Summary:The pro se plaintiff filed a motion in limine to exclude certain potential exhibits and preclude the testimony of a late-disclosed defense witness. The court ruled that one exhibit could be used for demonstrative purposes, but the affidavit and email correspondence could not be used at trial. The court also addressed the production of a redacted “punch report” and will make a ruling on its use at a later time.
Court:United States District Court, S.D. New York
Date decided:
Judge:Krause, Andrew E.
JERIEL ALEXANDER, Plaintiff, v. THE STOP AND SHOP SUPERMARKET COMPANY, LLC, Defendant 22-cv-9557 (AEK) United States District Court, S.D. New York Filed February 28, 2025 Krause, Andrew E., United States Magistrate Judge DECISION AND ORDER Plaintiff Jeriel Alexander, proceeding pro se, brought this action against Defendant The Stop and Shop Supermarket Company, LLC (“Stop & Shop”), asserting claims for racial discrimination pursuant to 42 U.S.C. § 1981; the New York Human Rights Law (“NYHRL”), New York Exec. Law § 296 et seq.; the New York City Human Rights Law, New York City Admin. Code § 8-101 et seq.; and New York Civil Rights Law § 40. See ECF No. 37 (“Amended Complaint” or “Am. Compl.”). Following the Court's decision on the parties’ cross motions for summary judgment, the remaining claims in the case are Plaintiff's Section 1981 “equal benefit” claim based on the events of August 7, 2020, and his discrimination claims under the NYHRL and New York Civil Rights Law for these same events. ECF No. 109. The trial in this case is scheduled to begin on March 17, 2025. ECF No. 111 (“Trial Scheduling Order”). Currently before the Court are the parties’ motions in limine. ECF Nos. 126, 132. For the reasons that follow, Plaintiff's motion in limine is GRANTED IN PART AND DENIED IN PART, and Stop & Shop's motion in limine is DENIED. DISCUSSION I. Legal Standard Governing Motions in Limine “A district court's inherent authority to manage the course of its trials encompasses the right to rule on motions in limine.” Uzhca v. Wal-Mart Stores, Inc., No. 17-cv-3850 (NSR), 2023 WL 2529186, at *5 (S.D.N.Y. Mar. 15, 2023) (quotation marks omitted).[1] “The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.’ ” Id. (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). “Evidence challenged in a motion in limine should only be precluded when it is clearly inadmissible on all possible grounds.” Id. (quotation marks omitted). II. Plaintiff's Motion in Limine Plaintiff moves (i) to exclude certain potential exhibits identified by Stop & Shop, and (ii) to preclude the trial testimony of a late-disclosed defense witness. ECF No. 132. With respect to the documents, Plaintiff specifically objects to the inclusion of three items in the parties’ proposed Joint Pretrial Order, ECF No. 125 (“JPTO”)—Stop & Shop's proposed trial exhibits E, H, and Y—that he contends were never produced during discovery. Exhibit E, according to Stop & Shop, is a photograph of the self-checkout area of the Stop & Shop supermarket where the incident that is the subject of this action allegedly occurred. See ECF No. 136-3. Exhibit His an affidavit of Stop & Shop employee Elia Cardenas, which was first provided to Plaintiff in connection with Stop & Shop's reply in further support of its motion for summary judgment. See ECF No. 136-2 at 2-3; ECF No. 98-1 at 2-3. Exhibit Y is email correspondence between Plaintiff and defense counsel, dated June 28, 2023. See ECF No. 136-4. Meanwhile, the late-disclosed defense witness whose trial testimony Plaintiff seeks to have precluded is the same Ms. Cardenas who submitted the disputed affidavit. A. Stop & Shop's Proposed Exhibits E, H, and Y i. Exhibit E *2 According to counsel for Stop & Shop, at or around the time of the filing of the JPTO, Stop & Shop identified and described to Plaintiff its proposed Exhibit E, which purportedly is a photograph of the self-checkout area in the Stop & Shop store where the August 7, 2020 incident allegedly occurred, that Stop & Shop intends to use “for demonstrative purposes to show the jury the appearance of the self-checkout area.” ECF No. 136 (“Opp. Mem.”) at 4. Stop & Shop asserts that counsel discussed the use of this exhibit with Plaintiff in a phone call regarding the JPTO, and Plaintiff “took no issue with it after explanation.” Id. In his motion