Lyons v. Betts

• Court: District Court, D. Alaska
• Decided: October 16, 2024
• Docket: 3:22-cv-00173
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ALASKA

9 DULEY LYONS, No. 3:22-CV-00173-SHR

10 Plaintiff, Order Re: Pretrial Motions

11 v.

12 CINDY BETTS,

13 Defendant. 14 15 The parties have filed motions in limine (Docs. 41, 43, 57, 65), and 16 Defendant has filed a related Motion to Amend Witness List (Doc. 62). The Court 17 ruled on one of these motions at the final pretrial conference. (Doc. 71; see also 18 Doc. 65.) For the following reasons, the Court will deny Defendant’s motion to 19 preclude recordings (Doc. 41), grant Plaintiff’s motion to exclude witnesses (Doc. 20 43) in part as to Rachel Thompson and Andy Klamser but will otherwise deny the 21 motion, will grant Plaintiff’s motion regarding criminal conviction evidence on Rule 22 609 grounds but reserve ruling on Rule 404(b) grounds (Doc. 57), and will deny in 23 part and grant in part Defendant’s Motion to Amend Witness List (Doc. 62). 24 I. Background 25 The Plaintiff, Duley Lyons, was an inmate at Palmer Correctional Center 26 (PCC) in Palmer, Alaska, who was released in 2008. (Doc. 1 ¶ 2.) The Defendant, 27 Cindy Betts, was the Superintendent and Head Warden of Palmer Correctional 28 Center (PCC) during the time Plaintiff was housed there and for some time after 1 Plaintiff’s release. (Id. ¶ 3.) Under 18 U.S.C. § 1983, Plaintiff alleges during his 2 time at PCC Defendant sexually assaulted him and then, when he was released 3 from PCC, Defendant enslaved him in violation of the Eighth, Thirteenth, and 4 Fourteenth Amendments to the United States Constitution. (Id. ¶¶ 16–31.) Under 5 Alaska law, Plaintiff also alleges Defendant falsely imprisoned him, inflicted 6 emotional distress upon him, and was negligent by engaging in sexual acts while 7 he was a prisoner. (Id. ¶¶ 32–44.) The Defendant denies these claims. (See 8 generally Doc. 7.) The parties filed no dispositive motions, and trial is set to begin 9 on October 21, 2024. 10 a. Scheduling Orders and Witness Lists Deadlines 11 According to the first scheduling order in this case, the preliminary witness 12 list deadline was set for February 8, 2023, and the final discovery witness list 13 deadline was set for May 5, 2023. (Doc. 11 at 3.) Both parties timely filed 14 preliminary witness lists. (Docs. 13, 14.) Then, Defendant filed a motion to modify 15 scheduling order (Doc. 15) which Plaintiff did not oppose. Therefore, the Court 16 granted this motion and set a new witness list deadline of October 31, 2023, for 17 the disclosure of final witness lists. (Doc. 16 at 3.) This Order stated: “Unless 18 otherwise ordered for good cause shown, only those lay witnesses disclosed in 19 this final discovery witness list, and the expert witnesses that were timely identified, 20 will be permitted to testify at trial.” (Id. at 4.) By October 31, 2023, Plaintiff had 21 filed a final discovery witness list (Doc. 19), but Defendant had not. 22 On August 13, 2024, a new scheduling order issued which set forth a 23 different test for which witnesses will be allowed to testify at trial. This order stated, 24 in relevant part: “On or before October 1, 2024, each party will file and serve a trial 25 witness list which shall include only persons who have been previously disclosed 26 as potential witnesses in a timely filed prior witness list.” (Doc. 31 at 2 (emphasis 27 added).) 28 . . . . 1 b. Motions Regarding Witnesses and Disclosure of Witness Lists 2 On September 8, 2024, Plaintiff filed a motion in limine seeking “to exclude 3 Defendant's witnesses as Defendant, in clear violation of the law, failed to file a 4 final witness list pursuant to the Local Civil Rules of Federal Procedure and the 5 scheduling order in this case.” (Doc. 43 at 2.) Defendant never responded to this 6 motion, instead filing various witness lists and a motion to amend her witness list. 7 (See Docs. 44, 54, 62.) 8 c. Defendant’s Motion to Exclude Recordings Under Oregon Law (Doc. 41) 9 On September 6, 2024, Defendant filed a motion in limine seeking “to 10 exclude evidence of audio recordings obtained unlawfully.” (Doc. 41.) In the 11 Motion, Defendant argues these recordings were recorded in Oregon and obtained 12 in violation of Oregon law which requires both parties to consent to a recording. 