United States District Court, D. Maine
RYAN D. BURNETT, Plaintiff,
OCEAN PROPERTIES, LTD. and AMERIPORT, LLC, Defendants.
ORDER ON MOTION IN LIMINE TO TAKE JUDICIAL NOTICE AND
TO EXCLUDE EVIDENCE OF DEFENDANTS' ADA
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
parties to this lawsuit brought under the Americans with
Disabilities Act (ADA) have each filed multiple motions in
attempt to narrow the evidence admissible at the upcoming
trial. In the present motion, the Plaintiff has moved in
limine seeking (1) that the Court “take judicial notice
of certain property tax and deed records to establish that
the Plaintiff's work location was constructed prior to
1991” and (2) that the Court exclude any evidence
“to show that Defendants complied with the
accessibility requirements of the ADA in this case.”
Pl.'s Mot. in Limine to Take Judicial Notice
and Exclude Evidence that Defendants Complied with the
ADA at 1 (ECF NO. 111) (Pl.'s Mot). The
Court declines to take judicial notice and instead leaves the
Plaintiff to his proof and, although the Court concludes that
the contested email is admissible not for the truth of the
matter, the Court defers until trial ruling on whether the
email is admissible for its truth.
THE PLAINTIFF'S REQUEST THAT THE COURT TAKE JUDICIAL
NOTICE OF THE DEED AND RELATED EVIDENCE
Burnett's first request relates to the Defendants'
desire to introduce an email between an HR Representative of
the Defendants and Mark Mooney, a contractor for one of their
affiliated companies. Id. at 1-2. Mr. Burnett asks
the Court to take judicial notice of several documents,
including a printout from a website for the city of South
Portland detailing the City's tax assessment records,
which shows that the building at 505 Country Club Road - the
Plaintiff's place of employment- was constructed in 1989,
Pl.'s Mot., Attach. 1 (ECF No. 111-1) (Tax
Assessment Doc.), as well as the quitclaim deed
transferring ownership to the Defendant's
‘affiliated company', Sablegolf, LLC, in 1991.
Pl.'s Mot., Attach 2 (ECF No. 111-2)
(Deed). Mr. Burnett argues this evidence is relevant
to whether witness Mark Mooney has direct, personal knowledge
of whether the building was ADA compliant at the time it was
built, as he claimed in his email. He further argues that Mr.
Mooney's email “contending that the doors were ADA
accessible ‘when the building was built'”
should be excluded as inadmissible hearsay. Id. at
Properties Ltd. and Ameriport, LLC (Ocean Properties) oppose
the motion. They argue that evidence of the date of
construction of the golf clubhouse where Mr. Burnett worked
is not relevant to the disputed claim. Defs.' Resp.
to Pl.'s Mot. in Limine to Take Judicial Notice and
Exclude Evidence that Defendants Complied with the ADA
at 1 (ECF No. 123) (Defs.' Resp.). They further
argue that “Plaintiff mischaracterizes Mr. Mooney's
testimony and has no foundation for his argument that Mr.
Mooney lacks personal knowledge of the fact that the doors
were ADA accessible when the building was built.”
Id. at 2. Ocean Properties contends that
“Plaintiff . . . chose not to depose Mr. Mooney . . .
and cannot now attempt to assume what Mr. Mooney meant by his
statement.” Id. at 2-3. Finally, Ocean
Properties argues that the Plaintiff's request should be
denied because the documents regarding when the building was
built “would be unfairly prejudicial and likely to
confuse the jury under Fed.R.Evid. 403.” Id.
201(b) of the Federal Rules of Evidence provides that the
“court may judicially notice a fact that is not subject
to reasonable dispute because it (1) is generally known
within the trial court's territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Matters of
public record, such as a deed recorded in a Registry of
Deeds, can fall into second branch of Rule 201(b). See
Lussier v. Runyon, 50 F.3d 1103, 1114 (1st Cir. 1995)
(“some government documents are subject to judicial
notice . . . on the ground that information contained therein
is ‘capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned'”); see also Massachusetts v.
Westcott, 431 U.S. 322, 323 n.2 (1977) (per curiam)
(taking judicial notice of fishery licenses included in the
records of the Coast Guard's Merchant Vessel
the First Circuit stated in Lussier that
“[c]ourts have tended to apply Rule 201(b)
stringently-and well they might, for accepting disputed
evidence not tested in the crucible of trial is a sharp
departure from standard practice.” 50 F.3d at 1114.
