NDN Collective et al v. Retsel Corporation et al

Filing 229

MEMORANDUM OPINION AND PRETRIAL ORDER granting in part and denying in part 189 Motion in Limine; granting in part and denying in part 192 Motion in Limine; denying 217 Motion to Stay; denying 219 Motion for Certificate of Appealability.. Signed by U.S. District Judge Lawrence L. Piersol on 8/29/2024. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

NDN COLLECTIVE,individually and
on behalf of all others similarly situated;
SUNNY RED BEAR,individually and
on behalf of all others similarly situated;
GEORGE BETTELYOUN,individually
and on behalf of all others similarly
situated; ALBERTA EAGLE,individually
and on behalf of all others similarly
situated; NICK COTTIER,individually
and on behalf of all others similarly
situated; BRE JACKSON,individually
and on behalf of all others similarly
situated; MARY BOWMAN,individually
and on behalf of all others similarly
situated.
Plaintiffs

vs.

RETSEL CORPORATION,

d/b/a Grand Gateway Hotel,
d/b/a Cheers Sports Lounge and Casino;
CONNIE UHRE;and
NICK UHRE,
Defendants

And

RETSEL CORPORATION,

d/b/a Grand Gateway Hotel,
d/b/a Cheers Sports Lounge and Casino,

Third-Party Plaintiff,

5:22-cv-5027

MEMORANDUM OPINION

AND PRETRIAL ORDER
GRANTING IN PART AND
DENYING IN PART PARTIES'
PRETRIAL MOTIONS

vs.

JOHN DOES 1-20; JANE DOES, 1-20;
andAJBC CORPORATIONS, 1-20,
Third-Party Defendants

This case is set for ajury trial commencing, September 9^^ 2024, on:(1)
Plaintiffs' claim of a violation of42 U.S.C. § 1981 against all Defendants;(2)
Plaintiff Sunny Red Bear's claim of battery against Connie Uhre and claims of

assault and battery against Retsel;(3)Defendants' counterclaim of nuisance against
NDN Collective; and(4)Defendants Retsel and Nick Uhre's counterclaim of
defamation against NDN Collective.

On August 26, 2024,the Court held a pretrial conference. (Doc. 221).
During which, the Court discussed trial procedures, heard argument, and ruled on:
(1)Defendants' motion to stay trial,(2)Defendants' motion to certify the Court's
August 20, 2024, and August 22, 2024, orders for interlocutory appeal,(3)
Defendants' motions in limine, and (4)Plaintiffs' motions in limine. (Id.). The
Court denies Defendants' motion to stay trial and motion to certify the Court's
August 20, 2024, and August 22,2024, orders for interlocutory appeal, grants in

part and denies in part Defendants' motions in limine, and grants in part and denies
in part Plaintiffs' motions in limine

The Court!will first discuss trial procedures in Part 1. Then,the Court will
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resolve the Parties' pretrial motions in Part IT

1.

Trial Pjrocedures
During'thd pretrial hearing conducted on August 26, 2024,the Court and

Parties discussedjthe following trial procedures and logistics. (Doc. 221). Jury
selection will commence at 9am on September 9^^, 2024,in Courtroom I at the
Andrew W.Bouge Federal Building and U.S. Courthouse located in Rapid City,
South Dakota. Each Party will be granted 1 hour for voir dire. Plaintiffs will have
three peremptory strikes as will Defendants. There is no limit on challenges for
cause and any challenge for cause will be done in fi:ont ofthe jury. The jury pool

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will consist of 35!members ofthe community and 12jurors will be seated. As

requested by Plaintiffs, the jury list will be released to the Parties on August 30^^,
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2024, by the end |)fthe day.
Each Party j will be granted forty-five minutes for their opening statement and
PowerPoint slides will not be permitted. The amount oftime for closing argument
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will be determined after the close of evidence and the "no sandbag rule" applies.
The Court does not require but encourages that—at least one day in advance—^both
Parties provide to the other a list of witnesses that will testify the following day.
Keep in mind that the Court has high fi*equency hearing loss. Instruct witnesses to
enunciate clearly.