13 Plaintiff opposed Defendant’s motion. (Doc. 43.) In his Opposition, Plaintiff 14 contends “Alaska Law applies to this case, and Alaska law is a one-party recording 15 state that allows only one party to record the conversation.” (Id. at 3.) Additionally, 16 Plaintiff notes “[a]lthough Oregon is also a one-party state, it appears to limit one- 17 party recordings to phone conversations and other limited exceptions.” (Id. 18 On September 9, 2024, the Court held a remote status conference. (Doc. 19 45.) During the conference, the Court raised an issue related to this Motion and 20 noted the briefing was incomplete. After the conference, the Court ordered 21 supplemental briefing to address this issue. (Doc. 49.) 22 d. Plaintiff’s Motion to Exclude Evidence of Plaintiff’s Criminal Record and 23 Settlement Offers (Doc. 57) 24 On October 3, 2024, Plaintiff filed a second motion in limine. (Doc. 57.)1 In 25 this Motion, Plaintiff requests the Court exclude evidence of Plaintiff’s criminal 26

27 1 This motion was filed after the deadline for motions in limine. (See Doc. 31 at 2.) Plaintiff failed to explain the late timing or request leave to file an untimely 28 motion. Nevertheless, the Court will address the merits because Defendant did not raise the timeliness issue and responded on the merits. (See Doc. 59.) 1 record or testimony regarding Plaintiff’s criminal convictions. Plaintiff contends this 2 evidence violates Rules 609 and 404 of the Federal Rules of Evidence, is 3 irrelevant, is intended for the sole purpose of unduly prejudicing the Plaintiff, and 4 will confuse the jury. (Id. at 2.) 5 II. Standard 6 A motion in limine is “a procedural mechanism to limit in advance testimony 7 or evidence in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th 8 Cir. 2009). This Court has “inherent authority to manage the course of trials,” which 9 includes ruling on motions in limine. Luce v. United States, 469 U.S. 38, 41 n.4 10 (1984). Moreover, motions in limine are “useful tools to resolve issues which would 11 otherwise clutter up the trial.” City of Pomona v. SQM N. Am. Corp., 866 F.3d 12 1060, 1070 (9th Cir. 2017). Nevertheless, the Court’s rulings on motions in limine 13 are inherently preliminary and “are not binding” because the Court “may always 14 change [its] mind during the course of trial.” Ohler v. United States, 529 U.S. 753, 15 758 n.3 (2000). 16 III. Analysis 17 a. Motion Regarding Audio Recordings (Doc. 41) 18 Defendant argues this Court should apply Oregon law to exclude two audio 19 recordings of conversations between Plaintiff and Defendant recorded in Oregon. 20 (Doc. 41 at 1.) Defendant does not assert any of the Federal Rules of Evidence 21 (FRE), Ninth Circuit caselaw, or United State Supreme Court jurisprudence 22 prohibits the introduction of this evidence. Rather, Defendant contends Plaintiff 23 recorded these conversations without Defendant’s consent, (Id.), and, accordingly, 24 violated O.R.S. § 165.540, which prohibits, in relevant part, “obtain[ing] . . . any 25 part of a conversation by means of any device . . . if not all participants in the 26 conversation are specifically informed their conversation is being obtained.” See 27 also State v. Evensen, 447 P.3d 23, 27–28 (Or. Ct. App. 2019) (“The prohibition 28 against surreptitiously ‘obtaining’ a conversation includes surreptitiously recording 1 it.”). Without citing authority, Defendant appears to argue “[b]ecause Oregon law 2 is more restrictive than federal law” and Defendant “would legitimately be entitled 3 to rely upon the protection granted by the Oregon courts since the conversation 4 oc[c]urred in Oregon,” this Court should preclude the evidence. Plaintiff contends 5 “Alaska law applies to this case, and Alaska is a one-party recording state that 6 allows only one party to record the conversation.” (Doc. 43 at 3.) Defendant’s 7 supplemental briefing failed to address the issues to any helpful extent. 