNTY, NEVADA, et al.,

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Defendant(s).

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Presently before the court are three motions in limine filed by defendant Clark County,

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Nevada (“Clark County”). (ECF Nos. 89–91). Plaintiff Mark J. Schwartz (“Schwartz” or

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“plaintiff”) responded. (ECF Nos. 95–97).

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Also before the court is Schwartz’s motion to quash Clark County’s designation of persons

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most knowledgeable to serve as witnesses at trial. (ECF No. 88). Clark County filed a response

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(ECF No. 93), to which Schwartz replied (ECF No. 94).

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I.

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The instant action involves allegations of wrongful termination pursuant to 42 U.S.C. §

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1983, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment

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Act (“ADEA”). (ECF No. 2-2).

Facts

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Plaintiff began working for Clark County as an auditor on August 17, 1992. (ECF No. 71-

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1 at 12). In 2000, plaintiff was promoted to senior management analyst in the Clark Country

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Business License Department (“BL”). (ECF No. 71-1 at 13). In either 2007 or 2008, plaintiff

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received an ADA workplace accommodation to adjust the size of his workplace. (ECF No. 71-1

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at 19). From 2005–09, plaintiff received regular, positive employment evaluations noting his

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“meritorious” and “exemplary” performance. (ECF No. 71-1 at 16–18).

James C. Mahan
U.S. District Judge

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In 2008, Clark County Human Resources (“HR”) began to review whether the job title,

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management analyst, was an appropriate classification and conducted a county-wide “management

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analyst study” in which plaintiff participated and completed a “job description questionnaire.”

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(ECF No. 71-1 at 20, 45). Subsequently, in August 2009, HR recommended seventeen (17)

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possible job title changes for forty-four (44) employees recognized as management analysts. (ECF

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No. 71-1 at 45–46). Pursuant to the management analyst study, three of the five management

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analysts at BL, excluding plaintiff, received new job titles. (ECF No. 71-1 at 38–39).

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In February 2010, the county manager sent defendant Jacqueline R. Holloway

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(“Holloway”), director of business licensing for Clark County, a “mandate” that instructed her “to

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do a reduction in force” by dismissing employees to decrease BL’s budget by 8 percent. (ECF No.

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71-1 at 40). To comply with the budget reduction, Holloway determined that “between 8 to 12”

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employees would be dismissed, including a manager of finance, a senior management analyst, a

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management analyst, a business license agent, an office supervisor, [an] office assistant and an IT

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. . . support person . . . . [b]ased on [BL’s] needs and functions in the department and also functions

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and duties that could be absorbed by others. (ECF No. 71-1 at 41–42).

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Because his job title had not been changed subsequent to the management analyst study,

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plaintiff was notified on June 18, 2010, that he would be dismissed as senior management analyst

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on July 6, 2010. (ECF No. 71-1 at 20). As a member of a union, SEIU Local 1107, which had

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made a collective bargaining agreement with Clark County, plaintiff appealed his dismissal

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pursuant to the process provided under the terms of the agreement. (ECF No. 71-1 at 15, 23).

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Upon reviewing plaintiff’s “statements and documents and other information,” the layoff review

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committee affirmed plaintiff’s layoff. (ECF No. 71-1 at 24).

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Subsequently, plaintiff filed the underlying complaint alleging three causes of action: (1)

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violation of the ADEA; (2) violation of the ADA; and (3) violation of civil rights under § 1983.

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(ECF No. 2-2). The court granted defendants Holloway and Clark County’s motion for summary

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judgment (ECF No. 22), finding, inter alia, that plaintiff failed to raise a genuine dispute of

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material fact as to whether his termination was motivated by his disability or his age, rather than

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by legitimate budgetary concerns. (ECF No. 43).

James C. Mahan
U.S. District Judge

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Plaintiff appealed (ECF No. 46), and the Ninth Circuit reversed and remanded on May 27,

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2016 (ECF No. 58). The Ninth Circuit determined that plaintiff raised a genuine dispute of material

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fact as to whether his selection for layoff was pretext for unlawful discrimination and that the

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evidence supporting plaintiff’s ADA and ADEA claims raised a triable issue as to his § 1983 claim

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against defendant Holloway. (ECF No. 58).

