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Ram Nehara, Plaintiff v. the State of California

March 26, 2013


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Before the Court are the motions in limine filed by Plaintiff Ram Nehara ("Plaintiff") and the California Department of Corrections and Rehabilitation ("Defendant" or "CDCR") on March 8, 2013. (Docs. 141-144). The Court held a final pre-trial conference on March, 25, 2013, at which the Court heard the oral arguments of counsel.


Plaintiff initiated this action by filing a complaint on March 17, 2010. (Doc. 1). Plaintiff, a former nurse at North Kern State Prison ("NKSP"), alleged his former employers retaliated against him for complaining about discriminatory overtime and shift assignments. Plaintiff alleged he was forced to manipulate an incident report and subjected to an internal affairs investigation and disciplinary hearing. According to Plaintiff, the defendants were liable for retaliation, intentional infliction of emotional distress, disability discrimination, and defamation.

Plaintiff's complaint was dismissed with leave to amend on July 16, 2010 (Doc. 26), and he filed a First Amended Complaint on August 2, 2010. (Doc. 43). Following motions to dismiss filed 3 by the defendants, the Court dismissed Plaintiff's First Amended Complaint for failure to state a claim 4 against NKSP on November 5, 2010. (Docs. 54, 56). Plaintiff filed a Second Amended Complaint on 5 November 18, 2010. (Doc. 67). Again, the defendants filed a motion to dismiss (Docs. 58-59). The 6 Court determined Plaintiff failed to exhaust his administrative remedies and dismissed the state law 7 tort claims against NKSP and individual defendants with prejudice on August 2, 2011. (Doc. 71). 8 On August 8, 2011, Plaintiff filed his Third Amended Complaint ("TAC") against NKSP, the CDCR, and the State of California alleging liability for Title VII violations, including (1) retaliation and (2) discrimination. (Doc. 75). The defendants filed their answer on August 23, 2011. (Doc. 77).

The CDCR filed a motion for summary judgment, which was granted in part by the Court on February 11, 2013. (Doc. 135). The Court determined Plaintiff failed to carry his burden to establish a prima facie case for discrimination under Title VII, either on the theory of disparate treatment or a hostile work environment. Id. at 13-16. Thus, summary adjudication of the claim was granted. Id. at 16, 22. However, the Court found Plaintiff stated a prima facie claim for retaliation and the proffered evidence was sufficient to raise genuine issues of fact related to his claim. Id. at 18-22.

In addition, the CDCR moved to dismiss the State of California and NKSP as defendants. (Doc. 139 at 17). The Court noted: "the CDCR is a legal entity amenable to suit and maintains a monetary budget separate from the State of California and against which enforcement of any judgment may be had." Id. Accordingly, the State of California and North Kern State Prison were dismissed without prejudice to any future judgment action as may be needed, but with prejudice as to the merits of Plaintiff's claim. Id.


"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). The Ninth Circuit explained motions in limine "allow parties to resolve evidentiary disputes ahead of trial, without first having to present potentially prejudicial evidence in front of a jury." Brodit v. Cabra, 350 F.3d 985, 1004-05 (9th Cir. 2003) (citations omitted). Likewise, the Seventh Circuit found motions in limine are "an important 2 tool available to the trial judge to ensure the expeditious and evenhanded management of the trial 3 proceedings." Jonasson v. Lutheran Child & Family Services, 115 F.3d 436, 440 (7th Cir. 1997).

Generally, motions in limine that seek exclusion of broad and unspecific categories of evidence 5 are disfavored. SeeSperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A 6 court "is almost always better situated during the actual trial to assess the value and utility of 7 evidence." Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007). Therefore, the Sixth 8 Circuit explained, "[A] better practice is to deal with questions of admissibility of evidence as they 9 arise [in trial]" as opposed to ruling on a motion in limine. Sperberg, 519 F.2d at 712.

"[A] motion in limine should not be used to resolve factual disputes or weigh evidence," C & E Services, Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D. D.C. 2008), because that is the province of the jury. SeeReeves v. Sanderson Plumbing Products, 530 U.S. 133, 150 (2000).


I.Evidence of the administrative proceedings

Plaintiff seeks an order excluding all findings and evidence, including testimony, adduced in the administrative proceedings by the State Personnel Board and the Board of Registered Nursing. The only exception to this is the fact that "Defendant CDCR initiated those proceedings and said proceedings resulted in Nehara's termination from CDCR and the eventual revocation of his nursing license."

Defendant agrees in large part that the information from these hearings should not be admitted at trial. Moreover, Defendant notes that, in their joint pretrial statement, the parties agreed that,

(1) On August 4, 2010, the California Board of Registered Nursing issued a decision revoking plaintiffs registered nursing license; (2) On July 8, 2011, the State Personnel Board issued a decision finding that plaintiff engaged in misconduct and holding that the penalty of dismissal was just and proper. Those stipulated facts should be read to the jury along with Ninth Circuit Model Jury Instruction 2.2 (Stipulations of Fact). Defendant agrees neither party should use the transcripts for any purpose and that the factual findings may not be admitted. Defendant clarifies though, that the documents introduced at those hearings may be used and may call the witnesses who testified at either hearing.

Given the agreement of the parties, the Court will GRANT IN PART the motion but will 2 exclude only the transcripts and findings from the hearings. The mere fact that documents were used 3 at these hearings and that witnesses testified does not preclude their admissibility at trial nor is there 4 any indication that unfair prejudice could result from the use of this evidence. Thus, to this extent, the 5 motion is DENIED. 6

II.Witnesses not previously identified

Both parties seek an order precluding the use of witnesses at trial who were not identified in 8 discovery 9

a.Plaintiff's motion

Plaintiff seeks an order precluding Defendant from presenting any witness at trial who was not disclosed in the initial disclosure required by Fed. R. Civ. P. 26(a)(1)(A). Specifically, Plaintiff contends Dr. Emanuel V. Dozier, Rachel Soares, Dr. Corazon Yuzon, Dr. Lisa Nelson, Lucy Hernandez, C. Stephens, Robert Sanchez, Nida Spalding, Joan Matteucci, Humberto Flores, Administrative Law Judge and Jeanne R. Wolfe, Administrative Law Judge, were not disclosed by Defendant.

Fed. R. Civ. P. 26(e) requires a party who has responded to an interrogatory or who has made a disclosure under Fed. R. Civ. P. 26(a) to supplement its response in a timely manner if the party learns that its response is incomplete and if the additional information has not otherwise been made known to the other party during the discovery process. Fed. R. Civ. P. 37(c) (1) restricts a party from using the information or witnesses at trial unless the failure to supplement was substantially justified or harmless.

"In determining whether to preclude introduction of evidence pursuant to FRCP 37, courts consider (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for it[s] failure to disclose the evidence." San Francisco Baykeeper v. West Bay Sanitary Dist., 791 F.Supp.2d 719, 733 (N.D.Cal.2011). "The party facing sanctions bears the burden of proving that its failure to disclose the required information was substantially justified or is harmless."

R & R Sails, Inc. v. Insurance Co. of the State of Pennsylvania, 673 F.3d 1240, 1246 (9th Cir.2012). Notably, though Plaintiff asserts Defendant did not identify these witnesses in its initial disclosure and did not supplement it, Plaintiff did not assert he never learned of these witnesses during discovery. 2

Defendant counters that it does not intend to call these witnesses except for impeachment purposes. Indeed, Fed. R. Civ. P. 26(a)(1)(A) reads, 4

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery ...

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