8 A district court applies federal law to claims invoking federal question 9 jurisdiction, and substantive state law and federal procedural law to claims invoking 10 diversity or supplemental jurisdiction. See Cooper v. Tokyo Elec. Power Co. 11 Holdings, Inc., 960 F.3d 549, 557 (9th Cir. 2020). For claims involving state law, 12 whether brought under diversity or supplemental jurisdiction, federal courts 13 generally apply the substantive law of the forum state, which includes the forum 14 state’s choice of law rules. See, e.g., Knapke v. PeopleConnect, Inc., 38 F.4th 15 824, 832 (9th Cir. 2022). Moreover, the FRE generally apply to all evidentiary 16 issues, regardless of whether a claim is brought under state or federal law, 17 because evidentiary rules are generally considered procedural under Erie. See 18 Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir. 1995). 19 However, there are narrow exceptions which would render a state 20 evidentiary rule substantive if it is “‘intimately bound up’ with rights and obligations 21 being asserted.” Id. (citation omitted). Applying these principles in Wray, the Ninth 22 Circuit held Nevada law applied to determine the admissibility of a screening 23 panel’s findings because Nevada required parties to bring their medical 24 malpractice disputes before the screening panel as a condition precedent to filing 25 suit. Id. at 1418. The Ninth Circuit concluded allowing a party to use the screening 26 panel’s findings under the FRE but in violation of Nevada evidentiary law would 27 disturb Nevada’s integrated medical malpractice dispute system and encourage 28 forum shopping. Id. 1 Defendant has not demonstrated O.R.S. § 165.540 is so “intimately bound 2 up” with the rights and obligations asserted by Plaintiff such that § 165.540 must 3 supplant the FRE. Plaintiff asserts claims under federal and Alaska law, not 4 Oregon law. Thus, unlike in Wray, there are no Oregon rights or obligations 5 asserted by either party grounded in Oregon substantive law. Accordingly, the 6 Court sees no concerns in admitting the evidence even though it may have been 7 obtained in violation of Oregon law. And this Court’s ruling does not interfere with 8 any Oregon obligations because Oregon law enforcement officials could still 9 charge Plaintiff for the crime of recording these specific conversations. 10 Moreover, even assuming the Court could construe the Oregon statute as 11 substantive, Defendant utterly failed to provide a choice of law analysis under 12 Alaska law explaining why, under Alaska’s choice of law rules, Oregon law, rather 13 than Alaska law, should apply. See Cooper, 960 F.3d at 557. A district court 14 exercising supplemental jurisdiction over state law claims must generally apply the 15 forum’s law, i.e. Alaska law here, unless Alaska’s choice of law rules dictate 16 Oregon law should apply. Therefore, the Court will deny Defendant’s Motion. 17 b. Motion Regarding Criminal Record (Doc. 57) 18 Plaintiff argues this Court should prevent Defendant from introducing 19 Plaintiff’s entire criminal record and testimony regarding Plaintiff’s criminal 20 convictions under Rules 609 and 404 of the Federal Rules of Evidence. (Doc. 57 21 at 1–2.) In response, under Rule 609, Defendant argues the probative value 22 substantially outweighs any prejudicial effect because Plaintiff’s criminal record 23 rebuts his allegations against Defendant. (Doc. 59 at 2–3.) Defendant did not 24 respond to Plaintiff’s argument under Rule 404. (See id.) 25 Generally, a party can attack a witness’s character for truthfulness by 26 evidence of a criminal conviction subject to certain limitations. Fed. R. Evid. 27 609(a). “[F]or a crime that, in the convicting jurisdiction, was punishable by death 28 or by imprisonment for more than one year, the evidence . . . must [generally] be 1 admitted, subject to Rule 403, in a civil case . . . .” Rule 609(a)(1)(A). However, 2 “if more than 10 years have passed since the witness’s conviction or release from 3 confinement for it, whichever is later[,] . . . [e]vidence of the conviction is 4 admissible only if: (1) its probative value, supported by specific facts and 5 circumstances, substantially outweighs its prejudicial effect; and (2) the proponent 6 gives an adverse party reasonable written notice of the intent to use it . . . .” Rule 7 609(b). Moreover, evidence of a juvenile adjudication is not admissible under this 8 Rule in a civil case. See Rule 609(d).2 9 Courts in the Ninth Circuit consider five factors in balancing the probative 10 evidence of a defendant's prior conviction against its prejudicial effect: “(1) the 11 impeachment value of the prior crime; (2) the point in time of the conviction and 12 the witness's subsequent history; (3) the similarity between the past crime and the 13 [party’s alleged actions in the instant case]; (4) the importance of [the party’s] 14 testimony; and (5) the centrality of [the party’s] credibility.” United States v. Hursh, 15 217 F.3d 761, 768 (9th Cir. 2000). 16 Additionally, Rule 404(b) prohibits introducing evidence of a crime to prove 17 the person’s character if the purpose is to show the person acted in conformity with 18 the character on a particular occasion. However, “[t]his evidence may be 19 admissible for another purpose, such as proving motive, opportunity, intent, 20 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 21 Id. Rule 404(b) is a “rule of inclusion,” meaning “[e]vidence of other crimes or acts 22 is admissible under Rule 404(b), except where it tends to prove only criminal 23 disposition.” United States v. Ayers, 924 F.2d 1468, 1473 (9th Cir. 1991) (internal 24 quotation marks omitted) (quoting United States v. Sangrey, 586 F.2d 1312, 1314 25

26 2 Although the parties allude to juvenile adjudications in Plaintiff’s criminal history, the parties never specifically describe the evidence sought to be excluded 27 or offered in their briefing. In case the Defendant intends to attempt introducing juvenile adjudications, the Court reminds Defendant this type of evidence is never 28 admissible in a civil case. To the extent Plaintiff’s motion seeks to exclude these juvenile adjudications, if any, the motion is granted. 1 (9th Cir.1978)). “[I]f evidence of prior crimes bears on other relevant issues,” the 2 Court will not exclude it under 404(b). United States v. Cruz-Garcia, 344 F.3d 951, 3 954 (9th Cir. 2003). To guide this inquiry, the Court evaluates whether (1) sufficient 4 evidence exists for the jury to find the person committed the other acts; (2) the 5 other acts are introduced to prove a material issue in the case; (3) the other acts 6 are too remote in time; and (4) if admitted to prove intent, the other charged acts 7 are similar to acts at issue. See United States v. Bradley, 5 F.3d 1317, 1320 (9th 8 Cir. 1993). Additionally, because Rule 403 is baked into the Rule 404(b) inquiry, 9 the Court must also determine whether the probative value of the evidence is 10 substantially outweighed by the danger of unfair prejudice. See United States v. 11 Mayans, 17 F.3d 1181, 1183 (9th Cir. 1994); United States v. Lozano, 623 F.3d 12 1055, 1060 (9th Cir. 2010). 13 Here, the Court finds Plaintiff’s criminal conviction inadmissible for 14 impeachment under Rule 609 but will reserve ruling on using this evidence for one 15 of the proper purposes under Rule 404(b). 16 Regarding the Rule 609 analysis, based upon the Court’s review of the 17 record, it appears the convictions Defendant intends to introduce are more than 10 18 years old. Therefore, these are subject to the Rule 609(b) analysis—whether the 19 convictions are substantially more probative than prejudicial. The Defense stated 20 the Plaintiff’s criminal history is substantially more probative than prejudicial 21 because 1) Plaintiff relies on this evidence in the complaint, 2) the allegations are 22 based in part on actions occurring while Plaintiff was incarcerated, 3) Plaintiff’s 23 expert relied on Plaintiff’s criminal history, and 4) Plaintiff’s criminal history rebuts 24 his allegations. Defendant is mistaken. There is a distinction between Plaintiff 25 introducing sanitized evidence of his own criminal history to some extent in support 26 of his claims and Defendant introducing details of Plaintiff’s past crimes. 27 Defendant has not explained exactly why Plaintiff’s criminal history would be 28 1 probative of any fact at issue.3 Therefore, the Court finds the probative value of 2 the criminal history for impeachment purposes does not substantially outweigh its 3 prejudicial effect and will grant the motion on this basis. 4 Regarding the portion of Plaintiff’s motion under Rule 404(b), the Court does 5 not have enough information at this time about how the evidence will be used to 6 make an informed ruling. The Court cannot say for certain Defendant will use this 7 evidence to prove only criminal disposition. See Ayers, 924 F.2d at 1473. While 8 the Court could envision a proper use of this evidence in theory, Defendant does 9 not include a 404(b) analysis in her response or explain the proper purpose for 10 introducing the evidence. Furthermore, the parties do not include enough details 11 about Defendant’s criminal history to allow the Court to evaluate whether its 12 probative value would be substantially outweighed by the danger of unfair 13 prejudice. See Lozano, 623 F.3d at 1060. Therefore, the Court will reserve ruling 14 on whether there is a proper use of this evidence under Rule 404(b) and 403 until 15 the time of trial.4 16 c. Motions Regarding Witnesses (Docs. 43, 62) 17 Two motions have been filed regarding the witness list issue. (See Docs. 18 43, 62). First, Plaintiff filed a motion requesting Defendant be precluded from 19 calling any witnesses due to her failure to file a final witness list pursuant to the 20 Local Civil Rules5 and prior scheduling orders in this case, and separately requests 21 preclusion of witnesses never initially disclosed under the Federal Rules of Civil 22 23 3 Defendant requests the Court “allow Ms. Betts to use the entirety of Mr. 24 Lyons’ criminal records to support her defense.” (Doc. 59 at 3.) This does not explain which convictions Defendant plans to use or how Defendant plans to use 25 them. 4 Plaintiff throws in an aside requesting no evidence be admitted in violation 26 of Rule 408. (Doc. 57 at 4.) This seems to be no more than a request for the Court to follow the FRE during the trial, which it intends to do regardless. Without any 27 context or analysis provided, the Court cannot properly analyze this request. 5 The Court will not address District of Alaska Local Civil Rule 16.1(c) 28 because there are scheduling orders supplanting its general requirements and the local rule states it operates “[u]nless otherwise ordered.” 1 Procedure.6 (Doc. 43 at 2.) As to those witnesses never disclosed during 2 discovery, Plaintiff states he would be “unfairly prejudiced” if the Court allowed 3 these new witnesses to testify when they were only disclosed at this late stage. 4 (Id. at 3.) Defendant did not respond to this motion. Instead, Defendant filed two 5 subsequent witness lists and a motion to amend/correct her witness list (Doc. 62). 6 Federal Rule of Civil Procedure 26 establishes the required initial 7 disclosures for litigating parties. As relevant here, Rule 26(a)(3)(A) requires the 8 disclosure of witnesses “the party expects to present and those it may call if the 9 need arises.” If a party fails to disclose witnesses as required by Rule 26 or the 10 Court’s orders, Rule 37 provides “the party is not allowed to use” those undisclosed 11 witnesses to supply evidence at trial, “unless the failure was substantially justified 12 or harmless.” Fed. R. Civ. P. 37(c)(1). The party requesting Rule 37 sanctions 13 has the burden of proving the opposing party violated Rule 26. After the moving 14 party has met its burden, then “[t]he party facing sanctions bears the burden of 15 proving that its failure to disclose the required information was substantially 16 justified or harmless.” R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1246 17 (9th Cir. 2012). Four factors guide this determination: “(1) prejudice or surprise to 18 the party against whom the evidence is offered; (2) the ability of that party to cure 19 the prejudice; (3) the likelihood of disruption of trial; and (4) bad faith or willfulness 20 in not timely disclosing the evidence.” Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 21 1192 (9th Cir. 2022) (quoting Silvagni v. Wal-Mart Stores, Inc., 320 F.R.D. 237, 22 242 (D. Nev. 2017)). 23 The purpose of Rules 26 and 37 is to make trial “less a game of blindman’s 24 buff and more a fair contest with the basic issues and facts disclosed to the fullest 25 practical extent.” Scott & Fetzer Co. v. Dile, 643 F.2d 670, 674 (9th Cir. 1981) 26 (quoting Goldman v. Checker Taxi Co., 325 F.2d 853, 855 (7th Cir. 1963)). The 27 6 Plaintiff does not specify which of the Federal Rules of Civil Procedure 28 warrants preclusion. Accordingly, the Court will construe this portion of Plaintiff’s motion as a request for exclusion sanctions under Rule 37. 