out and explore other matters that the adversary may mention
during the course of the discovery process without also
appropriately supplementing the earlier formal response.

Accordingly defendants' response, on the present showing by
the parties, is unpersuasive. This second motion by plaintiffs
is also granted.

Mitigation of Damages

This third motion by plaintiffs (Dkt. 38-1) seeks to head
off any argument that plaintiffs' status as illegal aliens
precludes them from recovering certain damages under principles

articulated in Hoffman Plastic Compounds, Inc. v, NLRB, 122 S.Ct,

1275 (2002), decided at the Supreme Court's last Term to resolve
an existing split among the Courts of Appeals (id. at 1279 n.2).
Thus the first mention of Hoffman Plastic came not from any
assertion by defense counsel (by way of an affirmative defense or
otherwise) that plaintiffs could not recover here because they
lacked legal status to work in the United States or because they
did not mitigate their damages, but rather from plaintiffs'
effort to head off any such contentions.

In support of the motion, plaintiffs! counsel identified
cases from no fewer than five Courts of Appeals (the First,
Fifth, Eighth and Eleventh and the District of Columbia) that

have uniformly held a failure to mitigate damages to be an

affirmative defense under Rule 8(c), thus calling into play the



compensation.

In light of that all-encompassing description (even apart
from any of the later requests that might encompass the items at
issue), it is difficult to understand any argument that Request
No. 1 did not call for the express turnover of the late-
designated exhibits now at issue. Even were that not the cage,
it just will not do for the recipient of a broad discovery
request charged with such nondisclosure to respond that the other
side should have been aware of an undesignated document because
it was referred to during a deposition, any more than the mention
of a person during the course of a deposition justifies a party's
inclusion of such person on the witness list for trial when that
party has not provided the person's identification in response to
the standard discovery inquiry asking for the names of all
persons who have any knowledge of facts relating to the
litigation.

This is not an issue to be resolved by such pejorative
labels as “trial by ambush.” Federal rules of disclosure
embodied in Fed. R. Civ. P. (“Rules”) 26 through 37 have long
since supplanted the old “sporting” or “fox-hunt” approach to
litigation, when parties went to trial without a full exploration
of the opponents' case. When a party makes a formal discovery
request under those Rules, it is entitled to rely on the

adversary's equally formal response rather than having to search



*y

familiar doctrine that affirmative defenses not raised in a
party's responsive pleading are considered waived. Just a brief
look by this Court disclosed that the Second Circuit has done the

game, as stated in Travellers Int'l, A.G. v. TWA, Inc., 41 F.3d

1570, 1580 (2d Cir. 1994):

Failure to mitigate damages is an affirmative defense
and therefore must be pleaded. Fed. R. Civ. P. 8(c).
The general rule in federal courts is that a failure to
plead an affirmative defense results in a waiver. See
Sellers v. M.C. Ploor Crafters, Inc., 942 F.2d 639, 642
n.2 (2d Cir. 1988); see also 5 Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure §1278
(2d Ed. 1990).

And although plaintiffs' motion concludes the citation of ita own
laundry list of cases with a footnote stating “Plaintiffs have
not found a single case in which a federal court has held that
failure to mitigate damages ia not an affirmative defense,”
defendants response is a meaningless one-sentence denial of that
extended treatment after this equally uninformative reference to
Hoffman Plastic:

Defendants respond to Plaintiff' Paragraph 2 that

Hoffman speaks for itself, and the question of what

issues may remain unresolved is a question for the

Court to determine,

Neither defendants' Answer to Complaint nor the FPTO says a
word about a mitigation of damages defense, nor does either
contain any reference to the illegality of plaintiffs' working in

the United States. As Hoffman Plastic's reference to a

preexisting split in decisional law makes plain, this was not a



Minute Ordty Fora (6/97) *

United States District Court, Northern District of Iinois

Name of Assigned Judge Milton L Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01C 1478 DATE 9/13/2002
CASE Jose Rodriguez. vs. The Texas, Inc.
TITLE

{In the following box (a) indicate the pany filing the motion, ¢ g., plaintiff, defendant, 3rd party plaintift, and (b) state briefly the nature
of the motion being presented.]

MOTION:
DOCKET ENTRY:

(1) o Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a Answer briefto motion due___—. Reply to answer briefdue____.

(4) o Ruling/[learingon ss setfor at,

(5) Oo Status hearing[held/continued to] [set for/re-set for] on set fora

(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on ____set for at -
(7) C] Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case iy dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4n) (Local Rule 41.1 OFRCP41(a\(1) O FRCP41(a)(2).

