Spencer v. International Shoppes, Inc. et al
ORDER granting in part and denying in part 181 Motion in Limine; denying 183 Motion in Limine. SEE ATTACHED ORDER. Ordered by Magistrate Judge A. Kathleen Tomlinson on 2/25/2013. (Sofio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against CV 06-2637 (AKT)
INTERNATIONAL SHOPPES, INC., and
MICHAEL HALPERN, personally and as
President of International Shoppes, Inc.,
A. KATHLEEN TOMLINSON, Magistrate Judge:
This case is set down for trial on March 4, 2013. The only claim left to be tried is
Plaintiff Arleigh Spencer’s claim for retaliatory commencement of a litigation, pursuant to Title
VII of the Civil Rights Act of 1964, New York Executive Law §296 et seq. (“NYHRL”) and 42
U.S.C. § 1981. Pending before the Court are Plaintiff’s motion in limine to exclude evidence
relating to the allegedly retaliatory litigation, International Shoppes, Inc. v. Spencer, Index No.
10559/2004 (Supreme Court, Nassau County) (the “State Court Litigation”) [DE 180] and
Defendants’ cross-motion for an Order confirming that certain evidence relating to the State
Court Litigation is admissible [ DE 181-2].
The State Court Litigation is described in detail in the Court’s September 28, 2012 Order
denying Defendants’ motion for summary judgment [DE 170]. In sum, on July 28, 2004,
approximately two months after Spencer was terminated, Defendants International Shoppes Inc.
(“ISI”) and Michael Halpern brought a suit against Spencer for defamation, defamation per se,
prima facie tort, duress, and fraudulent concealment. After the lawsuit was filed, Spencer made
additional allegedly defamatory statements and ISI and Halpern amended the complaint to
incorporate claims based on those additional statements. After a bench trial, New York State
Supreme Court Justice Ute Wolff Lally dismissed all of the claims with the exception of the
Sixth Cause of Action for defamation per se. The Sixth Cause of Action was one of the claims
asserted in the amended complaint, but not in the original complaint. Justice Lally denied ISI
and Halpern’s requests for compensatory damages, but assessed punitive damages against
Spencer in the amount of $3,000. In reaching her decision, Justice Lally found that Spencer was
not a credible witness.
Spencer now seeks an Order precluding Defendants’ counsel from mentioning or
introducing any evidence relating to the Sixth Cause of Action. Defendants seek an Order
confirming that all of Justice Lally’s rulings and findings are admissible, including her ruling on
the Sixth Cause of Action and finding on Spencer’s credibility.
“The purpose of an in limine motion is to aid the trial process by enabling the Court to
rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are
definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (internal quotation marks omitted); accord Nat’l Union
Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Group, 937 F. Supp. 276, 283 (S.D.N.Y.1996);
Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 467 (S.D.N.Y. 2005). When a
party moves to preclude evidence by means of an in limine motion, the court is required to
determine preliminarily under Fed. R. Evid. 104 whether the evidence is admissible. See
Highland Capital Mgmt., L.P., 379 F. Supp.2d at 467 (citing Commerce Funding Corp. v.
Comprehensive Habilitation Servs., Inc., No. 01-CV-3796, 2004 WL 1970144, at *4 (S.D.N.Y.
Sept. 3, 2004). “[O]nly when the evidence is clearly inadmissible on all potential grounds”
should such evidence be excluded on a motion in limine. Commerce Funding Corp., 2004 WL
1970144 at *4 (citing Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-CV-5520, 1998 WL
665138, at *3 (S.D.N.Y. Sept. 25, 1998)); accord Sec. Exch. Comm’n v. U.S. Envtl, Inc., No. 94CV-6608, 2002 WL 31323832, at *2 (S.D.N.Y. Oct.16, 2002). It should be noted that an in
limine ruling “is subject to change when the case unfolds, particularly if the actual testimony
differs from what was contained in the . . . proffer.” Highland Capital Mgmt., L.P., 379 F. Supp.
2d at 467 (quoting Luce v. United States, 469 U.S. 38, 41 (1984)).
Plaintiff argues that evidence regarding the Sixth Cause of Action is inadmissible under
Federal Rules of Civil Procedures 401, 402, and 403. Rules 401 and 402 pertain to relevance.
The “standard of relevance established by the Federal Rules of Evidence is not high.” United
States v. Southland Corp., 760 F.2d 1366, 1375 (2d Cir. 1985); Kansas City Fire & Marine Ins.
