IESE SATELE TUPEA v. JOSH WYCHE SR (2024)

MEMORANDUM ORDER

This matter comes before the court on two Motions to Bifurcate filed by Defendants Matthew Jay Kline and Josh Wyche, Sr., on May 2, 2024, and May 3, 2024, respectively. ECF Nos. 56 (Kline's Motion), 57 (Wyche's Motion), 58 (Wyche's Brief in Support). Both Defendants ask the court to hold separate trials on Plaintiff's claims against Kline and the claims against Wyche. ECF Nos. 56 at 3-4, 58 at 2-3. The court DENIES both Defendants' Motions to Bifurcate for the reasons stated herein.

I. Factual and Procedural Background

This case concerns an automobile accident involving Defendant Kline, who was a Deputy at the Southampton County Sheriff's Office. ECF No. 1 at 2, 8-10. Defendant Wyche was the Sheriff of Southampton County and Kline's employer when the accident occurred. Id. at 2-3. On June 2, 2023, Plaintiff filed a Complaint against Kline and Wyche. Id. at 1.¹ The Complaint alleges claims of negligence, gross negligence, and recklessness against Kline; vicarious liability for those torts against Wyche; a claim under 42 U.S.C. § 1983 against Kline; and a § 1983 claim against Wyche pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). Id. at 11-14. Kline moved to dismiss the Complaint on August 23, 2023, ECF No. 16, and Wyche filed a Motion for Judgment on the Pleadings on September 20, 2023, ECF No. 20. On December 8, 2023, the court held a hearing on both motions and denied the motions. See ECF Nos. 30, 31. Plaintiff then filed two Motions to Amend his Complaint on February 2, 2024, and March 22, 2024. ECF Nos. 38, 44. The court denied both Motions to Amend via separate Orders filed on April 23, 2024, and May 14, 2024. ECF Nos. 55, 59.

Kline filed his Motion to Bifurcate on May 2, 2024, ECF No. 56, and Wyche filed his Motion to Bifurcate on May 3, 2024, with a Brief in Support, ECF Nos. 57, 58. Plaintiff filed a Brief in Opposition to Defendant Kline's Motion on May 16, 2024, ECF No. 60, and to Defendant Wyche's Motion on May 17, 2024, ECF No. 61.² Defendants Kline and Wyche did not file replies to Plaintiff's Briefs in Opposition. Trial is currently scheduled for July 9, 2024. ECF No. 54 at 1. Having been fully briefed, the Motions to Bifurcate are ripe for disposition.

II. Discussion

Federal Rule of Civil Procedure 42(b) governs bifurcation and provides that, “[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues [or] claims.” Fed. R. Civ. P. 42(b). Bifurcation under Rule 42(b) is committed to the court's sound discretion. See Biedermann Techs. GmbH & Co. KG v. K2M, Inc., No. 2:18CV585, 2021 WL 8445265, at *2 (E.D. Va. Oct. 5, 2021) (Davis, J.). “Because a single trial is the norm, ‘[t]he party requesting separate trials bears the burden of convincing the court’ to exercise its discretion to bifurcate in light of the considerations set forth in Rule 42(b).” Id. (quoting F & G Scrolling Mouse, LLC v. IBM Corp., 190 F.R.D. 385, 387 (M.D.N.C. 1999)).

Defendants Kline and Wyche seek to bifurcate the claims against them such that a trial would proceed on the claims against Kline, followed by, if necessary, a separate trial on the claims against Wyche. ECF Nos. 56 at 3-4, 58 at 2-3. Kline argues bifurcation is appropriate to promote judicial economy and avoid the risk of unfair prejudice to him. ECF No. 56 at 2-3. Defendant Wyche agrees, positing that bifurcating “promotes judicial economy, prevents unnecessary prejudice, and reduces the chance of confusion to the jury.” ECF No. 58 at 3. Plaintiff opposes bifurcation. ECF No. 60.

A. Judicial Economy

Defendant Kline's arguments for judicial efficiency are that (1) bifurcation could preempt expensive and extensive discovery on the Monell claim, and (2) a ruling in Kline's favor on the § 1983 claim against him may resolve the Monell claim in Defendant Wyche's favor. ECF No. 56 at 3-6. Defendant Wyche joins these arguments, adding that, like the Monell claim against Wyche, the state-law vicarious liability claim could be resolved in Wyche's favor if Kline is not liable for Plaintiff's state-law tort claims. ECF No. 58 at 3. Kline, to support both prongs of his argument, relies on an unpublished case from the District of Maryland, Tserkis v. Baltimore County, No. 19cv202, 2019 WL 4932596 (D. Md. Oct. 4, 2019). ECF No. 56 at 3-6. Neither prong of Kline's argument convinces the court that bifurcation would promote judicial economy.

