June 17, 2011

Abraham Wallace et. al. v. NCL (Bahamas) Ltd. – Part 3

Motion in Limine

In this motion in limine a group of Plaintiffs comprised of former Norwegian Cruise Lines cabin stewards seeks to preclude the use of certain evidence by NCL at their trial. Plaintiffs allege that NCL instituted a policy whereby cabin stewards were given more work than they could reasonably be expected to complete. As a result of this policy and with NCL’s knowledge the Plaintiffs were forced to pay helpers to complete their jobs, causing them to lose a portion of their earned wages. To disprove this theory NCL has sought to introduce evidence of changed policies and videos. Plaintiffs point out that these changed policies and video evidence are derived from a period subsequent to their claims making it irrelevant for the purposes of this case. In support of this proposition the Plaintiffs cite the Court’s order denying NCL’s motion for summary judgment, wherein the Court expressed a similar sentiment.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 09-21814-CIV-JORDAN
ABRAHAM WALLACE, et. al.,
Plaintiffs

v.

NCL (BAHAMAS) LTD.,
Defendants.
________________________________________/

MOTION IN LIMINE TO PRECLUDE NCL FROM INTRODUCING EVIDENCE REGARDING “CHANGED PROCEDURES” OUTSIDE OF THE CLAIM PERIOD

COME NOW, Abraham Wallace, et. al., Plaintiffs, by and through undersigned counsel, and hereby file their Motion in Limine to Preclude NCL from introducing evidence regarding “changed procedures” outside of the claim period.

I. Background

This matter involves a labor dispute between NCL and its senior stateroom stewards regarding NCL’s failure to pay the stewards their full wages between May 14, 2006 and June 14, 2009 (hereinafter “the claim period”).

During the claim period, NCL intentionally assigned to each of the Plaintiffs an amount of work that could not feasibly be completed in the time allotted without additional help. The amount of work and time frame forced the plaintiffs to hire additional help to complete their required tasks and to pay for the additional help out of their pay. At all times material, NCL knew the Plaintiffs could not complete the tasks alone and knew that they were hiring and paying other crew members to help finish the work.

I. This Honorable Court should preclude any testimony from NCL witnesses regarding “changed procedures” implemented on NCL ships after the claim period. Such evidence is not relevant and beyond the scope of the case.

Throughout the course of this litigation, NCL has presented various affidavits of current employees, containing declarations making references about changed procedures regarding the work of senior stateroom stewards and stateroom stewards aboard NCL ships, which were undertaken after the claim period.

The Plaintiffs have brought claims arising from NCL procedures and policies which were in place between May, 2006 and June 2009. Thus, because testimony by NCL witnesses regarding subsequent changes to those procedures are beyond the scope of this case, this Honorable Court should preclude such testimony.

In support of its Motion for Summary Judgment [D.E. 137], NCL filed the affidavits of the following current NCL employees: Iwayan Subawa, Joemar Arevalo, Marianito Rosales, Melca Malana, Patricia Surendorff, and Patrycja Kosla. NCL listed these affiants as witnesses it is “expected to call” at trial. Copies of the affidavits are attached hereto as Exhibit “A.”

In her affidavit, Melca Malana [D.E. 137-12] declared, in part:

1. In or about August 2009, while I was serving as the Executive Housekeeper aboard the Norwegian Sky, I called a meeting of all stateroom stewards including senior stateroom stewards aboard the ship. During that meeting I provided a refresher course on basic housekeeping procedures and reminded the stateroom stewards of the most efficient ways in which to clean cabins during voyages in order to minimize the amount of time that had to be spent cleaning cabins on embarkation/turn-around days. During that meeting I also directed stewards not to hire helpers to help them clean cabins on embarkation/turnaround days for (2) weeks.

2. For several weeks thereafter, none of the stateroom stewards or senior stateroom stewards aboard the Norwegian Sky hired or used helpers to assist them to clean their assigned cabins on embarkation/turn-around days.

