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Dubric v. A Cab, LLC

United States District Court, D. Nevada

February 16, 2017

A CAB, LLC et al., Defendants.


          ROBERT C. JONES United States District Judge

         This case arises out of Plaintiff Jasminka Dubric's (“Dubric”) allegations that the owner of her former employer A Cab, LLC (“A Cab”) sexually harassed her and touched her in an offensive manner. In response, A Cab's owner Creighton J. Nady (“Nady”) filed a counterclaim against Dubric for defamation. (ECF No. 29.) Now pending before the Court are the parties' motions in limine. (ECF Nos. 46-49.) Jury trial in this case is currently set for Tuesday, February 21, 2017, at 8:30 AM in Las Vegas Courtroom 4B.


         Plaintiff Jasminka Dubric began working for A Cab on March 20, 2001. (Compl. ¶ 8, ECF No. 1.) Dubric alleges that from the beginning of her employment until May 26, 2015, Nady “made comments about Plaintiff's appearance and body” and hugged and touched her without permission. (Id. at ¶ 10.) Dubric did not complain because she feared losing her job. (Id.) Dubric alleges that in February 2015, Nady “grabbed her face and forcefully kissed her on the mouth.” (Id. at ¶ 12; Dubric Dep. 49:1-50:16, ECF No. 40-2.) On May 26, 2015, following a meeting to discuss Dubric's company-provided cell phone, Nady and Dubric shook hands, at which time Nady grabbed Dubric's arm, pulled her toward him, and attempted to kiss her on the lips; however, Nady ended up kissing only Dubric's cheek after she turned her head and pulled away. (Compl. ¶ 13; Dubric Dep. 88:10-89:18.) On or about May 27, 2015, A Cab and Nady demoted Dubric from road supervisor to taxi cab driver, and Dubric resigned. (Compl. ¶¶ 14- 15.)

         On November 6, 2015, Dubric filed this suit making three claims solely against A Cab:

         (1) sexual harassment-hostile work environment in violation of Title VII; (2) sexual harassment-quid pro quo in violation of Title VII; and (3) retaliation in violation of Title VII; and two claims against both A Cab and Nady: (1) intentional infliction of emotional distress; and

         (2) battery. In addition, Nady has asserted a counterclaim against Dubric for defamation. On December 8, 2016, the Court denied Defendants' motion seeking defensive summary judgment on Dubric's claims and offensive summary judgment on Nady's counterclaim. (See Order, ECF No. 42.)

         In view of the upcoming trial of this case, the parties have submitted evidentiary motions. Dubric seeks an order (1) granting an adverse inference instruction to the jury based on spoliation of evidence, (2) excluding evidence of damages related to Nady's defamation claim based on a failure to disclose under Rule 26, and (3) precluding Defendants from referencing the availability of an award of attorneys' fees if Dubric prevails on her claims.[1] (Pl.'s Mots. Lim., ECF Nos. 46-48.) In turn, Defendants seek to exclude (1) evidence of Defendants' net worth; (2) testimony or argument that is contrary to Dubric's prior assertion that her personal injuries are work-related; (3) evidence of Dubric's damages based on lost wages; (4) any documents not produced contemporaneously with a custodian of records certificate; (5) evidence of claimed medical treatment; (6) evidence from Dubric's treating physicians; (7) evidence pertaining to claimed events on dates inconsistent with Dubric's EEOC charge or outside the applicable statutes of limitations; and (8) all evidence of Dubric's damages. (Defs.' Mot. Lim., ECF No. 49.)


         A motion in limine is a procedural device used to obtain an early and preliminary ruling on the admissibility of evidence. “Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard.” Black's Law Dictionary 1171 (10th ed. 2014). Trial judges are authorized to rule on motions in limine pursuant to their authority to manage trials. See Luce v. United States, 469 U.S. 38, 41 n. 4 (1984) (citing Fed.R.Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence from being suggested to the jury by any means”)).

