Opinion
94 Civ. 7431 (WK)
September 15, 2000
William P. Harrington, Bleakley, Platt Schmidt, LLP, White Plains, NY, for Plaintiff.
Mark M. Elliott, Bingham Dana LLP, New York, NY, for Defendant.
MEMORANDUM ORDER
Familiarity with our prior decisions in this matter and with the parties' briefs on this motion will be assumed.
Defendant County of Westchester (hereinafter "defendant") moves in limine to preclude plaintiffs Liberty Environmental Systems, Inc. ("Liberty") and A. Tarricone, Inc. (collectively, "plaintiffs") from offering at trial any evidence of events that occurred after July 15, 1993, the date on which defendant awarded a sludge management contract to Liberty's rival bidder, Tully Construction Co. (We hereinafter refer to the time period after July 15, 1993 as the "post-contract" period.) For the reasons indicated below, we deny defendant's motion.
BACKGROUND
In support of its Equal Protection Clause claim, Liberty intends to prove at trial that post- contract events, when coupled with various pre-contract actions of defendant, demonstrate that defendant intended to and did in fact discriminate against Liberty during the request for proposals ("RFP") bidding and review process. Indeed, Liberty will argue that defendant purposely manipulated the RFP process to ensure that Liberty was not awarded the contract — and that post-contract behavior serves as circumstantial evidence of pre-contract manipulation.
Plaintiffs contend that each of the following alleged post-contract events is probative of defendant's pre-contract discrimination:
(1) As soon as defendant publicly announced Tully's selection, the resultant overwhelming popular opposition forced Tully to abandon the site, confirming that Tully's site was politically unacceptable even during the RFP process. As detailed in their memorandum of law, plaintiffs proffer significant evidence that defendant knew during 1992 that Tully's site was unsatisfactory. The post-contract evidence simply helps to substantiate the pre-contract knowledge and, arguably, that defendant nevertheless preferred Tully's bid for irrational, illegitimate, or biased reasons.
(2) Both before and after the Tully contract award, defendant steadfastly maintained that Tully could not change sites, or use its backup Phillipsburg, New Jersey site, on the grounds that such action would violate both the law and the Tully-County contract. However, once Tully defaulted under the contract, defendant "changed the rules" and allowed Tully to use the Phillipsburg site in exchange for monetary consideration. Perhaps this series of events tends to show that even before the signing of the contract, defendant illegitimately favored Tully over Liberty. (Of course, it is also possible that defendant changed the rules to deal pragmatically with a bad situation that it did not foresee.)
(3) Despite the RFP rule demanding that a proposed site be a fully permitted facility capable of accepting all County sludge for a lengthy period and for beneficial reuse, defendant allowed Tully to use the Phillipsburg site without meeting such requirements. Again, although these actions came to light post-contract, they possibly show that defendant knew of Tully's pre-contract deficiencies yet still favored Tully for the illegitimate political motives alleged in plaintiffs' memorandum of law.
DISCUSSION A. "Law of the Case"
We are not impressed with plaintiffs' argument that, owing to the "law of the case" doctrine, we should be governed by our prior decisions in this litigation.
B. Use of Post-Contract Behavior as Circumstantial Evidence of Earlier Intent
Contrary to plaintiffs' position, we assume that Liberty and Tully ceased to be "similarly situated" after the contract date. Nevertheless, courts sometimes invoke subsequent behavior as circumstantial evidence of past behavior, and we believe such a method is appropriate in the instant case.
In order to sustain their equal protection claim, plaintiffs must demonstrate intentional discrimination. In analogous areas, courts permit admission of post-event evidence. For exmple, in civil rights actions against a municipality, post-event occurrences can prove "highly probative" of a pre-existing illegal custom or practice. Indeed,
As subsequent conduct may prove discriminatory motive in a prior employment decision, and subsequent acts may prove the nature of a prior conspiracy, so the subsequent acceptance of dangerous recklessness by the policymaker tends to prove his preexisting disposition and policy.
Henry v. County of Shasta (9th Cir. 1997)132 F.3d 512, 519-20, cert. denied, 525 U.S. 819 (1998) (quoting Grandstaff v. City of Borger (5th Cir. 1985) 767 F.2d 161, 171, cert. denied, 480 U.S. 916 (1987)).
In one case, the Second Circuit apparently enlisted evidence of post-event actions in assessing a claim for the denial of equal protection. See Brady v. Town of Colchester (2d Cir. 1988) 863 F.2d 205. In Brady, the Court reported in its "Background" facts the alleged actions by a town official after plaintiffs claimed to have been unconstitutionally denied a certificate of occupancy. The town official was an owner and president of the board of the local newspaper, in which some "negative press" emerged after the town denied the certificate. See id. at 208. The evidence of negative press supported plaintiffs' claim that the town had wrongful political motivations all along for its denial. Id. The Court did not specifically refer to this evidence again in its "Discussion" section, although such evidence did tend to support its ultimate holding (reversing the district court's grant of summary judgment to defendants on this claim). See id. at 216-17.