(10) Mi [Otherdocketentry] Enter Memorandum Opinion and Order. For the reasons stated in this opinion,
all of plaintiffs’ motions in limine are granted. Because the parties have advised by letter as to their
respective dates of availability for trial, this action is sct for trial to begin at 9:30 a.m. October 29, 2002.
(36-1, 37-1, 38-1)

dl) [Wor further detail see order attached to the original minute order.]

Document
fi Number

YD

No notices required, advised in open court.

No notic ited.
lo nolives requires uumher of notices

EP 16 2002

duardackered

Y | Notices mailed by judge's staff, 5

Notified counsel by telephone,

Docketing to mail notices

Mail AO 450 form.

Copy to jadge/magistrate judge
ona002

dare omled notice
courtroom

SN deputy’s
initials

Date/lime received in
central Clerk’s Oftice mailing deputy initials



new issue of which defendants could claim a lack of awareness.

In sum, plaintiffs' waiver argument is in accordance with
universal caselaw. In addition, it surely comes with ill grace
for an employer to hire alien workers and then, if the employer
itself proceeds to violate the Fair Labor Standards Act (which
this Court does not of course decide, but must assume for
purposes of the present motion), for it to try to squirm out of
its own liability on such grounds. For more than one reason,
this is a classic case for the application of the principle of
waiver uniformly announced by the Courts of Appeals that have
considered the issue, and this Court also grants this last motion
in limine.

Conclusion

For the reasons stated in this opinion, all of plaintiffs!
motions in limine are granted. Because the parties (again as
this Court had directed during the conference at which the FPTO
was approved) have advised by letter as to their respective dates
of availability for trial, this action is set for trial to begin

at 9:30 a.m. October 29, 2002.

Te, Blea Maar

Milton I. Shadur
Senior United States District Judge

Date: September 13, 2002



pocKertD

ser 18 702.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE RODRIGUEZ, etc., et al.,
Plaintiffs,
Ve

No. 01 C 1478

THE TEXAN, INC.,

Defendant.
MEMORANDUM, OPINION AND ORDER

This Court's June 27, 2002 approval of the jointly submitted
Final Pretrial Order (“FPTO”) in this Fair Labor Standards Act
lawsuit has placed the case in a ready-for-trial posture. In
accordance with the order entered at the time of the pretrial
conference held to consider the FPTO, plaintiffs' counsel has
filed three motions in limine, and defense counsel has in turn
responded to two of the three motions. This memorandum opinion
and order (1) addresses all three motions and (2) sets a trial
date.

Fee-Shifting, Attorneys' Fees or Costs of Litigation

As the heading of this section suggests, one of plaintiffs'
motions (Dkt. 36-1) seeks to exclude any reference at trial to
any of the captioned items even though they are potentially
recoverable by plaintiffs. Because defense counsel has failed to
respond to that motion, it is fair to assume the absence of any

objection. Moreover, it is conventional wisdom that any mention

of such items, all of which are for decision by the court rather



than the jury, serve no appropriate purpose when injected into a
jury trial (other than perhaps creating the potential for unfair
prejudice that Fed. R. Evid. 403 balancing is designed to
eliminate).

Defendants' Exs. 2 and 3

According to plaintiffs' next motion (Dkt. 37-1),
Defendants! Exs. 2 and 3 were not disclosed during discovery,
having shown up instead in FPTO Ex. 3, the list of the parties’
proposed trial exhibits. Defense counsel disputes that
contention by asserting that those documents were in fact
disclosed during the depositions of defendant Rochelle Raddatz
and Denise Madden, an employee of co-defendant The Texan, Inc.
According to defendants' response:

The documents were not requested prior to the

deposition in the request for production of documents,

in that at no time did they request the corporation

work schedules or health insurance records in the

request for production.

That position is puzzling, for plaintiffs' counsel has
attached as an exhibit to the motion in limine Plaintiffs' First
Request for Production of Documents to Defendant, which followed

the usual practice of asking for everything but the kitchen sink.

It began with this first sweeping request for production:

All documents relating to the Plaintiffs, including,
but not limited to, the Plaintiffs' personnel file,
records of hours worked, Plaintiffs' time cards, and
records pertaining to their job duties, job
responsibilities, job description, salary, hours
worked, and receipt of minimum or overtime wages or