in inappropriate behavior. (Contested Facts 59). Thus, French may present evidence that
Huffman made statements in June 2000 indicating that he knew that Pajazetovic allegedly tried
to “‘steal a kiss” from McCoy prior to July 31, 2000.

3. Evidence of Pajazetovic’s trial and conviction for battery in Lake County. IL.

Amsleep and Pajazetovic both seek to exclude evidence that Pajazetovic was tried and
convicted of battery in Lake County, Illinois in connection with the events surrounding this case.
French, in turn, seeks to prevent defendants from introducing evidence to contest that Pajazetovic
committed a battery against her. All of these motions are denied.

In Illinois, “evidence of a prior criminal conviction is admissible in a civil proceeding as
prima facie evidence of the facts upon which the conviction is based if those facts are relevant to
some issue involved in the civil proceeding.” Calusinski v. Kruger, 24 F.3d 931, 934 (7" Cir.
1994) (internal quotations omitted). Pajazetovic was convicted of battery for his actions on July
31, 2000, and those actions form the basis of the claims at issue in this case. Thus, there is no
basis for excluding this evidence at trial. At the same time, Pajazetovic’s conviction is not
conclusive evidence of the underlying facts, so he may present evidence to rebut the factual basis
of the conviction, including evidence that the encounter was consensual. See Santiago v.
Furniture Chauffeurs, Piano Movers, Packers, and Handlers Local 705, No. 99 C 2886, 2001
WL 11058, at *2 (N.D. Ill. Jan. 4, 2001).

4. Evidence that Cloud Nine is a “Head shop”.

French seeks to exclude evidence that her current employer, Cloud Nine, is a “Head

shop,” i.e., a place that engages in the sale of drug paraphernalia or other illicit activities.

Defendants do not argue that this information is relevant to this case and the motion is granted.


made a colorable claim for punitive damages. See Koblosh v. Adelsick, No. 95 C 5209, 1997 WL
311956, at *2 (N.D. Ill. June 5, 1997).

2. Evidence that Pajazetovic tried to “steal a kiss” from Kristin McCoy.

Amsleep seeks to exclude evidence that Pajazetovic allegedly made a sexual advance
towards former Amsleep employee Kristin McCoy; that French spoke to McCoy about the
incident; and that French, Gurnee store manager James Huffman, and employee JacLynn Wrobel
had a conversation about the incident. The Court agrees that evidence regarding the alleged
encounter between Pajazetovic and McCoy would arguably require a trial within a trial as to
whether McCoy was subjected to unlawful sexual harassment, and that any probative value
would be outweighed by the danger of unfair prejudice to defendants, likely confusion of the
issues, and significant litigation time. See, e.g., McCleland v. Montgomery Ward & Co., No. 95
C 237, 1995 WL 571324, at *3 (N.D. Ill. Sept. 25, 1995) (excluding evidence of another
employee’s harassment complaint where it “would necessitate a ‘trial within a trial’”), This
portion of Amsleep’s motion is granted.

However, evidence that Huffman told French and Wrobel that Pajazetovic attempted to
“steal a kiss” from McCoy and that he was upset with Pajazetovic (Contested Facts 36) is
relevant to whether Amsleep “knew or should have known that the employee had a particular
unfitness for the position so as to create a danger of harm to third persons,” which is an element
of French’s prima facie case of negligent retention. Soranno v. New York Life Insurance Co.,
No. 96 C 7882, 1999 WL 104403, at *13-14 (ND. Ill. Feb. 24, 1999) (citing Van Horne v.
Muller, 294 Ill. App. 3d 649, 657, 691 N.E.2d 74, 79 (1998)). It would also be admissible to

impeach a claim by Huffman that he did not have prior knowledge that Pajazetovic was engaging


5. JacLynn Wrobel’s shoplifting conviction.

French seeks to exclude evidence that Wrobel was convicted of shoplifting. Defendants
do not challenge this motion and the Court agrees that the information should be excluded under
FRE 609. See Arellano v. Etan Industries, Inc., No. 97 C 8512, 1998 WL 417599, at *2 (N.D.
Ill. July 20, 1998) (“[p]laintiff’s shoplifting would . . . not be admissible because ‘petty
shoplifting does not in and of itself qualify as a crime of dishonesty under Rule 609””) (quoting
United States v. Amaechi, 99\ F.2d 374, 379 (7" Cir. 1993).

6. Evidence of French’s sexual behavior, predisposition or reputation.

French asks this Court to exclude evidence of French’s sexual behavior, predisposition or
reputation pursuant to FRE 412(c), Evidence of a plaintiff's sexual conduct or predisposition is
not prohibited in all circumstances. Rather, the Court must consider the potential relevance of
such evidence to prevent its use for purposes exploiting stereotypes or subjecting a party to
gratuitous embarrassment and invasion of privacy. See Alberts v. Wickes Lumber Co., No. 93 C
4397, 1995 WL 117886, at *2 (N.D. Ill. Mar. 15, 1995); Blackmon v. Buckner, 932 F. Supp.
1126, 1128 (S.D. Ind. 1996). In this regard, the Rule requires that a party intending to offer
evidence of sexual predisposition “file a written motion at least 14 days before trial specifically
describing the evidence and stating the purpose for which it is offered.” FRE 412(c)(1)(A).

