CASES (2021)

Akbar v. Khai

2021 WL 1206527

United States District Court, S.D. Ohio, Western Division.
CHASSIDY AKBAR, et al., Plaintiffs,
v.
ZAM CHIN KHAI, et al., Defendants.
Case No. 3:18-cv-339
|
03/31/2021

JUDGE WALTER H. RICE

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE OF SWIFT’S ACCIDENT PREVENTABILITY DETERMINATION (DOC. #64); PLAINTIFFS ARE BARRED FROM MAKING ANY STATEMENT OR INTRODUCING ANY EVIDENCE THAT DEFENDANT SWIFT DETERMINED THAT THE SUBJECT ACCIDENT WAS PREVENTABLE UNTIL EVIDENCE IS PROFFERED EXPLAINING HOW SWIFT REACHED ITS PREVENTABILITY DETERMINATION AND THEN ONLY IF THE EVIDENCE IS ULTIMATELY DETERMINED TO BE ADMISSIBLE
*1 Defendants, Swift Transportation Company of Arizona, LLC, (“Swift”), and Zam Chin Kkai, (“Khai”), (collectively “Defendants”), have filed a motion in limine (“Motion”), Doc. #64, pursuant to Rules 401 and 403 of the Federal Rules of Evidence. The Motion seeks an order from this Court excluding evidence at trial regarding Swift’s determination that the subject accident was “preventable.” Plaintiffs have filed a response in opposition, Doc. #65, and Defendants have filed a reply, Doc. #66.

This Motion is now ripe for decision.

I. Background
On October 4, 2016, a motor vehicle accident occurred between Plaintiff, Chassidy Akbar, (“Akbar”), the driver of a 2000 Saturn, and Khai, the driver of a commercial vehicle owned by Swift. Immediately before the accident, Akbar was in the right turn lane and stopped at a red light on East Third Street in Dayton, Ohio. Plaintiff, Malik Akbar, was a passenger in his mother’s vehicle. Khai was to Akbar’s left and in the outermost turning lane. The accident occurred when both vehicles attempted to make a right-hand turn onto North Findlay Street. According to Akbar, as the light turned green and she began her right-hand turn, Khai cut her off and turned into her car before she could complete the turn. Both Akbar and her son sustained injuries. Although Swift determined in its internal investigation that the accident was “preventable” and terminated Khai, liability is disputed.

Defendants move to exclude Swift’s determination that the accident with Plaintiffs was “preventable.”1 They cite to Rules 401 and 403 of the Federal Rules of Evidence and argue that because the only remaining causes of action are negligence and negligence per se, any probative value of determining that the accident was “preventable” is substantially outweighed by the risk of misleading the jury on the standard of care and unfairly prejudicing Defendants.

II. Motions in Limine
Although neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure explicitly authorizes the Court to rule on an evidentiary motion in limine, the Supreme Court has noted that the practice of ruling on such motions “has developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The purpose of a motion in limine is to allow the Court to rule on issues pertaining to evidence in advance of trial in order to both avoid delay and ensure an evenhanded and expeditious trial. See Indiana Ins. Co. v. Gen. Elec. Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)). Pretrial orders also often save the parties time and cost in preparing for trial and presenting their cases.

*2 Courts are generally reluctant to grant broad exclusions of evidence in limine, however, because “a court is almost always better situated during the actual trial to assess the value and utility of evidence.” Koch v. Koch Indus., Inc., 2 F. Supp.2d 1385, 1388 (D. Kan. 1998); accord Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A court should not make a ruling in limine unless the moving party meets its burden of showing that the evidence is clearly inadmissible. Indiana Ins. Co., 326 F. Supp.2d at 846; Koch, 2 F. Supp.2d at 1388. If this high standard is not met, evidentiary rulings should be deferred so that the issues may be resolved in the context of the trial. Indiana Ins. Co., 326 F. Supp.2d at 846.

III. Legal Analysis
Relevant evidence is defined under Fed. R. Evid. 401 as “ ‘[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” United States v. Whittington, 455 F.3d 736, 738 (citing Robinson v. Runyon, 149 F.3d 507, 512 (6th Cir.1998). Relevant evidence may not be excluded “if it has the slightest probative worth” and “ ‘[E]ven if a district court believes the evidence is insufficient to prove the ultimate point for which it is offered.” Id., (citation omitted). Under Rule 403, however, “courts may exclude relevant evidence 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.

