Peshlakai v. Ruiz

39 F.Supp.3d 1264

David PESHLAKAI, Darlene Thomas, Charles Reynolds as the Personal Representative of the Wrongful Death Estates of Del Lynn Peshlakai (Deceased) and Deshaunna Peshlakai (Deceased), Danell Peshlakai, Darnell Peshlakai, Shawn Begay, Delacey Peshlakai, and David Peshlakai, Jr., Plaintiffs

v.James RUIZ, Gilbert Mendoza, AmRest, LLC d/b/a Applebee's Neighborhood Grill and Bar, and Applebee's International, Inc., Defendants.

No. CIV 13–0752 JB/ACT.

United States District Court, D. New Mexico.

Filed Aug. 8, 2014.

Zackeree S. Kelin, Philomena M. Hausler, Kelin Law Firm, Albuquerque, NM, Scott M. Hendler, Sean M. Lyons, Hendler Law, P.C., Austin, TX, Attorneys for the Plaintiffs.

Jeff Ray, Ray McChristian & Jeans, P.C., El Paso, TX, W. Mark Mowery, Jose R. Blanton, Glenn A. Beard, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, Attorneys for Defendant AmRest, LLC.

Edward Shepherd, Allen, Shepherd, Lewis & Syra, P.A., Albuquerque, NM, Shannon A. Parden, Deena Buchanan Williams, Olsen Parden Williams, P.C., Albuquerque, NM, Attorneys for Defendant Applebee's International, Inc.

UNSEALED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant AmRest, LLC's Motion in Limine to Exclude Evidence of Applebee's Guest Contact Reports, filed March 3, 2014 (Doc. 159)(“Guest Report Motion”); (ii) AmRest, LLC's Opposed Motion in Limine to Exclude References to and Evidence Regarding Prior Incidents and Prior Liquor Law Violations at Any AmRest Restaurant, filed March 5, 2014 (Doc. 162)(“Prior Conduct Motion”); (iii) Defendant AmRest, LLC's Motion in Limine to Exclude Evidence of Subsequent Liquor Law Violations at Any AmRest Locations, filed February 26, 2014 (Doc. 144)(“Subsequent Liquor Law Violations Motion”); (iv) Defendant AmRest, LLC's Motion in Limine to Exclude Evidence of its Post–Accident Conduct, filed March 10, 2014 (Doc. 196) (“Post–Accident Conduct Motion”); and (v) Defendant AmRest, LLC's Motion in Limine to Exclude “Cumulative Conduct” Evidence of Alleged Wrongful Acts by AmRest That Did Not Cause, and Are Not Similar to Conduct That Caused, Plaintiffs' Injuries, filed March 10, 2014 (Doc. 200)(“Cumulative Conduct Motion”). The Court held hearings on April 1, 2014, and April 2, 2014. The primary issues are: (i) whether the Court should exclude evidence of reports from guests at the Applebee's Neighborhood Grill and Bar in Santa Fe, New Mexico relating to alcohol service; (ii) whether the Court should exclude evidence about incidents and liquor law violations that occurred before the events of March 5, 2010, out of which this case arises; (iii) whether the Court should exclude evidence about liquor law violations that occurred after March 5, 2010; (iv) whether the Court should exclude evidence of AmRest, LLC's other conduct after March 5, 2010; and (v) whether the Court should exclude evidence of certain other wrongful acts by AmRest, LLC, both before and after the event, on the basis that they violate the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America. The Court will grant in part and deny in part the Guest Report Motion, the Prior Conduct Motion, and the Cumulative Conduct Motion, and will deny the other motions. With respect to the Guest Report Motion and the Prior Conduct Motion, the Court will admit the first complaint—which involves a complaint of overservice in April, 2008—the third complaint—in which an anonymous person alleges that a bartender had been suspended because she refused to serve intoxicated patrons—and the fourth complaint—about overservice on May 4, 2010—to show that AmRest, LLC was on notice of problems with overservice. The Court will exclude the second complaint, which relates to the noise level in the Santa Fe Applebee's Neighborhood Grill & Bar, because it is irrelevant, and because it is hearsay not within any exception. In all other respects, the Court denies the Guest Report Motion and the Prior Conduct Motion. With respect to the Cumulative Conduct Motion, the Court will admit evidence of subsequent overservice within Debbie Passmore's and Jake Gandhi's area for the limited purpose of showing AmRest, LLC's state of mind on March 5, 2010; it will not admit evidence of violations and acts that do not relate to overservice. The Court will deny the other motions in full.