Regarding the Plaintiffs' prayer for punitive damages, at the end of

Plaintiffs' case, but before they have rested, the Court will hold a hearing outside
the presence ofthe jury. During this hearing. Defendants can move to dismiss
some or all ofthe punitive damages claims. At that time, the Court will make a

ruling whether or not punitive damages claims will be submitted to the jury. If
punitive damages are going forward, witnesses may be called and or recalled to

testify regarding financial worth for consideration if punitive damages are to be
awarded.

In light ofthe Court's summary judgment orders(Docs. 206 & 212), both
Parties must cut down their exhibit list to those relevant to the remaining claims by

August 30^"^, 2024. Additionally, the Parties shall converse and determine a list of
demonstrative evidence to be used at trial by September 4^^, 2024.
11.

Pretrial Motions

As an initial matter. Plaintiffs filed a motion to produce documents on
August 22, 2024.(Doc. 207). This motion has been referred to Magistrate Judge
Daneta Wollmann, who will conduct a hearing on August 30, 2024. (Doc. 225).
Further, on August 25, 2024, Defendants filed a motion to stay trial coupled
with a motion to certify the Court's August 20, 2024, and August 22, 2024, orders
for interlocutory appeal. (Doc. 217 & 219). The Court denies both motions.

Finally, the Court requested that Plaintiffs respond to Defendants' motion to
eliminate Cheers Bar from the lawsuit. (Doc. 152). Plaintiffs respond that Cheers
is not a separate Defendant and not a Party. Plaintiffs also assert that no one will
testify they tried to enter Cheers or will say anything about Cheers. There is no

issue for the Court to rule on, since there will not be any evidence regarding
exclusion from Cheers based on Native American identity,
i.

Plaintiffs' motions in limine

1. Motion to exclude settlement offers—GRANTED in part.
Plaintiffs expressly distinguish the consent decree from other settlement

discussions and negotiations related to this case. Defendants do not oppose this
motion as it pertains to past settlement discussions and negotiations. However,
Defendants do not agree with Plaintiffs' distinction regarding the consent decree.
The Court considers the admissibility ofthe consent decree in section (ii) below.
Pursuant to PRE 408, all evidence of settlement negotiations and mediation

efforts relating to this case for the purpose of proving the validity or amount of a
disputed claim is inadmissible.
2. Motion to exclude medical evidence—GRANTED in part and DENIED
in part.
While Plaintiffs may be correct that their medical records are not relevant to
prove their claims, they are relevant to Defendants' defense as to the cause.

severity, and potential alternative and unrelated contributions to the alleged
emotional distress ofPlaintiffs.

Therefore, the Court denies Plaintiffs' second motion in limine with the

limitation that only medical records relevant to Defendants' defense ofthe claimed

emotional distress are admissible. As a result, only medical records concerning
emotional or mental ailments are admissible. Medical records of physical ailments
are inadmissible with the exception of Mr. Bettelyoun's concerns with HIV

(assuming Plaintiffs open the door to a discussion on that topic). PRE 401,402.
3. Motion to exclude reference to Nick Tilsen's protective orders,
Facebook posts, and the charge against Brandon Furguson—
GRANTED in part.
Mr. Furguson's charge and related protective order is irrelevant and thus

inadmissible. Further, Mr. Tilsen's protective order is likewise irrelevant and thus
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inadmissible. The request to exclude Mr. Tilsen's Facebook requests is overbroad
and nonspecific. As such, the Court is unable to assess the admissibility ofthe
Facebook posts at this time.

Therefore, the Court grants Plaintiffs' third motion in limine with respect to
Brandon Furguson's charge and his related protective order and Nick Tilsen's
protective orders. The Court will not rule on Nick Tilsen's Facebook post at this
time. FRE 401, 402.

4. Motion to exclude Sunny Red Bear's protective orders and divorce—
GRANTED in part and DENIED in part.
The specific details of Ms. Red Bear's divorce are not relevant and thus
inadmissible. Additionally, discussion of Ms. Red Bear's divorce would waste

time and confuse the jury. However,the fact that she is recently divorced and the
possibility that the divorce is or was a source of stress is relevant to Defendants'

defense and thus admissible. Defendants argue Ms. Red Bear's protective orders
are relevant to their claim of negligent hiring, however Defendants have not pled
negligent hiring. As far as the Court can tell, this is the first time Defendants are

claiming a negligent hiring theory. Therefore, Ms. Red Bear's protective orders are
irrelevant.

