Barber v. Subway

Filing 60

ORDER denying Subway's motion in limine 53 . (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 11/16/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KIERA BARBER,
Plaintiff
v.
SUBWAY,
Defendant

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CIVIL ACTION NO. 1:14-CV-613
(Chief Judge Conner)

ORDER
AND NOW, this 16th day of November, 2015, upon consideration of the
motion (Doc. 53) by defendant Subway (“Subway”) styled as a motion in limine,
requesting that the court exclude from admission at trial all evidence pertaining to
the disability discrimination, failure to accommodate, and retaliation claims of
plaintiff Kiera Barber (“Barber”) pursuant to the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and specifically arguing that Subway is not an
employer subject to liability under the ADA because Subway does not have more
than fifteen (15) employees, (see Doc. 53 ¶¶ 2, 5), but wherein present counsel for
Subway expressly acknowledges that prior counsel waived the ADA numerosity
issue in correspondence to Barber’s counsel, (id. ¶¶ 6-7), and the court noting: first,
that contrary to Subway’s assertion, the employee numerosity requirement is not
an unwaivable jurisdictional requirement but instead an element of a plaintiff’s
cause of action, see Showers v. Endoscopy Ctr. of Cent. Pa., LLC, 58 F. Supp. 3d
446, 454 (M.D. Pa. 2014) (quoting Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 83 (3d
Cir. 2003)), and that the Third Circuit Court of Appeals, in construing Title VII’s
“indistinguishable” numerosity requirement, contemplated allowing parties to

stipulate to numerosity, see Nesbit, 347 F.3d at 83; second, that Subway’s instant
request is a transparent attempt to revisit the Rule 56 record through the filing of a
motion in limine after the deadline for filing dispositive motions, (see Doc. 23), and
despite an express statement by Subway’s prior counsel that they “will not be
pursuing our defense of the 15 employee minimum requirement under federal
law,” (Doc. 53-1, Ex. B); and third, that motions in limine are intended to address
the admissibility of evidence at trial and are not appropriate vehicles for testing
the sufficiency of a plaintiff’s evidence as to a substantive cause of action, and that
courts in this judicial district and elsewhere generally deny motions in limine which
raise issues that should have been raised at the Rule 56 stage, see, e.g., Park v.
Veasie, No. 3:09-CV-2177, 2012 WL 3064258, at *7 (M.D. Pa. July 27, 2012) (Mariani,
J.); Klatch-Maynard v. Sugarloaf Twp., No. 3:06-CV-845, 2011 WL 3476814, at *2-3
(M.D. Pa. Aug. 9, 2011) (Kane, J.); Mavrinac v. Emergency Med. Ass’n of Pittsburgh,
No. 04-1880, 2007 WL 2908007, at *1 (W.D. Pa. Oct. 2, 2007), and the court thus
concluding that the relief requested by Subway is inappropriate for a motion in
limine, untimely as a motion pursuant to Rule 56, and subject to an express waiver
by Subway’s prior counsel, and the court further concluding, in light of the within
resolution of Subway’s motion, that the sanctions requested by Barber are not
warranted, it is hereby ORDERED that Subway’s motion (Doc. 53) in limine is
DENIED.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania