Summary
In Hassan, this Court ruled on whether statements taken of six employees of the defendant within the scope of their employment fell within the hearsay exception of Fed.R.Evid. 801(d)(2)(D), a ruling affecting whether additional depositions needed to be taken.
Summary of this case from S.W. v. City of New YorkOpinion
CV 2003-5443 (DLI) (MDG).
April 15, 2005
ORDER
Plaintiff brings this action under the Jones Act to recover damages for injuries allegedly sustained when struck by a wave while working on the M/V Maersk Missouri on January 10, 2003. By letter application dated December 21, 2004, plaintiff seeks anin limine ruling concerning the admissibility of seven statements prepared by employees of defendant relating to the accident that allegedly caused plaintiff's injuries. Defendant disputes the admissiblity of six of those statements on the grounds that the statements are hearsay and the timing of the motion.
DISCUSSION
Although not explicitly authorized by either the Federal Rules of Civil Procedure or the Federal Rules of Evidence, motions in limine are commonly used because they allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v. United States, 469 U.S. 38, 41 n. 4 (1984) (noting that "the practice has developed pursuant to the district court's inherent authority to manage the course of trials"). As the Second Circuit noted in Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996), such motions "aid the trial process by enabling the Court to rule in advance of trial . . . without lengthy argument at, or interruption of, the trial."
Defendant objects to the timing of the instant motion, arguing that many of the statements contain information that is not relevant and that relevance is an issue best addressed at trial. This Court agrees that the relevance of some of the statements may depend on how the evidence develops at trial and that this issue is best resolved at trial. See Palmieri, 88 F.3d at 139 (in limine ruling on relevance "may be changed due to developments at trial"). Thus, this order is limited to the issue whether the statements constitute inadmissible hearsay.
Related to the question whether a ruling on admissibility is appropriate before trial is whether a magistrate judge has authority to make evidentiary rulings that could be addressed at trial. This Court will address the plaintiff's application because a ruling in advance of trial on admissibility under Rule 801(d)(2)(D) will not only facilitate the trial process, but will "save the parties time, effort and cost in preparing and presenting their cases." Starling v. Union Pacific R. Co., 203 F.R.D. 468 (D. Kan. 2001) (citing Pivot Point Intern., Inc. v. Charlene Products, Inc., 932 F.Supp. 220, 222 (N.D. Ill. 1996)); see also Fed.R.Civ.P. 1 (Federal Rules must be construed "to secure the just, speedy, and inexpensive determination of every action"). Several courts have held that in limine rulings are within the pretrial reference authority of magistrate judges. "[E]ven though they may ultimately affect the outcome of a claim or defense, [they are] non-dispositive orders entered pursuant to 28 U.S.C. § 636(b)(1)(A)." Lithuanian Commerce Corporation Ltd. v. Sara Lee Hosiery, 177 F.R.D. 205, 456 (D.N.J. 1997) (citing cases); see EEOC v. Morgan Stanley Co., Inc., No. 01 Civ. 8421, 2004 WL 1542264, at *1 (S.D.N.Y. July 8, 2004); Pavlou v. Baxter Healthcare Corp., No. 98 Civ. 4526, 2004 WL 345590, at *2 (S.D.N.Y. Feb. 24, 2004); RMed Int'l, Inc. v. Sloan's Supermarkets, Inc., No. 94 Civ. 5587, 2000 WL 420548, at *2 n. 1 (S.D.N.Y. Apr. 18, 2000). Whether or not plaintiff's application is within my pretrial authority to decide, the parties are entitled to file objections with the District Judge within ten days of the date of this order. See Fed.R.Civ.P. 72.
Plaintiff seeks a ruling at this time because if the statements were held inadmissible, plaintiff would need to locate and depose those witnesses prior to the close of discovery. See Letter to Court from Sheldon Tabak dated December 9, 2004 at 1.
Fed.R.Evid. 801(d)(2)(D) provides that "[a] statement is not hearsay if . . . [it] is offered against a party and is . . . a statement by the party's agent or servant concerning a matter within the scope of the agency of employment, made during the existence of the relationship." Thus, three requirements must be met under Rule 801(d)(2)(D): 1) the existence of an agency relationship; 2) the statement was made during the course of the relationship; and 3) it relates to a matter within the scope of the agency. See Pappas v. Middle Earth Condominium Ass'n, 963 F.2d 534, 537 (2d Cir. 1992). "The authority granted in the agency relationship need not include authority to make damaging statements, but simply the authority to take action about which the statements relate." Id. at 538. In other words, for an employee's statement to be within the scope of the declarant's employment, it is sufficient if the statement relates to the declarant's duties. See United States v. Lauersen, 348 F.3d 329, 340 (2d Cir. 2003) (admitting statement concerning destruction of files where declarant's duties included maintaining files), aff'd on reh'g, 362 F.3d 160 (2d Cir. 2004), judgment vacated and remanded on other grounds, 2005 WL 124244 (Jan. 24, 2005); United States v. Photogrammetric Data Servs., Inc., 259 F.3d 229, 242-43 (4th Cir. 2001) (admitting statement of department manager concerning billing practices and procedures of company), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004); Pappas, 963 F.2d at 538 (admitting statement from worker responsible for snow and ice removal regarding performance of defendant's employees in maintaining walkway); Lipton v. County of Orange, N.Y., 315 F. Supp.2d 434, 450 (S.D.N.Y. 2004) (admitting statements of corrections officers who executed order to transfer plaintiff to a different prison regarding motive for transfer).