FACTUAL BACKGROUND

The Court takes its facts from the Plaintiffs' Third Amended Complaint for Wrongful Death, Personal Injuries, Loss of Consortium and Other Damages, filed in state court January 16, 2013, filed in federal court August 14, 2013 (Doc. 2–1)(“Complaint”). Two restaurants in Santa Fe, New Mexico—Applebee's Neighborhood Grill and Bar, and the Blue Corn Café and Brewery—served alcohol to Defendants James Ruiz and Gilbert Mendoza, as well as non-party Veronica Castro, despite that it was reasonably apparent that they were drunk. See Complaint ¶¶ 26–29, at 4–5. Defendant AmRest, LLC is the franchisee responsible for the Applebee's Neighborhood Grill in Santa Fe; Defendant Applebee's International, Inc. is the franchisor responsible for that restaurant. See Complaint ¶ 17, at 3; id. ¶ 26, at 4. Ruiz, Mendoza, and Castro then got into Mendoza's car, with Ruiz driving—until he crashed into a vehicle that carried Plaintiffs David Peshlakai and Darlene Thomas, who lived together as common-law husband and wife, and their daughters DeShauna and Del Lynn Peshlakai. See Complaint ¶¶ 30–31, at 5; id. ¶¶ 81–84, at 16. The crash badly injured David and Darlene, and it killed Del Lynn and DeShauna, who were then nineteen and seventeen years old. See Complaint ¶¶ 1–2, at 1. Ruiz ran away without trying to help the family. See Complaint ¶¶ 32, at 2.

PROCEDURAL BACKGROUND

The Plaintiffs allege seven causes of action in their Complaint. Against AmRest, LLC and Applebee's International, they bring: (i) common-law and statutory dram-shop liability claims, see Complaint ¶¶ 33–48, at 8–9; and (ii) negligence claims related to alcohol marketing and distribution, see Complaint ¶¶ 49–58, at 9–12. Regarding the individual Defendants, the Plaintiffs bring: (i) negligence and negligence per se claims against Ruiz and Mendoza related to driving while intoxicated, see Complaint ¶¶ 59–68, at 12–14; and (ii) a negligent-entrustment claim against Mendoza for allowing Ruiz to drive Mendoza's vehicle while intoxicated, see Complaint ¶¶ 69–79, at 14–15. Against all Defendants, (i) David Peshlakai and Darlene Thomas bring a negligent infliction of emotional distress claim, see Complaint at ¶¶ 80–85, at 15–16; and (ii) all Plaintiffs bring a loss-of-consortium claim, see Complaint ¶¶ 86–89, at 16–17.

1. Guest Report Motion.

AmRest, LLC moves the Court to exclude “evidence that AmRest had complaints submitted through Applebee's Guest Services System regarding the service of alcohol at the” Santa Fe Applebee's Neighborhood Grill. Guest Report Motion at 1. After reviewing the case's facts, see Guest Contact Report Motion at 1–2, AmRest, LLC explains that discovery has revealed information about the following four guest contacts reports about that restaurant:

The first complaint involved a customer who believed the restaurant over served an individual on April 22, 2008. AmRest did not even own the Santa Fe Applebee's at that time. AmRest did not have an ownership interest in the restaurant until July of 2008.

The second complaint was received on January 23, 2009. It involved a customer who was upset because she and her friends were asked to keep their noise level down during a happy hour.

The third complaint was made by an anonymous person on February 11, 2010. This person claimed that a bartender was suspended for refusing to serve drinks to two intoxicated patrons.

The fourth complaint also was left by an anonymous person. On May 4, 2010, this person complained that some male customers were being really loud, they kept being served drinks, and they were over served. This complaint was made after the date of the automobile accident at issue herein.

During discovery, Plaintiffs have asked multiple witnesses questions regarding each of the complaints. In the deposition of [Andrea Beals, a former bartender for the Santa Fe Applebee's Neighborhood Grill], it appeared that Plaintiffs' intent was to use evidence of the Guest Contact Report to support an argument that AmRest had a history of reprimanding bartenders who cut off patrons from further alcohol service. Ms. Beals was questioned regarding the February 11, 2010, incident, at which time she denied she had ever been reprimanded for refusing to serve a patron. Ms. Beals' immediate supervisor while she was a bartender, Anthony Bonnefil, has confirmed that he was aware Ms. Beals had cut off a couple of customers from further alcohol service, that she was not demoted for having done so, and that he instead supported any bartender's decision to cut off a customer.

Guest Report Motion at 2–3 (emphasis in original) (citations omitted).

AmRest, LLC argues that the Court should exclude this evidence under rules 402 and 403 of the Federal Rules of Evidence. See Guest Report Motion at 4. It contends that this evidence is irrelevant, because their existence “does not make it any more or less probable that Defendants allegedly over served Ruiz and Mendoza.” Guest Report Motion at 4. It notes that

one of these complaints occurred before AmRest began operating the Santa Fe Applebee's (April 22, 2008, complaint), one complaint occurred after the automobile accident at issue herein (May 4, 2010, complaint), one complaint did not allege that anyone was over served (January 23, 2009, complaint), and one anonymous complaint improperly assumed a bartender was reprimanded for refusing to serve a patron (February 11, 2010, complaint). As such, evidence of these complaints should be excluded because they have no relevance to Plaintiffs' claims in this matter.

Guest Report Motion at 4. What is more, in its...