Doud et al v. Yellow Cab of Reno, Inc.
Filing
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ORDER granting in part and denying in part 134 Motion in Limine (see order for details). Signed by Magistrate Judge William G. Cobb on 10/2/2015. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JAMES DOUD and MELODIE DOUD,
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Plaintiffs,
v.
3:13-cv-00664-WGC
ORDER
Re: ECF No. 134
YELLOW CAB OF RENO, INC.,
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Defendants.
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Before the court are the Motions in Limine filed by Plaintiffs James Doud and Melodie
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Doud (the Douds). (ECF No. 134.)1 Defendant Yellow Cab of Reno, Inc. (Yellow Cab) filed a
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response (ECF No. 147). Pursuant to Local Rule 16-3(b), no reply was permitted. Under Local
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Rule 78-2, the court deems disposition of the motions without a hearing to be appropriate.
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The court will address the motions in the order presented in the Douds’ filing; however, it
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is noted that the Douds mis-numbered the motions when motion in limine number 3 was
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inadvertently labeled as motion in limine number four. As a result, there are seven and not eight
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motions presented in the filing. The court will address them in the correct numeric order, and by
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title instead of the numbers assigned by the Douds.
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I. MOTION IN LIMINE TO EXCLUDE EVIDENCE OF A TELEPHONE CALL MADE
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BY CATHI BROWN TO PLAINTIFF JAMES DOUD
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Yellow Cab’s general manager, Frank Street, testified in deposition that Cathi Street, his
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girlfriend and former Yellow Cab employee, telephoned Mr. Doud about the denial of service by
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Yellow Cab’s drivers. According to Mr. Street, during the call, which Mr. Doud maintains was
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surreptitiously recorded, Mr. Doud allegedly stated: “All Middle Eastern drivers are Talibans.”
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Refers to court’s Electronic Case Filing number.
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The Douds assert that Yellow Cab intends to present evidence of this call and argue that this is
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the reason Mr. Doud was terminated.
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The Douds argue that evidence of this call should be excluded because: (1) under Nevada
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law the unauthorized recording of a conversation is unlawful; (2) the Douds have not been
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provided with a copy or transcript of this call even though their discovery requests specifically
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asked for recordings that would encompass this call or in their initial disclosures; and (3) it lacks
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foundation. (ECF No. 134 at 1-6.)
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Yellow Cab seeks to admit this evidence in support of its argument that the real reason
for Plaintiff’s termination is because he was deemed to be a racist and this telephone call is
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directly relevant to that contention. (ECF No. 147 at 1-2.) Next, they argue that the conversation
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was not recorded without Mr. Doud’s consent because he was a dispatcher for Yellow Cab for a
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period of time, and responded to ingoing and outgoing calls, and was familiar with Yellow Cab’s
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procedure of recording ingoing and outgoing calls. (Id. at 2.) Finally, Yellow Cab asserts that a
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transcript of the telephone conversation was disclosed to the Douds’ counsel when the opposition
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to the motion in limine was filed (on September 25, 2015). (Id. at 3.)
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The Douds’ motion in limine to exclude evidence or reference to the call made by Cathi
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Brown and Mr. Doud’s alleged statement that “all Middle Eastern drivers are Talibans” is
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GRANTED. Without getting into whether or not the recording was surreptitious so as to violate
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Nevada law, the court finds that the call was not timely produced to the Douds, and should be
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excluded on that basis.
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Yellow Cab concedes that it did not produce a transcript of the call until September 25,
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2015, when it filed its opposition to this motion in limine. “If a party fails to provide information
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or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
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information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
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failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Yellow Cab has
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presented no substantial justification for its failure to produce the transcript of the telephone call
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to this point. Nor can it be said that the failure to do so is harmless.
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Moreover, Rule 26 requires the identification of each document or other exhibit a party
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intends to offer at trial at least thirty days before trial. Fed. R. Civ. P. 26(3)(A), (B) (emphasis
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added). The disclosure of the transcript on September 25, 2015, was not made within thirty days
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of trial.
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Therefore, the evidence shall be excluded as stated above.
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II. MOTION IN LIMINE TO EXCLUDE REFERENCE TO A TELEPHONE
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RECORDING FROM “CINDY”
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Yellow Cab has produced a recording of a telephone call from a woman who identified
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herself as “Cindy” which lasts approximately 20 seconds, and the caller states she knows the
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Douds and that they are suing because they want to make money and that their allegations are
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false. (ECF No. 134 at 6.) The Douds assert that the alleged caller did not provider her full name,
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address, telephone number or date she called, how she can be reached or why she called. (Id.)
