United States District Court, S.D. New York
NICOLA WILLIAMS, on behalf of herself and all others similarly-situated, Plaintiffs,
THE BETHEL SPRINGVALE NURSON HOME, INC., Defendant.
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE.
Nicola Williams and one remaining opt-in collective action
Plaintiff, John T. Vecchio, bring this action against their
former employer, The Bethel Springvale Nursing Home
("Bethel"), alleging violations of the Fair Labor
and Standards Act ("FLSA"), 29 U.S.C. §
207(a)(1), in the form of unpaid overtime wages. Presently
before the court is Defendant Bethel's motion in
limine to preclude Plaintiffs from presenting certain
evidence at trial. (ECF No. 85.) For the reasons set forth
below, Defendant's motion is GRANTED in part and DENIED
in part, BACKGROUND
Court assumes the parties' familiarity with the factual
background of present action, as outlined in Williams v.
Bethel Springvale Nursing Home, No. 14-CV-9383 (NSR),
2017 WL 4046338, at *1 (S.D.N.Y. Sept. 12, 2017). To briefly
summarize, this case centers around former employees of
Defendant Bethel-a 200 bed not-for-profit skilled nursing
facility dedicated to the care of the elderly-who claim that
they regularly worked in excess of 40 hours per week without
overtime pay, in violation of the FLSA. Id.
Specifically, Plaintiffs contend that, in accordance with
Bethel's employment policies, nurses were required to
obtain signed overtime approval forms prior to the end of a
given pay period if they sought payment for any accumulated
overtime wages. However, the Bethel supervisors would
generally refuse to sign such forms, even if the nurses
worked beyond their shifts. Id. Additionally,
Plaintiffs contend that they were often asked to “clock
out” of Defendant's automated timekeeping system
but continue their work, leaving many of their hours
unrecorded. Id. Plaintiffs further allege that even
when they were not asked to “clock out, ” they
often did not receive overtime compensation for all of their
hours of work recorded on Defendant's system.
Williams, on behalf of herself and all others similarly
situated, commenced the present action against Defendant
Bethel alleging violations of the FLSA on November 25, 2014.
(ECF No. 1.) After the close of discovery on November 4,
2015, Defendant moved for summary judgment in its favor and
to decertify the FLSA opt-in class. (ECF No. 51.) This Court
denied Defendant's motion for summary judgment in part
and granted it in part, and denied Defendant's motion to
decertify the opt-in class on September 12, 2017. (ECF No.
74). With the consent of all parties, the Court scheduled a
bench trial to begin on April 10, 2018. Presently before the
Court is Defendant's pre-trial motion, seeking preclusion
of a certain anticipated evidence at trial. (ECF No. 85.) The
Court now considers each of Defendant's arguments in
district court's inherent authority to manage the course
of its trials encompasses the right to rule on motions in
limine.” Highland Capital Mgmt., L.P. v.
Schneider, 551 F.Supp.2d 173, 176 (S.D.N.Y. 2008)
(citing Luce v. United States, 469 U.S. 38, 41 n. 4
(1984)). An in limine motion is intended “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.” Palmieri v. Defaria, 88 F.3d 136, 141
(2d Cir.1996) (internal quotation marks omitted).
“Because a ruling on a motion in limine is
‘subject to change as the case unfolds, ' this
ruling constitutes a preliminary determination in preparation
for trial.” United States v. Perez, No.
09-CR-1153 (MEA), 2011 WL 1431985, at *1 (S.D.N.Y. Apr. 12,
2011) (quoting Palmieri, 88 F.3d at 139).
of Supervisor Rupa (LNU)
first moves to preclude Plaintiff from testifying or
submitting evidence regarding alleged conversations with a
former supervisor in Defendant's Rehab Unit on the
grounds that such statements constitute inadmissible hearsay.
For the following reasons, Defendant's motion is denied.
made by an out-of-court declarant and introduced to prove the
truth of the matter asserted are generally inadmissible as
hearsay, absent an exception. Fed.R.Evid. 801, 802;
United States v. Cardascia, 951 F.2d 474, 486 (2d
Cir. 1991). Under Rule 801(d)(2)(D), however, a statement is
not hearsay if it “is offered against an
opposing party and . . . was made by the party's agent or
employee on a matter within the scope of that relationship
while it existed.” Fed.R.Evid. 801(d)(2)(D). As the
Second Circuit has noted, “admissibility under this
rule should be granted freely.” Pappas v. Middle
Earth Condo. Ass'n, 963 F.2d 534, 537 (2d Cir.
sufficient foundation to support the introduction of such
vicarious admissions therefore requires only that a party
establish (1) the existence of [an] agency relationship
[between the declarant and employer], (2) that the statement
was made during the course of the relationship, and (3) that
it relates to a matter within the scope of the agency.”
Id.; accord Farganis v. Town of Montgomery,
397 F. App'x 666, 668 (2d Cir. 2010) (summ. order).
Notably, “this foundational predicate may be
established by circumstantial evidence.”
Farganis, 397 F. App'x at 686 (internal
quotation marks omitted) (quoting Pappas, 963 F.2d
contends that Plaintiffs do not satisfy the required
foundational predicate for admissibility under Rule
801(d)(2)(D) because they fail to fully identify the
“Rupa” supervisor. However, the Second Circuit
has allowed vicarious admissions from unidentified
individuals where other evidence establishes the scope as
well as the existence of the agency relationship. See
Pappas, 963 F.2d at 538 (allowing admissions from
unidentified employee where “the agency relationship
was sufficiently established without identifying the
Plaintiff Williams has provided testimony, as a former
employee of Bethel, that this unidentified individual was the
supervisor of the Rehab Unit and the supervisor for all units
at night, who had the authority to sign Plaintiff's
overtime form, but refused to do so. (Decl. of David D.
Barnhorn in Opp. to Def.'s Mot In Limine
(“Barnhorn Decl.”), Ex. A, Excerpt of Deposition
of Nicola Williams (“Williams Dep.”) at
35:17-36:25.) Such testimony provides a sufficient basis for
this Court to find that the unidentified individual,
“Rupa, ” was employed as a supervisor of Bethel
when she made statements regarding Plaintiff's hours and
entitlement to overtime, and that such statements were within
the scope of her supervisory role. That Plaintiff herself is
the sole source of this information goes to the weight of the
testimony rather than its admissibility. Accordingly,
Plaintiff's testimony regarding “Rupa” is
admissible as non-hearsay under Rule 801(d)(2)(D).
Defendant's argument that Plaintiff Williams should be
precluded from testifying about alleged conversations with
her former supervisor because “Plaintiff failed to
identify this purported individual as a witness in pre-trial
disclosures” pursuant to Federal Rule of Civil
Procedure 26 is equally unavailing. Plaintiff does not intend
to call “Rupa” as a witness. (Pls.' Mem. of
Law in Opp. to Defs.' Mot. In Limine
(“Pls.' Opp.”) at 4.) Rather, Williams will
testify regarding her conversations with that individual.
(Id.) As Plaintiffs are not offering
“Rupa” as a witness herself, disclosure of her