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Sebastiano Cannistraci v. Rodger Kirsopp

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


June 8, 2012

SEBASTIANO CANNISTRACI, PLAINTIFF,
v.
RODGER KIRSOPP, INDIVIDUALLY AND AS AN AGENT, SERVANT, AND/OR EMPLOYEE OF THE STATE OF NEW YORK; JOHN DOE, WHOSE NAME IS PRESENTLY UNKNOWN, INDIVIDUALLY AND AS AN AGENT, SERVANT AND/OR EMPLOYEE OF THE STATE OF NEW YORK; AND RICHARD ROE, WHOSE NAME IS PRESENTLY UNKNOWN, INDIVIDUALLY AND AS AN AGENT, SERVANT AND/OR EMPLOYEE OF THE STATE OF NEW YORK, DEFENDANTS.

The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

DECISION AND ORDER

I. INTRODUCTION

Currently before the Court is Defendant's motion in limine asking the Court to preclude Plaintiff from presenting the testimony of Connie Ware and Keith Christiansen. See Dkt. No. 45-1.

II. DISCUSSION*fn1

A. Connie Ware

Defendant argues that Plaintiff did not disclose Connie Ware as a potential witness in his Rule 26(a) disclosure or at any other juncture during discovery. See Dkt. No. 45-1 at 2-3. As such, Defendant contends that Plaintiff should be precluded from calling Ms. Ware as a witness pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure because he does not have substantial justification for this failure. See id. at 3-4. Plaintiff admits that Ms. Ware's name was not provided in its initial or any supplemental Rule 26(a) disclosure and, therefore, states that it will not call Ms. Ware as a witness at trial. See Dkt. No. 46 at ¶ 5.

In light of Plaintiff's indication that he will not call Ms. Ware at trial, the Court denies this portion of Defendant's motion as moot. See Bravman v. Baxter Healthcare Corp., 842 F. Supp. 747, 748 (S.D.N.Y. 1994) (finding motion in limine seeking to preclude evidence moot when the plaintiff conceded that it would not introduce the evidence that the defendant was seeking to preclude).

B. Keith Christiansen

Defendant contends that Mr. Christiansen, who is a private investigator retained by Plaintiff to investigate the criminal charges filed against him, should not be allowed to testify because he will either be offered as an unqualified expert or he will testify solely as to matters of pure hearsay. See Dkt. No. 45-1 at 5. Specifically, Defendant claims that Mr. Christiansen will testify regarding out of court statements made to him by Alyssa R. and Kristen S., and will state that Kristen S. told him that he called Defendant and informed him that Alyssa R.'s statement was untrue. See id. at 6.

Plaintiff, however, contends that Mr. Christiansen will not be testifying as an expert and that his testimony will not be hearsay. See Dkt. No. 46 at ¶ 7. Plaintiff claims that Mr. Christiansen will be called to testify "concerning how and when" he discovered Alyssa R. and Kristen S., which he claims is necessary to establish that Defendant acted with malice. See id. Plaintiff argues that Defendant will not be prejudiced by denying this motion and that he can object at trial after a question is asked which may elicit potential hearsay testimony. See id. at ¶

8. In his reply, Defendant argues that "'how and when'" Mr. Christiansen discovered Alyssa

R. and Kristen S. "is wholly irrelevant to plaintiff's claim of malicious prosecution." See Dkt. No. 47 at ¶ 8. Defendant claims that, "[p]ursuant to the Court's own decision on Summary Judgment, the only dispositive issue remaining in this matter is whether [Defendant] knew of the allege[d] statement by [Kristen S.] that her daughter's statement was a lie and obtained via fraud." See id. Defendant further argues that, contrary to Plaintiff's contention, Mr. Christiansen will not provide factual information that no other witness can provide. See id. at ¶ 10. Specifically, Defendant argues that Kristen S. can testify regarding the timing of her alleged statement to Defendant and Alyssa R. can testify regarding the content of her statement to Defendant. See id. at ¶ 11. As such, Defendant claims that the risks of unfair prejudice, confusion, and the unnecessary addition of time to the length of this trial all weigh in favor of precluding Mr. Christiansen's testimony pursuant to Rule 403 of the Federal Rules of Evidence. See id. at ¶ 12.

The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 40 n.2 (1984); see also Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). A court should exclude evidence on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. See Baxter Diagnostics, Inc. v. Novatek Med., Inc., No. 94-cv-5220, 1998 WL 665138, *3 (S.D.N.Y. Sept. 25, 1998). Courts considering a motion in limine may reserve decision until trial so that the motion is placed in the appropriate factual context. See Nat'l Union Fire Ins. Co. v. L.E. Myers Co. Group, 937 F. Supp. 276, 287 (S.D.N.Y. 1996). Alternatively, the court is "free, in the exercise of sound judicial discretion, to alter a previous in limine ruling" at trial as "the case unfolds, particularly if the actual testimony differs from what was contained in the [movant's] proffer." Luce, 469 U.S. at 41-42.

In the present matter, the Court agrees with Plaintiff that it is premature to preclude this yet unknown testimony as either hearsay or overly prejudicial. "The Court is unwilling to speculate, pretrial, as to what statements any witness will or will not make during trial." Picciano v. McLoughlin, No. 5:07-cv-781, 2010 WL 4366999, *5 (N.D.N.Y. Oct. 28, 2010). Throughout the course of the trial, Defendant may object to testimony that he believes is inadmissible and the Court will issue a ruling at that time.*fn2

Based on the foregoing, the Court denies Defendant's motion in limine as premature.

III. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Plaintiff's motion in limine is DENIED without prejudice to renew; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.


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