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Yellow Cab confirmed in deposition that it has no additional information about the caller. (Id.)
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The Douds contend that the recording should be excluded because it is irrelevant, lacks
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foundation and is inadmissible hearsay. (Id.)
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Yellow Cab argues that the residual or catchall hearsay rule should allow the admission
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of this recording because there are “equivalent guarantees of trustworthiness.” (ECF No. 147 at
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3, relying on United States v. Dunford, 148 F.3d 385, 393 (4th Cir. 1998), and factors discussed
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therein, as well as United States v. Lentz, 282 F.Supp.2d 399, 425 (E.D. Va. 2002), aff’d, 58
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F.Appx. 961 (4th Cir. 2003).) Yellow Cab contends that the call should be admitted because
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“Cindy” is unavailable and it took steps (albeit unsuccessful) to try to locate her. (Id. at 3.) It
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further asserts that guarantees of trustworthiness include that she claims to know the Douds and
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that their allegations are false. (ECF No. 147 at 3-4.)
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Hearsay is “a statement that: (1) the declarant does not make while testifying at the
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current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
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in the statement.” Fed. R. Evid. 801(c). The recording of the telephone call by “Cindy” is a
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classic example of hearsay. The parties agree “Cindy” has not been located, and Yellow Cab
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concedes it seeks to offer the recording to prove the truth of the matter asserted therein−that the
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Douds’ allegations are false. Yellow Cab also concedes that the statement does not come within
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any express hearsay exception as it argues that the statement should be admitted pursuant to the
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residual or “catchall” hearsay exception.
Federal Rule of Evidence 807, otherwise known as the residual or “catchall” hearsay
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exception allows the admission of any out-of-court statement, so long as it meets the residual
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rule’s own articulated requirements. See United States v. Marchini, 797 F.2d 759, 763 (9th Cir.
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1986). The rule provides:
Under the following circumstances, 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:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) 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
(4) admitting it will best serve the purposes of these rules and the interests of
justice.
Fed. R. Evid. 807(a).
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The rule is to be used only in exceptional circumstances. U.S. v. Bonds, 608 F.3d 495,
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501 (9th Cir. 2010). Moreover, a statement that comes within the parameters of Federal Rule of
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Evidence 807(a), “is admissible only if, before the trial or hearing, the proponent gives an
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adverse party reasonable notice of the intent to offer the statement and its particulars, including
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the declarant’s name and address, so that the party has a fair opportunity to meet it.” Fed. R.
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Evid. 807(b).
Yellow Cab’s citation to precedent from the Fourth Circuit is not persuasive, particularly
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where there is Ninth Circuit precedent on application of the “catchall” provision directly on
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point.
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The call does not “contain the requisite guarantees of trustworthiness required for
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admission under the catchall hearsay exception.” United States v. Angulo, 4 F.3d 843, 845 n. 2
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(9th Cir. 1993). The statements of the caller were not made “under oath and subject to penalty of
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perjury” nor were they recorded in any way “which would allow the [judge] an opportunity to
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view [the caller’s] demeanor.” See United States v. Sanchez-Lima, 161 F.3d 545, 547 (9th Cir.
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1998). The parties have no idea who “Cindy” is, and while Yellow Cab argues that “Cindy”
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knew the Douds, this is only what “Cindy” claimed. There is no evidence that Douds in fact
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knew a person named “Cindy” who may have made this call.
The recording is not “evidence of a material fact.” The material facts in this action go to
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the reason for Mr. Doud’s termination and whether the Yellow Cab driver refused to terminate
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the Douds because they were accompanied by their service dogs. A general assertion that the
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Douds’ allegations are false does not go to a material fact. For this reason, this recording is not
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“more probative” for any fact material to the remaining claims in this action. Admission of this
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recording would not “best serve the purposes of these rules and the interest of justice.” Instead,
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the court will allow the parties to present admissible evidence that actually has a bearing on the
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elements of the remaining claims.
Finally, the statement does not meet the requirements of Rule 807(b): the Douds have not
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been given the declarant’s full name, or address. For these reasons, the Douds’ motion in limine
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on this topic is granted.
