Ebersole v. Kline-Perry et al
Filing
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MEMORANDUM OPINION re Plaintiff's Motions in Limine. Signed by District Judge James C. Cacheris on 7/5/2012. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
RUSSELL L. EBERSOLE, d/b/a
ABERDEEN ACRES PET CARE
CENTER,
Plaintiff,
v.
BRIDGET KLINE-PERRY,
Defendant.
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1:12cv26 (JCC/TRJ)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff’s Motion
in Limine to Exclude Various Witnesses [Dkt. 52] and Plaintiff’s
Motion in Limine Asking the Court to Take Judicial Notice of
Various Facts [Dkt. 56].
For the following reasons, the Court
will grant in part and deny in part Plaintiff’s Motion in Limine
to Exclude Various Witnesses and deny without prejudice
Plaintiff’s Motion in Limine Asking the Court to Take Judicial
Notice of Various Facts.
I. Background
This case concerns allegedly libelous statements made
by Defendant Bridget Kline-Perry about Plaintiff Russell
Ebersole.
Ebersole is a resident of Maryland, who owns and
operates a sole proprietorship named Aberdeen Acres Pet Care
Center (“Aberdeen Acres”).
(Am. Compl. [Dkt. 31] ¶ 1.)
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Aberdeen Acres is in the business of boarding, grooming, and
training pets.
(Am. Compl. ¶ 6.)
Kline-Perry is a resident of
Virginia, who operates a sole proprietorship known as Norsire
Farms.
(Am. Compl. ¶¶ 3, 10.)
breeding horses.
Norsire Farms specializes in
(Am. Compl. ¶ 10.)
Kline-Perry was the breeder of a male German Shepherd
named “Zeus.”
(Am. Compl. ¶ 11.)
Zeus was sold to and is
currently owned by Bill and Georgie Straub, long-standing
customers of Ebersole and Aberdeen Acres.
(Am. Compl. ¶ 11-12.)
Kline-Perry has never engaged in business with Ebersole or
Aberdeen Acres.
(Am. Compl. ¶ 13.)
In November 2011, Kline-
Perry began to publish allegedly libelous statements about
Ebersole and his business in various e-mails, Facebook postings,
and local news media websites.
(Am. Compl. ¶¶ 20-21.)
These
publications generally accuse Ebersole of animal abuse and
characterize him as a “monster” and a “con man.”
(See, e.g.,
Am. Compl. ¶¶ 22-23, 25-26, 37, 39.)
On December 13, 2011, Ebersole, proceeding pro se,
filed suit in Loudon County Circuit Court.
[Dkt. 1.]
In the
complaint, Ebersole alleged three counts of libel and sought $1
million in compensatory damages and $350,000 in punitive
damages.
On January 9, 2012, Defendants timely removed the
action to this Court on the basis of diversity jurisdiction.
[Id.]
Ebersole subsequently retained counsel [Dkt. 14] and
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filed an Amended Complaint on March 23, 2012 [Dkt. 31].
In the
Amended Complaint, Ebersole alleges two counts of libel,
statutory conspiracy, and tortious interference.
On May 29, 2012, Ebersole filed a Motion in Limine to
Exclude Various Witnesses. [Dkt. 52.]
In this motion, Ebersole
seeks to exclude various witnesses based on incomplete and/or
untimely disclosure.
Ebersole also seeks to preclude one lay
witness from testifying about purportedly privileged information
and an expert witness from testifying about the causation
element of Ebersole’s lost income claim.
On June 1, 2012,
Ebersole filed a Motion in Limine Asking the Court to Take
Judicial Notice of Various Facts.
[Dkt. 56.]
Kline-Perry filed
oppositions on June 12, 2012 [Dkts. 60, 61] to which Ebersole
replied on June 14, 2012 [Dkts. 63, 64].
Plaintiff’s motions are before the Court.
II.
Standard of Review
A. Motion in Limine to Exclude Various Witnesses
1.
