hibu Inc. v. PeckRESPONSED. Kan.December 21, 2017US-DOCS\97448723.5CORE/3502715.0002/136656137.1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS hibu INC., ) ) Plaintiff, ) v. ) Case No. 6:16-CV-01055-JTM-TJJ ) CHAD PECK, ) ) Defendant. ) ) Defendant’s Opposition to Plaintiff’s Third Motion in Limine Plaintiff seeks to preclude evidence of any adverse employment action against any current or former Hibu employee—other than Defendant, the six former sales representatives who left Hibu for Dex Media and Randy Riekenberg. Evidence of Plaintiff’s dealings with its employees in general will give the jury a better picture of the state of affairs at Hibu.1 The jury could well find that evidence relevant in assessing how Defendant was able to successfully recruit away six of Plaintiff's employees. As such, this evidence is directly relevant to Plaintiff's contention that Defendant breached the 2006 Agreement by soliciting Plaintiff's employees prior to the end of the restriction period on January 2, 2016.2 The exception that Plaintiff proposes for Randall Riekenberg serves only to confirm that this motion must be denied. While Defendant and the six sales representatives who left Hibu are 1 See, e.g., K. Kimbro Dep. Tr. 91:18-21, 113:2-114:15 (Ms. Kimbro testified that she felt significant pressure to meet sales objectives at Hibu, and that the stress that she experienced working at the company led to clinical depression and anxiety for which she received treatment); B. Peck Dep. Tr. 11:1-8 (Ms. Peck testified that she had serious concerns about the “unattainable” expectations placed on sales representatives at Hibu). Nadal v. FAA, 281 F. App’x 814, 817 (10th Cir. 2008) (finding evidence relevant where it “tends to corroborate” a fact at issue). 2 Hibu’s reliance on a series of out-of-circuit cases for the proposition that employment- discrimination plaintiffs may not use evidence of discrimination against others to prove that they were discriminated against has no relevance here. MIL No. 2 at 2 n.5. This is not an employment-discrimination case. Nor is Defendant trying to use the disputed evidence to prove that he was discriminated against or similarly treated. Case 6:16-cv-01055-JTM Document 330 Filed 12/21/17 Page 1 of 3 US-DOCS\97448723.5CORE/3502715.0002/136656137.1 2 clearly differently situated than other former Hibu employees, Plaintiff offers no reason for allowing evidence as to Mr. Riekenberg’s departure from Hibu while precluding similar evidence as to other ex-Hibu employees. The Rules do not permit such cherry-picking. Plaintiff cannot use a motion in limine to exclude evidence that it considers unfavorable, while at the same time, making free use of similar evidence that it considers favorable to its case.3 Evidence of layoffs, terminations and other departures of Hibu employees other than Defendant, the six sales representatives and Mr. Riekenberg also is relevant to damages, in general, and causation, in particular. Among other things, the jury might find such evidence helpful in evaluating Plaintiff’s allegation that Defendant’s joining Dex Media in August 2015, and not independent market factors, is the proximate cause of any business or customers Plaintiff supposedly has lost. Plaintiff’s Third Motion in Limine should be denied. /s Lynn D. Preheim Frank W. Basgall (#25073) Lynn D. Preheim (#13300) Alisa Nickel Ehrlich (#17096) Frank W. Basgall (#25073) STINSON LEONARD STREET LLP 1625 N. Waterfront Parkway, Suite 300 Wichita, Kansas 67206-6620 Telephone (316) 265-8800 Facsimile (316) 265-1349 lynn.preheim@stinson.com alisa.ehrlich@stinson.com frank.basgall@stinson.com Attorneys for Defendant 3 See Judkins v. Anderson Drilling, Inc., No. 2:12-cv-421-DAK, 2015 U.S. Dist. LEXIS 6801, at *6 (D. Utah Jan. 21, 2015) (“Having elected to have a jury hear and decide her claims, Plaintiff cannot cherry-pick relevant facts and substitute her judgment for the jury’s.”). Case 6:16-cv-01055-JTM Document 330 Filed 12/21/17 Page 2 of 3 US-DOCS\97448723.5CORE/3502715.0002/136656137.1 3 CERTIFICATE OF SERVICE I hereby certify that on this 21st day of December, 2017, I caused the above and foregoing to be electronically filed with the clerk of the court by using the CM/ECF system which will send a notice of electronic filing to the following: Patrick L. Kenney John M. Mattox II Russell J. Shankland Todd W. Ruskamp, Shook, Hardy & Bacon L.L.P. 2555 Grand Blvd. Kansas City, MO 64108 pkenney@shb.com truskamp@shb.com jmattox@shb.com rshankland@shb.com Attorneys for Plaintiff Joseph Serino, Jr., admitted pro hac vice Lea Friedman, admitted pro hac vice Gregory S. Mortenson, admitted pro hac vice LATHAM & WATKINS LLP 885 Third Avenue, Suite 1000 New York, New York 10022 Telephone: (212) 906-1200 Facsimile: (212)751-4864 joseph.serino@lw.com leah.friedman@lw.com gregory.mortenson@lw.com Attorneys for Defendant s/ Lynn D. Preheim Lynn D. Preheim Case 6:16-cv-01055-JTM Document 330 Filed 12/21/17 Page 3 of 3