In addition, "every circuit that has directly addressed the question of post-enactment evidence" in equal protection claims involving governmental affirmative action programs has held that such evidence is admissible. See West Tennessee Chapter of Assoc. Builders Contractors, Inc. v. Board of Educ. (W.D.Tenn. 1999) 64 F. Supp.2d 714, 718 (listing cases, including Second Circuit authority). However, such cases are governed by specific Supreme Court rulings not relevant here (and one district court has harshly criticized the result in that context). See id. at 719-20.
While defendant has cited cases to the contrary, they are distinguishable and in any event do not dictate a blanket rule for all contexts. These decisions generally admonish the trier of fact to guard against applying "third-party hindsight," but they do not propose to prevent the trier of fact from using subsequent behavior as a guide when such behavior is otherwise deemed probative. See, e.g., Taylor v. Polygram Records (S.D.N.Y. Mar. 8, 1999) No. 94 Civ. 7689, 1999 WL 124456, *10; McKnight v. Kimberly Clark Corp. (10th Cir. 1998) 149 F.3d 1125, 1129.
Next, defendant cites several securities law decisions. In each, the court's exclusion of later evidence was necessitated by the relatively low value of such evidence in each specific context. See, e.g., Denny v. Barber (2d Cir. 1978) 576 F.2d 465, 470 ("For the most part, plaintiff has simply seized upon disclosures made in later annual reports and alleged that they should have been made in earlier ones."). For example, public disclosures occurring "long after" an allegedly fraudulent securities transaction have limited probative value and may be excluded under Fed.R.Evid. 403 (which rule is more fully discussed below). See Herskowitz v. Nutri/System, Inc. (3rd Cir. 1988) 857 F.2d 179, 188, cert. denied, 489 U.S. 1054 (1989); Jaroslawicz v. Engelhard Corp. (D.N.J. Apr. 5, 1989) Civ. No. 84-3641, 1989 WL 32864, *5.
In contrast to all of these cases, plaintiffs' theory in the one at bar rests on significant pre-contract evidence as well as probative post-contract evidence. Moreover, we bear in mind that since direct evidence of discriminatory intent rarely surfaces in discrimination cases, the trier of fact must often infer such intent from circumstantial evidence, including subsequent conduct. See, e.g., Chertkova v. Connecticut General Life Ins. Co. (2d Cir. 1996) 92 F.3d 81, 87 (examining circumstantial evidence of discrimination, including post-termination behavior).
Here, defendant has predictably denied any discriminatory intent. Post-contract events constitute circumstantial evidence that defendant, notwithstanding the merits of Liberty's proposal, had no intention of awarding Liberty the contract under any circumstances. Consequently, in our case it is fair to admit plaintiffs' full spectrum of proof on its equal protection cause of action.
Finally, defendant advances the venerable "slippery slope" argument: if we permit post-contract evidence, why not inspect what the County did as recently as last year or, indeed, last week? The answer is that such very recent behavior is not probative enough to admit under Fed.R.Evid. 403. Of course, these evidentiary matters remain within our discretion. So, although we now grant the admissibility of 1993-94 evidence, if plaintiffs attempt at trial to introduce, say, 1998 evidence, defendant can object at that time and seek a particularized ruling.
We find likewise unconvincing defendant's argument concerning the County Executive election.
C. Federal Rule of Evidence 403
Defendant further affirms that, even if post-contract evidence remains relevant, we should exclude it under Rule 403 of the Federal Rules of Evidence because its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay. . . ." We disagree.As discussed above, Liberty's evidence is directly relevant to its equal protection claim. Liberty also predicates its breach of covenant of good faith claim and its defenses to defendant's counterclaims upon specific post-contract happenings. In particular, having affirmatively raised post-contract events in support of multi-million dollar counterclaims, defendant cannot now reasonably contend that such evidence will confuse the jury or cause an undue prolongation of the trial.
Yet defendant also suggests that the introduction of post-contract evidence will cause an "avalanche of complex legal wranglings that will befuddle the jury" (Def. Mem. at 25). We have reviewed the details of such evidence and find that they will not confuse the jury. For example, we do not believe that the jury will need to pore over the minutiae of state lawsuits challenging Tully's Putnam Valley site, of the force majeure applications, or of permitting issues involving Tully's Phillipsburg site.
Overall, the balancing inherent in Fed.R.Evid. 403 decidedly favors plaintiffs. During the course of the trial, we will entertain particularized objections to irrelevant or confusing evidence.
CONCLUSION
Defendant's motion in limine to preclude plaintiffs from offering at trial any evidence of events occurring after July 15, 1993 is hereby DENIED.
SO ORDERED.