While the authenticity of the exhibits in question has not
been disputed by Defendants, neither has it been proven. The
Court instead will follow “the usual method of
establishing adjudicative facts . . . through the
introduction of evidence at trial.” Berkowitz v.
Berkowitz, No. CIV.A. 11-10483-DJC, 2012 WL 769726, at
*5. (D. Mass. Mar. 9, 2012) (citing United States v.
Bello, 194 F.3d 18, 23 (1st Cir. 1999)). The Court
denies the Plaintiff's motion insofar as it requests the
Court to take judicial notice of the date of construction of
the golf club.
THE PLAINTIFF'S MOTION TO EXCLUDE ANY EVIDENCE OF THE
DEFENDANT'S COMPLIANCE WITH THE ADA
Burnett also moves to exclude “any evidence introduced
by Defendants at trial to show that it complied with the
accessibility requirements of the ADA in this case, ”
pursuant to Federal Rules of Evidence 401, 701, 702, and 802.
Mr. Burnett contends that “[g]iven this date of
construction, Mark Mooney's speculation about ADA
accessibility prior to 1991 is simply not relevant to Mr.
Burnett's accessibility issues in 2013 and 2014.”
Pl.'s Mot. at 5. Mr. Burnett also argues that
testimony by Mr. Mooney about ADA compliance is inadmissible
because he has not been designated as an expert. Id.
at 2. Lastly, Mr. Burnett argues that “any testimony
from Defendants that the building was ADA compliant when Mr.
Burnett requested accommodations in 2013 and 2014 would be
based on hearsay under Rule 801, because Defendants would be
introducing such evidence to prove “the truth of the
matter asserted.” Id. at 4.
Defendants oppose Mr. Burnett's motion to exclude
evidence of compliance with the ADA, arguing that the email
from Mr. Mooney that they seek to introduce is
“relevant because it demonstrates AmeriPort was looking
into Plaintiff's request and thus is relevant to show the
effect it had on the hearer.” Defs.' Resp.
at 3; Defs.' Resp, Attach. 1, Email
from Mark Mooney (ECF No. 123-1) (Mooney
Email). For the same reason, Defendants contend, the
evidence, if determined to be hearsay, is admissible because
“it is relevant to the effect on the hearer.”
Id. at 5. In response to the Plaintiff's basis
for excluding Mr. Mooney's testimony because he has not
been designated an expert in the matter, the Defendants
contend that “it is well established that basic
measurements that form the foundation of ADA compliance are
not the type of information for which an expert is
required.” Id. (citing Moore v.
Harris, 2015 WL 13326238, *4 (S.D. Cal. May 22, 2015)).
The Defendants highlight that “it would be prejudicial
for Plaintiff to claim the doors were not handicapped
accessible while precluding Defendants from putting on
evidence that they were, in fact, handicapped
accessible.” Defs.' Resp. at 5.
Plaintiff's first argument, that the testimony of Mr.
Mooney should be excluded as irrelevant, is unconvincing.
Whether the doors were ADA compliant is, as the Defendants
state, “directly relevant to Ameriport's actions in
response” to Mr. Burnett's request for
accommodation. Id. at 3.
same reason, Mr. Burnett's argument that the email
exchange is inadmissible hearsay fails. As the Court
understands it, Mr. Mooney's email was a response to a
contemporaneous inquiry from Lori Darsaoui at Ocean
Properties inquiring about whether the doors were ADA
compliant. The Court assumes, given the date of the email,
that Ms. Darsaoui's September 10, 2014 email was in
response to Mr. Burnett's August 28, 2014 request for
automatic or push-button access to his workplace. As long as
the email is being offered to show the Defendants'
response to Mr. Burnett's request, and that the doors
were in fact ADA compliant when built, it is not being
offered as proof of the truth of the matter, and is therefore
not inadmissible hearsay.
email string may be admissible as a regularly recorded
activity. Fed.R.Evid. 803(6). Admissibility under this Rule,
however, would be subject to a Rule 803(6)(E) objection if
Mr. Burnett can show “that the source of information or
the method or circumstances of preparation indicate a lack of
trustworthiness.” Fed.R.Evid. 803(6)(E). In other
words, if Mr. Burnett can demonstrate that Mr. Mooney did not
have personal knowledge or an adequate foundation for his
statement, the email could be excluded to the extent that it
is being introduced for its truth.
Burnett also argues that Mr. Mooney's email and testimony
at trial are inadmissible under rule 701 and 702 because he