Federal Rules of Civil Procedure 26 and 37
Federal Rule of Civil Procedure 26 is the general rule
governing discovery and dictates that “a party must, without
awaiting a discovery request, provide to the other parties: the
name, and if known, the address and telephone number of each
individual likely to have discoverable information -- along with
the subjects of that information -- that the disclosing party
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may use to support its claims or defenses.”
26(a)(1)(A)(i).
Fed. R. Civ. P.
Rule 26(a)(3) provides for the complete
pretrial identification of witnesses and exhibits as guided by
the subsections in the Rule.
Fed. R. Civ. P. 26(a)(3).
Relevant here is the requirement imposed by subsection
(a)(3)(A)(i), which provides that:
[A] party must provide to the other parties
and promptly file the following information
about the evidence that it may present at
trial other than solely for impeachment:
(i) the name and, if not previously
provided, the address and telephone
number of each witness –- separately
identifying those the party expects
to present and those it may call if
the need arises;
Fed. R. Civ. P. 26(a)(3)(A)(i).
Each party has an ongoing duty
to timely supplement or correct its Rule 26(a) disclosures
should additional or corrective information come to light that
has not otherwise been disclosed during the discovery process.
Fed. R. Civ. P. 26(e)(1)(A).
Rule 37(c)(1) addresses the failure to make a
disclosure under Rule 26(a) or (e), providing that “[i]f a party
fails to . . . identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that . . . witness to
supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.”
R. Civ. P. 37(c)(1).
Fed.
In deciding whether nondisclosure of a
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witness is substantially justified or harmless, a court should
consider the following factors:
(1) the surprise to the party
against whom the witness was to have testified; (2) the ability
of the party to cure that surprise; (3) the extent to which
allowing the testimony would disrupt the trial; (4) the
explanation for the party’s failure to name the witness before
trial; and (5) the importance of the testimony.
S. States Rack
& Fixture v. Sherwin–Williams Co., 318 F.3d 592, 596 (4th Cir.
2003).
The court has “broad discretion” in making this
determination.
Id. at 597.
The Rule 16(b) Scheduling Order in this case
distinguishes between case-in-chief information and rebuttal or
impeachment information for purposes of the Rule 26(a)(3)
disclosures.
(See Rule 16(b) Scheduling Order [Dkt. 4].)
The
Rule 16(b) Scheduling Order provides that non-expert witnesses
“not so disclosed and listed will not be permitted at trial
except for impeachment or rebuttal, and no person may testify
whose identity, being subject to disclosure or timely requested
discovery, was not disclosed in time to be deposed or to permit
the substance of his knowledge and opinions to be ascertained.”
(Id.)
2.
Federal Rule of Evidence 702
The testimony of expert witnesses is governed by
Federal Rule of Evidence 702.
Rule 702 provides that a witness
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who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; (b) the testimony is based on
sufficient facts or data; (c) the testimony is the product of
reliable principles and methods; and (d) the expert has reliably
applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
B.
Motion in Limine to Take Judicial Notice of
Various Facts
Judicial notice is a court’s recognition of evidence
without formal proof.
31A C.J.S. Evidence § 11 (2012).
Laws –-
including statutes and formal rules and regulations -- are
subject to judicial notice because they are matters of public
record and common knowledge.
See Ambling Mgmt. Co. v. Univ.
View Partners, LLC, No. WDQ-07-2071, 2011 WL 3563156, at *2 (D.
Md. Aug. 10, 2011).
III. Analysis
A.
Motion in Limine to Exclude Various Witnesses
In his Motion in Limine to Exclude Various Witnesses,
Ebersole seeks to exclude the testimony of the following
witnesses:
Meghan Weller, Emily Cleveland, Michelle Moore,
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Meghan Moreland, and Sarah Greenhalgh.1
If Weller is not
excluded as a witness, Ebersole seeks to prohibit her from
testifying about privileged information she may have obtained
regarding Ebersole’s prior criminal and bankruptcy matters.
