The opinion
THE UNITED STATES DISTRICT COURT .
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AMOS VANDERHOFF, ot
Plaintiff, : CIVIL ACTION NO. 3:18-CV-1071
‘(JUDGE MARIANI)
V. FILED
: SCRANTON
CITY OF NANTICOKE and : OCT 9@ 2028
POLICE CHIEF THOMAS WALL, :
Defendants. PEA ae Zh fer
MEMORANDUM OPINION
I, INTRODUCTION .
Here the Court considers Defendants’ Motion in Limine to Preclude the Testimony
Regarding the Lawsuit Filed by Kara Kroll (Doc. 64). With the motion, Defendants seek to
preclude Plaintiff from introducing at trial any evidence regarding Kara Kroll, her alleged
treatment, or her lawsuit. (See Doc. 64-2 at 1.) Defendants assert that the evidence
related to Ms. Kroll should be excluded pursuant to Federal Rules of Evidence, 401, 402,
403, and 404(b). (Doc. 65 at 2-4; Doc. 72 at 3.) For the reasons discussed below, the
Court will defer ruling on Defendants’ motion until trial.
Il. BACKGROUND
As of the July 31, 2019, filing of Plaintiff Amos Vanderhoff's Third Amended
Complaint (Doc. 29), the operative complaint in this matter, Plaintiff was employed by
Defendant City of Nanticoke as a police officer and Defendant Thomas Wall was the Police
Chief of the City of Nanticoke. (Doc. 29 ff] 1, 3.) Plaintiff alleges that at all relevant times,
Defendant Wall was an official policymaker who made decisions to restrain Plaintiff's
speech and association. (Id. ] 4.) Plaintiff avers that, at all relevant times, Defendant Wall
was a servant, agent, and/or employee of Defendant City and “was acting under color of
state law when he engaged in official policy, custom, and decision to violate Plaintiffs First
Amendment rights and liberty interest protected by the Fourteenth Amendment.” (/d. {[ 5.)
Plaintiff further avers that Defendant City “acquiesced in all retaliatory actions taken by
its public official and personnel since it has knowledge of the same but has refused to
remedy the situation.” (/d. 76.)
Plaintiff's Third Amended Complaint (Doc. 29) contains six counts, one of which
(Count li - Retaliation for intimate Association) Plaintiff acknowledges was dismissed with
orejudice (id.at 7 n.1). Count |, “Prior Restraint of Speech and Overbreadth,” is lodged
against both Defendants. (Doc. 29 at 3.) This claim is based on Plaintiff's assertions that
Defendant Wall (1) issued a “cease and desist Order” (see Ex. A, Doc. 29 at 16) on May □□□
2018, stating that he had “received information from citizens that you have made false or
disparaging comments about this officer’ (id.; Doc. 29 J 16)! and (2) told Plaintiff on or
1 The May 11, 2018, correspondence referenced “FR Manual, Section 1.02 and Section 1.04.” □
(Doc. 29 at 16.) These provisions are set out in Plaintiffs Ex. B, a Nanticoke City Police Department
Directive, “Subject: General Requirements.” (Doc. 29 ai 17.) Section 1.01 states that “[t]he purpose of this
regulation is to establish policy and guidelines of general requirements for member's conduct.” (/d.)
Section 1.02 defines “Unbecoming Conduct:”: “Unbecoming conduct is that type of conduct which could
reasonably be expected to destroy public respect for Nanticoke City Police Officers and/or confidence in
the Department. Members shall not conduct themselves in a manner which is unbecoming to a police
officer.” (/d.) Section 1.04 addresses “Loyalty to the Department”: “Members shail not publicly criticize the
Department, its policies or other members or employees by talking, writing, or expressing in any other
about May 21, 2018, that Plaintiff and his family (Plaintiffs father and son and cousin who
owns a beauty shop) were not allowed to talk about Defendant Wall to the public (id. J 14-
15). Defendant Wall stated in the May 11, 2018, correspondence that Plaintiff was to □
“cease and desist conduct which could reasonably be expected to destroy public respect for
Nanticoke City Police Officers and/or confidence in the Department” and advised that “[this
letter will also serve as a warning notice, if similar conduct is brought to my attention
progressive discipline will follow.” (Doc. 29 at 16; see also id. § 27.) Plaintiff maintains that
he has engaged in speech about
the illegal hiring of Defendant Wall and his illegal conduct, including but not
limited to violating citizens’ rights related to parking tickets [and] . . . corruption
within the Police Department at the direction of Defendant Wall, including but
not limited to selective enforcement of parking tickets, unethical conflict of
interests, and obstruction of justice by removing court issued subpoenas and
court notices of appearance.
