Freedom's Path at Dayton v. Dayton Metropolitan Housing Authority

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DAYTON VETERANS RESIDENCES :

LIMITED PARTNERSHIP, d/b/a :

FREEDOM’S PATH AT DAYTON, : Case No. 3:16-cv-466

:

Plaintiff, : Judge Thomas M. Rose

:

v. :

:

DAYTON METROPOLITAN HOUSING :

AUTHORITY, :

:

Defendant. :

______________________________________________________________________________

ENTRY AND ORDER DENYING DAYTON METROPOLITAN HOUSING

AUTORITY’S SUPPLEMENTAL MOTION IN LIMINE TO LIMIT TRIAL

TESTIMONY AND EXCLUDE PLAINTIFF’S TRIAL MATERIALS

PURSUANT TO THE LAW OF THE CASE (DOC. NO. 117)

______________________________________________________________________________

Before the Court is Defendant Dayton Metropolitan Housing Authority’s Supplemental

Motion in Limine to Limit Trial Testimony and Exclude Plaintiff’s Trial Materials Pursuant to the

Law of the Case (“Motion”). (Doc. No. 117.) Dayton Metropolitan Housing Authority

(“DMHA”) argues that the law of this case mandates that the scope of witnesses’ testimony be

limited to events and circumstances occurring prior to September 2, 2016. (Doc. No. 117 at

PageID 2927.) For the reasons explained below, the Court DENIES the Motion.

I. BACKGROUND

This case involves Dayton Veterans Residences Limited Partnership, d/b/a Freedom’s

Path’s (“Freedom’s Path’s”) efforts to create affordable housing for homeless veterans on the

Veteran’s Administration Medical Campus (“VAMC”) in Dayton, Ohio. 1 (Doc. No. 65 at PageID

2106.) Freedom’s Path sought the assistance of DMHA in obtaining project-based housing

vouchers for its housing project. Freedom’s Path alleges that DMHA reneged on a 2013

commitment of 33 housing vouchers for the project.

In December of 2015, Craig Taylor, of Freedom’s Path, and Jennifer Heapy, of DMHA,

engaged in correspondence regarding DMHA’s Administrative Plan, which governs how it may

award housing vouchers. (Doc. No. 65 at PageID 2111-14.) The goal of these communications,

from Freedom’s Path side, was to ensure the commitment of the 33 previously promised housing

vouchers and to get DMHA to apply for Veterans Affairs Supportive Housing (“VASH”) vouchers

on Freedom’s Path’s behalf. (Id.) DMHA stated that, under its Administrative Plan, it could not

grant the 33 housing vouchers or apply for the VASH vouchers for Freedom’s Path. (Id.) On

September 2, 2016, after several months of continued communications between the parties,

Freedom’s Path made a final formal request for a reasonable accommodation under the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12132, or the Fair Housing Act (“FHA”), 42 U.S.C. §

3604, in order to obtain the needed vouchers. (Id. at PageID 2120.) On September 7, 2016, DMHA

denied the request. (Id. at PageID 2121.) The deadline to apply for the VASH vouchers passed

on September 9, 2016, without DMHA applying for any VASH vouchers on Freedom’s Path’s

behalf. (Id. at PageID 2122.) DMHA ultimately amended its Administrative Plan, with the

approval of the Department of Housing and Urban Development, in April of 2017. (Id. at PageID

2122-23.) Freedom’s Path alleges that DMHA failed to provide a reasonable accommodation in

response to these communications.

On April 25, 2022, DMHA filed the Motion. (Doc. No. 117.) Freedom’s Path filed its

1 For a complete recitation of the facts of this case prior orders in this case ably describe the evidence in this case.

(See Doc. No. 65 at PageID 2106-24.)

response on May 10, 2022. (Doc. No. 125.) DMHA filed its reply on May 17, 2022. (Doc. No.

129.) The Motion is fully briefed and ripe for review and decision.

II. STANDARD OF REVIEW

District courts adjudicate motions in limine under their “inherent authority to manage the

course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S. Ct. 460, 83 L. Ed. 2d 443

(1984). Courts should exclude evidence pursuant to a motion in limine “only when evidence is

clearly inadmissible on all potential grounds.” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp.

2d 702, 706 (E.D. Ky. 2010) (citation omitted). The Sixth Circuit advises that the “better practice”

is to address questions regarding the admissibility of broad categories of evidence “as they arise.”

Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). “‘[A] court is almost

always better situated during the actual trial to assess the value and utility of evidence.’” Enoch

v. Hamilton Cnty. Sheriff, No. 1:16-cv-661, 2022 U.S. Dist. LEXIS 36884, at 8 (S.D. Ohio Mar.

2, 2022) (quoting Owner-Operator Indep. Drivers Ass’n v. Comerica Bank, No. 05-cv-0056, 2011

U.S. Dist. LEXIS 113662, at *3, 2011 WL 4625359 (S.D. Ohio Oct. 3, 2011)). Denial of a motion

in limine does not necessarily mean that the evidence, which is the subject of the motion, will be

admissible at trial. Ind. Ins. Co. v. GE, 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004).

