Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jensen v. West Jordan City

United States District Court, D. Utah, Central Division

May 26, 2017

AARON JENSEN, Plaintiff,
v.
WEST JORDAN CITY, a Utah municipal corporation, and ROBERT SHOBER, in his official capacity; Defendants.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL United States District Judge.

         This matter is before the court on several pretrial motions: Defendants West Jordan City (“WJC”) and Robert Shober's (“Defendants'”) Motion for Judgment on the Pleadings Dismissing the Claims Against Robert Shober in His Official Capacity [Docket No. 228]; Defendants' Motion in Limine No. 1: To Exclude Details of the Alleged Sexual Harassment of Mr. Jensen [Docket No. 241]; Defendants' Motion in Limine No. 2: To Exclude or Limit the Testimony of Gary R. Couillard, CPA [Docket No. 229]; Defendants' Motion in Limine No. 3: To Exclude Mediation Communications [Docket No. 231]; Defendants' Motion in Limine No. 4: To Exclude or Limit the Testimony of Dr. Soderquist [Docket No. 242]; Defendants' Motion in Limine No. 5: To Exclude Hearsay Statements and Unsupported, Speculative Opinions [Docket No. 232]; Defendants' Motion in Limine No. 6: To Exclude Evidence and Testimony Regarding Former West Jordan Employee [Docket No. 233]; Defendants' Motion in Limine No. 7: To Exclude Evidence Regarding Shelley Thomas [Docket No. 234]; Defendants' Motion in Limine No. 8: To Exclude the Testimony, Opinions, and Statements of Troy Rawlings [Docket No. 243]; Defendants' Motion in Limine No. 9: To Exclude the Testimony and Records of Dr. Juracan [Docket No. 235]; Plaintiff Aaron Jensen's (“Mr. Jensen's”) Motion in Limine No. 1 Re: Allegations Reviewed by the AG's Office [Docket No. 236]; Mr. Jensen's Motion in Limine No. 2 Re: Brenda Beaton [Docket No. 237]; and Mr. Jensen's Motion in Limine No. 3 Re: Mr. Jensen's Experiences as a Police Officer [Docket No. 238]. On May 23, 2017, the court held a hearing on the motions. At the hearing, Mr. Jensen was represented by April Hollingsworth, and Defendants were represented by Nathan Skeen, Maralyn English, Danica Cepernich, and Paul Dodd. Because Mr. Jensen's Motion to Amend Complaint [Docket No. 282] is related to Defendants' Motion for Judgment on the Pleadings Dismissing the Claims Against Robert Shober in His Official Capacity [Docket No. 228], the court also heard brief arguments on that motion. The court took the motions under advisement. The court has carefully considered the parties' arguments as well as the law and facts relevant to the motions. Now being fully advised, the court issues the following Memorandum Decision and Order.

         1. Defendants' Motion for Judgment on the Pleadings Dismissing the Claims Against Robert Shober in His Official Capacity

         Defendants seek to dismiss Robert Shober in his official capacity pursuant to Federal Rule of Civil Procedure 12(c) because “[a] suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same.” Watson v. City of Kansas City, Kan., 857 F.2d 690, 695 (10th Cir. 1988); see also Hinton v. City of Elwood, Kan., 997 F.2d 774, 780 (10th Cir. 1993) (“Since a judgment against a public servant in his or her official capacity imposes liability on the entity he or she represents, an official capacity suit is simply another way of pleading an action against that entity.” (citations omitted)); Swasey v. W.Valley City, No. 2:13-CV-768-DN, 2015 WL 500870, at *1 (D. Utah Feb. 5, 2015) (unpublished) (“[W]hen a plaintiff names a municipality and a municipal employee in his official capacity, the claim against the employee in the official capacity should be dismissed.”). In his response to the motion, Mr. Jensen agrees that maintaining Robert Shober in his official capacity as a defendant is unnecessary. The court also agrees and, therefore, grants Defendants Motion for Judgment on the Pleadings Dismissing the Claims Against Robert Shober in his Official Capacity.

         Although Mr. Jensen agrees that Robert Shober should be dropped as a defendant in his official capacity, Mr. Jensen filed a separate Motion to Amend Complaint asking the court to allow Mr. Jensen to add claims against Robert Shober in his personal capacity. This is not the first time that Mr. Jensen has sought to amend the complaint to add claims against Robert Shober in his personal capacity. On February 16, 2015, Mr. Jensen moved to add several amendments to the Complaint, including adding claims against Robert Shober in his personal capacity. On May 19, 2015, Magistrate Judge Dustin B. Pead entered a Memorandum Decision granting in part and denying in part Mr. Jensen's motion to amend. Although the Memorandum Decision did not directly address the allegations against Mr. Shober in his personal capacity, the decision denied the motion with respect to all claims not specifically addressed in the decision due to undue delay and undue prejudice to the Defendants. On June 5, 2015, the court overruled Mr. Jensen's objections to Magistrate Judge Pead's Memorandum Decision and affirmed and adopted the decision in its entirety.

         The court does not see any need to reconsider its prior decision denying Mr. Jensen's motion to amend. If undue delay was present when Mr. Jensen moved to amend in February of 2015, then undue delay is still present over two years later. The court also concludes that undue prejudice is still present and that the level of prejudice is even greater now. With less than a month until trial, Mr. Jensen is seeking to bring claims against Mr. Jensen in his individual capacity. Although Mr. Jensen argues that the individual-capacity claims will not prejudice Defendants because the claims rely on the same facts, the individual-capacity claims also allow for punitive damages and for a qualified immunity defense, neither of which Defendants considered or prepared for. Those changes to the available damages and defenses are significant changes to be making this close to trial. See Colvin v. McDougall, 62 F.3d 1316, 1318 (11th Cir. 1995) (“[T]he difference between an official capacity suit and an individual capacity suit is a big difference.”); Lovelace v. O'Hara, 985 F.2d 847, 850 (6th Cir. 1993) (“[T]he distinction between an official capacity and an individual capacity suit is significant.”). Therefore, the court denies Mr. Jensen's Motion to Amend Complaint to add Mr. Shober in his personal capacity.

         2. Defendants' Motion in Limine No. 1: To Exclude Details of Alleged Sexual Harassment of Mr. Jensen

         Although the fact that Mr. Jensen made a complaint alleging that he was sexually harassed is relevant to his retaliation claim, Defendants seek to exclude details of the alleged sexual harassment of Mr. Jensen pursuant to Federal Rule of Evidence 403. In his opposition, Mr. Jensen concedes that the details of the alleged sexual harassment may not be relevant in general but clarified that Defendants could make the details relevant by implying that Mr. Jensen's claims were frivolous or that Mr. Jensen brought false claims.

         The court agrees with the parties that the details of the alleged sexual harassment complaint underlying Mr. Jensen's retaliation claim are not relevant and are likely to be substantially more prejudicial than probative. Therefore, the court grants Defendants motion to exclude those details. However, if Mr. Jensen believes that the Defendants have made the details of Mr. Jensen's sexual harassment complaint relevant at trial and intends to introduce evidence or argument about those details, the court orders Mr. Jensen to give advanced notice to both Defendants and the court before introducing the evidence. The court also orders the parties to work together to propose a jury instruction on stipulated facts regarding Mr. Jensen's sexual harassment complaint.

         3. Defendants' Motion in Limine No. 2: To Exclude or Limit the Testimony of Gary R. Couillard, CPA

         Defendants motion initially sought to exclude several opinions that were included in the report of Gary Couillard, CPA, Mr. Jensen's economic damages expert, because Mr. Couillard was not qualified to testify about those opinions. But, through his opposition to Defendants' motion in limine, Mr. Jensen clarified that Mr. Couillard's only role in this case is to calculate the value of Mr. Jensen's lost retirement benefits. Therefore, the only remaining argument in Defendants motion in limine is that the testimony of Mr. Couillard should be excluded pursuant to Federal Rule of Evidence 702 because his opinion relies on assumptions that cannot be proven by admissible, competent evidence at trial. Specifically, Defendants argue that Mr. Couillard has no factual basis to assume that, absent conduct alleged against WJC, Mr. Jensen would have continued working 7.5 more years as a WJC police officer or would have found employment for 7.5 years as a Utah police officer such that he would be entitled to retirement benefits.

         Pursuant to Federal Rule of Evidence 702, an expert “may testify in the form of an opinion or otherwise if, ” among other things, “the testimony is based on sufficient facts or data.” Fed.R.Evid. 702(b). Although this requirement prohibits an expert from testifying based on mere “subjective belief or unsupported speculation, ” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993), “absolute certainty is not required, ” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519 (10th Cir. 1995). Expert witnesses may, and often do, rely on assumptions to formulate their opinions. See Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transportation Ass'n, Inc., No. 10-CV-02349-WJM-KMT, 2014 WL 1715096, at *2 (D. Colo. Apr. 30, 2014) (“An expert witness may use assumptions in addition to facts to formulate his opinion, and the use of such assumptions does not make the opinion inadmissible.”). As long as an expert clearly identifies his or her assumptions and distinguishes those assumptions from other facts or data, the reliance on assumptions does not affect the admissibility of the expert's testimony but instead goes to the weight of that testimony. See United States v. Crabbe, 556 F.Supp.2d 1217, 1224 (D. Colo. 2008) (“The accuracy of the assumption is not at issue for Rule 702 purposes. . . . The accuracy of the assumption is an issue for trial because it affects the weight of the opinion.”).

         The court concludes that Defendants' motion to exclude the testimony of Mr. Couillard should be denied. Defendants do not question Mr. Couillard's credentials or qualifications as an economist or his ability to calculate the value of Mr. Jensen's damages. Instead, Defendants base their arguments on the fact that Mr. Couillard is relying on assumptions that cannot be proven by admissible, competent evidence at trial. But an expert is allowed to rely on assumptions, as long as the assumptions are clear to the jury. Mr. Jensen argues that he will be able to establish the assumptions through witnesses at trial. Whether that is true or not remains to be seen but does not affect whether Mr. Couillard's testimony is admissible. If Mr. Jensen fails to adequately establish the assumptions at trial, Defendants can then challenge the weight and credibility of Mr. Couillard's opinion at trial.

         4. Defendants' Motion in Limine No. 3: To Exclude Mediation Communications

         Defendants seek to exclude evidence of mediation communications, as that term is defined in Utah's Uniform Mediation Act, related to the agreement reached between Mr. Jensen and WJC on the underlying sexual harassment claims. Although the parties generally agree that mediation communications should be excluded from trial, during the hearing, the parties revealed that a dispute exists as to the date that the agreement between the parties was finalized. At the hearing, the court ordered the parties to submit additional briefing on the date that the agreement was finalized so that the court can clarify that issue before trial. Because the date that the agreement was finalized may affect what communications are considered mediation communications for purposes of this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.