(Doc. 29 ff] 20-21.) Plaintiff concludes that, with this behavior, Defendants are placing a
restriction on Plaintiff and his family’s free speech as citizens and their association with
each other. (Id. | 29.)
Count Ill, “Violation of Fair Labor Standards Act (FLSA),” is lodged against
Defendant City. (Doc. 29 at 9.) Plaintiff contends that he suffered a work injury in which he
injured his wrists on or about June 8, 2016. (Id. 740.) He further contends that, upon his
return to work following surgery, Defendant City refused to allow him time off during his shift
manner, where such talking, writing or other expression is defamatory, obscene, or unlawful, or when the
member knows such criticism to be false.” (Id.)
3 .
to treat with a physical therapist and, as a result, he had to schedule medical appointments
for his work-related injury outside his normal shift and incurred overtime for which he was
not paid. (/d. Jf] 42-45.) He also asserts he is entitled to overtime pay which he incurred
after he was subpoenaed on June 4, 2019, to appear at a court hearing by the Pennsylvania
Labor Relations Board and was denied the one hour of overtime he accrued as a result of
that appearance. (Id. Ff] 49-52.)
Count IV, “Retaliation for Filing Heart & Lung/Workmen Compensation Benefits,” is
filed against both Defendants. (Doc. 29 at 11.) This claim relates to Plaintiffs June 2016
injury. (Id. 754.) Plaintiff maintains that “[i]n direct retaliation for having sustained an injury
and sought benefits covering the same, Plaintiff was retaliated against by being denied
overtime pay and/or allowed to attend treatment sessions during working hours. (Id. 55.)
Count V, “Retaliation for Filing This Complaint,” is lodged against both Defendants.
(Doc. 29 at 12.) Plaintiff alleges that he “filed this lawsuit as a citizen .. . on a matter of
public concern since it dealt with the official malfeasance of the Police Chief. (Id. [7 59-60.)
and asserts that he has been retaliated against in several ways” and, as a result, he has
been retaliated against. (/d. 59-61.) Without identifying the person responsible, Plaintiff
identifies the following conduct as retaliatory: “being written up on several occasions, . . .
being accused of conduct unbecoming, suspended without pay, denied overtime, denied
special details, denied training, subject to investigations, harassed, . . . interference with his
work duties, specifically contacting victims of crimes and inquiring if Plaintiff acted
appropriately.” (Id. 761.) As to Defendant Wall specifically, Plaintiff states that he
has suffered loss of pay because Defendant Wall has removed him from all
court hearings for the month of August, which not only interferes with his
professional duties to prosecute cases, but also his pay[,] Defendant Wall has
harassed Plaintiff by scrutinizing his incident reports while not reviewing other
police officers in the department] [and] Defendant Wall has even commented
negatively about Plaintiff's mental health in front of other officers.
(id. Tf 62-64.)
Count VI, “Retaliation for Being Subpoenaed,” is lodged against both Defendants.
(Doc. 29 at 12.) This claim relates to the June 4, 2019, subpoena by the Pennsylvania
Labor Relations Board in response to which Plaintiff traveled to Harrisburg to attend a
hearing on June 21, 2019. (Id. ] 66-67.) Plaintiff asserts that he was retaliated against
because he was denied the one hour of overtime which he incurred in complying with the □
subpoena. (/d. [J 70-71.)
