IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02244-CMA-MJW

UNITED STATES OF AMERICA,

Plaintiff(s),

v.

RICHARD WILMER, and

ROCK WEISS,

Defendant(s).

ORDER REGARDING UNITED STATES’ MOTION IN LIMINE

 (DOCKET NO. 56)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiff United State’s Motion In Limine (docket

no. 56). The court has reviewed the subject motion (docket no. 56) and the response

(docket no. 58). In addition, the court has taken judicial notice of the court’s file and has

considered applicable Federal Rules of Civil Procedure and case law. The court now

being fully informed makes the following findings of fact, conclusions of law, and order.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court finds:

1. That I have jurisdiction over the subject matter and over the parties

to this lawsuit;

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2. That venue is proper in the state and District of Colorado;

3. That each party has been given a fair and adequate opportunity to

be heard;

4. That in this civil action, the Plaintiff USA seeks recovery of costs

pursuant to Section 107(a) of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980, 42 U.S.C. §

9607(a), as amended by the Superfund Amendments and

Reauthorization Act of 1986 (“CERCLA”), and a declaration of

Defendants’ liability for all future response costs to be incurred by

the United States in connection with the release or threatened

release of hazardous substances into the environment at and from

the Cherokee Print Shop Wastes Site [hereinafter “Site”] located at

4411 Cherokee Street, Denver, Colorado;

5. That on February 23, 2012, a judgment by default was entered

against the Co-Defendant Richard Wilmer. See docket no. 31. 

Accordingly, liability has already been determined as to the CoDefendant Richard Wilmer and his ownership and operation of the

Site. In the remainder of this lawsuit against Defendant Rock

Weiss, the trier of fact will determine whether Defendant Weiss is

liable as an arranger for disposal of materials containing hazardous

substances. Moreover, the Plaintiff USA does not contend in this

lawsuit that the Defendant Weiss disposed of any gasoline via the

trailer that was sold to Co-Defendant Wilmer; 

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6. That in the subject motion (docket no. 56), the Plaintiff USA argues

that Defendant Weiss’ trial exhibits identified as Defendant’s

exhibits A through Y, inclusive, are all inadmissible at trial except

for Defendant’s exhibit “C” since such exhibits are irrelevant under

Fed. R. Evid 401 and therefore are inadmissible under Fed. R.

Evid. 402. See docket no. 56-1 for the list of Defendant Weiss’ trial

exhibits. In addition, the Plaintiff USA seeks an Order from this

court striking Defendant Weiss’ endorsed witness Laurianne

Jackson, who is an EPA enforcement attorney who has been

assigned to this matter but has no other connection to the Site, and

therefore the Plaintiff USA argues that Ms. Jackson has no

personal knowledge as required under Fed. R. Evid. 602 and thus

is not a competent witness;

7. That Defendant Weiss has failed to demonstrate in his Objection

[Response] to United States’ Motion in Limine (docket no. 58) how

any of his trial exhibits A through Y, inclusive, except for exhibit “C,”

are relevant to the issues before this court at trial under Fed. R.

Evid. 401, and therefore the subject motion (docket no. 56) should

be granted as to striking Defendant Weiss’ trial exhibits A through

Y, inclusive, excluding exhibit “C;” and 

8. That Defendant Weiss has proffered, in his Objection [Response] to

United States’ Motion in Limine (docket no. 58), some basis to

allow him an opportunity at trial to attempt to lay a proper

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foundation [ i.e., a showing of personal knowledge by witness

Laurianne Jackson under Fed. R. Evid. 602]. Judge Arguello will

decide whether a proper foundation has been laid at trial for the

testimony of Ms. Jackson. 

ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this

court ORDERS:

1. That Plaintiff United States’ Motion In Limine (docket no. 56) is

GRANTED IN PART AND DENIED IN PART. The subject motion

(docket no. 56) is GRANTED insofar as Defendant Rock Weiss’

trial exhibits A through Y, inclusive, except for exhibit “C,” are

STRUCK as trial exhibits and may not be used by Defendant Weiss

in his case-in-chief. The portion of the subject motion (docket no.

56) requesting that witness Laurianne Jackson be struck is

DENIED. Defendant Weiss will be given an opportunity at trial to

call witness Laurianne Jackson and attempt to lay a proper

foundation [ i.e., a showing of personal knowledge by witness

Laurianne Jackson under Fed. R. Evid. 602]. Judge Arguello will

decide at trial whether a proper foundation has been laid for the

testimony of Ms. Jackson; and

2. That each party shall pay their own attorney fees and costs for this

motion.

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Done this 4th day of October 2012. 

BY THE COURT

s/Michael J. Watanabe

MICHAEL J. WATANABE

U.S. MAGISTRATE JUDGE

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