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On June 20, 2017, the court granted defendant Holloway’s motion for summary judgment

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as to her qualified immunity on plaintiff’s § 1983 claim. (ECF No. 74). The clerk entered an

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amended judgment in favor of defendant Holloway on June 21, 2017. (ECF No. 77).

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Now, Clark County, the remaining defendant, has filed three motions in limine to exclude
certain evidence. (ECF Nos. 89-91).

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II.

Legal Standard

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1. Motion in Limine

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“The court must decide any preliminary question about whether . . . evidence is

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admissible.” Fed. R. Evid. 104. Motions in limine are procedural mechanisms by which the court

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can make evidentiary rulings in advance of trial, often to preclude the use of unfairly prejudicial

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evidence. United States v. Heller, 551 F.3d 1108, 1111–12 (9th Cir. 2009); Brodit v. Cambra, 350

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F.3d 985, 1004–05 (9th Cir. 2003).

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“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the

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practice has developed pursuant to the district court’s inherent authority to manage the course of

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trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1980). Motions in limine may be used to

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exclude or admit evidence in advance of trial. See Fed. R. Evid. 103; United States v. Williams,

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939 F.2d 721, 723 (9th Cir. 1991) (affirming district court’s ruling in limine that prosecution could

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admit impeachment evidence under Federal Rule of Evidence 609).

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Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler

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Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v. Gates, 99 F.3d 911, 922 (9th

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Cir. 1999) (“The district court has considerable latitude in performing a Rule 403 balancing test

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and we will uphold its decision absent clear abuse of discretion.”). “[I]n limine rulings are not

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binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler

James C. Mahan
U.S. District Judge

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v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine

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rulings are always subject to change, especially if the evidence unfolds in an unanticipated

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manner).

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“Denial of a motion in limine does not necessarily mean that all evidence contemplated by

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the motion will be admitted at trial. Denial merely means that without the context of trial, the

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court is unable to determine whether the evidence in question should be excluded.” Conboy v.

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Wynn Las Vegas, LLC, No. 2:11-cv-1649-JCM-CWH, 2013 WL 1701069, at *1 (D. Nev. Apr. 18,

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2013).

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III.

Discussion
a. Clark County’s motion in limine 1

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Clark County’s motion in limine 1 seeks to prevent Schwartz from calling two undisclosed

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witnesses to testify at trial. (ECF No. 89). Fed R. Civ. P. 26(a)(1)(A) requires that a party must

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disclose the name and contact information of each individual that may be used to support that

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party’s claims or defenses. Further, a party is obligated to supplement these disclosures as the

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discovery process continues. Fed. R. Civ. P. 26(e)(1). Disclosures under Rule 26(a) are untimely

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if made after the discovery cutoff. See Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843,

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863 (9th Cir. 2014).

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Under Fed. R. Civ. P. 37(c), if a party fails to provide information or identify a witness

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required by Rule 26(a) or (e), that party cannot use that witness to supply evidence at trial, unless

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the failure to disclose was either substantially justified or harmless. Factors the court may consider

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in determining whether a violation of the discovery deadline was justified or harmless are: (1)

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prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party

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to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness

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involved in not timely disclosing the evidence. Lanard Toys Ltd. v. Novelty, Inc., 375 Fed. Appx.

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705, 713 (9th Cir. 2010).

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Here, at the pretrial conference, Schwartz indicated for the first time that he intended to

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call T. Ann Aquon Perez (“Perez”) and Natalie Thomas (“Thomas”) as witnesses. (ECF No. 89).

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On July 15, 2013, Schwartz made his initial disclosures. Id. These disclosures did not list either

James C. Mahan
U.S. District Judge

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Perez or Thomas as potential witnesses. Id. Schwartz has not filed any supplemental disclosures

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since. Id. Accordingly, Clark County argues that Schwartz’s failure to disclose either Perez or

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Thomas demands their exclusion pursuant to Rule 37(c). Id.

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Further, Clark County argues that neither the substantially justified nor harmless

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exceptions to Rule 37(c) apply here. (ECF No. 89). A late disclosure is not considered harmless

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if the late disclosure would deprive a party of the opportunity to conduct its own discovery or to

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take the deposition of a witness. See Ollier 768 F.3d at 863; see e.g., EEOC v. Mattress Firm,

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Inc., No. 2:13-cv-1745-GMN-VCF, 2016 US. Dist. LEXIS 79131, at *4 (D. Nev. June 16, 2016).