Lastly, Ebersole moves to preclude Leslie Robson, an expert
witness identified by Kline-Perry, from testifying as to the
issue of causation.
1.
The Court addresses each witness in turn.
Weller and Cleveland
Ebersole argues that Weller and Cleveland should be
precluded form testifying at trial because Kline-Perry failed to
provide their contact information as required by Rule 26(a)(3).
Kline-Perry identified Weller and Cleveland in her initial Rule
26(a) disclosure filed on March 12, 2012, and in answers to
interrogatories served on April 6, 2012.
In the answers to
interrogatories, Kline-Perry provided an address at which Weller
receives mail (but not her actual residence) as well as a phone
number.
For Cleveland, she merely provided an address.
Kline-Perry explains that Weller and Cleveland are
former employees of Ebersole’s.
Apparently Weller would not
provide her actual residence to Kline-Perry because of threats
made against her by Ebersole.
Weighing the factors set forth in
Southern States, the Court concludes that both Weller and
1
Ebersole also initially moved to exclude Matt Philips, arguing that KlinePerry had failed to disclose his existence prior to the close of discovery.
As Kline-Perry pointed out in her opposition, Philips was in fact disclosed
in her responses to Ebersole’s interrogatories, filed on April 6, 2012. In
his reply brief, Ebersole acknowledges his oversight and withdraws his motion
as to Philips.
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Cleveland should be permitted to testify.
There is little
surprise to Ebersole given that both witnesses were disclosed in
Kline-Perry’s initial Rule 26(a) disclosure.
And, in her
answers to interrogatories, Kline-Perry included a detailed
description of instances of animal abuse by Ebersole that Weller
and Cleveland allegedly observed while in his employment.
Ebersole makes no representation that he was unable to
contact or depose Weller and Cleveland because of the omitted
contact information.
Moreover, at least some of the omitted
information was allegedly due to threats made by Ebersole -- an
allegation Ebersole does not deny in his reply brief.
Finally,
given the witnesses’ alleged observations of animal abuse, which
goes to the truth or falsity of the allegedly libelous
statements, the testimony these witnesses would provide is
important.2
For these reasons, the Court concludes that the
contact information omitted was substantially justified and
harmless.
Ebersole further notes that Weller is a former
secretary of an attorney, Spencer Ault, who previously
represented him in criminal and bankruptcy matters.
Weller’s
employment with Ault and Ault’s representation of Ebersole
overlapped.
For this reason, Ebersole believes that Weller may
2
While the importance of testimony can in some instances accentuate the
prejudice to the other party, and hence also militate in favor of exclusion,
see United States v. English, No. 5:07-HC-2187-D, 2012 WL 683542, at *3
(E.D.N.C. Mar. 2, 2012), that is not the case here given the Court’s
conclusion that Weller and Cleveland pose no surprise to Ebersole.
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have acquired privileged information related to the criminal and
bankruptcy matters.
Ebersole requests that the Court issue an
Order precluding Weller from testifying “as to any matter
connected with Mr. Ebersole’s bankruptcy or his criminal
history,” so as to avoid the risk of a breach of attorney-client
privilege.
Kline-Perry responds that she intends to call Weller
as a witness with knowledge regarding Ebersole’s alleged animal
abuse, and not privileged information concerning Ebersole’s
bankruptcy and criminal history.
Thus, this portion of the
motion in limine is moot.
2.
Moore
Moore is another of Ebersole’s former employees who
allegedly witnessed animal abuse.
Moore apparently left her
employment with Ebersole in August 2011.
Kline-Perry did not
disclose Moore as a witness until she supplemented her initial
Rule 26(a) disclosure on May 10, 2012 -- the day before
discovery was set to close.
Kline-Perry states that Moore’s
identity did not become known until “quite late” in the
discovery process.
However, she fails to explain why she was
unable to identify Moore in a timely manner but was able to
identify some of Ebersole’s former employees, such as Weller and
Cleveland, in time for her initial Rule 26(a) disclosure.