First, Defendants have not met their burden of showing that bifurcation would save time or effort in discovery. Plaintiff claims, and Defendants do not contest, that “[d]iscovery in this case is substantially complete.” ECF No. 60 at 4. Per Plaintiff, the parties have exchanged written discovery, subpoenaed and otherwise obtained voluminous records, and deposed all parties plus six (6) other deponents. Id. Plaintiff also indicates that discovery on the Monell claim is underway, including a completed deposition of Defendant Wyche. Id. at 6-7. Accordingly, the court is not convinced that bifurcation would economize discovery in the case.

Second, the fact that a ruling in Kline's favor on the § 1983 claim against him might resolve the Monell claim does not merit bifurcation here. Kline is correct that a Monell claim cannot lie absent an underlying constitutional violation by an individual. See Int'l Ground Transp., Inc. v. Mayor & City Council of Ocean City, 475 F.3d 214, 219 (4th Cir. 2007). Thus, for certain Monell claims against government employer defendants, if the employee defendant is not liable, the employer cannot be liable. See Tserkis, 2019 WL 4932596, at *5 (collecting cases). However, as the court recognized in Tserkis, a government employer “could still be liable under § 1983 even if the [employee] Defendants are not.” Id. at *7 (citing Int'l Ground Transp., 475 F.3d at 219). “One such situation is when the individual defendants are entitled to qualified immunity.” Id.

Here, Defendant Kline raised a qualified immunity defense in his Motion to Dismiss on August 23, 2023, ECF No. 16 at 10, and at that stage, the court did not grant or deny the qualified immunity defense, but simply ruled there was enough evidence for the § 1983 claim against Kline to go forward at that juncture, ECF Nos. 31 at 2, 33 at 8-9. Nothing indicates Kline has abandoned his qualified immunity defense. “In considering a qualified immunity defense, the court must consider whether the official violated a statutory or constitutional right, and if so, whether that right was clearly established at the time of the alleged conduct.” Dean ex rel. Harkness v. McKinney, 976 F.3d 407, 413 (4th Cir. 2020). Failure to satisfy either prong entitles the defendant to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Therefore, a government employee defendant can violate a plaintiff's constitutional right without liability, if that right was not “clearly established” at the time of the alleged conduct. Dean, 976 F.3d at 413. Even so, Monell liability may attach in that situation due to the employee's underlying constitutional violation, but the absence of a clearly established right precludes individual liability under qualified immunity. Int'l Ground Transp., 475 F.3d at 219-20.

In sum, Defendant Wyche could be liable under Monell even if Kline is not liable under § 1983. Therefore, bifurcating the case to decide Kline's § 1983 liability first in a separate trial would not necessarily be more efficient than deciding Kline's § 1983 liability and Wyche's Monell liability in the same trial.³ Admittedly, the Tserkis court decided to bifurcate even after considering this interplay between Monell liability and qualified immunity. Tserkis, 2019 WL 4932596, at *8. But in that case, bifurcation could also make discovery more efficient, which is not the case here as explained above. Further, bifurcation in the instant case would likely prejudice Plaintiff because it is more onerous, and expensive, to litigate two jury trials than one. Holding two trials could also inconvenience witnesses who may have to duplicate testimony. Finally, holding two trials uses more judicial resources. Consequently, judicial and litigation economy does not warrant bifurcating Plaintiff's claims.

B. Prejudice

Defendant Kline's prejudice argument focuses on bifurcating the § 1983 Monell claim against Defendant Wyche because evidence relevant to proving that claim, namely Kline's personnel record, could prejudice Kline.⁴ ECF No. 56 at 5-6. Plaintiff responds that a limiting instruction will mitigate the personnel record's prejudicial effect. ECF No. 60 at 5. In the following paragraphs, the court: (1) reviews what Plaintiff must prove to succeed on his Monell claim; (2) discusses what evidence may be introduced to support the Monell claim; and (3) analyzes whether that evidence is so prejudicial as to merit bifurcation.

1. Legal Background for Plaintiff's Monell Claim

Plaintiff's Monell claim against Wyche has two independent theories of liability: one focused on Wyche's alleged failures in screening and hiring Kline, and the other focused on Wyche's alleged failures in training and supervising Kline. ECF Nos. 1 at ¶¶ 91-100, 60 at 5-6. Proving each theory will likely rely on Kline's personnel record as evidence, but the different theories of liability may draw on different parts of that record.

