Wink v. Ott et al

Filing 36

ORDER - IT IS HEREBY ORDERED that the Pltf's 22 MOTION in Limine is DENIED. SEE ORDER FOR DETAILS. Jury Selection& Trial are RESCHEDULED for 6/25/2012 AT 09:30 AM in Harrisburg - Courtroom 1 before Chief Judge Yvette Kane. The parties shall file trial briefs by 6/20/2012. Signed by Chief Judge Yvette Kane on June 1, 2012. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY A. WINK,
Plaintiff
v.
DAVID OTT and FINE LINE TRIM LLC,
Defendants

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Civil Action No. 1:11-cv-00596
(Chief Judge Kane)

MEMORANDUM ORDER
Presently pending before the Court are five motions in limine filed by Plaintiff Jeffrey A.
Wink. (Doc. No. 22.) The Court will address each motion in turn.
I.

PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM
INTRODUCING EVIDENCE OF PLAINTIFF’S UNEMPLOYMENT
COMPENSATION
In his first motion in limine, Plaintiff states only: “The parties agree that there should not

be any reference made to the subject of Unemployment Compensation in the case.” (Doc. No. 23
at 1.) In response, Defendants state that Defendants have “agreed not to make any reference to
the subject of unemployment compensation during the trial.” (Doc. No. 31 at 1.) In light of the
agreement between the parties on this issue, the Court will deny this motion as moot.
II.

PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM
INTRODUCING EVIDENCE OF PLAINTIFF’S TERMINATION
In his second motion in limine, Plaintiff seeks to preclude Defendants from introducing

evidence of the circumstances surrounding his termination from Defendants’ employment on the
basis that such evidence is not relevant to his claims under the Fair Labor Standards Act
(“FLSA”), the Pennsylvania Minimum Wage Act, or the Pennsylvania Wage Payment and
Collection Law. (Doc. No. 23 at 2.) In opposition, Defendants assert that this evidence bears
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directly on Plaintiff’s credibility. (Doc. No. 31 at 2.)
Evidence is considered relevant if “it has any tendency to make a fact more probable or
less probable than it would be without the evidence” and “the fact is of consequence in
determining the action.” Fed. R. Evid. 401. At issue in this action is whether Defendants
properly compensated Plaintiff for the hours he spent driving to distant work sites. Typically, an
action such as this would hinge on documentation, such as payroll records reflecting the number
of hours an employee worked. See, e.g., Haught v. U.S. Eng’g Contractors Corp., No. 07-cv80436, 2009 WL 36591, at *3 (S.D. Fla. Jan. 6, 2009). Here, however, the Court is skeptical of
the degree to which any official payroll records – to the extent they exist – will aid the jury in
determining the amount of compensation to which Plaintiff is entitled. Instead, as a result of
apparently imprecise bookkeeping and the parties’ markedly divergent opinions on the amount of
compensation to which Plaintiff is entitled, it is more likely that this action will hinge on the
credibility of the parties. Accordingly, the Court will deny Plaintiff’s second motion in limine on
the basis that – unlike a typical FLSA action in which a plaintiff’s termination would likely be
irrelevant to whether his employer violated the FLSA – the circumstances surrounding Plaintiff’s
termination and his motivations for filing suit against Defendants are relevant to his credibility.
See Blakeslee v. Shaw Infrastructure, Inc., No. 09-cv-00214, 2011 WL 4529775, at *2 (D.
Alaska Sept. 30, 2011) (ruling on a motion in limine that the circumstances of an employee’s
termination were relevant to the employee’s credibility).
III.

PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM
INTRODUCING EVIDENCE OF A PLEA OF GUILTY ENTERED BY
PLAINTIFF IN JUNE 2000 FOR IMPEACHMENT PURPOSES
In his third motion in limine, Plaintiff seeks to preclude Defendants from “rais[ing] as a
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matter of impeachment that Plaintiff plead[ed] guilty to” the crime of providing false reports to
law enforcement authorities in violation of 18 Pa. C.S. § 4906. (Doc. No. 23 at 3; Doc. No. 23-1
at 1, 5.) Plaintiff contends that evidence of his conviction should be precluded under Rule 609(b)
of the Federal Rules of Evidence because the conviction is more than ten years old. (Id.)
Rule 609(b) applies only “if more than 10 years have passed since the witness’s
conviction or release from confinement for it, whichever is later.” Fed. R. Evid. 609(b). Here,
Plaintiff pleaded guilty to the crime of providing false reports to law enforcement authorities on
June 2, 2000. (Doc. No. 23-1 at 5.) On June 13, 2002, his probation was terminated. (Id. at 6.)
Defendants contend that Rule 609(b) is not applicable because the rule’s ten-year period “begins
the date [a] witness is released from probation of a conviction; and ends the day the witness
testifies at trial.” (Doc. No. 31 at 3.) In Defendant’s view, because trial in this matter is
scheduled to commence within ten years of the termination of Plaintiff’s probation, the
conviction is less than ten years old. (Id.) The Court does not agree. In calculating the ten-year
period, “release from confinement” does “not include any period of probation or parole.”1 6
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The Court notes that Defendants rely on Trindle v. Sonat Marine, Inc., 697 F. Supp. 879
(E.D. Pa. 1988), to support their argument. (Doc. No. 31 at 3.) However, as noted by the United
States Court of Appeals for the Fifth Circuit:
The court in Trindle cited to a 1971 letter from Deputy Attorney
General Kleindienst to Chief Justice Burger regarding proposed
changes to the Rule 609 amendments being considered. Trindle, 697
F. Supp. at 881 n.4 (quoting 10 James Wm. Moore & Helen I.
Bendix, Moore’s Federal Practice § 609.01 [1.-8] (2d ed. 1988)). The
Rule 609(b) amendments as actually adopted, however, differed
substantially from the proposal discussed in the letter. The proposal
would have retained earlier language which started the ten-year clock
running from the date of expiration of probation or parole. This
aspect of Deputy Attorney General Kleindienst’s proposal was not
adopted . . . .
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Weinstein’s Federal Evidence § 609.07[3] (citing United States v. Daniel, 957 F.2d 162, 168 (5th
Cir. 1992)); see also United States v. Rogers, 542 F.3d 197, 201 (7th Cir. 2008) (“[P]robation
does not constitute ‘confinement’ within the meaning of Rule 609(b).”); United States v. Butch,
48 F. Supp. 2d 453, 465 (D.N.J. 1999). Therefore, the Court finds that Plaintiff’s conviction is
more than ten years old and, as a result, Rule 609(b) is applicable.
Having determined that Rule 609(b) is applicable, the Court must determine whether
Plaintiff’s conviction is admissible pursuant to that rule. Rule 609(a) permits parties to use
evidence of a past conviction to impeach witnesses if it involved “a dishonest act or false
statement.” Providing a false report to a law enforcement officer, of course, involves dishonesty
and false statement. Rule 609(b), however, bars the admittance of a criminal conviction that is
more than ten years old unless: (1) “its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect;” and (2) “the proponent gives an
adverse party reasonable written notice of the intent to use it so that the party has a fair
opportunity to contest its use.” Fed. R. Evid. 609(b).
The Court recognizes the age of Plaintiff’s conviction and the fact that it occurred during
Plaintiff’s formative years. Nevertheless, as noted above, Plaintiff’s credibility is of paramount
importance to this action. Because the crime of providing false reports to law enforcement
authorities bears directly on Plaintiff’s credibility, the Court finds that the probative value of the
conviction substantially outweighs its prejudicial effect. Further, the Court finds that Defendants

Daniel, 957 F.2d at 168 n.3; see also Butch, 48 F. Supp. 2d at 465 (“The change in language of [Rule
609] forecloses the interpretation that ‘release from confinement’ includes parole and probation.”)
(quoting Daniel, 957 F.2d at 168) (brackets omitted). Therefore, the Court declines to follow the
interpretation articulated by the Eastern District of Pennsylvania in Trindle.
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provided sufficient notice of their intent to use the conviction. Therefore, the Court will deny
Plaintiff’s third motion in limine and permit Plaintiff’s conviction to be admitted for the purpose
of impeachment. See United States v. Rankin, No. 05-cr-615, 2007 WL 1181022, at *3-*4 (E.D.
Pa. Apr. 18, 2007) (finding that a defendant’s conviction for making false statements in an
affidavit, which was more than ten years old, was admissible under Rule 609(b) because the
conviction “could not be more relevant to the issue of [the defendant’s] credibility”).
IV.

PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE DEFENDANTS FROM
INTRODUCING EVIDENCE THAT HE MISREPRESENTED HIS PRIOR
CRIMINAL HISTORY DURING HIS DEPOSITION
Plaintiff’s fourth motion in limine seeks to preclude Defendants from introducing at trial

that Plaintiff testified at his deposition on October 19, 2011 that he had no criminal history apart
from parking and speeding tickets. (Doc. No. 23 at 3-4; Doc. No. 31 at 9.) In support of this
motion, Plaintiff filed an affidavit, stating that he pleaded guilty to the crime of providing false
reports to law enforcement authorities on June 2, 2000, and that he “had forgotten that [he] had
plead[ed] guilty to the offense” at the time of his deposition. (Doc. No. 23-1 at 7-8.)
If Plaintiff’s misrepresentation is probative of his credibility, it may be admissible
impeachment evidence, subject to the restrictions in Rule 608(b) of the Federal Rules of
Evidence, which states:
Except for a criminal conviction under Rule 609, extrinsic evidence
is not admissible to prove specific instances of a witness’s 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 untruthfulness
of: (1) the witness; or (2) another witness whose character the witness
being cross-examined has testified about.
Fed. R. Evid. 608(b). Thus, a party may ask a witness on cross-examination about a specific
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instance of conduct probative of that witness’s character for truthfulness, but “[i]f the witness
denies the conduct, . . . the questioning party must take the witness’ answer[.]” United States v.
Matthews, 168 F.3d 1234, 1244 (11th Cir. 1999). The Court finds that Plaintiff’s
misrepresentation at his deposition is probative of his credibility and, therefore, is admissible
under Rule 608(b) and may be inquired into on cross-examination. Accordingly, the Court will
deny Plaintiff’s fourth motion in limine. Defendants, however, are only permitted to ask Plaintiff
about the misrepresentation and may not offer extrinsic evidence of the conduct. Id.
V.

PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE THE TESTIMONY OF
MORGAN BRODBECK AND RICHARD HARBAUGH AT TRIAL
Finally, Plaintiff seeks to exclude the testimony of Morgan Brodbeck and Richard

Harbaugh at trial. (Doc. No. 23 at 4.) Plaintiff argues that he will be prejudiced if Mr. Brodbeck
and Mr. Harbaugh are allowed to testify at trial because Defendants did not identify them as
potential trial witnesses until the Rule 16.3 conference held on April 23, 2012. (Id.) In
opposition, Defendants contend that Plaintiff never requested Defendants to identify trial
witnesses prior to April 23, 2012, and that Plaintiff will not be prejudiced because Mr. Brodbeck
and Mr. Harbaugh were his co-workers and because he answered questions about them during his
deposition, demonstrating his familiarity with them. (Doc. No. 31 at 6-7.)
Even assuming that Defendants’ disclosure of Mr. Brodbeck and Mr. Harbaugh as
potential trial witnesses was in violation of a discovery rule, the Court will not preclude them
from testifying because their inclusion as trial witnesses will not prejudice Plaintiff. See In re
TMI Litig., 193 F.3d 613, 721 (3d Cir. 1999) (noting that excluding evidence is an “extreme
sanction” for a violation of a discovery rule). First, Plaintiff, as shown by his testimony at his

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deposition, has firsthand knowledge of the topics that will likely be the focus of Mr. Brodbeck’s
and Mr. Harbaugh’s testimony. For example, as Defendants point out, Plaintiff testified that Mr.
Brodbeck was one of the partners of Defendant Fine Line Trim LLC and that he was hired at the
suggestion of Mr. Brodbeck. (Doc. No. 31 at 9.) Plaintiff further testified that Mr. Harbaugh
was his direct supervisor in 2010 and that both he and Mr. Harbaugh drove to distant job sites, an
issue that is the subject of his lawsuit. (Doc. No. 15-3 at 64.) Second, the Court addressed this
motion with counsel at the May 22, 2012 pretrial conference and collaborated with them
regarding alternative trial dates that would provide Plaintiff’s counsel with sufficient time to
interview or depose Mr. Brodbeck and Mr. Harbaugh. In order to accommodate Plaintiff’s
counsel, the Court will continue trial in this matter from June 4, 2012 to June 25, 2012.
ACCORDINGLY, on this 1st day of June 2012, IT IS HEREBY ORDERED THAT:
1.

Plaintiff’s second, third, fourth, and fifth motions in limine (Doc. No. 22) are
DENIED;

2.

Plaintiff’s first motion in limine (Doc. No. 22) is DENIED AS MOOT;

3.

Jury selection and trial, currently set to commence on June 4, 2012, is
CONTINUED to June 25, 2012, at 9:30 a.m., in Courtroom No. 1, Ninth Floor,
Federal Building, Third and Walnut Streets, Harrisburg, Pennsylvania; and

4.

The parties shall file trial briefs on or before June 20, 2012.

S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania

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