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III. MOTION IN LIMINE TO ALLOW FRANK STREET TO BE CALLED AS A
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HOSTILE WITNESS IN PLAINTIFF’S CASE IN CHIEF
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In this motion in limine, the Douds seek an order permitting them to call Frank Street in
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their case in chief as a hostile witness so that he may be asked leading questions. (ECF No. 134
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at 7-8.)
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Yellow Cab, on the other hand, argues that the Douds have not made the requisite
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showing of hostility, relying on United States v. Bryant, 461 F.2d 912, 918 (6th Cir. 1972). (ECF
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No. 147 at 5-6.)
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Once again, Yellow Cab’s reliance on out-of-circuit precedent is not persuasive. Federal
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Rule of Evidence 611 governs the use of leading questions during examination of a witness, and
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provides: “Leading questions should not be used on direct examination except as necessary to
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develop the witness’s testimony.” Fed. R. Evid. 611(c). That being said, the court is directed to
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allow leading questions “when a party calls a hostile witness, an adverse party, or a witness
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identified with an adverse party.” Fed. R. Evid. 611(c)(2). Separate and apart from the contention
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that Mr. Street is a hostile witness is the fact that Mr. Street is a witness identified with an
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adverse party. Therefore, the Douds’ counsel is permitted to ask leading questions of him on
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direct examination if called as a witness in their case in chief. While a motion in limine may not
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be the appropriate vehicle to raise this issue, the court nevertheless GRANTS the Douds’
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motion.
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IV. MOTION IN LIMINE TO EXCLUDE MOHAMMED PARVEZ AS A WITNESS
The Douds seek to preclude the testimony of Mohammed Parvez at trial on the grounds
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that it is irrelevant and its admission would likely confuse the jury. (ECF No. 134 at 8.) They
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assert that Mr. Parvez was the driver that twice denied them service, and while his testimony was
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relevant to the Title III ADA claims that have already been decided, it is not relevant to the
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remaining claims. (Id. at 8.)
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In response, Yellow Cab argues that the Douds admit that Mr. Parvez was the driver that
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twice denied them service, and the fifth cause of action that is proceeding to trial alleges a denial
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of service. (ECF No. 147 at 6.) Yellow Cab then asserts that the Douds’ complaint attributes the
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statement denying them service because of their dogs to Mr. Parvez. (Id.) Yellow Cab then
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points to Mr. Parvez’s deposition testimony about Mr. Parvez’s denial of service, and maintains
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that whether Mr. Parvez denied service to the Douds is relevant to the remaining claim. (Id. at 6-
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Yellow Cab’s argument confuses the claims asserted by the Douds, and conflates the
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Title III ADA denial of service claim that was already decided by the court with the remaining
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denial of service claim which relates to the allegation that Yellow Cab violated Nevada Revised
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Statute 706.366 by refusing to transport them because of the presence of their service dogs. In
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the complaint, Mr. Parvez is identified as the driver of Yellow Cab taxi number 130. (ECF No. 1
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at 4 ¶ 14.) After Mr. Parvez refused to take the Douds, they allege that they approached a second
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Yellow Cab taxi, number 130, and this driver allegedly refused to take them stating that they
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had dogs, dogs are dirty, and it was against his religion to take them with the dogs. (ECF No. 1 at
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4-5 ¶ 15.) There has been no demonstration that Mr. Parvez’s testimony would have any
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relevance to the alleged denial of service related to the service dogs. For this reason, the Douds’
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motion in limine to exclude him as a witness is GRANTED.
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V. MOTION IN LIMINE TO EXCLUDE MUKESH SHARMA AS A WITNESS
The Douds also seek an order precluding Mukesh Sharma from testifying as a witness at
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trial. (ECF No. 134 at 8-9.) The Douds assert that Mr. Sharma is a road boss for Yellow Cab and
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he gave the Douds a ride to their home on May 19, 2013, after Mr. Parvez denied them service
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for a second time, and testified at the NTA hearing as to Yellow Cab’s policies relating to
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disabled passengers. (Id. at 8.) They seek to exclude him as a witness on the basis that his
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testimony would not be relevant to the remaining claims in this action, and to allow his
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testimony would simply serve to confuse and mislead the jury. (Id. at 8-9.)
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Yellow Cab argues that Mr. Sharma’s testimony is relevant and should be admitted, since
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he was Yellow Cab’s road boss and is familiar with Yellow Cab’s policy concerning the
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transportation of disabled persons. (ECF No. 147 at 7.) Yellow Cab also insists that the Douds
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failed to mention that Mr. Sharma transported them from the airport to their home after the
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confrontation with Mr. Parvez, and has knowledge pertaining to the circumstances regarding the
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interaction with Mr. Parvez. (Id.)