Co. v. Long Island Power Auth., No. 05-CV-4944, 2007 WL 7034284, at *9 (E.D.N.Y. Nov. 23,
2007). Rule 401 provides that evidence is relevant if “it has any tendency to make a fact more or
less probable than it would be without the evidence” and the “fact is of consequence in
determining the action. F.R.E. 401; accord United States v. Quattrone, 441 F.3d 153, 188 (2d
Cir. 2006). Rule 402 provides that all relevant evidence is admissible unless otherwise provided
in the United States Constitution, a federal statute, the Federal Rules of Evidence, or other rules
provided by the Supreme Court. F.R.E. 402; Kansas City Fire & Marine Ins. Co., 2007 WL
7034284, at *9.
The Court concludes that Justice Lally’s determination pertaining to the Sixth Cause of
Actions is relevant. Defendants previously moved for summary judgment on the grounds that
their successful litigation of the Sixth Cause of Action proved that the State Court Litigation was
not frivolous and, therefore, not retaliatory. DE 162. The Court denied the motion, finding that
non-frivolous litigation can be retaliatory if it is motivated by retaliatory animus. DE 170. In
order to determine whether litigation is retaliatory, the Court must engage in a fact-specific
inquiry regarding the employer’s intent in filing the litigation. See Penberg v. HealthBridge
Mgmt., 823 F. Supp. 2d 166, 192 (E.D.N.Y. 2011). Although the Court concluded that Justice
Lally’s entry of judgment in favor of ISI and Halpern on the Sixth Cause of Action was not
conclusive on the matter of ISI and Halpern’s intent, it does not necessarily follow that the
judgment is not relevant. Because that portion of the judgment was not conclusive on the issue
of Defendants’ intent, that issue is now left to be tried to a jury. The fact that the Sixth Cause of
Action was sustained is, however, relevant to the issue whether ISI and Halpern brought the
claim for a legitimate purpose. Defendants’ lawsuit in the state court is the crux of this lawsuit.
It would be inappropriate to parse out the “motivation” element in the manner that Plaintiff
Plaintiff Spencer makes much of the fact that the Sixth Cause of Action was not in the
original complaint, but rather was asserted for the first time in the amended complaint. Indeed,
as the Court previously held, since the Sixth Cause of Action was not asserted in the original
complaint, ISI and Halpern’s judgment has no bearing on their motivation for filing the original
complaint. DE 170 at 25-26. The problem with Spencer’s argument is that his retaliatory
litigation claim is not based solely on the filing of the original complaint, but rather it is based on
the State Court Litigation as a whole. See Am. Compl. [DE 13]. Defendants maintain that
Plaintiff persisted in his pattern of defaming them even after their original complaint was filed –
resulting in their filing an amended complaint to incorporate those additional acts. Defs.’ Mem.
Spencer cannot limit the evidence to the aspects of the litigation that were favorable to
him. Moreover, even if Spencer’s claim was limited to the allegations in the original complaint
filed in state court, the Sixth Cause of Action would nevertheless be relevant to damages.
Spencer seeks damages stemming from the stress of litigating the state court action. Thus, if the
Sixth Cause of Action were not part of Spencer’s claim, the judgment in favor of ISI and Halpern
would be relevant to an argument that an alternative or exacerbating cause of Spencer’s stress
was the Sixth Cause of Action, not the claims asserted in the original complaint. Thus, the
evidence is relevant even if the Court were to accept Spencer’s attempt to narrow his claim.
Plaintiff also argues that evidence pertaining to the Sixth Cause of Action in the State
Court Litigation should be barred under Federal Rule of Evidence 403. Rule 403 gives the Court
“broad discretion to exclude even relevant evidence if its probative value is substantially
outweighed by the danger of confusion of the issues or if it would be needlessly cumulative.”
Kansas City Fire & Marine Ins., 2007 WL 7034284, at *9 (citing United States v. Beech–Nut
Nutrition Corp., 871 F.2d 1181, 1193 (2d Cir. 1989)). Rule 403 also provides for the exclusion
of relevant evidence if “its probative value is substantially outweighed by the danger of unfair
prejudice.” Fed. R. Evid. 403. Since Rule 403 excludes relevant evidence “it is an extraordinary
remedy that must be used sparingly.” George v. Celotex Corp., 914 F.2d 26, 31 (2d Cir. 1990);
accord MBIA Ins. Corp. v. Patriarch Patners VIII, LLC, No. 09-CV- 3255, at *11 (S.D.N.Y. July
3, 2012). The Court is not persuaded by Plaintiff’s argument that reference to the Sixth Cause of
Action will confuse the jury. Nor is the Court persuaded by Plaintiff’s argument that reference to
the Sixth Cause of Action “would be an improper attempt by defense counsel to bolster its case.”
