Nesbitt v. Holder

RESPONSE re First MOTION in Limine , 38 Second MOTION in Limine

D.D.C.April 8, 2014

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JOSHUA NESBITT, Plaintiff, v. ERIC H. HOLDER, JR., Attorney General of the United States Department of Justice Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 12-717 (RCL) ECF DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTIONS IN LIMINE Defendant Eric H. Holder, Attorney General of the United States Department of Justice (DOJ or the Department), respectfully submits this response to Plaintiff’s first motions in limine to preclude any reference to the race of Defendant’s high-ranking officials (D.I. 37), and his second motion in limine to exclude all references to other lawsuits involving plaintiff (D.I. 38). I. Plaintiff’s motion in limine regarding the race of high-ranking DOJ Officials should be denied. Plaintiff requests that this Court preclude all references to the race of certain high-ranking DOJ officials. D.I. 37 at 1-2. At no point during this litigation has Defendant raised, nor does it intend to do so at trial, the fact that several high-ranking officials at the Department are African-Americans. However, the Department should not be strictly precluded from doing so. There are foreseeable scenarios under which such an absolute exclusion of any evidence or testimony would be prejudicial to the government. For example, in the event that Plaintiff or others testify about the race of these officials, DOJ should not be precluded from rebutting incorrect or misleading testimony. Furthermore, if Plaintiff offers testimony that there are no Case 1:12-cv-00717-RCL Document 44 Filed 04/08/14 Page 1 of 3 2 African Americans in the ranks of management at the Department, the race of these officials would become an issue about which DOJ would need to offer evidence. Finally, the race of these officials may be offered for impeachment purposes. Accordingly, Plaintiff’s first motion in limine should be denied. II. Plaintiff’s motion in limine regarding his involvement in other law suits should be denied. Plaintiff moves for an order to exclude all references to other lawsuits in which he has been involved. D.I. 38 at 1-2. He does so because he believes the issue to be irrelevant or that such evidence’s “probative value is substantially outweighed by a danger of . . . unfair prejudice.” Id. at 2. In the Joint Pretrial Statement Plaintiff, for the first time, claimed that he was seeking “garden variety compensatory damages, including harm to reputation, any consequential financial harm, mental anguish, irreparable loss of valuable attorney experience and loss of ongoing ability to qualify for supervisory positions.” D.I. 40 at 14. On April 2, 2014, this Court ruled that Plaintiff had not waived his compensatory damages in their entirety, and invited the Department to possibly conduct additional discovery on the issue. D.I. 42, Memo. Op. at 6-7. Plaintiff has testified that he was involved in the prosecution of his sister for the forgery of his signature on a jointly owned property and her subsequent conviction of grand larceny, for which she was ultimately incarcerated. D.I. 38 at 1. At this juncture, it remains unclear at what point in time those events occurred and what “financial harms” the Plaintiff may have suffered as a result, which would impact the issue of the damages he seeks. In other words, his credit could have been impacted as a result of his sister’s actions, inter alia. Furthermore, the Department is now entitled to explore the emotional impact of the events surrounding Plaintiff’s role in the incarceration of his sibling. Accordingly, Plaintiff’s motion is not ripe for review. Case 1:12-cv-00717-RCL Document 44 Filed 04/08/14 Page 2 of 3 3 Respectfully submitted, RONALD C. MACHEN JR. D.C. BAR # 447889 United States Attorney for the District of Columbia DANIEL F. VAN HORN D.C. BAR # 924092 Civil Chief By: //s// MERCEDEH MOMENI Assistant United States Attorneys 555 4th Street, N.W. Washington, D.C. 20530 (202) 252-2515 Mercedeh.momeni@usdoj.gov Of Counsel: Janice Kaye, Esq. United States Department of Justice National Security Division April 8, 2014 Case 1:12-cv-00717-RCL Document 44 Filed 04/08/14 Page 3 of 3