Kline-Perry also asserts that Moore poses no surprise to
Ebersole because, as a former employee, her identity, knowledge,
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and contact information were well known to him.
But it does not
follow that Ebersole is aware of Moore’s knowledge merely
because she used to work for him; nor does it follow that he
would have her correct contact information months after she left
his employment.
Because Moore was not disclosed until one day
before the discovery deadline, Ebersole clearly lacked the
opportunity to depose her.
In short, Kline-Perry fails to
demonstrate that her untimely disclosure of Moore was
substantially justified or harmless.
Accordingly, Moore is
precluded from testifying at trial except for impeachment
purposes.
3.
Moreland
Moreland is an animal control officer in Frederick
County who handled a criminal investigation involving Ebersole.
She was identified in Kline-Perry’s initial Rule 26(a)
disclosure.
Ebersole seeks to preclude Moreland’s testimony,
however, on the ground that Kline-Perry failed to provide her
contact information.
In response, Kline-Perry contends that
Moreland was sufficiently identified such that Ebersole could
have located her if he wished.
The Court agrees.
Moreland was
identified in the initial Rule 26(a) disclosure as a Frederick
County animal control officer with knowledge of the Ebersole’s
criminal investigation as well as his reputation in the
community.
The Frederick County animal control office has a
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website on the internet complete with contact information.
https://frederickcountymd.gov/index.aspx?NID=15.
See
Further,
Ebersole makes no assertion that he attempted to contact
Moreland and was unable to do so, or that he sought to obtain
Moreland’s contact information from Kline-Perry.
Under these
circumstances, the Court concludes that Kline-Perry’s failure to
provide contact information was harmless.
Moreland is permitted
to testify at trial.
4.
Greenhalgh
Greenhalgh wrote a series of news articles about
Ebersole and interviewed him regarding the allegations of animal
abuse.
Kline-Perry did not identify Greenhalgh as a witness
until she supplemented her initial Rule 26(a) disclosure on May
10, 2012.
Apparently, Kline-Perry did not originally expect any
of Greenhalgh’s knowledge to be relevant to this case.
Kline-
Perry changed her mind, however, once Ebersole suggested at his
May 2, 2012, deposition that he intends to argue that KlinePerry’s conduct is the cause of the news stories and of the
criminal investigation against him.
She then decided that
Greenhalgh might be needed to rebut Ebersole’s allegations, and
identified Greenhalgh as a witness eight days later.
As with
Moore, discussed supra, the disclosure occurred the day before
the discovery deadline.
depose her.
As such, Ebersole did not have time to
While Kline-Perry asserts that she initially did
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not expect Greenhalgh to have relevant information, she also
states in her opposition that many of the statements she made
about Ebersole were in response to news articles, and that
Greenhalgh’s articles were the means by which she became aware
that Ebersole’s former employees allegedly knew of animal abuse.
Thus, Kline-Perry presumably knew of Greenhalgh’s identity at
the time of her initial Rule 26(a) disclosure -- when she
disclosed former employees like Weller and Cleveland.
And,
given Greenhalgh’s investigation of animal abuse by Ebersole,
Kline-Perry had reason to believe that Greenhalgh likely had
discoverable information.
See Fed. R. Evid. 26(a)(1)(A)(i).
Accordingly, Kline-Perry fails to demonstrate that the untimely
disclosure was substantially justified or harmless.
Greenhalgh
is precluded from testifying except for impeachment purposes.
5.
Robson
Leslie Robson is an expert witness identified by
Kline-Perry for purposes of evaluating Ebersole’s claim for lost
income.
Based on his curriculum vitae, Robson is a certified
public accountant, a certified valuation analyst, and certified
in financial forensics.
1].)
(See Curriculum Vitae [Dkt. 37-1 App.
Robson’s expert report addresses, in part, the causation
element of Ebersole’s lost income claim.
[Dkt. 37-1] at 4-5.)