in limine, however, Plaintiff seeks to preclude the use of this exhibit at trial on the ground that it was never produced during discovery. In the JPTO, Stop & Shop indicated that it seeks use the photograph at Exhibit E “for demonstrative purposes only.” JPTO at 9. The term “demonstrative evidence” generally refers to certain types of visual, graphic, or sound aides that are used to explain or illustrate a witness's testimony or the presentation of the case. Some demonstrative exhibits may be admitted in evidence under certain circumstances, but oftentimes demonstrative exhibits are displayed to the jury for brief periods of time during a trial without ever being admitted in evidence. It is not clear from the JPTO or Stop & Shop's opposition to the motion in limine whether it even intends to attempt to offer the photograph into evidence during the trial. Typically, demonstrative evidence is not subject to production under Rules 26 or 34 of the Federal Rules of Civil Procedure. See Rodriguez v. Vill. of Port Chester, 535 F. Supp. 3d 202, 217 (S.D.N.Y. 2021). “The Second Circuit has noted the great desirability of making demonstrative evidence available to the opposing party a reasonable time before trial, but there is no requirement for pretrial disclosure of such materials at a specific time.” Id. (cleaned up). Accordingly, the only argument that Plaintiff has offered for the exclusion of the demonstrative evidence—that it was not timely produced during discovery—is not a basis to preclude the use of the photograph. While Plaintiff had not received a copy of Exhibit E until Stop & Shop filed its opposition to Plaintiff's motion in limine, this disclosure, nearly three weeks before the start of trial, is still a “reasonable time before trial” for purposes of disclosing demonstrative evidence. Because Stop & Shop has represented that it intends to use Exhibit E for demonstrative purposes only, to the extent Plaintiff's motion in limine seeks to bar the use of Stop & Shop's Exhibit E at trial because of Stop & Shop's supposedly late disclosure, the motion is DENIED. The Court does have additional questions for the parties about this document, which will be addressed at the final pretrial conference. ii. Exhibit H (and Exhibit I) With respect to Exhibit H, the affidavit of Stop & Shop employee Elia Cardenas, “courts in this Circuit have found that affidavits cannot be used in place of the testimony of the available affiant.” Dickson v. New York State Off. of Child. & Fam. Servs., No. 18-cv-7212 (JMW), 2023 WL 8788908, at *4 (E.D.N.Y. Dec. 19, 2023). Since, as explained below, the Court will allow Ms. Cardenas to testify at trial, Plaintiff's motion to preclude the use of Ms. Cardenas's affidavit at trial is GRANTED. It is not clear whether Plaintiff intended to seek the exclusion of Stop & Shop's proposed Exhibit I, a redacted “punch report” which was attached as an exhibit to Ms. Cardenas's affidavit when the affidavit was filed originally at the summary judgment stage. The “redacted punch report” is listed separately as an exhibit in the JPTO, without any objection from Plaintiff See JPTO at 10. To the extent that Plaintiff's motion is intended to apply to Exhibit I, the Court makes no ruling with respect to Exhibit I at this tune. Plaintiff has been in possession of the “redacted punch report” since June 14, 2024, when it was included in the reply submission in support of Stop & Shop's motion for summary judgment. See ECF No. 98-1. For the same reasons set forth in Section II.B below, the Court is unlikely to exclude the document based on the timing of the disclosure. That said, the Court has questions as to whether Ms. Cardenas will be able to authenticate the “redacted punch report,” especially if Ms. Cardenas was not the person who applied the redactions to the report. The parties should be prepared to discuss this and any other issues regarding Exhibit I at the final pretrial conference. iii. Exhibit Y *3 Exhibit Y is a document that includes emails that Plaintiff sent to Stop & Shop's counsel on June 28, 2023. There appears to be no dispute that Defendant did not produce these emails to Plaintiff dining discovery. Still, Plaintiff cannot claim to be surprised about the contents of these messages—he is the sender or recipient of each of the messages in the email chain. See ECF No. 136-4. Stop & Shop states that it would use this exhibit “for purposes of demonstrating inconsistent statements made by Plaintiff ....” Opp. Mem. at 4. Stop & Shop's argument regarding the potential use of the emails implies that it will only use the document at trial for purposes of impeachment, and there is no obligation to produce in discovery documents that are to be used solely for impeachment. See Loc. 