III. ANALYSIS

DMHA argues that the Court should limit the scope of “testimony to events and

circumstances occurring prior to September 2, 2016” because any additionally dialogue between

the parties after this date is irrelevant to whether DMHA failed to provide Freedom’s Path a

reasonable accommodation. (Doc. No. 117 at PageID 2927.) Confusingly, DMHA also argues

that the Court should “limit liability and/or fact witness testimony to events and circumstances

occurring prior to September 7, 2016.” (Id. at PageID 2925.) DMHA argues the Court should

observe the “law of the case doctrine” in adopting this position because, in the motion for summary

judgment ruling, the Court explained the law in this case as follows:

In the Court’s view, there is a genuine issue of material fact as to whether the

communications that took place in December of 2015 between Taylor and Heapy

were sufficient to put Greater Dayton Premier Management on notice that

Freedom’s Path was requesting an accommodation under the ADA or the FHA, or

whether the need for such accommodation under those statues was obvious.

(Id. at PageID 2928 (citing Doc. No. 65 at PageID 2158).) DMHA further argues that the Court

framed the scope of relevant facts as follows:

To the extent that Taylor’s December 15, 2016, email message, and related

telephone conversations, can be deemed a request for reasonable accommodation,

a reasonable jury could find that Greater Dayton Premier Management violated the

ADA and the FHA in denying that request. Greater Dayton Premier Management

maintains that it did not deny Freedom’s Path’s request; it did, in fact, make the

requested amendment to its Administrative Plan. The problem is that Greater

Dayton Premier Management did not draft the amendment until July of 2016, after

the Notice of Funding Availability was issued, and did not obtain Board approval

until weeks after the September 9, 2016, deadline for submitting applications for

VASH vouchers. The amendment was not approved by HUD until April of 2017.

By that time, the amendment was useless to Freedom’s Path. In that respect, Greater

Dayton Premier Management’s alleged failure to take timely action to amend its

Administrative Plan had the same effect as an outright denial.

(Id. at PageID 2928-29 (citing Doc. No. 65 at PageID 2154-55 (citations omitted).)

Based on this rationale, DMHA further argues that Exhibit 11, a September 9, 2016 email

from Freedom’s Path’s Don Paxton to DMHA’s Jennifer Heapy regarding a last attempt to obtain

the VASH vouchers, and Exhibit 44, Freedom’s Path’s September 16, 2016 Change for Proposal

to the Ohio Housing Finance Authority, are also irrelevant because they were created after the

September 2, 2016 date. (Doc. No. 117 at PageID 2929-30.) DMHA also argues that both exhibits

are substantially more prejudicial than probative. (Id. at PageID 2930-31.) Specifically, DMHA

argues Exhibit 11 is needlessly cumulative and Exhibit 44 is prejudicial because it presents

statistical data regarding the percentage of its target demographic who were disabled as it may

mislead the jury into believing that Freedom’s Path provided the included data to DMHA. (Id. at

PageID 2930-31.)

In response, Freedom’s Path argues that the relevant time frame extends through April 17,

2017 because the Court stated that “from 2013 through April 17, 2017, [DMHA’s] Administrative

Plan provided that project-based voucher proposals would be selected only via a Request-for-

Proposals initiated by [DMHA].” (Doc. No. 125 at PageID 3015-16 (citing Freedom’s Path at

Dayton v. Dayton Metropolitan Housing Authority, No. 3:16-cv-466, 2019 U.S. Dist. LEXIS

49688, at *57, 2019 WL 1331311 (S.D. Ohio Mar. 25, 2019).) Moreover, Freedom’s Path points

out that the requested amendment to DMHA’s Administrative Plan was adopted in April of 2017.

(Id. (citing Freedom’s Path, 2019 U.S. Dist. LEXIS 49688, at *58).) Freedom’s Path further

argues that Exhibit 11 and Exhibit 44 demonstrate its efforts to mitigate its damages. (Doc. No.

125 at PageID 3017-18.)

In reply, DMHA argues that testimony after September 2, 2016 should be excluded because

showing that DMHA amended its Administrative Plan is an improper attempt show a subsequent

remedial measure in violation of Rule 407. (Doc. No. 129 at PageID 3242.) It further argues that

Exhibit 44 should be excluded because it includes double hearsay. (Id. at PageID 3243.) DMHA

finally argues that Freedom’s Path’s attempt to include testimony and documents related to

mitigation should be excluded on the liability issue. (Id. at PageID 3244.)

A. Law of the Case Doctrine

The law of the case doctrine provides that, “when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages in the same case.” Scott

v. Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004) (quoting Arizona v. California, 460 U.S. 605,

618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)). “[L]aw-of-the-case is designed to ‘prevent[ ] the

relitigation of an issue once there has been a judgment on the merits.’” GMAC Mortg., LLC v.

