Salazar v. Monaco Enterprises Inc et al

Filing 392

ORDER RE PLAINTIFF'S MOTION FOR PARTIAL RECONSIDERATION OF COURT'S RULING ON DEFENDANTS' MOTIONS IN LIMINE, granting in part and denying in part 370 Motion for Reconsideration. Signed by Senior Judge Lonny R. Suko. (SK, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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MAXIMILLIAN SALAZAR III,

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Plaintiff,

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-vsMONACO ENTERPRISES, INC.,
GENE MONACO, and ROGER
BARNO,
Defendants.

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NO.

CV-12-0186-LRS

ORDER RE PLAINTIFF'S MOTION
FOR PARTIAL RECONSIDERATION
OF COURT'S RULING ON
DEFENDANTS' MOTIONS IN
LIMINE

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BEFORE THE COURT, and now under advisement, is Plaintiff's
[Motion

for] Partial Reconsideration

of Court's

Order on

Defendants' Motions in Limine, ECF No. 370, filed on February

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25, 2015.
Plaintiff Maximillian Salazar III requests reconsideration
based on “clear error”

of the following rulings regarding

Defendant Monaco Enterprises, Inc. ("MEI"), Defendant Gene

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Monaco,

and

Defendant

Roger

Barno’s

(collectively

"Defendants") Motions in Limine (ECF No. 269) made at the
ORDER - 1

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February 19, 2015 Motion Hearing:
and

98.

Plaintiff

also

5, 16, 48, 53, 65, 72, 83,

requests

reconsideration

of

the

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following rulings made with regard to Defendants’ Exhibits:

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101 and 102.

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reconsideration of these matters below.

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The Court will address Plaintiff’s requests for

A motion for reconsideration can only be granted when a

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district

court:

(1)

is

presented

with

newly

discovered

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evidence; or (2) committed clear error or the initial decision

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was manifestly unjust; or (3) there has been an intervening

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change in controlling law.

Dixon v. Wallowa County, 336 F.3d

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1013, 1022 (9th Cir. 2003).
A.

Motions In Limine (“MIL”)
1.

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MIL 5: Any reference or evidence to other proceedings
or investigations whether filed or unfiled.

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The Court granted MIL 5 at the motions hearing.

Plaintiff

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argues that the best evidence that Salazar believes MEI was

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committing fraud is his later report of that fraud to the U.S.

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Government. Plaintiff argues as the relator in a Qui Tam
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proceeding, he should be able to testify to the fact that the

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U.S. Government initiated said Qui Tam proceeding. Plaintiff

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asserts
ORDER - 2

that

it

is

clear

in

the

Ninth

Circuit

that

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consolidated Qui Tam and retaliation cases allow such evidence
to be considered.

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Defendants argue that the status or pursuit of other

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proceedings against MEI are irrelevant to this litigation.

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Defendants further argue that anything Plaintiff did after he

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was terminated is not relevant.

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The Court will deny Plaintiff’s request to reconsider MIL

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Consolidation of Cases (ECF Nos. 274, 311).

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based

2.

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on

the

reasons

expounded

in

the

Orders

Denying

MIL 16: Any and all reference to or evidence of
gross or net profits, profitability or lack thereof
of MEI.

The Court reserved its ruling on MIL 16.

Plaintiff

requests the Court to deny MIL 16 based on the possible need
to impeach individual defendant(s). The Court refrains from

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reconsidering

ruling in recognition

of needing

contextual information in order to rule on this motion.
3.

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its prior

MIL 48: Any and all statements by any witness
expressing
a
personal opinion that MEI ‘over
charging,’ ‘over billing’ or ‘gouging’ the government
or other customers.

The Court granted MIL 48.

Plaintiff argues the testimony

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of others that shared Mr. Salazar’s concern is the best
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ORDER - 3

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evidence that a “reasonable employee in the same or similar
circumstances” would have believed MEI might be committing

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fraud, the objective belief element of his FCA retaliation
claim.

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Defendants assert that the Court has already stated that
it will allow Plaintiff to make an offer of proof for this

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type

of

testimony

if

Plaintiff

can

show

that

any

such

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termination of another MEI employee was sufficiently similar

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to Salazar’s.

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In

light

of

the

Court’s

reconsideration

of

the

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relationship1 between Title VII’s anti-retaliation provision

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and the FCA whistleblower statute, the Court will reconsider

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its earlier ruling and reserve ruling on MIL 48 for the

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purpose

of enabling

admissible

evidence

of the objective

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belief element of Plaintiff’s FCA retaliation claim to be

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received. In particular, evidence that a “reasonable employee

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in the same or similar circumstances” would have believed MEI

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was allegedly committing fraud may, if otherwise admissible,

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In adopting the [reasonable
upon its interpretation of Title
Moore v. Cal. Inst. of Tech. Jet
1 (9th Cir.2002)(citing Trent v.
(9th Cir.1994)).
ORDER - 4

belief] standard, the Moore court drew
VII's anti-retaliation provision. See
Propulsion Lab., 275 F.3d 838, 845 n.
Valley Elec. Ass'n, 41 F.3d 524, 526

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be

heard.

