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Lary Feezor v. Golden Bear Restaurant Group

July 11, 2012

LARY FEEZOR,
PLAINTIFF,
v.
GOLDEN BEAR RESTAURANT GROUP, INC. DBA ARBY'S; A & R INVESTMENT COMPANY; CARISCH, INC. DBA ARBY'S; CARISCH BROTHERS, L.P. DBA ARBY'S,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER ON MOTIONS IN LIMINE AND RELATED CROSS-CLAIM

Plaintiff and Defendant/Cross-Claimant A & R Investment Company ("A & R") move in limine for an order seeking to preclude the admission of certain evidence at trial. The parties' motions are addressed below.

A. Plaintiff's Motions in Limine Motion in Limine No. 1 Plaintiff seeks to prevent defense counsel "from making disparaging remarks against the plaintiff, his counsel, their motives, or ADA litigation in general in the presence of the jury." (Pl.'s Mot. in Limine ("MIL") No. 1, 4:6-9.)

Since it is unclear what evidence is involved in this motion, it is DENIED. See United States v. Perry, No. CR-06-0098-EFS, 2007 WL 655507, at *4 (E.D. Wash. Feb. 27, 2007)(denying motion in limine which concerned "misleading" evidence as "too vague"); see also Weiss v. La Suisse, Society D'Assurances Sur La Vie, 293 F. Supp. 2d 397, 407-08 (S.D.N.Y. 2003)(denying motion to exclude evidence for a "lack[] of specificity[,]" stating "[n]o particular documents or testimony have been identified in the motion").

Motion in Limine No. 2

Plaintiff seeks to exclude "testimony or evidence regarding [Plaintiff's past Americans with Disabilities Act ("ADA")] lawsuits and prior settlements," arguing such evidence "is not relevant to any claim or contention in the present case." (Pl.'s MIL No. 2, 2:18-20, 3:3-4.) Plaintiff also argues such evidence should be excluded under Federal Rule of Evidence ("FRE") 403 because of its prejudicial nature and the consumption of time that would be necessitated by Plaintiff having to "discuss the validity and merits of each of those lawsuits." Id. at 4:15-19, 8:2-13.

A & R rejoins that "Plaintiff's motion seeks to prevent Defendant A & R from negating one of the elements that Plaintiff must prove in order to prevail on his claim[,]" i.e. that he was discriminated "on the basis of disability in the full and equal enjoyment of the goods, services, . . . or accommodations of any place of public accommodation[.]" (Opp'n to Pl.'s MIL No. 2, 2:7-10 (internal quotation marks omitted).) A & R argues, "Plaintiff Lary Feezor is a vexatious litigant. He cannot prove he intended to use and 'enjoy' the goods and services at Arby's on the day in question, which is part of the essential elements of his case in chief." Id. at 3:19-21. A & R further counters that Plaintiff's "litigiousness is admissible because it is relevant to [his] state of mind[,] . . . as well as his credibility and modus operandi (i.e. [he] makes a living suing businesses under the ADA)." Id. at 4:16-24.

"As a general matter, unless . . . prior lawsuits have been shown to be fraudulent, the probative value of evidence pertaining to a plaintiff's litigation history is substantially outweighed by the danger of jury bias." Henderson v. Peterson, No. C 07-2838 SBA (PR), 2011 WL 2838169, at *5 (N.D. Cal. July 15, 2011); see also Moleski v. M.J. Cable, Inc., 481 F.3d 724, 728 n.3 (9th Cir. 2007)(commenting on the trial court's admission of the plaintiff's ADA litigation history and stating that such evidence "appear[s] to be irrelevant or at least far more prejudicial than probative").

"The charge of litigiousness is a serious one, likely to result in undue prejudice against the party charged, unless the previous claims made by the party are shown to have been fraudulent[. A] plaintiff's litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant. The trial court has a duty to prevent exploitation of this prejudice[.]"

Seals v. Mitchell, No. CV 04-3764 NJV, 2011 WL 1399245, at *5 (N.D. Cal. Apr. 13, 2011)(quoting Outley v. City of New York, 837 F.2d 587, 592 (2d Cir. 1988))(internal quotation marks, ellipses and brackets omitted).

In light of these FRE 403 considerations, and since A & R has not shown that any of Plaintiff's past ADA lawsuits were fraudulent, the motion is GRANTED.

Motion in Limine No. 3

Plaintiff seeks to exclude "evidence regarding the amount of statutory . . . damages he will receive if [Defendants] are found liable for violating state and federal disabled access standards[.]" (Pl.'s MIL No. 3, 2:3-6.) Plaintiff states "[he] is seeking the statutory minimum amount of damages he is entitled to receive under California law for each occasion that his rights were violated[, which] . . . is not a question of fact but, rather, a conclusion of well-established law." Id. at 2:11-14. Plaintiff argues "[t]he jury's only function is to determine the number of occasions that [Plaintiff] was denied public accommodation on the basis of disability[.]" Id. at 2:16-19. Once that is determined, Plaintiff argues "the amount of statutory damages [Plaintiff] receives becomes a simple question of multiplication." Id. at 2:22-24. Plaintiff further argues that if the jury knows the amount of minimum statutory damages he will automatically receive per occasion, "the risk of jurors impermissibly focusing on the amount of damages [he] will receive -instead of the number [of] occasions he was discriminated against -increases dramatically." Id. at 2:25-3:2.

A & R rejoins that Plaintiff provides no authority to support his position, and that his "motive is transparent[; h]e simply wants to maximize the damages for his client." (Opp'n to Pl.'s MIL No. 3, 2:3-4, 2:7.) A & R further argues that "[i]t is . . . counterintuitive that a jury cannot ...


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