Hernandez v. City of Albuquerque et al

Filing 208

ORDER by District Judge Kenneth J. Gonzales granting in part and denying in part 150 Motion to Take Deposition; denying in part and reserving in part 151 Motion in Limine; granting in part and denying in part 152 Motion to Strike; denying in part as moot 154 Motion to Strike; denying in part and reserving in part 156 Motion in Limine; denying in part and reserving in part 158 Motion in Limine; taking under advisement 159 Motion in Limine. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALFONSO HERNANDEZ,
Plaintiff,
vs.

Civ. No. 14-0964 KG/SCY

ANDY FITZGERALD, in his individual capacity
as a security officer employed by the
Albuquerque Transit Dept. Security Div.,
Defendant.
CONSOLIDATED SUMMARY ORDER ON PENDING MOTIONS
This matter comes before the Court on the following pending motions:
1. Plaintiff’s Motion to Take Deposition from Mateo Caffery in Lieu of Live Testimony
at Trial, filed February 5, 2018 (Doc. 150); and Response in Opposition, filed
February 25, 2018 (Doc. 163);
2. Plaintiff’s Motion in Limine to Exclude All Testimony and Evidence of Plaintiff’s
Familial Matters and Alleged Criminal Conduct, filed February 5, 2018 (Doc. 151);
Response in Opposition, filed February 26, 2018 (Doc. 164); and Reply in Support,
filed March 12, 2018 (Doc. 174);
3. Defendant’s Motion to Strike Undisclosed Witnesses, filed February 5, 2018 (Doc.
152); Response in Opposition, filed February 26, 2018 (Doc. 167); and Reply in
Support, filed March 12, 2018 (Doc. 173);
4. Plaintiff’s Motion to Strike Witnesses, filed February 5, 2018 (Doc. 154); Response
in Opposition, filed February 26, 2018 (Doc. 165); and Reply in Support, filed March
12, 2018 (Doc. 172);
5. Plaintiff’s Motion in Limine to Exclude Testimony or Evidence of Prior Civil Cases,
Prior “Propensity to get into Physical Altercations,” Prior Allegations Against
Employees of the City of Albuquerque, and Other Irrelevant Testimony or Evidence,
filed February 5, 2018 (Doc. 156); and Response in Opposition, filed February 26,
2018 (Doc. 168);
6. Plaintiff’s Motion in Limine to Exclude Testimony of Evidence of Prior Criminal
and/or Bad Acts, filed February 5, 2018 (Doc. 158); and Response in Opposition,
filed February 26, 2018 (Doc. 166); and

7. Plaintiff’s Motion in Limine to Exclude Testimony or Evidence of Immigration
Status, filed February 5, 2018 (Doc. 159); and Response in Opposition, filed February
26, 2018 (Doc. 169).
On January 30, 2019, the Court held a telephonic status conference and hearing on the
above motions. Louren Oliveros, Amye Green, and Victor Sanchez represented Plaintiff at the
telephonic status conference and hearing while Jonlyn Martinez represented Defendant.
Having considered the motions, the accompanying briefing, and the comments of counsel
at the telephonic status conference and motions hearing, and for the reasons explained on the
record at the telephonic status conference and motions hearing,
IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion to Take Deposition from Mateo Caffery in Lieu of Live Testimony
at Trial is granted in part and denied in part. (Doc. 150). Dr. Caffery must appear
live at trial. Plaintiff will produce Dr. Caffery for a deposition in New Mexico at
least forty-eight (48) hours before his live trial testimony, and will pay the costs of
that deposition, not including Defendant’s attorney’s fees. If Dr. Caffery does not
appear live at trial, no portion of his deposition may be used at trial.
2. Defendant’s Motion to Strike Undisclosed Witnesses is granted in part and denied in
part. (Doc. 152). Dr. Caffery may testify as outlined above. The remaining
disputed witnesses may not testify during Plaintiff’s case-in-chief.
3. Plaintiff’s Motion to Strike Witnesses is denied in part as moot. (Doc. 154).
Plaintiff withdrew the Motion as to Michael Herrick. Defendant does not intend to
call Erin Hays or Lori Trujillo, rendering that portion of the Motion moot. Nathan

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Krantz may testify under the same conditions as Dr. Caffery.
4. Plaintiff’s Motion in Limine to Exclude Testimony or Evidence of Immigration
Status is taken under advisement. (Doc. 159). The parties are urged to meet and
confer on a stipulation regarding this Motion.
5. Plaintiff’s Motion in Limine to Exclude All Testimony and Evidence of Plaintiff’s
Familial Matters and Alleged Criminal Conduct; Plaintiff’s Motion in Limine to
Exclude Testimony of Evidence of Prior Civil Cases, Prior “Propensity to get into
Physical Altercations,” Prior Allegations Against Employees of the City of
Albuquerque, and Other Irrelevant Testimony or Evidence; and Plaintiff’s Motion in
Limine to Exclude Testimony or Evidence of Prior Criminal and/or Bad Acts are
denied in part and reserved in part. (Docs. 151, 156, and 158). Defendant will submit
a proffer of evidence intended to be used pursuant to the Court’s discovery sanction
no later than 5:00 p.m. on February 5, 2019. Plaintiff may file additional motions in
limine by 5:00 p.m. on February 12, 2019. Defendant may respond by 5:00 p.m. on
February 15, 2019.
6. The Court imposes the following amended deadlines:
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Final Witness Lists
Final Exhibit Lists
Deposition Designations
Proposed Jury Instructions
Statement of the Case
Objections to Deposition Designations
Amended Pretrial Order

February 11, 2019
February 11, 2019
February 11, 2019
February 11, 2019
February 11, 2019
February 18, 2019
February 18, 2019

________________________________
UNITED STATES DISTRICT JUDGE
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