(See Expert Report
Ebersole seeks to preclude Robson from
testifying as to the issue of causation, and argues that any
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such testimony is inadmissible under Federal Rule of Evidence
702.3
Kline-Perry represents that she does not intend to elicit
testimony from Robson as to causation.
In fact, she is of the
position that the issue of causation is “not one that requires
expert testimony.”
(Opp. [Dkt. 60] at 9.)
As such, this
portion of the motion in limine is moot.
B.
Motion in Limine to Take Judicial Notice of
Various Facts
Ebersole asks the Court to take judicial notice of
various “facts,” which are actually legal in nature.
Among the
allegedly libelous statements in this case are accusations that
Ebersole violated the law by training dogs without a license and
by training service animals for people without handicaps.
Ebersole argues that, because he must prove that these
statements are false to succeed on his libel claims, laws on dog
training -- specifically with respect to service dogs -- are
relevant to this action.
Contrary to Kline-Perry’s assertion, the Court may
take judicial notice of law.
3563156, at *2.
See Ambling Mgmt., 2011 WL
It is also true, as Ebersole points out, that
the Federal Register Act requires judicial notice of federal
regulations.
See Getty Petroleum Mktg., Inc. v. Capital
Terminal Co., 391 F.3d 312, 325 n.19 (1st Cir. 2004) (per
3
Ebersole also argues that the testimony is inadmissible pursuant to Federal
Rule of Evidence 403 because it is substantially more prejudicial than
probative. See Fed. R. Evid. 403.
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curiam) (citing 44 U.S.C. § 1507).
Still, for the Court to take
judicial notice of a matter, including law, that matter must be
relevant.
See United States v. Wolny, 133 F.3d 758, 765 (10th
Cir. 1998) (affirming district court’s refusal to take judicial
notice of a federal regulation because “[w]e cannot imagine
that, in enacting § 1507, Congress intended to override Rule
402, and make judicial notice mandatory, when a matter that
appeared in the Federal Register is irrelevant to the proceeding
at hand”).
The Court concludes that it is premature to take
judicial notice of Ebersole’s proposed “factual findings” at
this juncture.
Whether the proposed “factual findings” are
relevant will depend on which of the allegedly libelous
statements this Court deems to contain provably false statements
as opposed to mere statements of opinion.
See Hyland v.
Raytheon Technical Servs. Co., 277 Va. 40, 47 (Va. 2009)
(“[B]efore submitting a defamation claim to a jury, a trial
judge must determine as a matter of law whether the allegedly
defamatory statements contain provably false factual statements
or are merely statements of opinion.”).
This is a determination
that will be made based on the evidence presented at trial.
such, the Court concludes that the relevance of Ebersole’s
proposed “factual findings” will also be better assessed at
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As
trial.4
Accordingly, Ebersole’s Motion in Limine Asking the
Court to Take Judicial Notice of Various Facts is denied without
prejudice.
IV.
Conclusion
For these reasons, the Court will grant in part and
deny in part Plaintiff’s Motion in Limine to Exclude Various
Witnesses and deny without prejudice Plaintiff’s Motion in
Limine Asking the Court to Take Judicial Notice of Various
Facts.
An appropriate Order will issue.
July 5, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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The Court also questions whether judicial notice is proper given that some
of the proposed “factual findings” are negative propositions based on
Ebersole’s failure to find legal authority. (See Judicial Notice Mem. [Dkt.
57] at 8-9.) Indeed, Ebersole acknowledges that he “has been unable to
identify any federal law requiring private dog trainers to be certified,
licensed or trained” and that “Virginia has very few laws concerning dog
training generally.” (Judicial Notice Mem. at 5.) However, judicial notice
of law generally pertains to its content and existence, rather than its
absence. See United States v. Sauls, 981 F. Supp. 909, 925 n.10 (D. Md.
1997) (noting that courts can take judicial notice of statutes and the Code
of Federal Regulations; “that is, their existence and contents”) (emphasis
added). The parties must address this issue, should Ebersole renew his
request for judicial notice at trial.
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