Gruber, John et al v. Columbia County et al

Filing 215

ORDER that defendants' motions in limine (dkt. # 199 ) and supplemental motions in limine (dkt. # 208 ) are GRANTED IN PART, RESERVED IN PART and DENIED IN PART. Signed by District Judge William M. Conley on 10/29/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOHN GRUBER,
Plaintiff,

OPINION & ORDER

v.
16-cv-664-wmc
CITY OF PORTAGE, SHAWN MURPHY,
KENNETH MANTHEY and KLAUDE THOMPSON,
Defendants.

In this civil lawsuit brought under 42 U.S.C. § 1983, plaintiff John Gruber is
proceeding to trial on a “class-of-one” equal protection claim against defendants City of
Portage, Shawn Murphy, Kenneth Manthey and Klaude Thompson for ticketing and
searching cars parked on or near Gruber’s business, as well as performing searches of Gruber’s
property. This case is set for a jury trial to commence on November 5, 2018. In advance of
the final pretrial conference set for tomorrow at 3:00 p.m., the court issues the following
decisions on the defendants’ 15 motions in limine.1 (Dkt. #199, #208.)
OPINION
As explained in more detail below, with the exception of motion in limine no. 8, all of
defendants’ motions in limine relate to the relevance of certain events or documents that
defendants expect Gruber to attempt to introduce at trial. In his amended complaint, Gruber
made numerous allegations about various bad acts allegedly committed by defendants dating
back over 18 years, and defendants are concerned that he may seek to introduce these acts as

Defendants initially filed 11 motions in limine and numbered them 1-8 and 11-13, skipping numbers
9 and 10. (Dkt. #199.) Defendants then late-filed supplemental motions in limine 14-17. (Dkt.
#208.)
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evidence of defendants’ bad character. The additional motion no. 8 relates to the amount
and types of damages that Gruber may seek.
Gruber has filed no opposition to any of the defendants’ motions in limine, and they
could all be granted on that ground alone, especially since much of the evidence to which
defendants object appears to have no relevance to Gruber’s remaining equal protection claim
for selective ordinance enforcement and surveillance from 2014 to 2017.

Additionally,

defendants are correct in pointing out that evidence of other wrongs or acts is not admissible
to prove a person’s bad character, nor show that on a particular occasion the person acted in
accordance with that character. Fed. R. Evid. 404(b).
For the reasons explained more fully below, therefore, defendants’ motions in limine
nos. 2-7 and 15-17 will generally be granted as unopposed unless Gruber is able to persuade
the court at the final pretrial conference that any evidence falling into those categories is
relevant to his equal protection claim. The court is granting in part and reserving in part
motions in limine no. 1, 13 and 14, and reserving a ruling on motion in limine no. 8. The
court will deny motion in limine nos. 11 relating to statements made by the mayor, and will
grant in part and deny in part motion in limine no. 12, relating to statements by defendant
Murphy to Janet Atkins.
The motions and the basis for the court’s rulings are summarized below.

I. Motions in Limine Numbered 1, 13, and 14
In motion in limine no. 1, defendants seek to prevent Gruber from presenting evidence
or making any argument regarding claims included in his amended complaint that were
expressly or effectively dismissed by the court, including claims related to condemnation of
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his business property on Edgewater Street and changes to the zoning and the requirement for
a conditional use permit for his Jefferson Street auto repair shop. Motion in limine no. 13
seeks to preclude evidence regarding Portage police officers parking their squad cars in front
of the garage doors at Gruber’s repair shop at 208 East Edgewood, which is not listed in the
court’s July 2017 order identifying Gruber’s remaining claims. Motion in limine no. 14 seeks
to preclude evidence regarding problems with a sewer line at the repair shop, about which
Gruber did not make any allegations or otherwise connect to the actions of defendants. None
of the above topics is directly relevant to Gruber’s claim of selective parking ordinance
enforcement and surveillance, and therefore, defendants’ motion is granted to the extent that
Gruber may not seek damages for this conduct. However, each incident may be relevant to
showing defendants’ state of mind – specifically, motivation and intent – although the sewer
event seems too remote in time and circumstantial to be admitted even for this limited
purpose. Accordingly, the court will reserve on this aspect of defendants’ motions until the
Final Pretrial Conference.
Motions in limine numbered 1, 13, and 14 are GRANTED IN PART AND
RESERVED IN PART as set forth above.
II. Motion in Limine Number 2
Defendants seek to exclude any questions, testimony or evidence related to the 2004
death of Keith Galster or Gruber's opinion that defendants Thompson and Manthey and
other Portage police officers “murdered” Mr. Galster. Not only has it never been determined
that Galster was murdered, but his death is not related to Gruber’s claim that defendants