In this case, Defendants argue that permitting evidence that the subject accident was “preventable” will confuse the issues and mislead the jury because “preventability” is a different standard than negligence. They assert that “[p]reventability involves the application of a term of art specific to the motor carrier industry, based on a regulatory standard that is not the same as the negligence standard under Ohio law.” Doc. #64, PageID#699.

In Ohio “negligence” is defined as “a failure to use reasonable care.” Ohio Jury Instructions, CV § 401.01 (Rev. May 12, 2012). “Reasonable ordinary care” is defined as “the care that a reasonably careful person would use under the same or similar circumstances.” Ohio Jury Instructions, CV § 401.01 (Rev. May 12, 2012). Defendants assert that the introduction of evidence regarding the “preventability” of the subject accident will confuse the jury when determining whether Khai was negligent or negligent per se.

Under Ohio law, the definition of whether an accident is “preventable” is vague at best. For instance, Merriam Webster’s Dictionary defines “prevent” as “to keep from happening or existing.2 ” The Federal Motor Carrier Safety Regulations define a “preventable accident” as an accident “(1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver” 49 C.F.R. § 385.3. Furthermore, the National Safety Council, a 501(c) non-profit organization, defines a “preventable accident,” as an accident where “the driver failed to do everything that reasonably could have been done to avoid the accident.” Villalba v. Consolidated Freightways Corp., Case. No. 98 C 5347, 2000 WL 1154073, at *6 (N.D. Ill. Aug. 14, 2000) (evidence of defendant trucking company’s determination that accident was “preventable” pursuant to National Safety Council standard excluded due to danger of suggesting the jury decide negligence by “improper reference to the preventability standard”).

*3 When no clear evidence establishes what standard or definition has been used to define “preventability” or a “preventable accident,” courts may exclude evidence regarding whether an accident was considered “preventable.” Rogge v. Estes Express Lines, 2014 WL 5824766 (N.D. Ohio Nov. 10, 2014).

In Rogge, a tractor-trailer collided with another vehicle that was disabled on the berm of the road. The plaintiff in Rogge sought to introduce evidence that the defendant trucking company had classified the accident as “preventable.” The court, however, excluded this evidence as “unreliable,” since “[T]here is no indication that the opinion is based on national, company, or personal standards.” Id. at *6-7. Like the defendant trucking company in Rogge, Swift argues that its classification of Khai’s current accident as “preventable” must be excluded since Plaintiffs have failed to provide any evidence of how Swift defined “preventable.”

Plaintiffs argue, however, that Swift’s determination that the subject accident was “preventable” should not be excluded. In support, they cite Brossette v. Swift Transp. Co., No. 07-0888, 2008 U.S. Dist. LEXIS 112907 (W.D. La. Oct. 29, 2008).

In Brossette, Swift sought to exclude evidence that it had determined an accident was “preventable.” As in the instant case, it argued that permitting this “preventable” finding into evidence would confuse and mislead the jury and quoted the definition of “preventable” used by the National Safety Council and “the definition of a ‘preventable accident’ in the Federal Motor Carrier Safety Regulations” with “Louisiana’s duty-risk negligence analysis.” Id., at *5. It asserted that using these definitions of “preventability” in a negligence case is ”like comparing ‘apples to oranges’ ” and will only confuse and mislead the jury. Id. The district court rejected any standard from the National Safety Council noting that this organization was a “non-profit organization rather than an arm of the Department of Transportation“ and in doing so disregarded Swift’s reliance on Villalba v. Consolidated Freightways Corp. Id., at *6. The court noted that “Swift Transportation claims it applied an unspecified DOT regulation to assess the preventability of the collision at issue in this case.“ Id. at *6. Citing to the Federal Motor Carrier Safety Regulations, the court stated that “[T]he meaning of ‘preventable’ embodied in that regulation is no different from the meaning of the term in ordinary usage. Accordingly, no confusion or prejudice would result from the introduction of the contested evidence.” Id., at *7.

In this case, there is no evidence presently before the Court explaining the standard Swift used in determining that the accident was “preventable.” Neither Defendants nor Plaintiffs address this issue. As such, a potential exists for confusing and misleading the jury because of differing standards defining “preventable” accidents from claims of negligence and negligence per se. Exclusion of all evidence at this stage of the proceedings, however, will prejudice Plaintiffs, since evidence could be introduced at trial (after a proffer of same) that explains the standard Swift used in reaching its determination that the subject accident was “preventable.”