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York, No. 18-cv-4476 (LJL) (SLC), 2021 WL 5362256, at *14 (S.D.N.Y. June 2, 2021), adopted by 2021 WL 4706162 (S.D.N.Y. Oct. 7, 2021); HDI Glob. Ins. Co. v. Kuehne + Nagel, Inc., No. 23-cv-6351 (LJL), 2024 WL 5247216, at *2 (S.D.N.Y. Dec. 30, 2024). Accordingly, Plaintiff's motion with respect to Exhibit Y is DENIED at this time, to the extent Stop & Shop's use of Exhibit Y is limited to impeachment. Should Stop & Shop seek to use Exhibit Y at trial for purposes other than impeachment, Plaintiff may renew his objection and the Court will reconsider its ruling at that point. B. Testimony of Elia Cardenas Rule 37(c)(1) of the Federal Rules of Civil Procedure states that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Nevertheless, “[t]he Court has the ultimate discretion on whether to preclude witnesses from testifying at trial under Rule 37(c)(1).” Smith v. Perez, No. 19-cv-1758 (VAB), 2023 WL 4540439, at *8 (D. Conn. July 14, 2023) (cleaned up). “When considering whether to preclude evidence or witness testimony, district courts in this Circuit are instructed to assess several factors, including the party's explanation for the failure to disclose, the importance of the evidence to be precluded, the prejudice suffered by the opposing party if the evidence were not precluded, and the possibility of a continuance.” Id. (quotation marks omitted). “Preclusion of evidence for failure to comply with initial disclosure requirements is a drastic remedy and should be exercised with discretion and caution.” Id. (quotation marks omitted). Here, Stop & Shop acknowledges that Ms. Cardenas was first disclosed as a witness as part of its reply submission in further support of its motion for summary judgment. Opp. Mem. at 2; see ECF No. 98 at 1. According to Stop & Shop, Ms. Cardenas was not disclosed as a witness sooner because “[i]t was not until Plaintiff filed his memorandum of law in support of his cross-motion for summary judgment on April 24, 2024, that he affirmatively disclose[d] that the employee's name who allegedly discriminated him [sic] was abbreviated as ‘Eli.’ ” Opp. Mem. at 2. Stop & Shop contends that it needs to offer Ms. Cardenas's testimony at trial since “she [was] the only employee working in the store on [the] day [of the alleged incident] with the potential for such an ‘abbreviated’ name.” Id. at 3. Stop & Shop further asserts that Ms. Cardenas's testimony is relevant because she would testify that she was not involved in this incident, and neither she nor any other employee on duty at the time of the alleged incident matches the physical description of the employee who allegedly interacted with Plaintiff. See id. *4 Considering all of the relevant factors here, the “drastic” remedy of precluding Ms. Cardenas from testifying is not warranted. First, Stop & Shop's explanation for its failure to disclose Ms. Cardenas as a potential witness is reasonable. Even though Plaintiff offered some vague and confusing testimony at his October 2023 deposition about a Stop & Shop employee named “Ellie,” see ECF No. 136-1 at 14 (deposition pg. 37), it is understandable that Stop & Shop did not definitively understand that it would want to rely on Ms. Cardenas's testimony until after it received Plaintiff's first summary judgment submission. Second, it is clear that the testimony of Ms. Cardenas is important to this case—indeed, Ms. Cardenas is the only witness who Stop & Shop intends to call at trial. See JPTO at 5. Third, there is only limited prejudice to Plaintiff in allowing the testimony of Ms. Cardenas to be presented at the trial. Plaintiff has been aware of the existence of “Eli,” the employee who allegedly was involved in the incident, since before he filed his cross-motion for summary judgment, and because he received Ms. Cardenas's affidavit in June 2024, he has some idea of what her testimony will be. Moreover, to