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engaged in selective ordinance enforcement and surveillance more than ten years later. Even
if it were, the unfair prejudice that would result requires its exclusion under Fed. R. Evid. 403.
The motion is GRANTED.
III. Motion in Limine Number 3
Defendants seek to preclude Gruber from presenting evidence or argument that
defendants or any city employees: (1) engaged in aggressive law enforcement action and
prosecutions targeting small business owners to coerce contributions for various fund-raising
efforts; (2) offered special protection to members of the public who donated to various fundraising efforts; and (3) engaged in drug dealing, illegal drug usage, pervasive alcohol abuse,
fake fund raising, and sexual misconduct under the protection of the Columbia County
District Attorney. In his amended complaint, Gruber alleges that after a new district attorney
was elected in 2000, he noticed police corruption that was never prosecuted, including more
aggressive law enforcement and prosecution targeting small business owners who did not
contribute to law enforcement fundraisers. However, these allegations are not relevant to
Gruber’s claims unless he has evidence that (1) the alleged corruption led directly to the
selective enforcement and surveillance activities against Gruber or (2) defendants targeted
Gruber because he did not contribute to fund-raising efforts by Portage police officers. Again,
evidence of defendants’ past bad character is not admissible to show that defendants acted in
accordance with that character in their dealings with Gruber and would likely be prejudicial
under Rule 403.
The motion is GRANTED.

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IV. Motion in Limine Number 4
Defendants seek to preclude Gruber from presenting evidence concerning a deferred
prosecution agreement entered into by defendant Manthey in 2002, related to an attack on
a child. Such evidence is not relevant to Gruber’s equal protection claim, cannot be used to
show Manthey’s bad character, and is unduly prejudicial.
The motion is GRANTED.
V. Motion in Limine Number 5
Defendants seek to prevent Gruber from introducing as evidence an unsigned
document entitled “Notice of Charges” that was purportedly prepared by Gruber's friend,
Brian Warren, and filed with the court on March 23, 2018. (Dkt. #148.) The notice
discusses the death of Keith Galster, alleged drug-related activity involving Portage police
officers, and collusion between the city attorney, district attorney, judges and others to
operate an organized crime group to defraud Portage taxpayers and commit crimes. The
document not only contains inadmissible hearsay statements, but also does not appear
relevant to Gruber’s claim for the same reasons discussed in conjunction with motion in limine
nos. 2 and 3 above.
The motion is GRANTED.
VI. Motion in Limine Number 6
Defendants seek to preclude Gruber from introducing evidence related to the “John
Doe Petition” that he and other residents of Columbia County filed in state court on
November 28, 2017, alleging unjustified killings by the Columbia County and Portage Police
Departments. Gruber filed a copy of the petition, a newspaper article, and various other
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documents related to the state court filing with this court because he thought “it was
something that the court should know about.” (Dkt. #149.) This evidence will be precluded
for the same reasons discussed in conjunction with motions in limine nos. 2, 3, and 5.
The motion is GRANTED.
VII. Motion in Limine Number 7
Gruber has filed in this case a copy of a “Notice of Claim” purportedly prepared by
Krystal Cole regarding the City of Portage’s lack of response to her public records request for
parking tickets and police reports issued to Gruber Automotive (dkt. #140) and the city’s
response (dkt. #150). Defendants seek to preclude Gruber from offering these documents
into evidence. Although the subject of the public records request relates to Gruber’s equal
protection claim, Cole’s complaints about the city’s response to her request do not.
The motion is GRANTED.
VIII. Motion in Limine Number 8
Gruber alleges in his amended complaint that he lost business revenue from November
1, 2014, through the time his business was closed due to a condemnation proceeding, which
occurred sometime in February 2017. (Dkt. #71 at ¶¶ 5, 27.) He further alleges that he
incurred towing costs and business loss as a result of defendant Thompson’s alleged actions.
(Dkt. #71 at ¶ 6.) At his deposition, Gruber agreed that he was seeking damages in the
following amounts: $3,000 per week during the relevant time period for loss of revenue,
$2,500 in towing costs, and an additional $4,000 in towing costs and car storage fees during
December 2015. (Dkt. #169 at 18, 122-23.)