IV. Conclusion
*4 For the reasons set forth above, Defendants’ Motion in Limine, Doc. #64, is SUSTAINED in part and OVERRULED in part. Specifically, until evidence is proffered explaining how Swift reached its “preventability” determination, no evidence, testimony or statement of counsel, even during voir dire and in opening statements, is permitted referring to Swift’s finding that the subject accident was “preventable.” The parties, during the proffer, are permitted to question witnesses to determine the standard Swift used and/or to introduce evidence that explains how it found that the subject accident was “preventable.” Following the conclusion of the proffer, the Court will rule on the evidentiary issue discussed herein.
(tp – per Judge Rice authorization after his review)

Date: March 31, 2021

WALTER H. RICE

UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2021 WL 1206527

Footnotes

1
Although Khai was questioned during his deposition concerning three prior accidents that were also determined by Swift to be “preventable,” Doc. #63, PageID##583-585, Defendants Motion only concerns Plaintiffs’ accident. Doc. #64, PageId#698.

2
Prevent, MERRIAM-WEBSTER.COM, http://merriam-webster.com/dictionary/preventable (last visited Dec. 14, 2020).

Inigo v. Express Movers, Inc.

2021 WL 948795

United States District Court, S.D. California.
Fernando INIGO, Plaintiff,
v.
EXPRESS MOVERS, INC., a Hawaii Corporation, d/b/a Movers Hawaii, Defendant.
Case No.: 3:18-cv-2844-BEN-DEB
|
Signed 03/11/2021
|
Filed 03/12/2021
Attorneys and Law Firms
Julie Lynn DuPre, Law Office of E.B. Alejo, Chula Vista, CA, for Plaintiff.
Elliott N. Kanter, Law Offices of Elliott N. Kanter, San Diego, CA, for Defendant.
Express Movers, Inc., Waipahu, HI, pro se.

ORDER GRANTING-IN-PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
[ECF No. 50]
ROGER T. BENITEZ, United States District Judge
*1 Before the Court is Plaintiff Fernando Inigo’s Motion for Attorney’s Fees. ECF No. 50. Defendant Express Movers, Inc. (“Express Movers”) remains unrepresented by counsel and did not file any briefing addressing this Motion. For the reasons set forth below, the Motion is GRANTED-IN-PART.

I. BACKGROUND
This case concerns a shipment of household goods and a vehicle from Hawaii to California. See Compl., ECF No. 1. Inigo filed a Complaint against Express Movers on December 17, 2018. Id. He initially sought $39,827.00 in damages, which he alleged represented the value of the items unlawfully withheld by Express Movers as the result of a dispute over shipping costs. Id. at 9. On April 22, 2020, after sixteen months of withholding Inigo’s household goods, Express Movers relinquished possession and returned the items to him. Mot., ECF No. 42, 7. One month later, Mr. Elliot Canter, who was then-counsel for Express Movers, moved to withdraw from the case, citing a conflict of interest and Express Movers’ inability to afford an attorney. See Mot., ECF No. 29, 2.

On June 24, 2020, the Court granted Canter’s motion to withdraw as counsel for Express Movers. Order, ECF No. 33. As Local Civil Rule 83.3(j) requires corporations to be represented by counsel, the Court granted Express Movers thirty days to obtain new counsel and have that counsel file a notice of appearance. Id. The Court also delayed the Final Pretrial Conference until August 3, 2020. Id.

Express Movers failed to appear at the Final Pretrial Conference or retain new counsel to file a notice of appearance on its behalf. Minute Order, ECF No. 35. The Court issued an Order to Show Cause, requiring Express Movers to obtain new counsel while cautioning that failure to do so could result in sanctions, including striking Express Movers’ Answer and entering default judgment against it. Order, ECF No. 36. Express Movers still failed to respond. Accordingly, the Court entered default judgment on August 24, 2020, and granted Inigo leave to file a Motion to Prove Damages. Order, ECF No. 38. Inigo filed his Motion to Prove Damages, and Express Movers did not respond.1 The Court granted-in-part Inigo’s Motion to Prove Damages, finding he was entitled to $1,838.97 in total damages for Express Movers’ violation of 49 U.S.C. § 14706. See Order, ECF No. 47. These damages represented new items that Inigo was forced to purchase while Express Movers wrongfully withheld his household goods. Id. at 5.