In summary the Court grants Plaintiffs' fourth motion in limine with regards

to Ms. Red Bear's protective order and to the specific details of her divorce.
However,the occurrence ofthe divorce and its potential as an alternative source of

stress is admissible with the limitation that it may only be used by Defendants as a
defense to Ms. Red Bear's claims of emotional distress. PRE 401, 402.
5. Motion to prevent testimony related to dismissed counterclaims—
GRANTED.

In an August 22, 2024, order and opinion, the Court dismissed Defendants'

counterclaims for intentional interference with business relations, trespass, and
conspiracy to commit intentional interference with business relations. Any and all
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evidence related to the dismissed counterclaims is irrelevant, would waste time,
and confuse the jury. FRE 401,402, 403.
6. Motion to prevent questions to NDN Collective witnesses related to
salary—GRANTED in part.

Evidence relating to the salaries ofPlaintiffs or witnesses is a very personal
matter and not relevant to the case. Further, it may impermissibly suggest to the
jury that Plaintiffs do not need damages. However, evidence relating to Plaintiffs'
and witnesses' position with NDN Collective, what their duties are, the hours they
work, and whether they are part-time or full-time are relevant and thus admissible.
Therefore, the Court grants Plaintiffs' sixth motion in limine with regards to
evidence ofthe salaries ofPlaintiffs and witnesses. However, evidence relating to
Plaintiffs' and witnesses' position with NDN Collective, their duties at NDN
Collective, the hours they work, and whether they are part-time or full-time is
admissible. FRE 401,402,403.

7. Motion to prevent evidence and argument regarding NDN Collective's
fundraising—GRANTED.
Discussion offundraising efforts could allow the jury to conclude the

lawsuit is a calculated effort to raise money rather than a response to Defendant's
alleged discrimination. Further, evidence of NDN Collective's fundraising efforts
is not probative ofthe issues before the jury. FRE 401,402, 403.

8. Motion to prevent reference to Land Back, Mt. Rushmore protests of
President Trump,or Nick Tilsen's arrest there—GRANTED in part.
Both Parties and the Court agree that politics should not be brought into this
case. Additionally, Defendants do not intend to introduce any evidence ofthe Mt.
Rushmore protest, former President Trump, or Nick Tilsen's arrest there.
Regarding references to Land Back,the Court recognizes this is a sensitive issue as
some ofthe jurors could live on land that could be subject to Black Hills Land
Back claims and references to Land Back carry with it a high risk of prejudice and
emotionally charged decisions. Absent further foundation, the Land Back
movement will not be put in issue. The mission of NDN Collective is an issue in

this case, therefore Defendants will be permitted to introduce the mission ofNDN
Collective, but in doing so, must avoid references to Land Back.

During the August 26, 2024, pretrial conference,there was a discussion
surrounding an eviction notice that Defendants intended to introduce to rebut the

Plaintiffs' allegations of discriminatory intent. Based on the current information,

the eviction notice incident occurred after the alleged discrimination and is
therefore irrelevant and inadmissible. However, even ifthe eviction notice refers
to Land Back,if Defendants can demonstrate the eviction notice incident occurred

before the alleged discrimination, the Court will reconsider its admissibility. PRE
401, 402, 403.

9. Motion to prevent testimony related to a minor related to Nick Tilsen

being present as the shooting at Grand Gateway Hotel^—GRANTED.
This matter is not relevant to this case. Further, Defendants do not intend to

introduce evidence regarding this matter and do not oppose this motion. FRE 401,
402.

10. Motion to prevent testimony or the video of an incident where Nick
Tilsen asked police to leave the NDN Collective headquarters—
GRANTED.

The Court finds this incident irrelevant, and even if it is relevant, it is a

collateral issue that would waste time and confuse the jury. FRE 401,402, 403.
11.Motion to prevent references to the Pledge Connie TJhre sprayed at
Sunny Red Bear as "organic" or "water-based"—^DENIED.
Plaintiffs argue that because Defendants have not produced the can of
Pledge used on March 21, 2022,they have no evidence of what ingredients the

Pledge aerosol contains. The Court views that this matter can be properly
addressed by cross examination as Connie Uhre is entitled to testify as to her belief

of what the Pledge aerosol contained.
12.Motion to prevent identification of previously undisclosed individuals
who Defendants think harmed the hotel and to prevent the introduction
of evidence about any unidentified non-party Defendants think harmed
the hotel—

The Court will not rule specifically on this at this time. However, evidence
relevant to the remaining counterclaims of nuisance and defamation, and who is
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responsible for the conduct giving rise to those claims, is admissible. As the Court

made clear in its summary judgment order, we will not be trying any claims arising

from the conduct of unidentified individuals. For example, the rock throwing
incident and the ring of fire was not shown to be done by NDN Collective agents,
employees, or supporters. All evidence regarding those incidents is irrelevant at
this stage and not admissible. On the other hand, it has been shown that the light

projections were done by NDN Collective agents, employees, or supporters. In
summary, evidence, testimony, and argument regarding the dismissed
counterclaims, including who apparently harmed the hotel in connection to the
dismissed counterclaims is inadmissible. Evidence, testimony, and argument as to
who is responsible for the conduct giving rise to the remaining counterclaims is
admissible. FRE 401, 402, 403.

13. Motion to preclude use of documents and statements produced on
August 5,6,and 8,2024, and to preclude any testimony related to or
relying on those documents—GRANTED in part and DENIED in part.

Plaintiffs argue Defendants did not timely produce documents including a
legal survey of Retsel's property, documents regarding broken glass, documents
regarding the Rapid City Marshalls football team, a lease with Perkins, invoices
and refunds for various guests, and a Smith and Travel Research report. The Court
finds that the late disclosure is not unfairly prejudicial, even though it should have
been previously produced. Plaintiffs will have time to analyze the new evidence
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and prepare for trial. However, consistent with the Court's ruling above, evidence

regarding the dismissed counterclaims is inadmissible. For example, documents
regarding broken glass, documents regarding the Rapid City Marshalls football
team, and documents and testimony regarding alleged damages stemming from the
dismissed counterclaims are irrelevant. Further, as discussed below, the Smith and

Travel Research Report is inadmissible. However,the legal survey and other
evidence as well as testimony relevant to the remaining counterclaims is
admissible. FRE 401,402,403.

14.Motion to prevent undisclosed expert opinion—GRANTED.
The only expert opinions that will be admissible in this case are those that
were noticed and sufficiently described in written expert reports. This applies to
both Plaintiffs and Defendants. Nick Uhre is entitled to testify as to his personal
knowledge as a lay witness, but his testimony will be limited to his personal
knowledge that is relevant to the remaining counterclaims. Nick Uhre may not

rely on information from undisclosed expert opinion. Finally, as the Court has
made abundantly clear several times in this opinion and order, all evidence
regarding the dismissed counterclaims is irrelevant and inadmissible.
15.Motion to prevent introduction of undisclosed documents and
unidentified witnesses—GRANTED.

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While the Court grants Plaintiffs' fifteenth motion in limine, it is subject to
being revisited. Plaintiffs have not identified what the undisclosed documents are.
To the extent that Plaintiffs can show there are documents that should have been

disclosed and were not, such documents are inadmissible.

16.Motion to prevent testimony or argument about ability to pay a
judgment—GRANTED in part.

As an initial matter, a Party's general ability or inability to pay a judgment is
irrelevant and inadmissible. Further, any evidence regarding the prospect that
Defendants might have to pay some or all ofPlaintiffs' attorneys fees ifthey
prevail is inappropriate, unfairly prejudicial, and not admissible. However,

Plaintiffs are seeking punitive damages. If punitive damages are submitted to the
jury, both Parties are permitted to introduce evidence regarding the net worth of
Defendants. If punitive damages are not submitted to the jury, any evidence ofthe
net worth of Defendants is irrelevant and inadmissible. FRE 401, 402,403.

17. Motion to preclude Defendants from referring to any plaintiff at trial as
a "tester"—GRANTED in part.
The Court intends to send the issue of whether the Plaintiffs are merely

testers or there for a dual purpose or capacity to the jury. The Court will not allow
Defendants to directly refer to Plaintiffs as "testers" as this is a jury determination.
However, Defendants may say something to the effect of"alleged testers" or
"those who we claim to be testers." FRE 403.
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ii.