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Clark County argues that it has received no information on Thomas and has thus been unable to

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conduct any discovery to determine what relevant information Thomas may have to offer. (ECF

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No. 89).

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Next, Clark County argues that a passing reference to another person during a deposition

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does not satisfy the Rule 26(a)(1) disclosure requirements, nor does it render Schwartz’s failure to

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disclose that witness as harmless under Rule 37(c). See Ollier, 768 F.3d at 862—63. Here, Perez’s

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name was mentioned in depositions, but she was never disclosed as a witness and thus never

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deposed by Clark County. (ECF No. 89). The Ninth Circuit has held that disclosure of a witness

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after the discovery deadline when the identity of that witness is known throughout depositions

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amounts to the gamesmanship Rule 37(c) seeks to prevent. Id. at 863.

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Schwartz responds that Fed R. Civ. P. 26(a)(1)(A)(i) specifically excludes from its

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disclosure requirements any witness used solely for impeachment purposes. (ECF No. 95). At the

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pretrial conference, Schwartz alleges that he made clear that Thomas’s use as a witness was only

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for rebuttal purposes and was conditional on certain testimony given by Holloway. Id. If

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Holloway does not testify as to her sister’s cerebral palsy at trial, Schwartz contends that he has

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no intention of calling Thomas as an impeachment witness. Id. Accordingly, Schwartz argues use

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of Thomas as an impeachment witness is proper and should not be barred under rule 37(c)(1). Id.

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Fed. R. Civ. P. 26(a)(1)(A)(i) is explicit in excepting information used for impeachment

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purposes only from the Rule’s disclosure requirements. Accordingly, the court will permit Thomas

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to testify to the extent her testimony is used for impeachment purposes only.

James C. Mahan
U.S. District Judge

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At the pretrial conference, Schwartz also indicated to Clark County that even though he

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had not previously disclosed Perez as a potential witness, he would simply call Perez as Clark

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County’s Rule 30(b)(6) witness under the custodians of records/person most knowledgeable

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(“COR/PMK”) designation. (ECF No. 95). Clark County argues that no authority permits

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Schwartz to select the individual designated as a Clark County’s 30(b)(6) designee. (ECF No. 89).

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Instead, Fed. R. Civ. P. 30 states that “[t]he the named organization must then designate one or

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more officers, directors, or managing agents, or designate other persons who consent to testify on

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its behalf; and it may set out the matters on which each person designated will testify.”

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Accordingly, Clark County requests that the court prohibit Schwartz from selecting the individuals

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that will speak on behalf of Clark County as its Rule 30(b)(6) witness, including Perez.

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Schwartz argues that because Perez is a member of Clark County’s management, Clark

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County suffers no prejudice or unfair surprise as a result of Schwartz’s delayed disclosure of Perez

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as a witness. (ECF No. 85). Further, Schwartz claims that the untimely disclosure of Perez was

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not made in bad faith, as he did not learn of Perez’s involvement until after the close of discovery.

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Id.

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While the court agrees that Schwartz lacks the authority to designate Clark County’s Rule

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30(b)(6) witnesses, the failure to disclose Perez as a witness was harmless. While Clark County

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has not yet deposed Perez, Perez is an employee of Clark County. Accordingly any information

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Perez could potentially offer as a witness is likely to be known by Clark County and thus unlikely

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to be prejudicial or harmful.

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Accordingly, at this stage in the litigation, the court will allow both Thomas and Perez to
testify consistent with the foregoing.
b. Clark County’s motion in limine 2

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Clark County’s motion in limine 2 seeks to prevent any statements by Schwartz’s counsel

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containing beliefs or opinions about whether a witness lied during a deposition. (ECF No. 90). It

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is improper for counsel to communicate personal beliefs or opinions to a jury, including opinions

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about a witness’s credibility. See U.S. v. Young, 470 U.S. 1, 9-10 (1985); Draper v. Rosario, 836

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F.3d 1072, 1084 (9th Cir. 2016). Here, Clark County claims that counsel for Schwartz intends to

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U.S. District Judge

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present her personal beliefs that Holloway is a perjurer and offered false testimony during her

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deposition. (ECF No. 90).