         Judges have broad discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). However, a motion in limine should not be used to resolve factual disputes or weigh evidence. See C&E Servs., Inc., v. Ashland, Inc., 539 F.Supp.2d 316, 323 (D.D.C. 2008). To exclude evidence on a motion in limine “the evidence must be inadmissible on all potential grounds.” E.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). “Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.” Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp.1398, 1400 (N.D. Ill. 1993). This is because although rulings on motions in limine may save “time, costs, effort and preparation, a court is almost always better situated during the actual trial to assess the value and utility of evidence.” Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D. Kan. 2007).

         In limine rulings are preliminary and therefore “are not binding on the trial judge [who] may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n. 3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner). “Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded.” Ind. Ins. Co., 326 F.Supp.2d at 846.

         III. ANALYSIS

         a. Dubric's First Motion in Limine (ECF No. 46)

         Dubric requests that the Court grant a jury instruction of adverse inference as a sanction for Defendants' failure to preserve and produce video surveillance footage relevant to the case. Dubric alleges that Nady sexually harassed her in his office on May 26, 2015, while the two were alone, and that she quickly left the office following the incident. Nady contends, on the other hand, that he and Dubric were never alone in his office that day, and that he and Dubric exited the office together, along with A Cab executive Scott Dorsch. (Pl.'s Mot. Lim. 4-6, ECF No. 46.)

         While there is no surveillance camera in Nady's office to confirm either story, there is a camera in the lobby just outside. (Id. at 5-6; Gathright Decl. ¶¶ 2-5, ECF No. 59.) Dubric asserts that the May 26, 2015 footage from the lobby camera would bolster her version of events and contradict Nady's, because it would show her leaving Nady's office alone. However, in May 2015, the lobby camera was on a seven-day storage loop, with footage automatically overwritten unless specifically designated for preservation. (Gathright Decl. ¶ 7.) Defendants did not preserve the lobby camera footage from May 26, 2015, and thus Dubric alleges spoliation.

         In general, a party has a “duty to preserve evidence when it knows or reasonably should know the evidence is relevant and when prejudice to an opposing party is foreseeable if the evidence is destroyed.” Lewis v. Ryan, 261 F.R.D. 513, 518 (S.D. Cal. Oct. 23, 2009) (citing Kronisch v. United States, 150 F.3d 112, 130 (2d Cir. 1998)); see also Performance Chevrolet, Inc. v. Market Scan Info. Sys., 2006 WL 1042359, at *1 (D. Idaho Apr.18, 2006) (“The majority of courts have held that pre-litigation destruction can constitute spoliation when litigation was ‘reasonably foreseeable' but not where it was ‘merely possible.'”). Where a party breaches this duty and relevant evidence is destroyed, “[a] federal trial court has the inherent discretionary power to make appropriate evidentiary rulings.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). A finding of bad faith is not required for the court to impose sanctions, and “simple notice of ‘potential relevance to the litigation'” will suffice. Id. (quoting Akiona v. United States, 938 F.2d 158 (9th Cir. 1991)). District courts have “broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior.” Id.

         Here, the Court will deny Dubric's motion for an adverse inference instruction because she does not have sufficient evidence of spoliation. For spoliation, there must at least be some indication that Defendants “reasonably should have known” the lobby camera footage would be relevant to foreseeable litigation. Due to Defendants' seven-day video storage loop, it would have been necessary for Defendants to gain this knowledge prior to approximately June 2, 2015, in order to have a chance to preserve the relevant recording. In her motion, Dubric does not allege a date on which Defendants should have become aware of the relevance of the lobby camera footage. Dubric didn't file her EEOC charge against Defendants until July 17, 2015, by which time the relevant recording would have already been overwritten. Moreover, Nady maintains that he was not alone in his office with Dubric on May 26, 2015, and that he didn't touch her inappropriately on that date, so there would have been no reason for him to believe that any surveillance footage captured at A Cab on that date could be relevant to future litigation with Dubric. At best, the Court could conclude that Defendants had a duty to preserve the lobby camera footage as of the date on which Dubric notified Defendants of her specific allegation of the May 26, 2015 incident. However, Dubric presents no evidence regarding when Defendants were so notified, and it does not appear that such notification was provided in time for Defendants to pull the footage from the seven-day storage loop.

         Therefore, Dubric may question witnesses regarding the destroyed lobby camera footage, and the jury may draw its own inferences. However, it would be inappropriate in these circumstances for the ...

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