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Reinig v. RBS Citizens, N.A.

United States District Court, W.D. Pennsylvania

August 28, 2017

ALEX REINIG, KEN GRITZ, BOB SODA, MARY LOU GRAMESKY, PETER WILDER SMITH, WILLIAM KINSELLA, DANIEL KOLENDA, VALERIA DAL PINO, AHMAD NAJI, ROBERT PEDERSON, TERESA FRAGALE, and DAVID HOWARD, Plaintiffs,
v.
RBS CITIZENS, N.A., Defendant.

          MEMORANDUM ORDER ON MOTIONS IN LIMINE

          Arthur J. Schwab United States District Judge.

         Trial of a single issue related to the Fair Labor Standards Act (“FLSA”) claim remaining in this matter is set for September 25, 2017. Doc. No. 65. The Parties have filed Motions in Limine, and the Court makes the following rulings:

         I. PLAINTIFFS' MOTIONS IN LIMINE

         In their omnibus motion, Plaintiffs include six (6) motions in limine. Doc. No. 183. The Court has reviewed the motion, doc. no. 183, brief in support, doc. no. 189, and Defendant's brief in opposition, doc. no. 195.

         As an initial matter, Defendant challenges Plaintiffs' omnibus motion on procedural grounds, and requests that the Court strike the motion for failing to confer with Defendant and filing the required certification that a reasonable effort was made to resolve issues raised by the motion and for filing an eight-page (Defendant alleges it is nine pages) brief in support, which they claim exceeds the five-page limit set for motions in limine by the Pretrial Order, doc. no. 65. Doc. No 195, p. 2 citing LCvR 16.1.C.4. Although filing an eight-page brief in support of six motions in limine is not a serious infraction, as Defendant correctly points out, this Court previously admonished Plaintiffs' Counsel for failure to confer in an attempt to resolve disputes pursuant to LCvR 16.1.C.4 in a similar FLSA class action. See Bland v. PNC Bank, Doc. No. 347, 15cv1042 (W.D. Pa.).

         The Court will decline to take the drastic measure of striking Plaintiffs' omnibus motion in its entirety. However, the Court will remind Plaintiffs' Counsel of their obligation to follow the Local Rules of the Western District of Pennsylvania and the Practices and Procedures of this Court and warn that further disregard of the rules of the Court could result in some form of sanction.

         1. Motion in Limine to Exclude “Cherry Picked” Interrogatory Responses

         Plaintiffs seek to preclude Defendant from introducing a selection of responses to interrogatories without being required to introduce the remaining interrogatory responses pursuant to Fed.R.Evid. 106 and the common law “rule of completeness.” Doc. No. 189. Federal Rule of Evidence 106 provides that “[i]f any party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part-or any other writing or recorded statement-that in fairness ought to be considered at the same time.”

         Defendant argues that Plaintiffs have not shown how the proposed complete interrogatory responses, which are hearsay, would be permissible or would provide clarification to those responses which Defendant intends to introduce. Doc. No. 195.

         The Court will DENY Plaintiffs' first motion in limine. Federal Rule of Evidence 106 does not mean that an entire writing is automatically admissible whenever part of it is introduced. See Saltzburg, Federal Rules of Evidence Manual § 106.01[1] at 106-4 (11th Ed. 2015). Defendant will be permitted to introduce the interrogatory responses without being required to introduce the responses to all interrogatories. However, this ruling does not limit Plaintiffs from presenting their own witnesses and admissible evidence by direct or cross-examination to clarify or provide context to the responses to the interrogatories presented by Defendant.

         2. Motion in Limine to Preclude Lance Fultz from Testifying at Trial

         Plaintiffs seek to preclude Defendant from calling Lance Fultz as a witness because Defendant allegedly failed to disclose Fultz as a witness pursuant to Fed.R.Civ.P. 26. Defense Counsel acknowledges that Fultz's name was not included with the initial disclosures, but argues that disclosure of information is required only if “the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A). Plaintiffs themselves referred to Fultz in depositions, responses to interrogatories, and in pleadings. Under these circumstances, Plaintiffs cannot argue that Fultz's inclusion on Defendant's witness list for trial is a surprise or that his inclusion will prejudice Plaintiffs, disrupt the orderly trial of the case, or is the result of Defendant's bad faith. See Nicholas v. Penn State Univ., 227 F.3d 133, 148 (3d Cir. 2000). Accordingly, Plaintiffs' second motion in limine is DENIED.

         3. Motion in Limine to Preclude Defendant from Introducing Evidence or Referring to the Total Annual Compensation and Total Commissions Earned by Plaintiffs

         Plaintiffs seek to preclude Defendant from introducing evidence regarding the total annual compensation and total commissions earned by mortgage loan officers (“MLOs”), because such information is irrelevant and would be more prejudicial than probative. The Court agrees that evidence of any MLOs total annual compensation or commissions is irrelevant to whether or not Defendant had a policy or practice that cause MLOs to not report overtime hours worked ...


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