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The court agrees with Clark County that statements suggesting Holloway committed the

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crime of perjury should be prohibited. Holloway has not been charged with, nor convicted of

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perjury for her deposition testimony. Accordingly there is no foundation to label Holloway as a

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perjurer. Further, labeling Holloway as a perjurer in front of the jury would be highly prejudicial.

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However, the court will not prohibit Schwartz’s counsel from introducing evidence that

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Holloway has previously provided inconsistent or contradictory testimony. Pursuant Federal Rule

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of Evidence 613, prior inconsistent statements can be used to impeach a witness. Additionally,

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under Draper, counsel is “permitted to make inferences and advance ‘plausible arguments[s] in

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light of the record.’” 836 F.3d at 1084 (quoting Settlegoode v. Portland Pub. Sch., 371 F.3d 503,

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518 (9th Cir. 2004)). Holloway’s statements during her deposition comprise part of the record.

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Accordingly, the court will allow Schwartz’s counsel to introduce evidence of Holloway’s prior

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inconsistent testimony, but will not permit Schwartz’s counsel to offer her personal beliefs or

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opinions as to Holloway’s credibility or to label Holloway as a perjurer.
c. Clark County’s motion in limine 3

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Clark County requests that the court exclude evidence that proposes a different retirement

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date other than July 1, 2013. (ECF No. 91). Clark County argues that the date of Schwartz’s

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planned retirement is the starting point for determining the amount that Schwarz might have earned

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in retirement had he not been laid off. Id. Accordingly, any calculation of the total number of

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damages owed Schwartz depends on his planned retirement date. Id.

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During discovery, Schwartz did not alter or supplement his disclosures to reflect a

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retirement date different than July 1, 2013. (ECF No. 91). Clark County argues that under Fed.

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R. Civ. P. 26(a)(1)(A)(iii), it is has a right to know the basis for and calculation of Schwartz’s

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claim to damages from the outset of the litigation. Id. Because Schwartz did not indicate a date

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other than July 1, 2013, Clark County requests the court exclude evidence as to a different date.

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Id.

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James C. Mahan
U.S. District Judge

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Clark County also requests the court to exclude evidence of lost monthly Nevada Public

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Employee Retirement System (“PERS”) benefits. (ECF No. 91). As of the close of discovery,

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Schwartz’s disclosures calculated $19,491.53 as the amount of contributions the county would

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have made to PERS through July 1, 2003. Id. However, in January of 2017, Schwartz sent Clark

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County a new damages calculation claiming a total of $276,645.50 in lost income from PERS

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covering the remainder of Schwartz’s life. Id. Clark County contends that this is an irrelevant

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measure of damages and should be excluded. Id.

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Clark County argues that the appropriate remedy here is reinstatement. (ECF No. 91).

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Accordingly, evidence regarding Schwartz’s purported lost monthly retirement income is not

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relevant and thus should be excluded. Id. Instead, the appropriate measure of damages is the

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amount of contributions Clark county would have made to PERS had Schwartz remained an

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employee until his projected retirement date of July 1, 2013. Id. The Ninth Circuit has held that

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reinstatement is the remedy of first resort in discrimination cases such as this one. See Gotthardt

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v. Amtrak, 191 F.3d 1148, 1156 (9th Cir. 1999).

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The court agrees with Schwartz that reinstatement is not necessarily the appropriate remedy

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in this case. Schwartz is now 71 years old. Given his age and condition, and the length of time

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since the initial damages calculation and the length of time since he has retired, the court will allow

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evidence as to Schwartz’s lost monthly retirement income. Further, Clark County will have the

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opportunity at trial to cross-examine Schwartz concerning his requested damages and the

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calculation of those damages.

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Lastly, the court is not convinced by Clark County’s argument that Schwartz, having not

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been disclosed as an expert, is precluded from testifying as to his damages. Clark County relies

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only on a footnote in a 37-year-old Ninth Circuit case and a Third Circuit case for the proposition

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that the calculation of Schwartz’s damages must be achieved through expert testimony. At this

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stage in the litigation, the court will not bar Schwartz from testifying as to his damages calculation.