Free

floating

hearsay

will

not

qualify

for

admissibility.

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4.

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MIL 53: Any reference to MEI employee attrition,
termination, layoffs, or firings including Scott
Barrick, Brenda Osborne or Jake Osborne, or any
employee other than Mr. Salazar.

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Plaintiff asserts that MIL 53 is overly broad and although

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the Court granted the motion, it remarked that Plaintiff could

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make an offer of proof

at the appropriate

time for the

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admission of such evidence.

Plaintiff argues this ruling was

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in error because such evidence is relevant and admissible to

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provide circumstantial evidence of the employment environment

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at MEI during

this time

period

and to help explain the

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pretexual basis for Plaintiff’s termination.
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Defendants argue that if Plaintiff had evidence that the

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departures

of

Mr.

Barrick,

Ms.

Osborne

or

Mr.

Osborne

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correlated to Plaintiff’s termination, he certainly would have

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pointed that information out to the Court.

But they have

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failed to do so.
The Court will reconsider its earlier ruling and RESERVE

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on MIL 53, recognizing that it may be appropriate to develop

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///

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the evidence of pretext and retaliation through circumstantial
evidence.

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5.

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MIL 65: Any and all reference to or evidence that any
employee brought any concerns to MEI management's
attention of alleged waste, fraud or abuse in the
absence of a showing, outside the presence of the
jury, that said employee was thereafter terminated by
MEI.

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The Plaintiff has not shown that the Court’s ruling is

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clearly in error. However, in an abundance of caution and in

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light of all the factors impacting trial, the Court will

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reserve.

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6.

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MIL 72: Any reference to insurance coverage and/or
settlement negotiations.

The Court will not reconsider its earlier ruling.

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7.

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MIL
83:
Precluding/preventing
plaintiff
from
questioning witnesses out of court statements made by
various witnesses in the case to elicit whether the
witness agrees or disagrees with the opinions,
conclusions, surmise and conjecture contained therein.

The Court will reserve until the content is before the
Court.
8.

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ORDER - 6

MIL 98:
Evidence
or
testimony
relating
to
alleged complaints about MEI’s compliance or lack of
compliance with wage and hour laws, made by Jake
Osborne, Jason Voss or other employees

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Plaintiff argues that this information, like over-billing
for travel expenses, is relevant to the alleged fraudulent

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activity at or about the time of Salazar’s termination.

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Defendants assert that complaints made by other employees

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regarding unrelated issues have nothing to do with Salazar’s

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claims.

Defendants note that Plaintiff has never complained

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about wage and hour laws in his case.

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The Court earlier reserved on this issue until a nexus is

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shown between the complaints and retaliation of an employee

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making such complaints. Therefore, the earlier ruling will not

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be changed.

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B.

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Exhibits 101 (2011 Employee Handbook) and Exhibit 102
(Acknowledgment of At-Will employment Status signed by
Plaintiff, dated 6/7/2011)

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Plaintiff argues that in

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the

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Plaintiff’s case,” it would be error to admit evidence or

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Court’s “restraints

in

light of what he perceives as
other

areas

surrounding

argument of Mr. Salazar’s at-will employment status through

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the Employee Handbook.

Plaintiff, in conjunction with this

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motion, withdraws his own Exhibit 1, the 2011 employment

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manual.
ORDER - 7

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Defendants oppose such motion explaining that if the
Plaintiff cannot prove that his termination was retaliatory,

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the jury has a right to know that MEI was at liberty to
terminate him.
The Court stands by its earlier ruling admitting Exhibits
101 and 102 recognizing that a jury instruction will likely be

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needed to explain the tension inherent in the components of an
FCA claim and at-will employment.
Accordingly,
IT

IS

HEREBY

ORDERED

that:

Plaintiff's

[Motion

for]

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Partial

Reconsideration

of

Court's

Order

on

Defendants'

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Motions in Limine, ECF No. 370, GRANTED in part and DENIED in

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part.

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IT

IS

SO

ORDERED.

The

District

Court

Executive

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directed to enter this Order.
DATED this 5th day of June, 2015.

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s/Lonny R. Suko

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LONNY R. SUKO
SENIOR UNITED STATES DISTRICT JUDGE

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ORDER - 8

is