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Defendants seek to preclude Gruber from arguing at trial that he is entitled to any
other damages besides those he already has identified, on the ground that it would result in
unfair surprise and prejudice to defendants. A plaintiff is not required to itemize his damages
claims in his complaint. Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1226 (7th Cir.
1995). “On the contrary, the rules entitle him to a judgment that grants him the relief to
which he is entitled even if the complaint failed to ask for that relief.” Id. (citing Fed. R. Civ.
P. 54(c)); see also Back Doctors Ltd. v. Metropolitan Property and Cas. Ins. Co., 637 F.3d 827, 831
(7th Cir. 2011) (citing Rule 54(c) for same). Defendants are on more solid ground with
respect to holding Gruber to his testimony, although counsel should also have been more
straightforward in asking about damages at his deposition, particularly as he is acting pro se:
Q: So you alleged in your complaint the loss of $3,000 per week during the
time period, the $2,500 in towing costs, and the $4,000 from December of
2015, correct?
A: Correct.
Q: Those are the damages you're alleging in this case, correct?
A: Yes.
(Dkt. #169 at 122-23.)
Obviously, this would be an easier case if defendants can show at the Final Pretrial
Conference that:

(1) plaintiff is seeking to exceed damages disclosed pursuant to Rule

26(a)(1)(A)(iii); (2) refused to make his Rule 26 disclosures, despite being asked to do so; (3)
otherwise failed to disclose damages as expressly required by court order; or (4) was asked to
list all damages being sought. Perhaps plaintiff will agree to seek only the damages discussed
at his deposition, in which case this motion would be moot, but until hearing from plaintiff
at the Final Pretrial Conference, the court will reserve on this motion.
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The motion will be RESERVED.
IX. Motion in Limine Number 11
Defendants seek to preclude Gruber from presenting evidence or testifying about a
“public” statement allegedly made by Portage Mayor Bill Tierney, who is not a defendant in
this case. In his amended complaint, Gruber alleged that Tierney stated that “there is no
place in Portage for John Gruber -- he and his bottom feeders must go.” (See Amd. Cpt., dkt.
#71 at ¶ 27.) Generally speaking, Tierney’s statement is obviously not being offered for the
truth of the matter asserted. Nor is it clearly relevant to Gruber’s claims because Gruber did
not allege that Tierney played any role in defendants’ selective parking enforcement or
surveillance. However, Tierney’s statement may be evidence of a policy of harrassement by
the City of Portage. Gruber may also be able to use it to show its effect on the individual
defendants, provided there is evidence that any of those defendants heard or were made aware
of the statement or made aware of a larger policy of harassment by the City.
The motion is DENIED.
X. Motion in Limine Number 12
Defendants seek to preclude Gruber from presenting evidence or testifying about
statements allegedly made to him by Janet Atkins, the president of a real estate development
group. In his amended complaint, Gruber alleged that Atkins said defendant Murphy told
her that Gruber’s business was “a magnet for bottom feeder people,” creates a “bad image,”
and is a “junk dealer that must go.” (See Amd. Cpt., dkt. #71 at ¶ 7.)
Under the double hearsay rule, Gruber cannot testify about what Atkins told him that
Murphy said. However, Gruber may call Atkins as a witness and she may testify what Murphy
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said to her because Murphy’s statements are not hearsay as statements of a party opponent.
Additionally, Gruber may ask Murphy directly -- either on cross examination or after calling