*2 Inigo now seeks $69,849.00 in attorney’s fees pursuant to 49 U.S.C. § 14708. Mot., ECF No. 50, 4. Once again, Express Movers did not submit any briefing on the Motion for Attorney’s Fees.2

II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 54, a party may file a motion for attorney’s fees within fourteen days after the entry of judgment. Fed. R. Civ. P. 54(d). A motion for attorney’s fees must “specify the judgment and the statute, rule, or other grounds entitling the movant to the award” and “state the amount sought or provide a fair estimate of it.” Fed. R. Civ. P. 54(d)(2)(ii)-(iii). The Carmack Amendment, codified at 49 U.S.C. § 14706 et. seq, regulates the relationship between shipping companies and the owners of goods under shipment. In certain circumstances, a shipper can recover attorney’s fees in suits brought pursuant to the Carmack Amendment. See 49 U.S.C. § 14708(d). To receive attorney’s fees in such cases, a plaintiff must (1) timely submit a claim for the loss of their household goods, (2) prevail in a court action to resolve this dispute, and (3) have no arbitration decision rendered in the dispute. See Campbell v. Allied Van Lines Inc., 410 F.3d 618, 623 (9th Cir. 2005).

III. ANALYSIS
The Court first notes that Inigo has satisfied the three elements listed above for his attorney’s fee claim.

Turning to the award amount, Inigo claims his counsel charged him $250 per hour to represent him in this matter and expended 279 hours of time pursuing this case. Mot., ECF No. 50, 9. Inigo requests a total award of $69,849.00. Inigo does not submit any documentation to substantiate the total number of hours worked or itemize those hours in any way. The Court finds that the product of counsel’s hourly rate and number of hours worked is only $69,750.00. Because Inigo failed to provide any explanation for the difference in amounts, such as costs or expenses, the Court begins its analysis of an appropriate fee by using the lesser amount.

In awarding attorney’s fees, the Court begins with the lodestar. Henley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002) (applying lodestar to all fee-shifting cases in federal courts). The lodestar is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 at 433. “The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.” Id. However, “[w]here the documentation supporting the award is inadequate, the district court may reduce the award accordingly.” Id.

In analyzing Inigo’s motion, the Court first finds that his counsel’s requested hourly rate of $250 per hour is reasonable. However, the Court does not find Inigo’s counsel reasonably expended 279 hours on this case because Inigo provided absolutely no documentation that would allow the Court to evaluate the time allegedly worked. Accordingly, the Court reduces the hours claimed by forty percent to 167.4 hours. See Drucker v. O’Brien’s Moving & Storage Inc., 963 F.2d 1171, 1174 (9th Cir. 1992) (affirming the district court’s decision to reduce an undocumented attorney’s fee request in a case brought under the predecessor version of the Carmack Amendment).

*3 The Court notes that not only did Inigo’s counsel fail to provide any fee documentation, but her declaration also fails to describe any costs incurred, the type of work done on this case, the difficulty of that work, and any other reasons justifying the $69,849,00 in fees she requests. However, the Court also recognizes that, at a minimum, this is not a typical default judgment case. In fact, the case was contested for almost eighteen months before Express Movers’ counsel withdrew from the case. During that time, Inigo’s counsel prepared the complaint, attended multiple hearings, filed and responded to several discovery motions, and conducted discovery including the taking of depositions. After Express Movers’ counsel withdrew, she proceeded to prove up Inigo’s case through the show cause and default judgment proceedings. Accordingly, the Court finds counsel’s appropriate lodestar is $41,850.00.

IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Attorney’s Fees is GRANTED-IN-PART. The Court awards Plaintiff $41,850.00 in attorney’s fees.

IT IS SO ORDERED.

All Citations
Slip Copy, 2021 WL 948795

Footnotes

1
Igor Stojadinovic, purportedly a representative of Express Movers, sent a letter to the Court dated October 5, 2020, requesting a delay in the hearing on the motion for default judgment. ECF No. 45. Mr. Stojadinovic stated he could not travel due to COVID-19 concerns. Id. However, the Court vacated the hearing on this motion, submitted the matter in accordance with Local Civil Rule 7.1(d)(1), and as such, denies Mr. Stojadinovic’s request as moot. The Court also rejects Mr. Stojadinovic’s letter because it was submitted on behalf of a corporate defendant by a non-attorney. See Civ. L. R. 83.3(j) (providing that corporations may only appear in court through an attorney).

2
On December 30, 2020, the Court issued a minute order submitting the Motion for Attorney’s Fees and vacating the hearing set for January 4, 2021. ECF No. 51. However, on the date of the hearing, the Court received a phone call from Mr. Stojadinovic indicating he had travelled from Hawaii to appear in-person at the since-vacated hearing. Chambers informed Mr. Stojadinovic the hearing had been vacated and that corporate defendants must be represented by an attorney. See Civ. L. R. 83.3(j). Since that date, no new counsel has appeared on Express Movers’ behalf.