Thompson v. House, Inc. ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
QUANSA TOMPSON, et al.,
Plaintiffs
v. Civil Action No. 09-1942 (BAH/JMF)
HOUSE, INC., et al.,
Defendants.
MEMORANDUM OPINION
I herein resolve the parties’ motions in limine.
I. Plaintiffs’ Motions in Limine
A. The Relevance of Tip Income
The purpose of the evidentiary hearing to be held before this Court is to determine how
many hours plaintiffs1 worked in order to calculate minimum wages owed. Plaintiffs’ Motions in
Limine [#39] at 1. Plaintiffs have now moved to prohibit evidence of any kind of tip income
received by plaintiffs as irrelevant because any evidence of tips or gratuities received from
patrons at defendants’ club cannot be used as an offset against minimum wages owed to plaintiffs
by defendants. Id.
Defendants agree that tip income does not provide an offset against minimum wages due.
Opposition to Plaintiffs[’] Motions in Limine [#41] at 1. Defendants argue, however, that the tip
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Plaintiffs are exotic dancers at a club owned and operated by defendants. See
Thompson v. Linda and A, Inc., 779 F. Supp. 2d 139, 141 (D.D.C. 2011).
income is relevant because plaintiffs’ receiving tip income and not reporting it as income on their
tax returns bears on their credibility. Additionally, according to defendants, plaintiffs’ receipt of
large amounts of tip income would establish that defendants not paying them minimum wage
was done in good faith because defendants were aware that plaintiffs were receiving tips that
were apparently greater than the minimum wage.
First, while not paying one’s taxes might qualify as a prior bad act, defendants are bound
by plaintiffs’ answers and their not reporting their tips as income may not be proved by extrinsic
evidence. Fed. R. Evid 608(b). Thus, proof of their tip income from some source other than their
own testimony is inadmissible.
Second, each plaintiff would have an absolute right at the hearing not to answer whether
she received and reported tip income because the answer might tend to incriminate her. See
Hoffman v. U.S., 341 U.S. 479, 486 (1951) (testimony is self-incriminating if reasonable cause
exists to believe that the testimony would either support a conviction or provide a link in the
chain of evidence leading to conviction). Thus, defendants may ask the question but plaintiffs
may each decline to answer it and defendants can ask me to draw any inference from plaintiffs’
assertion of their Fifth Amendment right that they see fit. See, e.g., United States v. Baxter, 233
F.3d 6, 15 (1st Cir. 2000); David M. Greenwald, Edward F. Malone & Robert R. Stauffer, 1
TESTIMONIAL PRIVILEGES, § 4:40 at 4-113 (2005) (“A negative inference may be drawn when a
civil defendant invokes the privilege, and the plaintiff may argue the significance of the
defendant’s reliance on the privilege to the fact-finder.”). Thus, I will permit the defendants to
ask each plaintiff the compound question: “Did you receive tip income and did you report it to
the Internal Revenue Service?” If the plaintiff invokes the privilege against self-incrimination,
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there the matter shall end with defendants reserving the right to ask me to draw whatever
inference they see fit from that invocation of the privilege.
Finally, irrespective of plaintiffs’ invocation of the privilege, defendants remain free to
testify why they believed that the plaintiffs received tip income and how that bears on their good
faith as a defense to plaintiffs’ claims under the Federal Labor Standards Act. Whether that
knowledge establishes good faith remains to be seen. See Kinney v. Dist. of Columbia, 994 F.2d
6, 12-13 (D.C. Cir 1993). Plaintiffs’ motion in limine as to the preclusion of testimony regarding
tip income will therefore be denied.
B. The Admissibility of Exhibit 7
On February 11, 2010, plaintiffs propounded a request to produce documents that
demanded “[a]ll documents that identify, describe, or refer to the manner and amounts which
Plaintiff was compensated by Defendant for each week from October 1, 2006 to the present . . .”
[#39] at 2 (quoting [#39-1] at 2) (emphasis in original).