1 Ninth Circuit affords district courts “particularly wide latitude” in applying Rule 2 37(c)(1) to exclude “information” a party failed to provide under Rule 26. Ingenco 3 Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803, 821 (9th Cir. 2019); see also 4 Merch. v. Corizon Health, Inc., 993 F.3d 733, 740 (9th Cir. 2021) (“[T]he rule is 5 automatic in the sense that a district court may properly impose an exclusion 6 sanction where a noncompliant party has failed to show that the discovery violation 7 was either substantially justified or harmless.”). 8 To the extent Plaintiff seeks preclusion of all of Defendant’s witnesses 9 because of Defendant’s failure to file a final witness list, the Court will deny 10 Plaintiff’s motion. Here, three separate scheduling orders are operating, and the 11 latest one has materially different language. The first scheduling order (Doc. 11) 12 set a final discovery witness list deadline of May 5, 2023, and stated “[u]nless 13 otherwise ordered for good cause shown, only those lay witnesses disclosed in 14 this final discovery witness list, and the expert witnesses that were timely identified, 15 will be permitted to testify at trial.” (Id. at 3–4.) The second scheduling order 16 contained the same language and reset the final witness list deadline to October 17 31, 2023 (Doc. 16 at 3–4.) The third, and most recent, scheduling order stated 18 “[o]n or before October 1, 2024, each party will file and serve a trial witness list 19 which shall include only persons who have been previously disclosed as potential 20 witnesses in a timely filed prior witness list.” (Doc. 31 at 2 (emphasis added).) 21 While Defendant failed to abide by the second scheduling order and failed 22 to file any final witness list in October 2023, according to the most recent order, 23 Defendant can call any witnesses he has listed so long as they were also 24 previously disclosed as potential witnesses in a timely filed prior witness list, 25 including Defendant’s initial witness list filed February 8, 2023. It appears 26 Defendant listed Selina Manson, Adam Manson, Solitaire Betts, Jamie Monaghan, 27 Cindy Betts, and Duley Lyons in its initial list and intends to call those witnesses. 28 (See Doc. 14.) Therefore, Defendant can call these six witnesses. 1 Next, to the extent Plaintiffs motion calls for Rule 37 sanctions and the exclusion of witnesses never disclosed during discovery, the Court will grant Plaintiffs motion. Witnesses Rachel Thompson and Andy Klamser were not listed 4|| in Defendant's initial Rule 26 witness disclosure. Therefore, Plaintiff has met his 5|| burden of proving Defendant violated Rule 26 as to these two witnesses. Upon 6|| this showing, the burden then shifted to Defendant to prove her failure to disclose || the required information was substantially justified or harmless. See R & R Sails, □□ 673F.3d at 1246. Defendant makes no attempt to meet her burden and, especially 9|| in the absence of any attempt, the Court finds unfair prejudice and surprise to Plaintiff. These witnesses were disclosed for the first time just over a month before the trial was set to begin, leaving Plaintiff with virtually no time to cure the prejudice 12|| inherent in such a late disclosure. Therefore, the Court will exclude these two 13 || witnesses under Rule 37. 14], IV. Conclusion 15 IT IS ORDERED Defendant’s motion to preclude recordings (Doc. 41) is 16|| DENIED, Plaintiff's motion to exclude witnesses (Doc. 43) is GRANTED in part as to Rachel Thompson and Andy Klamser but otherwise DENIED, Plaintiff's motion || regarding criminal conviction evidence and settlement offers (Doc. 57) is DENIED in part under Rule 404(b) and Rule 408 with leave to object at trial and GRANTED in part on Rule 609 grounds, and Defendant’s Motion to Amend Witness List (Doc. 21]; 62) is DENIED in part to the extent it seeks to add Rachel Thompson and Andy 22 || Klamser but otherwise GRANTED. 23 Dated this 16th day of October, 2024. 24

26 Honorable Scott H. Rash \._/ United States District Judge 28

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