United States District Court, D. Nebraska
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the on the parties' motions in limine. The plaintiff filed a motion in limine (Filing No. 130) with a brief (Filing No. 131), index of evidence (Filing No. 132), and affidavit (Filing No. 133). The defendants filed a brief (Filing No. 148) and index of evidence (Filing No. 149) in opposition. The plaintiff filed a brief (Filing No. 161) in reply. The defendants filed a motion in limine (Filing No. 134) with a brief (Filing No. 135) and index of evidence (Filing No. 136). The plaintiff filed a "Resistance" (Filing 141), brief (Filing No. 142), and index of evidence (Filing No. 143) in opposition.
The plaintiff's action arises from an injury Rick Bremmer (Bremmer) sustained on the defendant Appleton Electric, LLC's (Appleton) premises. See Filing No. 1-1 - Complaint. On May 25, 2011, Bremmer was on Appleton's premises to deliver an order for Waste Connections, Inc. when Bremmer fell into an open pit approximately twenty feet by twenty feet wide and five feet deep and allegedly sustained a torn rotator cuff and herniated disc. Id. ¶¶ 9-13, 18-19. Generally, the plaintiff alleges the defendants' negligence caused Bremmer's injuries. Id. ¶¶ 18-21. The defendants generally deny the plaintiff's allegations and assert several affirmative defenses. See Filing No. 1-1 - Answer ¶¶ 3-4. On April 21, 2014, the parties filed motions in limine. See Filing No. 130 - Plaintiff's Motion; Filing No. 134 - Defendants' Motion. The basis of their motions is discussed below.
A. Plaintiff's Motion in Limine
The plaintiff seeks to preclude the defendants from discussing or presenting evidence conflicting with the requests for admissions deemed admitted on April 1, 2014, and from discussing or introducing evidence of Bremmer's criminal history. See Filing No. 130 - Plaintiff's Motion.
1. Requests for Admissions
The plaintiff served the defendants, by U.S. mail, requests for admissions on March 3, 2014. See Filing No. 132-1 - Requests for Admissions. The defendants responded on April 7, 2014. See Filing No. 132-2 - Response to Requests. The defendants generally objected that the requests for admissions was untimely under the court's December 20, 2013, progression order and also denied the majority of the requests, notwithstanding the objection. Id. The plaintiff argues because the defendants did not respond within thirty days, the requests for admissions were deemed admitted. See Filing No. 131 - Brief p. 2-3. Additionally, the plaintiff argues the general denial without explanation makes the answers nonresponsive and therefore the requests for admissions should be admitted. Id.
The defendants argue they timely served their responses under Fed.R.Civ.P. 5, 6, and 36. See Filing No. 148 - Response p. 1-4. The defendants contend adding three days, since the requests were mailed, to the response date would make the defendants' response due April 5, 2014, which fell on a Saturday thereby giving the defendants until April 7, 2014, to respond. Id. The defendants also argue the defendants' responses were sufficient and the plaintiff has never raised the issue of sufficiency. Id.
Under Fed.R.Civ.P. 36, a party has thirty days after being served with a request for admission to respond to the request. See Fed.R.Civ.P. 36(a)(3). If the response is not received within thirty days, the request for admission is deemed admitted. Id. Rule 6 provides the proper method for "computing any time period specified" in the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 6(a). Specifically, Rule 6(d) provides that "3 days are added after the period would otherwise expire under Rule 6(a)." See Fed.R.Civ.P. 6(d). Additionally, Rule 6(a)(1)(C) provides that "if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday." See Fed.R.Civ.P. 6(a)(1)(C).
The plaintiff served its requests by U.S. Mail on March 3, 2014. Thirty days from March 3, 2014, was April 2, 2014. Since the requests were served by U.S. Mail, the additional three days allowed by Rule 6(d) is added to determine the deadline to respond. Three days added to April 2, 2014, is Saturday, April 5, 2014. Due to the weekend deadline, the actual deadline for the defendants to serve their response was Monday, April 7, 2014. The defendants timely served their response on April 7, 2014. The sufficiency of the defendants' response should have been addressed by the plaintiff in a timely and properly supported Rule 36(a)(6) motion. Accordingly, the requests for admissions will not be deemed admitted and the plaintiff's motion in limine on this ground is denied.
2. Bremmer's criminal record
The plaintiff argues as part of the defendants' exhibit list, the defendants included a number of references to Bremmer's criminal cases. See Filing No. 131 - Brief p. 3-5 (citing Exs. 112-125). The plaintiff contends the exhibits are inadmissible because the exhibits have never been disclosed to the plaintiff. Id. Additionally, the plaintiff argues Bremmer's criminal history is inadmissible under Fed.R.Evid. 403, 404, and 609. Id. Lastly, the plaintiff argues Bremmer's ...