Rural Water Sewer and Solid Waste Management v. Guthrie City of et al

Filing 382

ORDER denying 270 Motion in Limine; denying 271 Motion in Limine; ruling deferred 282 Motion in Limine; granting 284 Motion in Limine; granting 285 Motion in Limine; granting 286 Motion in Limine; denying 288 Motion in Limine; granting 289 Motion in Limine; denying 291 Motion in Limine; ruling deferred 292 Motion in Limine. Order more fully set out. Signed by Honorable David L. Russell on 10/22/13. (kw, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

RURAL WATER, SEWER AND
SOLID WASTE MANAGEMENT
DISTRICT NO. 1, LOGAN COUNTY,
OKLAHOMA, an agency and
legally constituted authority of the
State of Oklahoma,
Plaintiff,
v.
CITY OF GUTHRIE, an Oklahoma
municipality, et al.,
Defendants.

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No. CIV-05-786-R

ORDER
This matter is before the court on a number of motions in limine presented by
the parties. Altogether defendants filed ten motions in limine, while plaintiff filed four.
Prior to the first trial setting,1 the court ruled on defendants’ first and ninth motions
in limine and plaintiff’s motion regarding defendants’ loan defenses. The court also
struck plaintiff’s motion in limine regarding defendants’ expert witness. This order
contains the court’s rulings with respect to the remaining motions in limine.

1

This matter was set for trial on January 15, 2013. Civil Jury Docket Before Judge David
L. Russell (Doc. No. 266). On January 7, 2013, however, the parties announced they had settled
the matter. The case was therefore administratively closed. After a number of extensions of the
administrative closing order, the parties informed the court that they could not finalize the
settlement. The court therefore set this matter on the November 5, 2013 trial docket. Order at 1
(Doc. No. 378).

In their second motion in limine, defendants ask “the Court to reaffirm that the
parties may not bring in evidence from the settlement negotiations, as provided by
Fed. R. Evid. 408(a).” Defendants’ Reply in Support of Second Motion In Limine to
Strike and Exclude Evidence Relating to Settlement at 2 (Doc. No. 312). The court
sees no reason for such an order, as the parties and counsel understand their
obligations under Rule 408. Moreover, evidence of conduct or statements made
during the course of negotiations can be admitted if offered for a purpose other than
to prove the validity of a claim. Fed. R. Civ. P. 408(b). The court cannot rule on the
admissibility of such evidence in a vacuum. Particularly given defendants’ failure to
specify what, if any, evidence might be offered, the court will deny the motion.
Defendants’ third motion seeks to exclude evidence that plaintiff is an
association and that it is indebted as defined in 7 U.S.C. § 1926. These facts, which
are the first two elements of plaintiff’s § 1926(b) claim, are not disputed. Plaintiff,
however, is entitled to present some background of itself and the loan program so
the jury will have an understanding of the issues in the case. The court therefore
denies defendants’ motion, but cautions plaintiff to tread lightly and not to offer
cumulative evidence.
In their fourth motion in limine, defendants seek an order precluding plaintiff
from offering evidence that it could have made service available to customers who
requested such service before plaintiff existed. Defendants’ argument is completely
logical: plaintiff could not offer services before it existed, and it is not entitled to
2

§ 1926(b) protection until it was indebted, which likewise could not occur if it was not
a body corporate. The court however reserves ruling on 36 of the 38 customers
identified by defendants2 because there is an issue with respect to whether the date
of service shown by defendants is the date these customers actually requested
service.3 It is plaintiff’s burden to establish when these customers requested service;
if it cannot provide alternative dates at trial, the court will entertain a motion for
judgment as a matter of law with respect to these customers.4 The court, however,
grants the motion with respect to Customers 171 and 362, as these customers are
also implicated by defendants sixth and seventh motions in limine. See infra at 4-6.
Defendants’ fifth motion in limine seeks an order precluding plaintiff from
presenting evidence regarding customers who reside inside the City of Guthrie’s
1972 corporate boundaries.

Defendants argue these customers are outside

plaintiff’s statutory territory and therefore plaintiff has no exclusive right to serve
them. The court concurs. Plaintiff’s citation of Sequoyah County RWD No. 7 v.
Town of Muldrow, 191 F.3d 1192 (10th Cir. 1999) is inapposite. In Sequoyah, the
Court did not hold that a water district had the right to sell water outside its

2

Exhibit 1 to Defendants’ Fourth Motion In Limine to Strike and Exclude Evidence Solely
Relating to Disputed Customers that Were Customers of Guthrie Prior to 1976 (Doc. No. 282-1).
3

See Plaintiff’s (“Logan-1”) Response and Objection to Defendants’ (“Guthrie”) 10th Motion
in Limine at 2-4 (Doc. No. 307).
4

The court notes that plaintiff “must have made service available ‘prior to the time the
allegedly encroaching association beg[an] providing service in order to be eligible for [§] 1926(b)
protection.’” Sequoyah County RWD No. 7 v. Town of Muldrow, 191 F.3d 1192, 1202 (10th Cir.
1999) (citation omitted; emphasis added).