Both the existence of an agency relationship and the scope of the relationship may be established by circumstantial evidence.See Pappas, 963 F.2d at 538. The Second Circuit and the Advisory Committee Notes to Rule 801 have recognized that "admissibility under this rule should be granted freely." Id. at 537.
Defendant concedes that the statements at issue were authored by defendant's employees, satisfying the first prong of thePappas test. However, defendant disputes whether the statements were made during the course of the relationship or related to a matter within the scope of the relationship. Defendant argues that the declarants were not required to give these statements and, therefore, the "statements were not taken in the scope of employment and do not meet the second requirement of the Pappas test." Letter to Court from John J. Walsh dated December 31, 2004 ("12/31/04 Ltr.") at 5. However, defendant confuses the second and third prongs of the Pappas test; clearly, the statements were made during the employment relationship and defendant does not argue otherwise. Moreover, the statements were made within the scope of the declarants' employment as evidenced by Captain Coleman's deposition testimony that defendant's company policy requires that all witnesses to an onboard accident give statements concerning the accident. Coleman Dep. at 88-89, 116 (attached to Letter to Court from Jacob Shisha dated December 21, 2004 ("12/21/04 Ltr.") as Exh. 1). To the extent that any of the statements were not required by company policy because the declarants were not witnesses, those statements directly relate to the declarant's job duties.
The statement of A. Leatherwood (attached to 12/21/04 Ltr. as Exh. 2) and the Third Mate (attached to 12/21/04 Ltr. as Exh. 6) are eyewitness accounts of what transpired onboard the ship immediately following the accident. The statements describe the crew's response to the accident, including the administration of first aid to the injured sailors. Although Captain Coleman testified that he could not remember whether he asked Leatherwood to submit a statement, see Coleman Dep. at 109, as eyewitnesses to the events immediately following the accident, Leatherwood and the Third Mate were required by company policy to provide statements concerning accidents onboard. Thus, I find that Leatherwood's and the Third Mate's statements were made within the scope of their employment under Rule 801(d)(2)(D) and were "authorized by the party" under Rule 801(d)(2)(C). Additionally, both statements relate to a matter within the scope of each declarant's employment because the statements essentially describe their actions and those they observed while fulfilling their duties in the aftermath of the accident. See Re/Max Int'l, Inc. v. Realty One, Inc., 173 F.3d 995, 1011-12 (6th Cir. 1999) (admitting statement by CEO regarding whether he talked to principal shareholder of alleged co-conspirator); Corley v. Burger King, 56 F.3d 709, 710 (5th Cir. 1995) (admitting statement by truck driver involved in accident describing what he was doing); Hillert v. Pronav Ship Mgmt., Inc., No. 01 Civ. 7440, 2004 WL 1555159, at *2 (S.D.N.Y. July 12, 2004) (admitting statement from crew member who was stripping wax at time of accident on slippery floor); Lipton, 315 F. Supp.2d at 450 (admitting statements that clearly were related to declarant's duties); Calerera v. Chaudris, No. 99 Civ. 8181, 1993 WL 362406, at *1 (S.D.N.Y. Sept. 13, 1993) (statement of ship's assistant food manager describing circumstances of accident in café was admission under Rule 801 (d)(2)(D)).
The statements of Chief Mate Mark Rhodes (attached to 12/21/04 Ltr. as Exh. 4), AB Bill Holmes (attached to 12/21/04 Ltr. as Exh. 5) and AB Oliver Balico (attached to 12/21/04 Ltr. as Exh. 8) are eyewitness accounts of the accident at issue. As eyewitnesses to the accident and sailors that were injured in the accident, Rhodes, Holmes and Balico were required to submit statements. Coleman Dep. at 88-89, 110-12, 116. In addition, the statements describe what occurred while they fulfilled their duties on the ship. Thus, these statements were made within the scope of their employment and directly relate to the accident that resulted from performing their job duties.
According to defendant, these employees were "affected by the rogue wave that boarded the bow and could have made claim for personal injuries. Thus, these are witnesses whose motivations may differ from the employees in Pappas who had no interest in the incident, other than as employees." 12/31/04 Ltr. at 4. Although these employees' alleged ulterior motives may undermine the general presumption that admissibility "should be granted freely," Pappas, 963 F.2d at 537, defendant's allegation does not preclude a finding that the statements were made during the existence of the agency relationship as suggested by defendant,see 12/31/04 Ltr. at 3. On the contrary, the credibility of the declarants goes to the weight of the evidence not its admissibility. See Hillert, 2004 WL 1555159, at *2. Defendant is free to offer evidence to impeach the credibility of declarants or contradict their statements.
The statement of Second Mate Tobe Demar (attached to 12/21/04 Ltr. as Exh. 7) describes the weather conditions and his actions as he stood watch on the bridge when the accident occurred. While Demar was neither injured nor an eyewitness to the accident itself, his statement clearly relates to his actions and observations while he carried out his duties at the time of the accident. Thus, as a statement by defendant's agent concerning a matter within the scope of his agency, it is not hearsay under Rule 801(d)(2)(D).
Defendant does not object to the admission of a statement by Captain Coleman and Tobe Demar dated January 12, 2003 (attached to 12/21/04 Ltr. as Exh. 3). See 12/31/04 Ltr. at 7.
Finally, this Court notes that the statements may contain hearsay within hearsay. As this issue has not been addressed by the parties, this Court makes no ruling as to the admissibility of any statements contained within the statements admissible under Rule 801(d)(2)(D).
CONCLUSION
For the foregoing reasons, plaintiff's application is granted to the extent set forth above. The statements at issue are not hearsay under Fed.R.Evid. 801(d)(2)(D). A conference will be held on April 26, 2005 at 2:00 P.M.
SO ORDERED.