mitigate any potential prejudice to Plaintiff, the Court will afford Plaintiff the opportunity to depose Ms. Cardenas in advance of trial so as to restore Plaintiff to the same position he would have been in had Stop & Shop timely disclosed Ms. Cardenas as a witness. Based on the current schedule, with trial set to begin on March 17, 2025, if Plaintiff wishes to depose Ms. Cardenas, Stop & Shop must make Ms. Cardenas available to testify by no later than March 12, 2025. If Plaintiff chooses to take Ms. Cardenas's deposition, Plaintiff will be responsible for the costs associated with the deposition, including any court reporting services. See Fed. R. Civ. P. 30(b)(3)(A). The Court also would consider the possibility of an adjournment of the trial date to allow additional time for Plaintiff to conduct the deposition, should Plaintiff request such a continuance. See Widman v. Stegman, No. 13-cv-193 (BKS) (DEP), 2015 WL 13832105, at *5 (N.D.N.Y. Apr. 28, 2015) (“The possibility of a continuance exists in every case to mitigate the effects of a party's delays, omissions, and defective discovery responses.”) (quotation marks omitted). For all of these reasons, Plaintiff's motion in limine to preclude Ms. Cardenas from testifying at trial is DENIED. C. Application for Sanctions Finally, insofar as Plaintiff requests sanctions against Stop & Shop for seeking either to use these exhibits or to call this witness at trial, such application is DENIED. Plaintiff has previously been cautioned against seeking sanctions against Stop & Shop or its counsel without any basis. Plaintiff once again presents no evidence that Stop & Shop or its counsel has acted in anything other than good faith throughout the course of this litigation. III. Stop & Shop's Motion in Limine Stop & Shop moves to preclude the trial testimony of Glyda Alexander, Plaintiff's mother, on the ground that she was not able to hear what allegedly transpired between Plaintiff and the Stop & Shop employee during the incident in question, and therefore has “no personal knowledge” of what happened. See ECF No. 126. But while Ms. Alexander testified at her deposition that she was not able to hear the interaction in the self-checkout area, she did testify as to what she saw. See ECF No. 126-1 at 4-5, 7-8 (deposition pgs. 8-9, 13-14). Of course, a witness's visual observations are also a component of his or her “personal knowledge” of a given set of circumstances; Stop & Shop provides no compelling explanation as to why Ms. Alexander should be barred from testifying as to what she visually observed, and the Court finds none. Accordingly, Stop & Shop's motion in limine is DENIED. CONCLUSION For the reasons stated above, Plaintiff's motion in limine (ECF No. 132) is GRANTED IN PART AND DENIED IN PART, and Stop & Shop's motion in limine (ECF No. 126) is DENIED. In accordance with the Trial Scheduling Order, the Court will conduct the final pretrial conference in person on March 6, 2025 at 10:00 a.m. in Courtroom 250 at the United States Courthouse, 300 Quarropas Street, White Plains, New York 10601. The Court has not been able to locate pro bono counsel who will be able to represent Plaintiff at a trial starting on March 17, 2025. If Plaintiff were to request an adjournment of the trial date, however, the Court would continue in its efforts to attempt to locate an attorney to represent Plaintiff pro bono. And if there is an adjournment, a pro bono attorney also may be able to assist Plaintiff with taking a deposition of Ms. Cardenas, in addition to representing Plaintiff at trial. At the final pretrial conference, Plaintiff should be prepared to discuss whether he would like to request an adjournment to enable the Court to attempt to locate pro bono counsel. If the March 17, 2025 trial date is adjourned, the Court would look to schedule the trial in June, July, or August 2025, taking into account the schedules of the parties and the Court. Accordingly, all parties must be prepared at the final pretrial conference to discuss their availability for trial in June, July, or August 2025 in case an adjournment is requested. *5 SO ORDERED. Footnotes [1] In light of Plaintiff's pro se status, the Court attaches to this Decision and Order copies of this case and other cases cited herein that are unpublished or only available by electronic database.