3. Even long after the two week period ended, many stewards aboard the Norwegian Sky did not use helpers on embarkation/turn-around days.

Similarly, in his affidavit, Joemar Arevalo [D.E. 137 -9], also declared, in part:

While I was working aboard the Norwegian Sky as a stateroom steward, in or about August 2009, the Executive Housekeeper, Melca Melana, held a meeting of all stateroom stewards and senior stateroom stewards. She announced at the meeting that for two weeks stateroom stewards and senior stateroom stewards would not be permitted to use helpers. She also gave us advice regarding ways that we could be more efficient on embarkation days, for example, by accomplishing certain tasks on non-embarkation days that would reduce the amount of work we would have to do on embarkation days.

I did not hire a helper for the two week period and was able to clean all of my assigned cabins nonetheless. After the two week period ended I continued to clean the cabins assigned to me without the use of a helper. In fact to this date I have yet to hire a helper again.

The affidavits of Iwayan Subawa [D.E. 137-10] and Marianito Rosales [D.E. 137-8] contain virtually identical declarations. See Exhibit “A.”

Federal Rule of Evidence 401, defines “relevance”, providing, in part:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Here, because the declarations of the NCL affiants regarding different and/or changed procedures aboard the Norwegian Sky in August 2009 and thereafter, have no bearing to prove or disprove the procedures which were actually in place during the claim period (the subject of this lawsuit), they are inadmissible and thus should be precluded.[1]

When considering these same affidavits, this Honorable Court said as much in its Order denying, in part, NCL’s Motion for Summary Judgment [D.E. 222], declaring, at page 12:

NCL points to other stateroom stewards who clean all of the rooms without the use of helpers, as well as to an entire ship (although the testimony regarding the full ship only states that no helpers have been used since December 2009, outside of the scope of this case) where no helpers are used. See Melado Dep, 74:3-24. NCL provides declarations of eight stewards who testified that they cleaned rooms without the use of helpers, that NCL had never been involved in their hiring of helpers, and that in August 2009 (after the relevant time period in this lawsuit), an NCL representative told them not to hire helpers. See, e.g., … Rosales Decl. at 4-9; Arevalo Decl. at 6-8; Subawa Decl. at 5-9; … Malana Decl. at 5-8 …

Id., at 12 (emphasis added).

II. For the reasons stated above, this Honorable Court should also exclude from evidence, Defendant’s Trial Exhibits 8 and 9. These exhibits – videos of stateroom stewards working on embarkation day aboard the Norwegian Sky in May 2010 – are not an accurate portrayal of the NCL policies which were in place during the claim period.

On May 21, 2010, in furtherance of discovery, counsel for the Plaintiffs – accompanied by counsel for Defendant – conducted a ship inspection of the Norwegian Sky at the Port of Miami, in order to document the work of stateroom stewards on embarkation day. These videos have been listed in Defendant’s Trial Exhibit list, as Exhibits 8 and 9.

This Honorable Court should preclude Defendant from admitting these videos into evidence for two reasons.

First, the Norwegian Sky inspection videos were made after NCL implemented the changed procedures, referred to above, aboard the Norwegian Sky in August, 2009. Thus, because the videos only document NCL’s changed policies after August, 2009 – they have no bearing to prove or disprove the procedures which were actually in place during the claim period. As a result, they are inadmissible and should be precluded.

Moreover, because the Sky 2010 inspection videos only document NCL’s changed procedures aboard oneNCL vessel, they have no bearing to prove or disprove the procedures which were actually in place in other vessels, during the claim period.[2]

WHEREFORE, Plaintiff respectfully requests this Honorable Court for entry of an order granting the relief requested herein.

 

[1] This Honorable Court should also preclude this testimony pursuant to Federal Rule of Evidence 403. Introducing evidence of changed policies after the relevant claim period presents the danger of confusing the issues or misleading the trier of fact.

[2] Should this Honorable Court request it, Plaintiffs can provide a copy of the 2010 Sky Inspection videos, for an in-camera inspection.