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geographic area, as that issue was not before the Court. The only customers at
issue in this case are those that are within plaintiff’s geographic area, and there is
no dispute that that area does not include customers inside the City of Guthrie’s
1972 boundaries.5 The court therefore grants defendants’ fifth motion in limine.
Evidence with respect to the 10 customers listed on Exhibit 1 to defendants’ fifth
motion in limine is not relevant and will not be admitted at trial.
Defendants’ sixth and seventh motions in limine are opposite sides of the
same coin. In the sixth motion, defendants ask the court to preclude evidence with
respect to 105 customers for whom plaintiff’s damages expert, Scott Northrip,
assessed no damages. In his deposition, Northrip testified that damages were not
assessed for customers for whom “water could not be supplied to that individual . . .
we’re not able to provide water to them.”6 Northrip received the list of customers
who could be supplied by plaintiff from plaintiff’s engineering expert, David Wyatt.
Id. at 24. In the seventh motion, defendants seek an order excluding plaintiff from
presenting evidence regarding 95 customers for whom Wyatt testified plaintiff

5

Exhibit 2 to Exhibits to Opening Brief in Support of Plaintiff’s Motion for Partial Summary
Judgment Declaring Entitlement to 7 U.S.C. § 1926(b) Protection at 2 (Doc. No. 223-2). See also
82 O.S. § 1324.2(6); Rural Water Sewer & Solid Waste Mgmt., Dist. No. 1 v. City of Guthrie, 253
P.3d 38, 46 (Okla. 2010) (“the plain language of the Act clearly creates a limited and restricted
franchise to serve the defined area.”) (footnote omitted).
6

Exhibit 3 to Defendants’ Sixth Motion In Limine to Exclude Evidence Relating Solely to
Customers for Which Scott Northrip Admits Logan-1 Suffered No Damages at 25 (Doc. No. 285-3).

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could not make service available either because the customers are outside plaintiff’s
service area or it was not practical to provide service to them.7
In its response to the sixth motion, plaintiff argues it should be able to seek
nominal damages as well as equitable relief with respect to the customers for whom
Northrip did not calculate damages. Plaintiff, however, is entitled to no relief with
respect to customers to whom it did not make service available. As Wyatt and
Northrip have testified that service could not be made available to the 105 customers
listed on Exhibit 1 to the sixth motion, no relief is warranted and evidence regarding
these customers is irrelevant. Moreover, in its response to the seventh motion,
plaintiff admits Wyatt excluded these customers from his analysis, but argues it
should be permitted to “provide evidence that these customers are within Logan-1's
state established territory, and that Logan-1 claims no § 1926(b) protection to these
customers.”8 Plaintiff argues such evidence is relevant “to establish that Logan-1
has reviewed the customers to whom Guthrie has provided water service within the
Logan-1 Territory, and only claims § 1926(b) protection to certain of those
customers, i.e., those customers to whom Logan-1 has made service available.”9
This admission, of course, is fatal to plaintiff’s argument that it is entitled to nominal

7

All of the 95 customers listed on Exhibit 1 to the seventh motion are also listed on Exhibit
1 to the sixth motion. Neither party explained the 10 customer disparity between the two lists.
8

Plaintiff’s Response and Objection to Defendants’ Seventh Motion in Limine to Strike and
Exclude Evidence Relating to Customers for Which David Wyatt Admits Service Cannot be Made
Available at 2 (Doc. No. 311).
9

Id. at 3.

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damages and equitable relief for these customers. Moreover, the court fails to see
the relevance of this evidence. As plaintiff pointed out, the disputed customers in
this case are the customers contained in Wyatt’s reports. Id. at 2. These are the
only customers at issue in this case; to bring in evidence of other customers would
only confuse the jury. The court will therefore grant defendants’ sixth and seventh
motions in limine.10
Defendants’ eighth motion in limine amounts to another attempt at a Daubert11
motion as defendants attack Wyatt’s testimony on the grounds that it is speculative
or based on incomplete information. To the extent that is true, defendants can
object at trial or cross-examine Wyatt on the holes in his analysis. The court cannot
rule on the admissibility of such testimony in a vacuum. Defendants’ eighth motion
in limine – which asks the court to do just that – is therefore denied.
In their tenth motion in limine, defendants basically ask the court to declare –
as a matter of law – that failure to provide service within two years of a request
constitutes failure to make service available. That, however, is an issue the jury
must decide. Plaintiff and defendants can present the evidence and arguments

10

The court, however, does not grant the seventh motion in limine with respect to Mission
Hills. In a footnote in their reply brief, defendants disingenuously state that “Mr. Wyatt testified that
service could not be made available to customers not included in his 2012 Report.” Defendants’
Reply Brief in Support of Their Seventh Motion In Limine to Strike and Exclude Evidence Relating
to Customers Which David Wyatt Admits Service Cannot be Made Available at 3 n.1 (Doc. No. 336)
(emphasis added). The 2012 report supplements the expert report Wyatt prepared in 2006. That
report clearly discusses Mission Hills. See Declaration and Expert Report of David Wyatt at 20-22
(Doc. No. 252-1).
11

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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made in their briefs to the jury during the course of the trial. The jury will then
determine what period of time is unreasonable.

