Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-02474-WYD-PAC

Document 123

Filed 10/04/2005

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-2474-WYD-PAC CHARLOTTE SCHNEIDER and DEAN WYMER, Plaintiffs, v. LANDVEST CORPORATION, a Kansas corporation, And DAVID MASON, individually Defendants.

MOTION IN LIMINE

COME NOW Plaintiffs, Charlotte Schneider and Dean Wymer, through undersigned counsel, and request that the Court exclude any testimony from Warren and Fisher. In support of this motion, Plaintiffs state the following: On Monday, October 3, 2005, Defendant provided Plaintiff with copies of the affidavits of Warren and Diane Fisher. Those affidavits are attached to this motion. Based on the statements contained in those affidavits, it is apparent that any testimony of Warren and Diane Fisher is not relevant to the hours worked by Plaintiffs or to the pay practices of Defendant, and should be excluded. FACTS 1. It is undisputed that Charlotte Schneider and Dean Wymer ended their

employment with Landvest on April 4, 2003. Final Pretrial Order, Stipulations ¶¶ 2, 4. 1

Case 1:03-cv-02474-WYD-PAC

Document 123

Filed 10/04/2005

Page 2 of 5

Warren and Diane Fisher began their employment with Landvest over two months later, on June 11, 2003. Diane Fisher Aff. ¶ 1; Warren Fisher Aff. ¶ 1 (attached). 2. At the time the Fishers were hired, Landvest had already responded to Plaintiffs'

complaint for unpaid wages with the Colorado Department of Labor. See Plaintiffs' Trial Ex. 1. 3. Landvest had also changed the resident manager contract after the Plaintiffs left,

but prior to hiring the Fishers. See Defendant's Trial Ex. A0009. That employment agreement was changed again soon after the Fishers were hired. See Defendant's Trial Ex. A0010. The terms of that agreement are different than the agreement signed by Plaintiffs. 4. Plaintiffs worked at Landvest's Iliff site, whereas the Fishers were hired to work

at the Holly site. Final Pretrial Order, Stipulations ¶¶ 2, 4; Diane Fisher Aff. ¶ 1; Warren Fisher Aff. ¶ 1. The Iliff location is Landvest's oldest and largest facility in Colorado, consisting of 456 units totaling 61,555 sq ft of space. Plaintiffs' Trial Ex. 064-242. The Holly site consists of 353 units totaling 44,740 sq ft of space. Ex. 064-215. 5. Plaintiffs were trained by John Cramer and Judi French, while the Fishers were

trained by Steve Paolini and Kathy Warren. Diane Fisher Aff. ¶ 3; Warren Fisher Aff. ¶ 3. Steve Paolini was hired to replace Neil Murray as a Regional Manager, long after Plaintiffs' employment with Landvest ended. Argument Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less

2

Case 1:03-cv-02474-WYD-PAC

Document 123

Filed 10/04/2005

Page 3 of 5

probable than it would be without the evidence." Fed. R. Evid. 401. Of consequence to this action are the number of hours worked by the Plaintiffs, whether they were instructed to record less hours than the amount they actually worked, and whether they were paid for all hours worked. As Warren and Diane Fisher will not be able to provide any testimony that will make the existence of any of these facts more probable or less probable, their anticipated testimony is irrelevant. Id. "Evidence which is not relevant is not admissible." Fed. R. Evid. 402. The Fishers were hired after the Plaintiffs quit, they signed a different employment agreement, they worked at a newer and smaller facility, and they were trained by a regional manager who also was not hired until after the Plaintiffs quit. Based on these facts, the Fishers will be able to provide testimony regarding: Defendants' post- April 4, 2003 employment contract; Defendants' pay plan after the filing of a Department of Labor complaint for wages; instructions and training received from a new regional manager about recording actual hours worked; and the time it takes to perform the tasks of a resident manager on a facility with over 100 fewer units and approximately 25% less storage space than the facility Plaintiffs managed. None of this anticipated testimony is relevant to Plaintiffs' claims. Warren and Diane Fisher cannot provide any information about the facts necessary to decide this case. They cannot testify about Defendants' pay practices during the period of Plaintiffs' employment, about instructions and training to only record four hours of time per person per shift, or about the amount of time it took to perform the duties of a resident manager at the Iliff site. Accordingly, any testimony that Warren or Diane Fisher could provide is irrelevant, and should be excluded 3

Case 1:03-cv-02474-WYD-PAC

Document 123

Filed 10/04/2005

Page 4 of 5

pursuant to Rule 402. Alternatively, if the Court finds that the anticipated testimony of the Fishers is relevant, that testimony should be excluded pursuant to Rule 403, as it will serve only to confuse the issues and is cumulative. Fed. R. Evid. 403. Conclusion For the reasons set forth herein, the Court should exclude the testimony of Warren and Diane Fisher as irrelevant, or alternatively, exclude their testiomny on the grounds of confusion and/or waste of time. Respectfully submitted, this 4th day of October, 2005.

s/ Ian D. Kalmanowitz Donna Dell'Olio, #10887 Ian D. Kalmanowitz, #32379 Cornish & Dell'Olio 431 N. Cascade Avenue, Suite 1 Colorado Springs, CO 80903 Telephone: (719) 475-1204 FAX: (719) 475-1264 E-mail: [email protected] Attorneys for Plaintiffs

4

Case 1:03-cv-02474-WYD-PAC

Document 123

Filed 10/04/2005

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on this 4th day of October, 2005, I caused a true and correct copy of the above and foregoing MOTION IN LIMINE was served, via the United States District Court electronic filing system and/or mailed via U.S. Mail, upon the following: Alan Rupe Stacia G. Boden Kutak Rock 8301 East 21st Street North, Suite 370 Wichita, KS 67206-2295 Heather Davis Kutak Rock 1801California Street, Suite 3100 Denver, CO 80202 s/Esther Kumma Abramson Esther Kumma Abramson

5