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Accordingly, the court will allow Schwartz to present evidence as to his damages

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calculation consistent with the foregoing. As Schwartz failed to object to the retirement date, the

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July 1, 2013 will initially be set as his projected date of retirement.

James C. Mahan
U.S. District Judge

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d. Schwartz’s motion to quash (ECF No. 88)

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Schwartz moves to quash Clark County’s designation of persons most knowledgeable

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(“PMK”) to serve as trial witnesses pursuant to Fed. R. Civ. P. 37(c)(1). (ECF No. 88). Schwartz

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alleges that Clark County failed to timely disclose its PMK witness in advance of the discovery

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cutoff date as required by Fed. R. Civ. P. 26(a)(1)(A)(i).

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motion as a motion to quash, it is a motion in limine in substance. Accordingly, the court will treat

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it as such.

Id. Although Schwartz labeled this

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Fed R. Civ. P. 26(a)(1)(A) requires that a party must disclose the name and contact

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information of each individual that may be used to support that party’s claims or defenses.

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Disclosures under Rule 26(a) are untimely if made after the discovery cutoff. See Ollier v.

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Sweetwater Union High Sch. Dist., 768 F.3d 843, 863 (9th Cir. 2014).

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Under Fed. R. Civ. P. 37(c), if a party fails to provide information or identify a witness

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required by Rule 26(a) or (e), that party cannot use that witness to supply evidence at trial, unless

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the failure to disclose was either substantially justified or harmless. Factors the court may consider

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in determining whether a violation of the discovery deadline was justified or harmless are: (1)

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prejudice or surprise to the party against whom the evidence is offered; (2) the ability of that party

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to cure the prejudice; (3) the likelihood of disruption of the trial; and (4) bad faith or willfulness

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involved in not timely disclosing the evidence. Lanard Toys Ltd. v. Novelty, Inc., 375 Fed. Appx.

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705, 713 (9th Cir. 2010).

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Here, Schwartz argues that the identity of the witnesses was a complete surprise and that

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trial will be disrupted because the only way to cure the lack of disclosure is to allow Schwartz the

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opportunity to depose the PMK witness. (ECF No. 88). Further, Schwartz contends that there is

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no justification for failing to identify witnesses when the witnesses are known and under the

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control of Clark County, the defendant. Id.

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As Schwartz failed to satisfy the meet-and-confer requirement of Local Rule 16-3(a), the

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court will deny Schwartz’s motion (ECF No. 88) as premature. LR 16-3(a) requires that a

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statement be attached to a motion in limine certifying that the parties have conferred and attempted

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to resolve the issue. The declaration of Schwartz’s counsel attached to the instant motion (ECF

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U.S. District Judge

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No. 88) indicates that Schwartz’s counsel was seeking to know who Clark County’s COR/PMK

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designees would be. On January 11, 2018, Clark County provided Schwartz with this information.

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(ECF No. 93). However, now that Schwartz has received Clark County’s COR/PMK witnesses,

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he now seeks to exclude these witnesses. (ECF No. 88). Further, Clark County’s COR/PMK

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witnesses were listed in the joint pretrial order without objection by both parties. (ECF No. 93).

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Because the attached declaration to Schwartz’s instant motion certifies that the parties met

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and conferred regarding the identity of Clark County’s COR/PMK witnesses and not the exclusion

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of these witness as requested in the instant motion, Schwartz’s motion will be denied. The court

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will not presume LR 16-3(a) has been satisfied when the attached declaration certifies something

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wholly independent of the substance of the motion.

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IV.

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Accordingly,

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IT IS HEREBY ORDERED that Clark County’s motion in limine 1 (ECF No. 89) is

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Conclusion

DENIED, consistent with the foregoing.
IT IS FURTHER ORDERED that Clark County’s motion in limine 2 (ECF No. 90) is
GRANTED in part and DENIED in part, consistent with the foregoing.
IT IS FURTHER ORDERED that Clark County’s motion in limine 3 (ECF No. 91) is
GRANTED in part and DENIED, consistent with the foregoing.

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IT IS FURTHER ORDERED that plaintiff’s motion to quash (ECF No. 88) is DENIED.

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DATED April 4, 2018.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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