him as an adverse witness -- about any statements that he made to Atkins about Gruber and
his business. Although defendants argue that Murphy’s statements are not relevant because
they relate to the condemnation of Gruber's business, which is not an issue in this case, that
fact is not clear from the allegations in the complaint. Moreover, Murphy is a defendant in
this case and depending on the circumstances, his view of Gruber or his business may be
relevant to prove Murphy’s state of mind.
The motion is GRANTED with respect to the hearsay statements made by Atkins and
DENIED with respect to the relevancy of Murphy’s statements.
XI. Motion in Limine Number 152
Defendants seek to preclude Timothy Zillmer from testifying at trial that he believes
his son Riley and he were targeted by city police and issued tickets and citations regarding
motor vehicles, a garbage dumpster, and junk ordinance violations because Zillmer spoke on
Gruber’s behalf at a Portage Common Council meeting and served a summons on a former
defendant in this lawsuit. (See Zillmer stmt., dkt. #205, exh. #5.) It appears that Zillmer is
alleging that Portage police officers retaliated against him for helping Gruber. However, that
allegation is not relevant to whether defendants targeted Gruber himself. Without more

in limine numbered 15, 16, and 17 relate to witness testimony that defendants expect Gruber
to present at trial. Gruber submitted a witness list along with several exhibits, which include a number
of unsworn witness statements that he entitles “affidavits.” To the extent Gruber intends to offer the
witness statements by affidavit, rather than live testimony, he should be aware that even sworn,
written witness statements are not admissible as evidence at trial.
2 Motions

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connecting these alleged actions to the events at issue in this case, they are too remote to have
any probative value to Gruber’s claim.
The motion is GRANTED.
XII. Motion in Limine Number 16
Defendants seek to preclude Peggy Wisemore from testifying at trial that her car was
towed from Gruber’s repair shop in 2009. (See Wisemore stmt., dkt. #205, exh. #9.) Because
the incident significantly predates the alleged conduct in this case, which occurred between
November 2014 and February 2017, it is too remote to have any probative value to Gruber’s
claim.
The motion is GRANTED.

XIII. Motion in Limine Number 17
Defendants seek to preclude Robert Zeier from testifying at trial about hearing
unidentified individuals make unidentified, derogatory comments about Gruber at a meeting
with city and county officials. (See Zeier stmt., dkt. #205, exh. #1 at 4.) Without more
information about what the comments were, in what context the comments were made, or
who made the comments and to whom they were made, Zeier’s testimony with respect to the
issues for trial are too remote to be helpful to the jury.
The motion is GRANTED.

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ORDER
IT IS ORDERED that defendants’ motions in limine (dkt. #199) and supplemental
motions in limine (dkt. #208) are GRANTED IN PART, RESERVED IN PART and
DENIED IN PART:
(1)

Motions in limine numbered 1, 13 and 14 are GRANTED IN PART AND
RESERVED IN PART.

(2)

Motions in limine numbered 2-7 and 15-17 are GRANTED as unopposed.

(3)

Motion in limine number 8 is RESERVED.

(4)

Motions in limine numbered 11 is DENIED.

(5)

Motion in limine number 12 is GRANTED with respect to the hearsay
statements made by Janet Atkins but DENIED with respect to the possible
relevancy of Murphy’s out-of-court statements to his state of mind.

Entered this 29th day of October, 2018.
BY THE COURT:
/s/
____________________
WILLIAM M. CONLEY
District Judge

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