DE 180 at 6. “Plaintiff’s case may be harmed by reference to the evidence at issue, but such
harm is not the ‘unfair’ prejudice that Federal Rule of Evidence 403 is intended to protect
against.’” Id. (quoting Shea v. Royal Enters., Inc., No. 09-CV-8709, 2011 WL 2436709, at *9
(S.D.N.Y. June 16, 2011) (internal alterations omitted)). For all of the foregoing reasons, the
Court concludes that evidence pertaining to the Sixth Cause of Action in the State Court
Litigation is admissible.
The Court next turns to the issue of Justice Lally’s credibility findings. Federal Rule of
Evidence 608(b) provides that:
Except for a criminal conviction under Rule 609, extrinsic evidence
is not admissible to prove specific instances of a witnesses’ conduct
in order to attack or support the witness’s character for truthfulness.
But the court may, on cross examination, allow them to be inquired
into if they are probative of the character for truthfulness or
the witness; or
another witness whose character the witness being
cross-examined has testified about.
F.R.E. 608(b). Defendants seek to use the following findings by Justice Lally regarding
Spencer’s credibility in their cross-examination of Spencer:
On cross-examination, Plaintiff admitted to submitting a false resume
and employment application to International Shoppes, Inc. In both
documents he claimed to have attended two years of college when, in
fact, he did not. Further, he admitted that ‘he lied to get a source of
money.’ Plaintiff also changed his testimony as to whether he again
brought up the phantom employee at a meeting with Michael Halpern
in August of 2003 when confronted with his deposition testimony.
Based upon the foregoing, Plaintiff lacks credibility.
Based on the testimony adduced at this hearing to assess damages for
per se defamation, the Court finds that Plaintiff engaged in evasive
and deceptive tactics. Further, Plaintiff’s failure to recall what he did
with the 72 thousand from prior settlements, the 56 thousand from the
sale of an inherited house, his lack of knowledge of what he [sic] wife
uses the $3,000 for which he gives her every month, and his lack of
knowledge of the household expenses, all casts doubt on his
Defs.’ Mem. at 5. (quoting Justice Lally’s Trial Decision and Damages Decision) (internal
A district court has discretion to determine whether prior judicial findings on credibility
should be admitted under Rule 608. See U.S. v. Cedeno, 644 F.3d 79, 82 (2d Cir. 2011). In
exercising this discretion, courts should consider:
(1) “whether the prior judicial finding addressed the witness’s
veracity in that specific case or generally’”; (2) “whether the two sets
of testimony involved similar subject matter”; (3) “whether the lie
was under oath in a judicial proceeding or was made in a less formal
context”; (4) “whether the lie was about a matter that was
significant”; (5) “how much time had elapsed since the lie was told
and whether there had been any intervening credibility determination
regarding the witness”; (6) “the apparent motive for the lie and
whether a similar motive existed in the current proceeding”; and (7)
“whether the witness offered an explanation for the lie and, if so,
whether the explanation was plausible.”
U.S. v. Barret, No. 10-CR-809, 2012 WL 194992, at *3 (E.D.N.Y. Jan. 23 2012) (quoting
Cedeno, 644 F.3d at 82-83). Moreover, “[e]vidence admitted under Rule 608(b) is subject to
probative-prejudice balancing test in Rule 403.” See U.S. v. Vasquez, 840 F. Supp. 2d 564, 574
(E.D.N.Y. 2011) (citing U.S. v. Tillem, 906 F.2d 814, 827 (2d Cir. 1990)).
Based on the relevant factors, the Court finds that it would be inappropriate to permit
Defendants to introduce Justice Lally’s findings on Spencer’s credibility. This Court, in addition,
does find a significant difference in attempting to apply Cedeno in a civil case. Notwisthdatning
the fact that some of the Cedeno factors weigh in favor of admissibility, Justice Lally’s finding
would be highly prejudicial since the witness whose testimony is at issue is the plaintiff. The
Court also notes that Cedeno was balancing the need to impose reasonable limits on crossexamination against the need to “give ‘wide latitude’ to a defendant in a criminal case to crossexamine government witnesses” and “a defendant’s right under the Confrontation Clause to an
effective cross-examination.” Cedeno, 644 F.3d at 83. The latter two concerns are not present in
this civil matter.
The Court will, however, permit Defendants to explore the same extrinsic evidence on
which Justice Lally’s determination was based. The jury can then draw its own conclusions from
that evidence. This course will more appropriately balance the probative value of the evidence
against its potential for prejudice. See U.S. v. Barner, No. 08-CR-170, 2012 WL 4320617, at *1
(W.D.N.Y. Sept. 20, 2012) (suggesting that it would be more appropriate to allow crossexamination on underlying statements that led to credibility determination, but not credibility
Dated: Central Islip, New York
February 25, 2013
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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