1

FedEx contends that, because Jackson’s response was two days

late, the court should grant the motion as unopposed. Although the

response was late, the tardiness has not interfered with the

decisional process of the court or prejudiced FedEx. Moreover, as

the court notes below, granting the motion would essentially result

in the dismissal of the remainder of Jackson’s case. Because the

court declines effectively to dismiss this case on the merits under

these circumstances, it will not grant FedEx’s motion based on the

tardiness of Jackson’s response.

2

Under § 205(a)(5) of the E-Government Act of 2002 and the

definition of “written opinion” adopted by the Judicial Conference

of the United States, this is a “written opinion[ ] issued by the

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RAYMOND JACKSON, §

 §

Plaintiff, §

 § Civil Action No. 3:03-CV-2341-D

VS. §

 §

FEDERAL EXPRESS CORPORATION, §

et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

Defendant Federal Express Corporation (“FedEx”) filed on May

10, 2006 a motion in limine to exclude all testimony of plaintiff’s

former employees’ alleged discriminatory or harassing conduct or,

in the alternative, motion for leave to depose individuals with

said knowledge. Plaintiff Raymond Jackson (“Jackson”) opposes the

motion.1 The court denies the motion in limine but grants the

alternative motion for leave to depose individuals who Jackson

alleges have knowledge of discriminatory or harassing acts

committed by FedEx employees.2

 

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court” because it “sets forth a reasoned explanation for [the]

court’s decision.” It has been written, however, primarily for the

parties, to decide issues presented in this case, and not for

publication in an official reporter, and should be understood

accordingly.

- 2 -

I

As a result of the court’s earlier decision granting in part

and denying in part FedEx’s motion for summary judgment, see

Jackson v. Federal Express Corp., 2006 WL 680471 (N.D. Tex. Mar.

14, 2006) (Fitzwater, J.), and Jackson’s April 25, 2006 notice of

withdrawal of other claims that the court indicated sua sponte

would be subject to dismissal, the trial of Jackson’s lawsuit will

be limited to his racially hostile work environment claim under 42

U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., and the Texas Commission on Human Rights Act, Tex.

Lab. Code Ann. §§ 21.001-21.556 (Vernon 2006). FedEx moves to

exclude all testimony and evidence pertaining to former FedEx

employees’ alleged discriminatory or harassing conduct.

Alternatively, it moves for leave to depose the individuals who

Jackson alleges have knowledge of discriminatory or harassing acts

committed by former FedEx employees. FedEx contends that Jackson

did not disclose the identities of such persons as required under

Fed. R. Civ. P. 26(a)(1) or in response to proper interrogatories.

 

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3

The court’s order also states, in pertinent part, that 

[m]otions in limine must be limited to matters

that meet the following requirements: (1) the

matter cannot adequately be raised by trial

objection without prejudice to the moving

party and (2) the prejudice of mentioning the

matter in the presence of the jury cannot be

cured by an instruction from the court.

 

Aug. 26, 2004 Order ¶ 14. It is not apparent to the court that

FedEx has sufficiently reviewed or grasped these requirements. On

June 13, 2006 FedEx filed eight separate motions in limine. A

cursory review indicates that they contain several grounds that

either can be adequately raised by trial objection without

prejudice to FedEx, or the prejudice of mentioning the matter in

the presence of the jury can be cured by an instruction from the

court. Accordingly, at the pretrial conference, the court will

require that FedEx identify the specific grounds, if any, of the

motions that meet both requirements for filing a motion in limine,

and it will only rule on grounds that meet these requirements.

- 3 -

II

A

As a threshold matter, the court treats FedEx’s motion in

limine as one filed under Rule 37(c)(1)——the rule that FedEx

explicitly cites——rather than as a motion in limine. As the

court’s trial setting order states, “[m]otions in limine must [not]

include . . . issues presented in order to obtain substantive

rulings that should have been requested in advance of trial by

appropriate motion.” Aug. 26, 2004 Order ¶ 14. FedEx’s motion is

more in the nature of one that seeks a substantive ruling——the

exclusion of witnesses——rather than a ruling in limine——the

temporary exclusion of evidence until the court can make a

definitive ruling on admissibility.3

 

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- 4 -

B

FedEx has demonstrated that, in fulfilling his obligations

under Rule 26(a)(1) and in responding to proper interrogatories,

Jackson did not disclose the identities of persons with knowledge

of harassing conduct committed against him by his FedEx coemployees. Under Rule 37(c)(1), however, the court is not required

to impose the sanction of precluding a party from calling an

undisclosed witness or using undisclosed information at trial.

“[I]n lieu of this sanction, the court, on motion and after

affording an opportunity to be heard, may impose other appropriate

sanctions.” Id. The court concludes that Jackson’s conduct during

discovery is not sufficient to warrant excluding the witnesses and

information in question, which, under the circumstances presented

here, would essentially result in the entry of judgment as a matter

of law dismissing the remainder of Jackson’s case due to the lack

of evidence necessary to prove his hostile work environment claim.

III

Accordingly, the court continues the trial of this case to the

two-week docket of October 16, 2006. No later than July 5, 2006,

Jackson’s counsel must serve on FedEx’s counsel supplemental

answers to Interrogatories Nos. 4 and 10 that contain the name,

address, and telephone number of each individual whom Jackson

intends to call at trial to testify concerning discriminatory or

 

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4

It appears from the record that these individuals will come

from the following group of persons: Jackson, Ronnie Wooten, Ronnie

Taylor, Michael Henry, Jeannette Rupert, Gerald Hill, and Michael

Joseph. If there are other such individuals, however, Jackson must

disclose them to FedEx.

- 5 -

harassing conduct by Jackson’s former FedEx co-employees.4 FedEx

is granted leave to take the depositions of all such individuals

named. If FedEx decides to depose any or all of them, the

depositions must be completed no later than August 31, 2006. 

Jackson’s request that the court order these depositions to be

taken entirely at FedEx’s expense is denied. His request that the

depositions be limited in time, scope, and location is also denied.

The Federal Rules of Civil Procedure contain adequate limits on

time. The scope of the depositions is clear from FedEx’s request

and the court’s order. There is no indication in the record that

the court needs to regulate the place where the depositions are

taken.

* * *

The court denies FedEx’s May 10, 2006 motion in limine and

grants its alternative motion.

SO ORDERED.

June 14, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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