The court therefore denies

defendants’ tenth motion in limine, except with respect to Customer Nos. 171, 300,
308, and 362 who have been excluded based on the court’s rulings on defendants’
sixth and seventh motions in limine.
The first of plaintiff’s remaining motions in limine requests an order excluding
any evidence or argument that plaintiff has an obligation to provide fire protection in
order to obtain § 1926(b) protection. In its ruling on the parties’ motions for summary
judgment, the court declared that rural water districts are not required by federal or
state law to provide fire protection. Order at 15-17 (Doc. No. 170). This ruling was
affirmed by the Court of Appeals for the Tenth Circuit, which also held that plaintiff’s
“ability to provide fire protection is simply not relevant to the specific question of
whether Logan-1 has adequate pipes in the ground to ‘make service available’ for
purposes of the § 1926(b) protection from competition.” Rural Water Sewer & Solid
Waste Mgmt., Dist. No. 1 v. City of Guthrie, 654 F.3d 1058, 1066 (10th Cir. 2011)
(emphasis added; footnote omitted). In their response to plaintiff’s motion in limine,
defendants reiterate the arguments they made in their summary judgment briefs.
Those arguments are no more persuasive this time around. Moreover, defendants’
reliance on Rural Water Dist. No. 4 v. City of Eudora, 659 F.3d 969 (10th Cir. 2011),
is misplaced. Unlike plaintiff in this case, the rural water district at issue in City of
Eudora provided fire protection. Rural Water Dist. No. 4 v. City of Eudora, 604 F.
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Supp. 2d 1298, 1320 (D. Kan. 2009). The costs of providing such protection are
only relevant if a district provides such service.12 As plaintiff does not, any evidence
regarding fire protection is irrelevant. The court will therefore grant plaintiff’s motion
in limine.
The final motion in limine before the court is plaintiff’s motion to exclude
evidence concerning water quality and service issues. Defendants have advised the
court they intend to present evidence that plaintiff’s service to its existing customers
is less than adequate. That evidence will consist of testimony that plaintiff’s current
customers are subject to water rationing and low water pressure and that plaintiff’s
water supply contains high uranium levels. Plaintiff counters that the only issue in
this case is whether it can provide potable water at a reasonable pressure to the
disputed customers. The court will reserve ruling on this motion until plaintiff has
presented its case in chief or has otherwise opened the door. The parties shall not
refer to these issues in their opening statements and shall not present evidence on
these issues until the court rules. If defendants think plaintiff has opened the door
to such inquiry, counsel shall approach the bench and receive a ruling from the court
before attempting to elicit testimony on these issues.

12

Defendants argue they should be able to present “testimony that Logan-1's costs are
excessive because of the additional cost that the Disputed Customers would have to incur to obtain
fire protection.” Response in Opposition to Plaintiff’s Motion in Limine at 8 (Doc. No. 343). This
argument, however, is contrary to the Court’s holding in City of Eudora that it is “the nature and cost
of all services offered by the water district” that is at issue. City of Eudora, 659 F.3d at 982.
(emphasis added). It is only if a water district provides fire services that the pricing of such services
comes into play. Id.

8

In sum, the court GRANTS the following motions to the extent noted above:
Defendants’ Fifth Motion In Limine to Strike and Exclude Evidence Solely Relating
to Customers Inside the 1972 Corporate Boundaries of the City of Guthrie (Doc. No.
284); Defendants’ Sixth Motion In Limine to Strike and Exclude Evidence Relating
Solely to Customers for Which Scott Northrip Admits Logan-1 Suffered No Damages
(Doc. No. 285); Defendants’ Seventh Motion In Limine to Strike and Exclude
Evidence Relating to Customers for Which David Wyatt Admits Service Cannot be
Made Available (Doc. No. 286); and Plaintiff’s Motion in Limine to Exclude Any
Evidence or Argument that Logan-1 Has an Obligation to Provide Fire Protection i
Order to Obtain 7 U.S.C. § 1926(b) Protection (Doc. No. 289).

The court

RESERVES RULING on Defendants’ Fourth Motion In Limine to Strike and Exclude
Evidence Solely Relating to Disputed Customers that Were Customers of Guthrie
Prior to 1976 (Doc. No. 282) and Plaintiff’s Motion In Limine to Exclude Evidence
and Argument Concerning Water Quality and Service Issues (Doc. No. 292). The
court DENIES Defendants’ Second Motion In Limine to Strike and Exclude Evidence
Relating to Settlement (Doc. No. 270); Defendants’ Third Motion In Limine to Strike
and Exclude Evidence Already Adjudicated in this Court’s Previous Rulings (Doc.
No. 271); Defendants’ Eighth Motion In Limine to Strike and Exclude Any Evidence
Based on Speculation or Reliant Upon Unproven Contingent Events (Doc. No. 288);
and Defendants’ Tenth Motion In Limine to Strike and Exclude Evidence Relating to

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Customers for Which David Wyatt Admits Logan-1 Count Not Serve Within a
Reasonable Time (Doc. No. 291).
It is so ordered this 22nd day of October, 2013.

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