Plaintiff initially filed this action on May 22, 2018, (Doc. 1) and filed an amended
complaint (Doc. 3) on May 23, 2018. By Order of September 20, 2018, Defendants’ motion
to dismiss the amended complaint (Doc. 5) was granted and Plaintiff was given leave to file
a further amended complaint. (Doc. 12.) On August 6, 2018, Plaintiff filed his Second
Amended Complaint (Doc. 13) and on August 20, 2018, Defendant fled a motion to dismiss
the Second Amended Complaint (Doc. 14). By Order of September 24, 2018, the Court
dismissed Plaintiffs claim for “Retaliation for Intimate Association” (Count Il) with prejudice
and dismissed the official capacity claims against Defendant Police Chief Thomas Wall with
prejudice. (Doc. 22 J 2.) Defendants’ motion was otherwise denied. (/d. 3.) Thereafter,
Plaintiff filed the “Unopposed Motion for Leave to File Third Amended Complaint” (Doc. 24)
based on the post-complaint occurrence of several events. The motion was granted (Doc.
27) and Plaintiff filed the Third Amended Complaint (Doc. 29) on July 34 , 2019.2
In accord with the Court’s May 5, 2021, Order (Doc. 63 {| 5(a)), Defendants timely
filed the motion in limine now under considerauon (Doc. 64) along with the supporting brief
(Doc. 65) on September 23, 2021. Plaintiff filed his opposition brief (Doc. 70) on October 6,
2021. With the filing of Defendants’ reply brief (Doc. 72) on October 12, 2021, this motion
was fully briefed and ripe for consideration. Trial is scheduled to commence on November
8, 2021. (See Doc. 63 □ 1.)
il. STANDARD OF REVIEW
“The purpose of a motion in limine is to allow the trial court to rule in advance of trial
on the admissibility and relevance of certain forecasted evidence.” United States v.
Tartaglione, 228 F. Supp. 3d 402, 406 (E.D. Pa. 2017). A court may exercise its discretion
to rule in limine on evidentiary issues “in appropriate cases.” In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev'd on other grounds sub nom.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986). Nevertheless, a “trial court should exclude evidence on a motion in limine
only when the evidence is clearly inadmissible on all potential grounds.” Tartaglione, 228 F.
2 Prior to March 23, 2020, this case was assigned to the Honorable A. Richard Caputo.
Supp. 3d at 406. “[I]n limine rulings are not binding on the trial judge, and the judge may
always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753,
758 n.3, 120 S. Ct. 1851, 146 L. Ed. 2d 826 (2000). The Supreme Court has long
recognized that “[a] reviewing court is handicapped in an effort to rule on subtle evidentiary
questions outside a factual context.” Luce v. United States, 469 U.S. 38, 41 (1984). Thus,
a district court's ruling on a motion in limine “is subject to change when the case unfolds.”
Id. This is particularly so if the actual testimony at trial differs from what was anticipated in a
party’s motion in limine, but “even if nothing unexpected happens at trial, the district judge is
free, in the exercise of sound judicial discretion, to alter a previous in imine ruling.” Id. at
41-42.
Further, while motions in limine may serve as a useful pretrial tool that enables more
in-depth briefing than would be available at trial, a court may defer ruling on such motions “if
the context of trial would provide clarity.” Frintner v. TruePosition, 892 F. Supp. 2d 699, 707
(E.D. Pa. 2012). Indeed, «motions in limine often present issues for which final decision is
best reserved for a specific trial situation.” Walden v. Georgia-Pacific Corp., 126 F.3d 506,
518 n.10 (3d Cir. 1997). Thus, certain motions, “especially ones that encompass broad
classes of evidence, should generally be deferred until trial to allow for the resolution of
questions of foundation, relevancy, and potential prejudice in proper context.” Leonard v.
