Velocity Press v. Key Bank et al
Filing
231
MEMORANDUM DECISION and Order denying Without Prejudice 116 Defendant's Motion in Limine to Exclude Testimony of James F. Watts. Signed by Judge Ted Stewart on 09/26/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
VELOCITY PRESS, INC., a Utah
corporation,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE DEFENDANT’S
MOTION IN LIMINE TO EXCLUDE
TESTIMONY OF JAMES F. WATTS
vs.
KEY BANK, N.A., Q.A.M., INC., a Virginia
corporation dba SANDEN USA, INC.;
Q.A.M., INTERNATIONAL, a Nevada
corporation; ROBERT PITEL, an individual;
DOUGLAS JUSTUS, an individual; DOE
DEFENDANTS I through X,
Case No. 2:09-CV-520 TS
Defendants.
This matter is before the Court on Defendant KeyBank’s Motion in Limine to Exclude
Testimony of James F. Watts.1 The Court notes that Plaintiff’s Opposition to KeyBank’s Motion
in Limine is over length and need not be considered by the Court. However, the Court
1
Docket No. 116.
1
considers the Motion and Opposition on their merits and, for the reasons set forth below, will
deny Defendant’s Motion without prejudice.
Defendant filed the present Motion on December 17, 2010, along with four other
motions in limine. In this Motion, Defendant KeyBank requests that the Court exclude the
testimony of James Watts pertaining to what caused Sanden to delay the manufacture of the press
ordered by Velocity. KeyBank argues that this testimony should be excluded because 1) Mr.
Watts based it on hearsay, and therefore lacks personal knowledge of the statements, and 2) the
testimony contains inadmissible hearsay.
“A witness may not testify to a matter unless evidence is introduced sufficient to support
a finding that the witness has personal knowledge of the matter.”2 The testimony of lay
witnesses “in the form of opinions or inferences is limited to those opinions or inferences which
are . . . rationally based on the perception of the witness.”3 KeyBank argues that Mr. Watt’s
testimony does not meet the knowledge requirement because he had no personal knowledge of
the correspondence that conveyed why Sanden stopped building the press, but had only heard it
second-hand from other Sanden employees—Peter Williams and Rosalie Munch.4
However, as Velocity Press points out in its Opposition, Mr. Watts does have personal
knowledge of the conversations that he personally had with other Sanden employees and can
2
Fed.R.Evid. 602.
3
Fed.R.Evid. 701.
4
Memorandum in Support of KeyBank’s Motion in Limine, Docket No. 117, at 2-3.
2
testify regarding what he heard.5 This is consistent with EEOC v. BCI-Coca Cola Bottle Co. of
LA,6 where the 10th Circuit held that the personal knowledge requirement in Rule 602 was met
by a witness because he was testifying regarding “a conversation he had personally conducted.”7
Furthermore, as a Sanden employee, Mr. Watts may have other experiences providing him with
the personal knowledge and foundation required to testify as to why Sanden stopped building the
press.
KeyBank also argues that Mr. Watts testimony regarding what other Sanden employees
told him should be excluded as inadmissible hearsay. “Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”8 The Court declines to exclude the testimony at this time. First, the
testimony could be offered for a reason other than to prove the truth of the matter asserted.
Second, Plaintiff argues that the testimony should be admissible even if offered to prove the truth
of the matter asserted under the residual hearsay exception, found in Fed.R.Evid. 807. This rule
allows statements with “circumstantial guarantees of trustworthiness” equivalent to those
provided in situations covered by Rule 803 or 804 if the court determines that:
(A) the statement is offered as evidence of a material fact; (b) the statement is
more probative on the point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts; and (C) the general
5
Opposition to KeyBank’s Motion in Limine, Docket No. 142, at 1-3.
6
450 F.3d 476 (10th Cir. 2006).
7
Id. at 489 n.2.
8
Fed.R.Evid. 801(c).
3
purposes of [the rules of evidence] and the interests of justice will best be served
by admission of the statement into evidence.9
Defendant KeyBank argues that these factors are not met. Most notably, KeyBank argues
that Mr. Watt’s testimony regarding what Mr. Williams and Ms. Munch told him “is not more
probative on the point for which it is offered than any other evidence that can be reasonably be
obtained by Velocity.”10 Specifically, KeyBank argues that Mr. Williams or Ms. Munch would
be better qualified to speak to these issues. Although these parties may be better qualified to
speak on the issue and Plaintiff Velocity Press stated in its previous pretrial disclosures that it
may be calling them, it is still unclear whether either witness will be present at trial.11
As Mr. Watts has personal knowledge regarding the conversations, the testimony that
stems from conversations with Mr. Williams and Ms. Munch could be entered for a non-hearsay
purpose, and it is unclear whether better evidence will be available at trial, the Court will deny
Defendant’s Motion without prejudice. Defendant may object at trial if it feels that specific
statements constitute hearsay.
It is therefore
ORDERED that Defendant’s Motion in Limine to Exclude Statements Made By Sanden
(Docket No. 116) is DENIED WITHOUT PREJUDICE.
9
Fed.R.Evid. 807.
10
Reply Memorandum in Support of KeyBank’s Motion in Limine, Docket No. 170, at 3..
11
Opposition to KeyBank’s Motion in Limine, Docket No. 142, at 9.
4
DATED September 26, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
5
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