Given that defendants have not responded to French’s motion in limine or otherwise
indicated what evidence they intend to present at trial, the motion is granted.

CONCLUSION
For the reasons stated above, Amsleep’s motion (Docket Entry #22-1) is granted in part

and denied in part, Pajazetovic’s motion (Docket Entry #21-1) is denied, French’s motion to bar


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Nan R. Nolan Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 9824 DATE 1/13/2003
CASE French vs. Amsleep, Inc, et al.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state brietly the nature

of the motion being presented. ]

ay

MOTION:

DOCKET ENTRY:

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

(2) a Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer brief due___.

4 a Ruling/Hearing on___setfor__at

(5) a) Status hearing{held/continued to] [set for/re-set for]on___——ssetfor_—at_—

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on___—ssetfor_ at.

(7) oO Trial{set for/re-set for]on_____ at.

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

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
QFRCP4(m) (1 Local Rule 41.1. OFRCP41(a)(1) 0 FRCP41(a)(2).

(10) a [Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order,

Amsleep’s motion in limine is granted in part and denied in part [22-1]. Pajazetovic’s motion in limine
is denied [21-1]. French’s motion to bar evidence, testimony and documents [24-1] is granted. French’s
motion to bar evidence to contest the battery [23-1] is denied. Enter Memorandum Opinion and Order.

| [For further detail see order attached to the original minute order.]

v

No notices required, advised in open court.

No notices required
number of notices,

Document
Number

Notices mailed by judge's staff. jaw 74 Lua

Notified counsel by telephone. date docketed
Docketing to mail notices.

Mail AO 450 form. docketing deputy initials

Copy to judge/magistrate judge.

235

dare mailed notice

courtroom
cav deputy’s
initials

Oi Uatedtim received in ;
central Clerk's Office mating deputy inal



evidence, testimony and documents (Docket Entry #24-1) is granted, and French’s motion to bar

evidence to contest the battery (Docket Entry #23-1) is denied.

New R Wotan

NAN R. NOLAN
United States Magistrate Judge
Dated: January 13, 2003



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SHANNON FRENCH, )
) AN
Plaintiff, ) SAN § 4 2083.
)
vs. ) Case No. 01 C 9824
)
AMSLEEP, INC. a/k/a AMERICAN )
MATTRESS, a corporation and ERMIN )
PAJAZETOVIC, individually, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

NAN R. NOLAN, Magistrate Judge:

This matter is before the Court on defendant Amsleep Inc. d/b/a American Mattress’s
Motion in Limine, defendant Ermin Pajazetovic’s Motion in Limine to Bar Evidence of
Conviction for Battery, and plaintiff Shannon French’s Motion in Limine to Bar Evidence,
Testimony, or Documents and Motion in Limine to Bar Evidence Offered to Contest the Battery
Committed by Defendant Pajazetovic. For the reasons set forth below, Amsleep’s motion is
granted in part and denied in part, Pajazetovic’s motion is denied, French’s motion to bar
evidence, testimony and documents is granted and French’s motion to bar evidence to contest the
battery is denied.

DISCUSSION

“A federal court’s authority to manage trials includes the power to exclude evidence

pursuant to motions in limine.” Tzoumis v. Tempel Steel Co., 168 F. Supp. 2d 871, 873 (N.D. Ill.

2001) (quoting Falk v. Kimberly Services, Inc., No. 92 C 1079, 1997 WL 201568, at *1 (N.D. IL.

2%



Apr. 16, 1997)). A motion in limine is “an important tool available to the trial judge to ensure
the expeditious and evenhanded management of the trial proceedings.” Jonasson v. Lutheran
Child and Family Services, 115 F.3d 436, 440 (7" Cir. 1997). Evidence should not be excluded
before trial unless it is clearly inadmissible on all potential grounds, “{E]videntiary rulings
should be deferred until trial so that questions of foundation, relevancy and potential prejudice
may be resolved in the proper context.” Hawthorne Partners v. AT&T Technologies, Inc., 831 F.
Supp. 1398, 1400 (N.D. Ill. 1993). Denial of a motion in limine “does not mean all the evidence
within the scope of the motion will be admitted at trial.” 7zoumis, 168 F. Supp. 2d at 874.
Rather, the court “should entertain objections to proffers as they occur at trial, even for areas that
fall in the scope of a denied motion in limine.” Jd.

1. Evidence of Amsleep’s size or financial resources.

Amsleep argues without explanation that evidence of its financial status should be
excluded at trial. The company’s financial status is relevant to French’s claim for punitive
damages under federal and state law. See EEOC vy. Staffing Network, LLC, No. 02 C 1591, 2002
WL 31473840 (N.D. Ill. Nov. 4, 2002); Pivot Point International, Inc. v. Charlene Products,
Inc., 170 F. Supp. 2d 828 (N.D. Ill. 2001). However, the evidence only becomes admissible
upon French’s showing that defendants acted “with malice or with reckless indifference to” her
rights, Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 636 (7" Cir. 1996) (quoting
42 U.S.C. §1981a(b)(1)), or committed “willful or wanton misconduct.” Bryant v, Livigni, 250
Ill. App. 3d 303, 312, 619 N.E.2d 550, 558 (1993). Thus, the motion in limine to exclude

evidence of Amsleep’s financial status is granted until the Court determines that French has