Stemtech Health Scis., Inc., 981 F. Supp. 2d 273, 276 (D. Del. 2013). Moreover, “pretrial
Rule 403 exclusions should rarely be granted. . . . [A] court cannot fairly ascertain the
potential relevance of evidence for Rule 403 purposes until it has a full record relevant to
the putatively objectionable evidence.” In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859
(3d Cir. 1990) (emphasis in original).
lil. ANALYSIS
As set out above, Defendant relies on Federal Rules of Evidence 401, 402, 403, and
404(b). See supra p. 1. Pursuant to these provisions, the motion seeks to exclude
evidence related to Ms. Kroll as irrelevant, unduly prejudicial, and prohibited prior act
evidence. (Doc. 65 at 2-4: Doc. 72 at 3.)
Defendants aver that Plaintiffs counsel represented Ms. Kroll in a case against the
City of Nanticoke and they anticipate that Plaintiff will attempt to submit evidence related to
Ms. Kroll's treatment, her interactions with Defendant Wall, and her lawsuit. (Doc. 64 7] 1-
3; Doc. 65 at 1.) Plaintiff states that Ms. Kroll filed an FLSA claim “under the same
retaliatory conditions of Defendant Wall” and, “[clonsequently, it supports Plaintiff's claims
related to a violation of his rights under the [FLSA].” (Doc. 70 at 4.) Plaintiff adds that Ms.
Kroll “will be able to testify to employees who were treated differently that her and Mr.
Vanderhoff.” (Id.)
Evidence is relevant if “it has any tendency to make a fact more or less probable
than it would be without the evidence” and if “the fact is of consequence in determining the
action.” Fed. R. Evid. 401. Under Rule 402, “irrelevant evidence is not admissible.” Fed.
R. Evid. 402. Even if evidence is relevant, the court can exclude it if “its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed. R. Evid. 403.
Defendant also seeks to preclude the evidence related to Ms. Kroll under Rule
404(b) which precludes the admission of other crimes, wrongs, or acts “to prove the
character of a person in order to show conformity therewith.” Fed. R. Evid. 404(b)(1).
However, such evidence is admissible “for another purpose such as proving motive,
opportunity intent, preparation, plan, knowledge, identity, or absence of mistake.” Fed. R.
Evid, 403(b)(2).
Relevance in this matter must be considered in the context of the legal framework
within which Plaintiff's claims are analyzed. The five remaining counts encompass claims of
First Amendment freedom of speech and retaliation, Fair Labor Standards Act violations,
and state law violations. Based on the state of the record to date, questions of what
evidence may or may not be relevant and admissible are difficult to discern. Given the
sparse information related to Ms. Kroll and her anticipated testimony as well as the
numerous causes of action at issue and Defendants’ failure to address same in the briefing
of this motion (see Docs. 65, 72), Defendants have not shown that evidence related to Ms.
Kroll “is clearly inadmissible on all potential grounds.” Tartaglione, 228 F. Supp. 3d at 406.
Without being able to determine basic relevance under Federal Rules of Evidence
401 and 402, the Court cannot assess exclusion of evidence related to Ms. Kroll under Rule
. 9
403. Similarly, the propriety of exclusion of evidence under Rule 404(b) cannot be
ascertained pretrial. Thus, this is a case where the Court cannot assess the admissibility of
evidence related to Ms. Kroll “until it has a full record relevant to the putatively objectionable
evidence.” In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990) (emphasis in
original). Because the context of trial will provide more clarity on the questions of relevancy,
potential prejudice, and the purpose for which evidence is offered, a decision regarding the
anticipated testimony at issue in this motion is properly deferred until trial.
IV. CONCLUSION
For the foregoing reasons, the Court will defer ruling on the issues raised in
Defendants’ Motion in Limine to Preclude the Testimony Regarding the Lawsuit filed by
Kara Kroll (Doc. 64) until trial and must be raised by timely objection in response to any
attempt by Plaintiff to elicit testimony on the issues in dispute. A separate Order is filed with
this Memorandum Opinion. / — :
Robert D. Mariani----”
United States District Judge
10