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Divanovic v. Giordano's Enterprises

August 20, 2010

AMER DIVANOVIC, PLAINTIFF,
v.
GIORDANO'S ENTERPRISES, INC., DEFENDANT.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Following this Court's entry of the jointly submitted final pretrial order ("FPTO"), each of the parties--plaintiff Amer Divanovic ("Divanovic") and defendant Giordano's Enterprises, Inc. ("Giordano's")--filed a number of motions in limine, and their respective responses to the other side's motions are now in hand. This memorandum opinion and order will deal with both sets.

Divanovic Motions

Giordano's counsel has interposed no objections to Divanovic's Motions 1 (Dkt. 70), 3 (Dkt. 72) and 5 (Dkt. 74), and each is therefore granted. That leaves only Motions 2 (Dkt. 71) and 4 (Dkt. 73) to be addressed.

Here is how Divanovic frames the scope of the bar sought by Motion 2 and characterizes his position and Giordano's response:

Any and all evidence, references to evidence, testimony or argument relating to Plaintiff's position as a chef at a restaurant where he is an investor. Defendant has made the argument that Plaintiff identifies himself as the chef to customers and journalists at a restaurant where he is one of two investors. Plaintiff has testified that he does not cook at said restaurant, that there is a full time cook other than himself, but that he did craft the menu. Defendant has alleged that Plaintiff has lied to customers and journalists, and that since he does not actually cook he cannot be the chef. This evidence is irrelevant to the issue of whether Defendant terminated Plaintiff for retaliation, irrelevant for the defense of a slander claim and irrelevant as to damages. Plaintiff has presented no evidence as to what the definition of a chef is, or sought any expert testimony as to whether Plaintiff's contributions to the restaurant are those of a chef. And here is Giordano's response:

2. Defendant will present evidence that Plaintiff unduly delayed the mitigation of his damages by choosing to work for and at the restaurant he invested in, rather than meaningfully seek other employment.

3. Evidence of Plaintiff's employment, or choice to fore-go [sic] employment, are precisely relevant when addressing the issue of mitigation of damages in this case.

Each of the parties is partly right and partly wrong.

It is certainly true that if and to the extent that Divanovic is not working at the restaurant in which he has chosen to invest, the existence and other particulars of the investment (including the pejorative charges set out in the "Defendant has alleged..." sentence quoted from Divanovic's description) are indeed irrelevant and will not be admitted. But a failure to mitigate damages is of course a legitimate defense, and if Giordano's can adduce evidence to that effect in accordance with its above-quoted statement, that evidence will be admitted for jury consideration (although care will have to be exercised to make sure that Giordano's does not cross the line into Fed. R. Evid. ("Evid. R.") 403 territory).

Accordingly Motion 2 is granted in part and denied in part. Fine tuning of the issues will be addressed at trial.

As for Motion 4, Divanovic has framed his position in these terms:

That the Court bar any documents, materials, or witnesses from being introduced by any defendant which were not previously and timely disclosed to the Plaintiff in discovery. Specifically, Defendant listed the following witnesses after the close of discovery: Eldin Curic, Chi-natti's Pizza, Milica Divanovic, Elias Giannakopolous and Spiro Lambrinatos. Defendant failed to list any of these individuals or companies as witnesses in their Response to Plaintiff's Second Set of Interrogatories.

Giordano's responds by pointing to the language of Fed. R. Civ. P. ("Rule") 37(c) that precludes admissibility at trial of information or witnesses that have not been identified in the required discovery responses or the required supplementation to those responses "unless the failure was substantially justified or is harmless."

In this instance, part of Divanovic's second set of interrogatories expressly called for Giordano's to "[i]dentify all the witnesses to be produced by the Defendant for the trial, their contact information and the contents of their testimony." Giordano's responded with a properly particularized list comprising eight named Giordano's employees and four specific nonemployees. That response, which appears to have been provided in May 2009, was revised by Giordano's counsel a few days later by dropping one of the listed Giordano's employees. No further revision or supplementation, as is required by Rule 26(e)(1), was provided before the close of discovery and the preparation of the FPTO, thus triggering the applicability of Rule 37(c)(1).

It will not do for Giordano's to assert harmless error,*fn1 nor is it relevant that Divanovic may have included three of the Giordano's employees among his potential witnesses. There is a sound reason for the supplementation requirement, and that is particularly so when (as this Court does) no close of discovery date is set until both parties agree that nothing further need be done to prepare for trial.

Nor does the fact that an individual has been referred to during the course of discovery, or even deposed, call for a different answer. Litigants and their lawyers are entitled to plan for trial, including the reaching of decisions as to trial strategy and reliance on the other side's adherence to the carefully crafted discovery rules as they are written.*fn2

Accordingly Motion 4 is granted. Giordano's witnesses will be limited to those identified in its response to ...


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