McKeever, 651 F. App’x 332, 339 (6th Cir. 2016) (quoting Bowles v. Russell, 432 F.3d 668, 676

(6th Cir. 2005)). Its purpose “‘is to ensure that the same issue presented a second time in the same

case in the same court should lead to the same result.’” Id. (quoting Howe v. City of Akron, 801

F.3d 718, 739 (6th Cir. 2015)) (emphasis in original).

It is not entirely clear why DMHA elected either September 2, 2016 or September 7, 2016

as the point at which it felt this Court should erect a barricade with the disclaimer that none shall

pass. Indeed, September 7, 2016 is entirely unsupported in the Motion. The September 2, 2016

date appears to be based on the Court’s reasoning that “if the September 2, 2016, request was the

only one at issue, no reasonable jury could find that the requested accommodation was

reasonable.” (Doc. No. 65 at PageID 2153.) While the ruling does prevent Freedom’s Path from

using the September, 2, 2016 communication as an actionable accommodation request to DMHA

to amend its Administrative Plan in this case, the Court by no means held that any communication

after that date was irrelevant. Indeed, since the parties disagree on whether scope of relevant

testimony ends in September 2016 or April 2017, it is far wiser for this Court to defer judgment

on the relevance of testimony discussing events after September 2, 2016 until it arises at trial.

Sperberg, 519 F.2d at 712. This same rationale applies to Exhibit 11 and Exhibit 44, as DMHA’s

main objection appears to be that the documents were created after September 2, 2016. (Doc. No.

117 at PageID 2930-31.)

B. Exclusion Under Rule 403

Even if evidence is relevant, it may be excluded “if its probative value is substantially

outweighed by a danger of. . . unfair prejudice, confusing the issues, misleading the jury,” or by

considerations of “undue delay, waste of time, or needlessly presenting cumulative evidence.”

Fed. R. Evid. 403. Evidence is not excluded merely because it is damaging or prejudicial to a

party; instead, it must be unfairly prejudicial. See United States v. Bonds, 12 F.3d 540, 567 (6th

Cir. 1993). To warrant exclusion, any danger of unfair prejudice posed by the evidence must

“substantially outweigh[]” its probative value. Fed. R. Evid. 403 (emphasis added). Rule 403 is

not concerned with “the damage to [a party’s] case that results from the legitimate probative force

of the evidence; rather, it refers to evidence which tends to suggest decision on an improper basis.”

United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986).

DMHA argues that Exhibit 11 is needlessly cumulative because other witnesses will testify

about its contents, namely Freedom’s Path’s description of its efforts to complete the housing

project. (Doc. No. 117 at PageID 2930.) The mere fact that other witnesses will likely testify

about the efforts taken by Freedom’s Path to bring its project to fruition does not render the email,

and its description of those efforts, needlessly cumulative. See United States v. Love, 254 F. App’x

511, 518-19 (6th Cir. 2007) (“[t]he fact that another piece of evidence speaking to an element of

the offense has already been introduced does not render a later piece of evidence needlessly

cumulative”). It is better that the Court refrain from ruling until it can evaluate the value and utility

of the evidence in the context of trial. Owner-Operator, 2011 U.S. Dist. LEXIS 113662, at *3;

Enoch, 2022 U.S. Dist. LEXIS 36884, at 8.

The Court further declines to exclude Exhibit 44 under Rule 403, at this time.2 Again, to

warrant exclusion, any danger of unfair prejudice posed by the evidence must “substantially

outweigh[]” its probative value. Fed. R. Evid. 403 (emphasis added). The Sixth Circuit has found

this requirement significant. See Koloda v. Gen Motors Corp., 716 F.2d 373, 377 (6th Cir. 1983).

It is not clear that the introduction of this document would meet that bar, in part, because DMHA

2 The Court also declines to exclude the document on hearsay grounds because DMHA did not raise the argument

until its reply. (Doc. No. 129 at PageID 3243.) Freedom’s Path may have exceptions to hearsay that would render

this document admissible; it would not be appropriate to exclude a document based on an argument raised for the first

time in a reply brief. Lusk v. Alsata Salimatu Lamin, No. 2:22-cv-6064, 2022 U.S. Dist. LEXIS 56341, at *11, 2022

WL 912258 (S.D. Ohio Mar. 29, 2022) (citing United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002)).

could simply cross-examine a witness from Freedom’s Path and clarify that Exhibit 44 was never

provided to DMHA. The Court is better served by reserving judgment for trial. Sperberg, 519

F.2d at 712.

IV. CONCLUSION

For the reasons stated above, the Court DENIES Defendant Dayton Metropolitan Housing

Authority’s Supplemental Motion in Limine to Limit Trial Testimony and Exclude Plaintiff’s Trial

Materials Pursuant to the Law of the Case (Doc. No. 117).

DONE and ORDERED in Dayton, Ohio, this Thursday, May 26, 2022.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE