Free Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

David C. Larkin #006644 DAVID C. LARKIN, P.C. 4645 South Lakeshore Drive, Suite 6 Tempe, Arizona 85282 Telephone (480) 491-2900 Fax (480) 755-4825 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Lewis Silverman, Cynthia Silverman, Plaintiffs, vs. Albertsons, Inc., a corporation, Debra A. Collette, Defendants. Plaintiff Lewis Silverman moves the Court in limine to exclude evidence regarding prior allegations of performance issues, including but not limited to prior performance issues set forth in written warning notices in March 2002 and July 2002. Mr. Silverman was hired by Albertsons on August 14, 1999. Nearly four years later, Mr. Silverman's employment was terminated effective June 23, 2003, regarding events that occurred on June 9, 2003. At the time he was terminated, the reasons given by Albertsons for his termination did not include any prior performance issues, but only the issue regarding items Mr. Silverman placed in a grocery bag and put on a shelf at the Starbucks Coffee Bar at the Albertsons where he worked. See attached Albertsons' termination documents, Alb-00062, Alb-0007074. Although plaintiff does not know which documents that Albertsons intends to offer as exhibits at trial, plaintiff expects Albertsons to include documents regarding prior performance issues when the parties exchange exhibits by agreement on September 2, 2005. Past performance issues are not relevant here because Albertsons has clearly set forth its reason for the termination of Mr. Silverman's employment which is the subject of this No. CIV-O3-2268-PHX-NVW PLAINTIFF'S MOTION IN LIMINE RE: PAST ALLEGED PERFORMANCE ISSUES

Case 2:03-cv-02268-NVW

Document 89

Filed 08/26/2005

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

trial, and that reason does not include any past performance issues. Accordingly, the Court should exclude any testimony, exhibits or reference to any prior performance issues because they are not relevant and inadmissible pursuant to Rule 402, Fed. R. Evid. Moreover, pursuant to Rule 404(b), Fed. R. Evid., evidence of other alleged "wrongs or acts is not admissible to prove the character of a person in order to show conformity therewith." The past performance issues are remote in time and are not related or similar to the alleged reason for termination of Mr. Silverman's employment. The appropriate test to determine admissibility under Rule 404(b) is: (1) the other act evidence must tend to prove a material point; (2) the other act must not be too remote in time; (3) the evidence must be sufficient to support a finding that the defendant committed the other act; and (4) in some cases, the other act must be similar to the offense charged. United States v. Bibo-Rodriguez, 922 F.2d 1398, 1400 (9th Cir. 1991). Here, there is no point to be proven with alleged prior misconduct which is material to whether Albertsons discriminated against him when it discharged him in June 2003. Even if defendant can prove the alleged acts with sufficient evidence, defendant can only show that Mr. Silverman had some performance problems that did not subject him to suspension or termination during a four month period of his four year tenure and nearly a year prior to his discharge. Mr. Silverman denied the misconduct at the time, so mini-trials would be necessary to determine whether the evidence is sufficient. Further, the prior acts are too remote in time, approximately one year or more prior to termination, to provide any nexus to the alleged conduct Albertsons claims caused his employment to be terminated. The fact that "prior bad acts" evidence is remote in time substantially weakens its probative value and weights in favor of exclusion. Goulah v. Ford Motor Co., 118 F.3d 1478, 1484 (11th Cir. 1997). Finally, the alleged acts are not similar. Acts that are dissimilar are irrelevant and

-2Case 2:03-cv-02268-NVW Document 89 Filed 08/26/2005 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

therefore should be excluded. Berry v. Oswalt, 143 F.3d 1127, 1132-33 (8th Cir. 1998). Accordingly, these alleged prior acts are not admissible. Further, even if such evidence was relevant, the resulting mini-trials and the substance of the allegations of unrelated past misconduct would cause undue prejudice, cause confusion of the issues, be misleading to the jury, and waste time at trial. This would outweigh any probative value, such that the evidence is inadmissible pursuant to Rule 403. Plaintiff proposes the following language for the order granting plaintiff's motion in limine: Plaintiff Lewis Silverman's motion in limine regarding alleged past misconduct is granted and it is ORDERED, that no evidence shall be offered, whether testimony or documentary, nor shall any witness examination questions be asked intended to obtain testimony, nor shall any statements of counsel be made, regarding any allegations of misconduct or bad acts of Lewis Silverman prior to June 9, 2003 made by anyone, including Albertsons managers, supervisors, employees, or customers whether in writing or not. Respectfully submitted this 26th day of August, 2005. DAVID C. LARKIN, P.C. By: s/ David C. Larkin David C. Larkin Attorney for Plaintiffs

-3Case 2:03-cv-02268-NVW Document 89 Filed 08/26/2005 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Electronic notice and service of documents provided to: Jeffrey L. Lowry, Esq. Rodey, Dickason, Sloan, Akin & Robb, P.A. 201 Third Street NW, Suite 2200 Albuquerque, New Mexico 87102 Attorneys for Defendant /s David C. Larkin

-4Case 2:03-cv-02268-NVW Document 89 Filed 08/26/2005 Page 4 of 4