This Court’s order of June 3, 2010, required defendants to respond to plaintiffs’ written
discovery by June 17, 2010, and warned that the failure to comply with that deadline would result
in the imposition of sanctions. Revised Scheduling Order [#17] at 1. The same order required
that all discovery be completed by October 5, 2010. Id.On June 15, 2010, defendants produced certain documents, including sign-in logs, but did
not include any slips or receipts purporting to show pay by defendants to plaintiffs. [#39] at 2.
On August 8, 2011, over one year later, defendants produced documents that they claimed were
receipts for pay to plaintiffs. Id. On November 2, 2011, defendants produced a second group of
these documents. Id. Plaintiffs complain, however, that these purported “pay slips” are hard to
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read, undated, and have never been authenticated. Id. at 4. Obviously, neither plaintiffs nor
defendants were confronted with these documents during their depositions. Nevertheless,
defendants now intend to offer these documents into evidence as Exhibit 7.
Defendants’ late production of these documents offended this Court’s orders that
defendants respond to plaintiffs’ written discovery by June 17, 2010, and that all discovery be
completed by October 5, 2010. It is the law of this Circuit that a party who seeks to comply
belatedly with a court order that requires a party to perform an act by a certain time must move
the court for leave to comply out of time by a motion filed pursuant to Rule 6(b) of the Federal
Rules of Civil Procedure. The motion must establish excusable neglect for the failure to comply
with the Court’s deadline. Smith v. District of Columbia, 430 F.3d 450, 456-57 (D.C. Cir. 2005).
To permit the defendants to offer the asserted pay slips into evidence now would be an abuse of
discretion since they never moved for leave to extend the time within which to comply with the
orders that required written responses to plaintiffs’ written discovery by June 17, 2010 and that
required discovery to be completed by October 5, 2010. Id. Plaintiffs’ motion in limine as to the
preclusion of Exhibit 7 will therefore be granted.
II. Defendants’ Motion in Limine
At her deposition, one of the plaintiffs, Quansa Thompson, testified that she took
whatever documents she had and used them to prepare a spreadsheet that defendants characterize
as “memorializing the days allegedly worked, the gross income received, payments made and
hand written entries who’s [sic] information content can not be categorized.” Defendants’
Motion in Limine [#40] at 7-8. Plaintiffs will now offer the spreadsheet into evidence but
defendants, relying on Rules 1002-1004 of the Federal Rules of Evidence, protest that the
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spreadsheet is not admissible because Ms. Thompson did not keep the documents from which
she prepared the spreadsheet. Id.Defendants’ reliance on those rules is obviously misplaced. The requirement of an
original, the so-called “best evidence” rule, applies when a party is attempting “[t]o prove the
content of a writing.” Fed. R. Evid. 1002. Plaintiff Thompson seeks to prove the content of the
spreadsheet, not the content of the documents upon which it was based. Hence, Rule 1002 is
inapplicable. Furthermore, the printout of the spreadsheet is made an original that satisfies Rule
1002 by Rule 1001, which provides that “[i]f data are stored in a computer . . . any printout . . .
shown to reflect the data accurately, is an ‘original’.” Fed. R. Evid. 1001(3). Thus, the printout is
unquestionably admissible.2
Defendants can, of course, try to convince me that the spreadsheet is inaccurate and urge
that Ms. Thompson’s not keeping the data from which she derived the values in the spreadsheet
bears on its accuracy and the weight I should give it. While that may be so, her not keeping the
data does not render the speadsheet any less an original that is admissible into evidence under
Rule 1002. Defendant’s motion in limine will therefore be denied.
An Order accompanies this Memorandum Opinion.
Digitally signed by John M. Facciola
DN: c=US, st=DC, ou=District of Columbia,
email=John_M._Facciola@dcd.uscourts.go
v, o=U.S. District Court, District of
Columbia, cn=John M. Facciola
__________________________________________
Date: 2011.12.28 08:58:31 -05'00'
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
2
As plaintiffs concede the point, I will disregard any handwritten notations on the
spreadsheet that Ms. Thompson does not testify are hers. See [#43] at 4.
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