Peck v. County of Onondaga, New York et al

Filing 131

ORDER ON MOTIONS IN LIMINE: IT IS HEREBY ORDERED that the # 104 Motion in Limine is GRANTED IN PART AND DENIED IN PART as noted here in, and it is FURTHER ORDERED THAT the # 113 Motion in Limine is GRANTED. The Clerk of the Court is directed to terminate the Does and the official-capacity claims from the docket. Signed by Judge David N. Hurd on 5/10/2024. (mmg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------KAMILLA S. PECK,
Plaintiff,
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5:21-CV-651

COUNTY OF ONONDAGA, NEW
YORK, EUGENE CONWAY,
KATHERINE TRASK, JONATHAN
SEEBER, KELLY SEEBER, SUSAN
DEMARI, DAWN CURRY-CLARRY,
PAUL SMITH, PAULA PELLIZZARI,
ESTEBAN GONZALEZ, JOHN
DOE(S), and JANE DOE(S),
Defendants.
-------------------------------APPEARANCES:

OF COUNSEL:

BOSMAN LAW FIRM, LLC
Attorneys for Plaintiff
3000 McConnellsville Road
Blossvale, NY 13308

AJ BOSMAN, ESQ.
ROBERT J. STRUM, ESQ.

BOLANOS LOWE PLLC
Attorneys for Defendants
16 South Main Street
Pittsford, NY 14534

KYLE W. STURGESS, ESQ.

MCCARTIN & MCCARTIN LAW PLLC MICHAEL G. MCCARTIN, ESQ.
Attorneys for Defendants
38 Mall Way #513
West Sand Lake, NY 12196

DAVID N. HURD
United States District Judge
ORDER ON MOTIONS IN LIMINE
I. INTRODUCTION
This case is set for a jury trial on Monday, May 20, 2024 at 9:30 a.m. in
Utica, New York. In advance of trial, defendants have moved in limine
to: (1) exclude certain evidence and arguments; (2) dismiss Esteban Gonzalez,
Kelly Seeber, Dawn Curry-Clarry, and Paul Smith as named defendants;
(3) introduce evidence of plaintiff’s working relationship with certain named
defendants; and (4) preclude plaintiff from stating to the jury a specific dollar
amount of her damages. Dkt. No. 104. Plaintiff, for her part, has also moved
in limine to exclude evidence and arguments. Dkt. No. 113. The motions
have been briefed. Dkt. Nos. 114, 117.
II. LEGAL STANDARD
A party may seek a ruling on the admissibility of certain anticipated
evidence by filing a motion in limine. 1 Walker v. Schult, 365 F. Supp. 3d 266,
275 (N.D.N.Y. 2019) (explaining the “term is used in the broad sense to refer
to any motion, whether made before or during trial, to exclude anticipated
prejudicial evidence before the evidence is actually offered”). “Evidence

1 A party may also move in limine for a ruling on the permissibility at trial of an anticipated line

of argument. 3 Moore’s Federal Practice § 16.77(4)(d)(ii).
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should be excluded on a motion in limine only when the evidence is clearly
inadmissible on all potential grounds.” Walker, 365 F. Supp. 3d at 275
(cleaned up). “The movant has the burden of establishing that the evidence is
not admissible for any purpose.” Id. “The trial judge may reserve judgment
on a motion in limine until trial to ensure the motion is considered in the
proper factual context.” Id. Finally, “[t]he court’s ruling regarding a motion
in limine is subject to change when the case unfolds.” Id.
III. DISCUSSION
Before turning to the merits of the parties’ motions in limine, there are a
couple of matters to address. First, plaintiff’s claims against the John and
Jane Does must be dismissed because these defendants were not identified or
served before the close of discovery. See, e.g., Malarczyk v. Lovgren, 2022 WL
374271, at *3 (N.D.N.Y. Feb. 8, 2022). Second, plaintiff’s official-capacity
claims against the individual defendants must be dismissed because they are
duplicative of her claims against the County itself. See, e.g., Dudek v. Nassau
County Sheriff’s Dep’t, 991 F. Supp. 2d 402, 413 (E.D.N.Y. 2013).
A. Motions in Limine
Upon review of the parties’ briefing in light of the governing evidentiary
standards, it is
ORDERED that

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Defendants’ motion in limine (Dkt. No. 104) is GRANTED in part and
DENIED in part as follows:
1. Defendants’ motion to preclude plaintiff from presenting evidence or
allegations and claims that were dismissed on summary judgment, including
alleged retaliatory actions that this Court has already ruled on, is GRANTED
in part and DENIED in part 2 such that:
-As stated in previous Orders, plaintiff’s proof of retaliation is limited
to the Internal Affairs investigation and the subsequent supervisor’s
memorandum;
-Plaintiff is prohibited from arguing that other acts amounted to
retaliation under the governing law;
-Plaintiff is permitted to introduce limited background information of
discrimination relating to her retaliation claims;
2. Defendants’ motion in limine to dismiss Esteban Gonzalez, Kelly
Seeber, Dawn Curry-Clarry, and Paul Smith as defendants is DENIED as
procedurally improper without prejudice to renew at the close of plaintiff’s
proof, if appropriate;
3. Defendants’ motion to introduce evidence of plaintiff’s friendly working
relationship with defendants Katherine Trask, Jonathan Seeber, and Kelly

2 The Court will entertain objections if plaintiff exceeds this mandate.

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Seeber is GRANTED, limited to the laying of an appropriate foundation, in
particular the evidence consisting of:
-The March 13, 2020 text message from plaintiff to Jonathan Seeber;
-The two notes from plaintiff to Kelly Seeber;
-The June 11, 2020 video recording;
4. Defendants’ motion to admit into evidence twenty other counseling
memoranda is DENIED insofar as those memoranda were issued before the
supervisor’s memo connected to the Internal Affairs investigation;
5. Defendants’ motion to exclude other extraneous and irrelevant material
is GRANTED such that the following items are excluded:
-The N.Y.S. Division of Criminal Justice Services report with statistical
data concerning racial breakdowns of the Onondaga Sheriff’s Office, as
well as statistics on the race of the County’s population and arrestees;
-The suicide death of former Deputy Isaac Eames;
6. Defendants’ motion to preclude plaintiff from suggesting to the jury a
specific dollar amount for damages is DENIED;
Plaintiff’s motion in limine (Dkt. No. 113) is GRANTED as follows:
7. Plaintiff’s motion to preclude evidence or mention of the arbitration
decision in connection with her New York General Municipal Law § 207-c
determinations is GRANTED subject to modification if plaintiff opens the
door to testimony or evidence concerning the arbitration decision;
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8. Plaintiff’s motion to exclude evidence or mention of performance issues
or memoranda critical of her performance pre-dating her assignment to the
Community Services Division is GRANTED subject to modification if plaintiff
opens the door to testimony or evidence relating to the effect the supervisor’s
memorandum in connection with the Internal Affairs investigation had on
her person;
9. Plaintiff’s motion to exclude evidence or mention of Union grievances or
decisions is GRANTED subject to modification if plaintiff opens the door to
testimony or evidence concerning Union grievances or decisions; and
10. The Clerk of the Court is directed to terminate the Does and the
official-capacity claims from the docket.
IT IS SO ORDERED.

Dated: May 10, 2024
Utica, New York.

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