The opinion of the court was delivered by: Chief Judge Kane
On March 25, 2010, plaintiff Michael S. Agovino, a citizen of Connecticut, filed a complaint against defendant Christopher A. Bailes, a citizen of the Commonwealth of Pennsylvania. (Rec. Doc. No. 1). In the complaint, Agovino contends that this Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332(a)(1), as each party is a citizen of a different state and as the amount in controversy is greater than $75,000. (Id. at 1). Agovino contends that he was struck by Bailes several times in the face, suffering injury to his nasal bones, jaw, and teeth. (Id.). In addition, Agovino alleges that he has incurred at least $15,000 in medical expenses; may incur future medical expenses; and has incurred, and may incur in the future, pain and suffering, mental anguish, anxiety, inconvenience, and the loss of enjoyment of life and life's pleasures. (Id. at 1-2).
In the complaint's only count, which contains a claim of battery, Agovino claims that Bailes "intentionally and knowingly subjected Plaintiff . . . to a harmful and offensive touching by punching him in the face several times" and that Bailes' "conduct was outrageous and warrants the imposition of punitive damages." (Id. at 2).
After seeking and obtaining an extension of time in which to file an answer, defendant Bailes filed an answer to the plaintiff's complaint on June 30, 2010. (Rec. Doc. Nos. 3-5).
On November 10, 2010, the plaintiff filed a motion for extension of time in which to file a motion for summary judgment nunc pro tunc, with a brief in support. (Rec. Doc. Nos. 7, 8). Plaintiff's counsel indicated that he had mistakenly believed that dispositive motions would be due no later than December 10, 2010, though such motions were in fact due no later than October 15, 2010. (Rec. Doc. No. 8 at 1). Counsel stated that he did not realize his mistake until November 1, 2010. (Id.). Plaintiff's counsel also contended that the plaintiff's motion for summary judgment might be meritorious and that the defendant would not be unfairly prejudiced should the plaintiff be permitted to file the motion nunc pro tunc. (Id.).
On November 10, 2010, the Honorable James F. McClure, Jr.,*fn1
issued an order directing defendant Bailes to file a
statement no later than November 15, 2010, setting forth his reasons
for non-concurrence in the plaintiff's motion for extension of time in
which to file a motion for summary judgment nunc pro tunc. (Rec. Doc.
No. 9). Having received no response from the defendant, this Court, on
November 19, 2010, issued an order granting the plaintiff's motion and
granting leave for the plaintiff to file his motion for partial
summary judgment. (Rec. Doc. No. 10).
On November 23, 2010, the plaintiff filed his motion for partial summary judgment, with a brief in support. (Rec. Doc. Nos. 11, 12).*fn2 Having concluded that the plaintiff had failed to include a statement of material facts with his motion for partial summary judgment, as required pursuant to Middle District Local Rule 56.1, this Court, on December 6, 2010, issued a memorandum and order requiring the plaintiff to file such a statement no later than December 13, 2010. (Rec. Doc. No. 16). This Court also set out in its December 6, 2010 Order deadlines for the defendant's opposition brief and the plaintiff's reply brief. (Id.). On December 7, 2010, the defendant, pro se, filed a "response" to the plaintiff's motion for summary judgment (Rec. Doc. No. 17), and the plaintiff filed his statement of material facts on December 8, 2010 (Rec. Doc. No. 18). On December 22, 2010, the plaintiff filed a reply brief concerning his motion for partial summary judgment. (Rec. Doc. No. 25). After retaining counsel, the defendant filed, on December 23, 2010, and pursuant to Local Rule 56.1, a brief in opposition to the plaintiff's motion for partial summary judgment and a response to the plaintiff's statement of material facts. (Rec. Doc. No. 26).*fn3
On December 10, 2010, defendant Bailes filed a motion in limine to preclude "evidence, argument or testimony related to his guilty plea and convictions," with a brief in support. (Rec. Doc. Nos. 22, 23). The defendant argues that the guilty plea constitutes impermissible character evidence under Federal Rule of Evidence 404; is not relevant evidence concerning the plaintiff's battery claim under Rule 401; and, if admitted, would be unfairly prejudicial, confusing, and misleading to a jury under Rule 403. (Rec. Doc. No. 23 at 2-6). Plaintiff Agovino argues that the motion in limine should be denied without prejudice, allowing the defendant to raise an objection to introduction of the evidence at trial. (Rec. Doc. No. 25). In the alternative, Agovino contends that the motion should be denied on the merits based upon an analysis of Rule 403 and as the plea is not impermissible character evidence. (Id. at 2-3).
In light of the above, the matter is ripe for disposition. Now, for the following reasons, we will deny the plaintiff's motion for partial summary judgment (Rec. Doc. No. 11) and also deny, without prejudice, the defendant's motion in limine (Rec. Doc. No. 22) seeking to preclude the introduction of evidence at trial.
Taken in the light most favorable to the non-moving party, defendant Bailes, the salient facts are as follows. The complaint in the instant case alleges that, on March 22, 2009, defendant Bailes committed a battery when he struck plaintiff Agovino "several times in the face with his fists, fracturing his left nasal bones, fracturing his jaw and loosening several teeth." (Rec. Doc. No. 1 at 1).
In Count II of an information filed in the Court of Common Pleas of the 17th Judicial District of Pennsylvania, Bailes was charged with committing a simple assault, in violation of 18 Pa. C.S. § 2701(a)(1), by attempting "to cause or intentionally, knowingly or recklessly caus[ing] bodily injury to another." (Rec. Doc. No. 11, Exhbt. 1 at 1). More specifically, the information charges that Bailes struck Agovino "several times in the face causing a broken nose, broken jaw and several damaged teeth which the defendant may lose . . . ." (Id.). At Bailes' guilty plea hearing held before the Honorable Harold F. Woelfel, Jr., District Attorney D. Peter Johnson recited the Commonwealth's evidence that Bailes punched Agovino in the face several times, inflicting injuries to Agovino's jaw, nose, and teeth. (Rec. Doc. No. 11, Exhbt. 2 at 3). Under oath, Bailes stated that he was, inter alia, pleading guilty to Count II of the information and that the ...