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As with Mr. Parvez, Yellow Cab confuses the issues remaining in this case. The
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remaining denial of service claim did not involve Mr. Parvez or Mr. Sharma. Contrary to Yellow
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Cab’s assertion, the Douds’ motion in limine expressly admits that Mr. Sharma was the Yellow
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Cab road boss who took them home after the May 19, 2013 incident. (ECF No. 134 at 8.) What
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Yellow Cab fails to establish, however, is how Mr. Sharma’s testimony would have any
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relevance to the claim that the Yellow Cab driver of taxi number 132 refused to transport the
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Douds based on the presence of their service dogs. As a result, the Douds’ motion in limine to
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exclude Mr. Sharma as a witness is GRANTED.
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VI. MOTION IN LIMINE TO EXCLUDE ALL REFERENCES TO PLAINTIFF’S
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INTERIM FEE AWARD
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The Douds move to exclude all references to their interim fee award as it is irrelevant
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under Federal Rule of Evidence 403. (ECF No. 134 at 9.) Yellow Cab does not object to the
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exclusion of this evidence. Therefore, the Douds’ motion in limine to exclude all reference to
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their interim fee award at trial is GRANTED.
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VII. MOTION IN LIMINE TO EXCLUDE EVIDENCE AND RE-LITIGATION OF THE
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REASONS FOR THE GRANTING OF INJUNCTIVE RELIEF
In their final motion in limine, the Douds seek to exclude evidence and re-litigation of the
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reasons they were granted injunctive relief. (ECF No. 134 at 9-10.) The Douds assert that they
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should be permitted to briefly describe the denial of service that occurred in April and May of
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2013, because they allege that their complaints about these incidents led to Mr. Doud’s
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retaliatory termination. (Id. at 9.) Nonetheless, they contend that Yellow Cab should not be
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allowed to re-litigate the ADA Title III claim. (Id.) They suggest that the court provide a limiting
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instruction to the jury indicating that they are not to decide the denial of service issue, but
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whether the Douds’ complaints about that denial of service were the basis for Mr. Doud’s
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termination and whether it was retaliatory. (Id. at 9-10.)
Yellow Cab states that it does not seek to re-litigate the court’s reasons for granting
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injunctive relief, but it is essential to its defense to present evidence regarding the circumstances
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that led up to Mr. Parvez’s decision to disallow the Douds’ transportation. (ECF No. 147 at 7-8.)
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Yellow Cab also insists that the Douds’ motion is too broad and vague for the court to issue a
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ruling, because neither the court nor Yellow Cab knows exactly what evidence the Douds intend
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to present. (Id. at 8.)
The Douds’ motion in limine is GRANTED IN PART AND DENIED IN PART.
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Yellow Cab is not permitted in this trial to re-litigate the Title III ADA claims that have already
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been determined by the court. The court has made this clear on several occasions, including its
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recent order denying the Douds’ request for a status conference where the Douds’ counsel
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indicated that she believed it was Yellow Cab’s counsel’s intent to do just that. (See order at ECF
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No. 140 stating “These issues will not be re-litigated at the upcoming trial which concerns only
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Mr. Doud’s discrimination and retaliation claims under Title I of the ADA, and Mrs. Doud’s
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claim that she was denied service by [Yellow Cab’s] driver in violation of Nevada Revised
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Statute 706.366 when she was not permitted to travel in [Yellow Cab’s] taxi with her service
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dogs.”)
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Nonetheless, Yellow Cab’s argument that the motion is overly broad is well taken,
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particularly where it is unclear exactly what evidence the Douds intend to present to give the
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background of the Title III ADA claims in order to set up the facts necessary to establish
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Mr. Douds’ retaliatory termination claim. To address this issue, as the court indicated in its order
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at ECF No. 140, the court intends to discuss at the pretrial conference a proposed statement to
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the jury which briefly describes the facts as determined by the court relative to the ADA Title III
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denial of service claims which will adequately set the stage for the claims to be tried. This should
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alleviate Yellow Cab’s concern that it should be able to present evidence to rebut any evidence
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presented by the Douds as to the ADA Title III denial of service claims. Again, this will be
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discussed in detail at the pretrial conference on October 8, 2015.
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IT IS SO ORDERED.
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Dated: October 2, 2015.
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WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE
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