Defendants' motions in limine

1. Motion to exclude "golden rule," "reptile theory" and other improper
argument—GRANTED in part.
Improper argument is not permitted. The Parties cannot make a "golden

rale" argument. Without knowing what the "reptile theory" argument would
consist of, the Court cannot rale on the motion to exclude it.

2. Motion to exclude evidence of the Uhre Family's political speech—
GRANTED in part.
Political speech is excluded. Plaintiffs argue references to "dark money" are
relevant to intent to discriminate, which is in issue with respect to individual
Defendants and Retsel. The Court admonishes the Parties that politics will be kept
out ofthe case. If evidence is relevant to proving discriminatory intent, it is
admissible. PRE 401, 402,403.
3. Motion to exclude improper character evidence—

It is unclear to the Court what evidence is the subject ofthe motion.
Plaintiffs have the burden to establish discriminatory intent, and if the evidence is
relevant to that issue, it is admissible. PRE 401,402,403, 404.
4. Motion to exclude evidence regarding Retsel's employees leaving their
employment and relationships with Uhre Family members—

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Specifics have not been provided to enable the Court to rule on the motion.

Ifthe evidence is relevant to intent to discriminate, it is admissible. FRE 401,
402, 403.

5. Motion to exclude selectively edited photographs, videos, and other
demonstratives—

The Court is unable to rule without specific evidence before it. As

mentioned above,the Parties should consult with each other and pare down the
Exhibit lists and demonstratives to what will be used at trial.

6. & 7. Motion to exclude evidence of other lawsuits involving Retsel; and
of Retsel's apology as part of the consent decree with the United
States—GRANTED in part.
a. the wrongful death lawsuit from the shooting at the hotel is excluded as
not relevant.

b. the shareholder lawsuit is not probative and is excluded; the board
member's testimony might be relevant and admissible.
c. White V. Retsel lawsuit—^not permitted in Plaintiffs' case-in-chief;

possibly admitted on rebuttal for the issue of discriminatory intent
depending upon the direct testimony of Defendants.
The Court does not have sufficient information to rule on whether Clarity

Self and Brandon Ferguson's proposed testimony is admissible.

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d. USA V. Retsel, 5:22-cv-5086—admissibility of consent decree;
admissibility of apology
Defendants seek to exclude the consent decree, which Plaintiffs seek to

admit. Defendants treat the consent decree similarly to the other litigation
involving Retsel, meaning it is not relevant. Plaintiffs want to exclude mediation

and settlement negotiations, but not the consent decree because it is "a public
document and is relevant to Defendants' interactions with Native Americans."

PRE 408 prohibits admission of a settlement agreement but can admit it for

other purposes such as impeachment or knowledge. Admissibility also depends on
what is in the consent decree; for example, whether a Party made admissions. If
so, they are separately admissible.
Cases from several courts exclude consent decrees under PRE 408. See,

e.g., Ely V. Cabot Oil, 2016 WL 454817, *12(M.D.Pa. Peb. 5, 2016); Wilson v.
Parisi, 2009 WL 151666, *1 (M.D.Pa. Jan. 21, 2009); Bowers v. NCAA,563
P.Supp.2d 508, 536(D.N.J. 2008); Farnham v. Walmart Stores East, L.F., 2014 WL
6908907,*4(D. Maine Dec. 8, 2014); Massachusetts Mutual Life Insurance
Company v. DLL Mortgage Capital, Inc., 251 P.Supp.3d 329, 331 (D. Mass. 2017).
PRE 408 does permit introduction of a consent decree under certain
circumstances. See, e.g., CMFG Life Ins. Co. v. Credit Suisse Securities (USA)
LLC,2017 WL 4792253(W.D. Wise. Oct. 23, 2017)(admitting section of consent
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decree as admission); Dahlin v. Lyondell Chemical Company,2016 WL 4690390,
*8 (S.D. Iowa March 24, 2016) (consent decree is not categorically inadmissible;
may be admissible to show Defendants' knowledge, not liability); E. Allen Reeves,

Inc. V. Michael Graves & Associates, Inc., 2015 WL 105825, *1 (D.NJ. Jan. 7,
2015)(consent decree between plaintiff and a non-party admissible to show bias).
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In the present case, admissibility ofthe consent decree is intertwined with

the question of Defendants' motion to exclude Retsel's apology, which was part of
the consent decree. Plaintiffs do not intend to go into details ofthe consent decree

itself. The apology was distributed widely, however, and in particular to the nine
Tribes in South Dakota. Counsel discussed how to broach the issue of both the

consent decree and apology and the resolution was as follows: the Court will

inquire during jury selection whether any prospective juror is aware of a consent
decree filed in relation to this case. Neither Party will initiate discussion ofthe

apology by Retsel and will respond if a prospective juror raises the issue. The
Court will fashion a response depending on the circumstances. If a juror has any
familiarity with these issues, the Court will explore possible bias or inability to
judge the facts as is done in the usual case with prospective jurors.
8. Motion to exclude evidence of NDN Collective's emotional distress

and limit the individual Plaintiffs' non-economic damages to garden
variety emotional distress—GRANTED in part and DENIED in part.

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NDN will not receive damages for emotional distress. The remaining
Plaintiffs may testify to emotional distress damages. Plaintiffs will not be
permitted to recount details of a lifetime of discrimination but can testify that this
incident has caused them to re-live past instances of discrimination and how that
contributed to their emotional distress from the events of this case.

9. Motion to preclude any attempt to attribute one person's statements
to a different person or entity—
The motion is vague, and the Court cannot rule in advance. The Court will

handle evidentiary issues as they arise. The Court is willing to provide limiting
instructions and Counsel should propose them as appropriate.
10. Motion to exclude evidence that will create sympathy for Plaintiffs
or Defendants but is unrelated to the issues—

Eighth Circuit Pattern Jury Instruction 1.03 (2022)is adequate to cover the
issue. Admissible evidence will be permitted. The Court cannot rule in advance in
the abstract.

11. Motion to exclude all argument or reference to any Attorney's
backgrounds—GRANTED in part.

The Parties agree that the attorneys' background information will not be
provided with the exception ofinquiring of prospective jurors about possible
prosecution ofthem or their relatives by Plaintiffs' attorney and former US
Attorney for South Dakota, Brendan Johnson.
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12. Motion to sequester witnesses—GRANTED.

The Parties agree the witnesses for both sides should be sequestered, which
is the Court's usual practice. FRE 615. Sequestration of expert witnesses is not
required.

13.Motion to preclude Plaintiff George Bettelyoun from testifying or
offering evidence that he was a third-party beneficiary of the
contract his sister attempted to make with the hotel—^DENIED.
Plaintiff Bettelyoun has pleaded sufficient evidence that he could qualify as
a third-party beneficiary. Questions of fact remain based on the video evidence of
the encounter.

14. Motion to exclude Nick TJhre's statement to Plaintiff Bettelyoun and
his sister as they left the hotel—^DENIED.

The statement about"Rosebud" is an integral part ofthe encounter at the
hotel and is admissible as nonhearsay pursuant to FRE 803(1).
15. Motion to preclude testimony from Plaintiffs about Retsel's hotel
policies as to other guests and events that occurred outside their
presence—GRANTED.
There is no evidence that witnesses from either side will discuss matters

outside their knowledge.
16. Motion to preclude testimony that Plaintiff Red Bear and NDN
Collective were going to use the hotel rooms and that they suffered
money damages from Defendants' refusal to rent rooms—
GRANTED in part and DENIED in part.

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Plaintiffs do not intend to call witnesses to testify they suffered pecuniary
damages from not being able to rent hotel rooms. Whether and how the rooms
might have been used is in issue and testimony is proper.
17. Motion to preclude evidence that NDN Collective has a racial
identity or experienced racial discrimination—DENIED.
The Court has ruled that NDN has a racial identity. Whether racial
discrimination existed is a contested issue in the case.

18. Motion to preclude evidence that Plaintiffs are vindicating the rights

of others because they did not move for class certification—
GRANTED.

The Court has struck the class action allegations. (Doc. 206).

Accordingly,IT IS ORDERED as ruled upon above.

Dated this

day of August, 2024.
BY THE COURT:

^wrence L. Piersol
United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK

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