Plaintiff's screening and hiring claim, as pled in the Complaint, is based on one hiring decision — Wyche's hiring of Kline. ECF No. 1 at ¶¶ 91-95. A § 1983 claim premised on a “single hiring decision” is “viable only if the [employer] was ‘deliberately indifferent’ towards how its hiring decision could lead to a deprivation of federal rights.” Jones v. Mullins Police Dept., 355 F. App'x 742, 747 (4th Cir. 2009) (per curiam) (citing Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 407 (1997)). A failure to screen is deliberately indifferent “[o]nly where adequate scrutiny of an applicant's background would lead a reasonable policymaker to conclude that the plainly obvious consequence of the decision to hire the applicant would be the deprivation of a third party's federally protected right.” Brown, 520 U.S. at 411. “The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong.” Id. at 412. The specific constitutional violation alleged here is that Kline drove nearly 50 miles per hour over the speed limit in response to a non-emergency call in a residential area and crossed the double yellow lines to try to pass Plaintiff's vehicle. ECF No. 1 at ¶¶ 57, 86. Therefore, Kline's driving record is particularly relevant to Plaintiff's hiring and screening claim.

Plaintiff's failure to train and supervise claim relies on a broader assertion that “Defendant Kline's personnel record indicated that there was an obvious need to train Defendant Kline to drive reasonably; to obey laws, rules, and customs; and to respect civilians and the safety thereof.” ECF No. 1 at ¶ 99. Consequently, this aspect of the Monell claim could implicate more of Kline's personnel record than his driving record.

2. Potentially Prejudicial Evidence

Starting with Kline's driving record, based on the personnel record before the court,⁵ the court is aware of two driving-related incidents. The first is a complaint from a school bus driver that Kline nearly “ran into the bus head on.” ECF No. 47-2 at 25. Per Kline's personnel record, this “[c]omplaint was unfounded” because “there was no video.” Id. Second, Kline “was subject to corrective action” after a separate speeding complaint. Id. Kline's personnel record further indicates that he “has a +5 on his drivers transcript.” Id. at 27. Additionally, in Kline's application for employment, he answered that he had been “involved in a motor vehicle accident, as an operator, which resulted in death, personal injury or property damage exceeding one hundred dollars ($100.00).” ECF No. 47-1 at 5.

Beyond Kline's driving-related incidents, the personnel record contains the following that could be used as evidence of “an obvious need to train Defendant Kline ․ to obey laws, rules, and customs; and to respect civilians and the safety thereof.” ECF No. 1 at ¶ 99. Kline's application for employment recognized that “I have made some mistake[s] while a police officer with Norfolk Police. I have learned and grown from tho[se] mistakes. However, they could be viewed harshly.” ECF No. 47-1 at 7. Similarly, two of Kline's application references note his “issues with other agencies.” ECF No. 47-2 at 3-4. As is relevant here and detailed in the personnel record, those issues include, with the Norfolk Police Department, citizen complaints about a failure to activate a body camera and conducting a “rude unlawful search,” as well as discipline for misusing his taser. ECF No. 47-2 at 29. These incidents, and others, led to Kline being ineligible for rehire by the Norfolk Police Department. Id. With another past employer, King and Queen County Sheriff's Office, his disciplinary history included citizen complaints for making a female subject feel uncomfortable after he “looked her up and down” and also for being “rude and disrespectful” to a driver during a traffic stop. Id. at 25. He was also reprimanded for failing to turn in tuning forks and failing to log a civil summons on a tracking log. Id. All this evidence could be relevant to showing that Defendant Wyche should have trained Kline regarding obeying laws and rules and respecting civilians and their safety.

3. Analysis

To review, Kline argues that evidence from his personnel record “is greatly prejudicial to Kline and inadmissible for propensity concerns.” ECF No. 56 at 6 (citing Fed. R. Evidence 404, 403). Plaintiff responds that a limiting instruction will cure the risk that the jury would use the personnel record as propensity evidence. ECF No. 60 at 5.⁶

Kline's argument relies on Federal Rules of Evidence 404 and 403. Rule 404(b) makes “[e]vidence of any other crime, wrong, or act” inadmissible “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). However, “[t]his evidence may be admissible for another purpose.” Fed. R. Evid. 404(b)(2).⁷ Under Rule 403, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice.” Fed. R. Evid. 403.

A court may abuse its discretion in denying a motion to bifurcate claims, if doing so exposes the jury to “inflammatory” and “highly prejudicial” evidence that is relevant or admissible as to one claim, but not as to other claims that could have been bifurcated, such that the prejudiced party cannot receive a fair trial on those other claims. Dixon v. CSX Transp., Inc., 990 F.2d 1440, 1443 (4th Cir. 1993). However, “[i]f the court admits evidence that is admissible ․ for a purpose — but not ․ for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.” Fed. R. Evid. 105(b). Such limiting instructions can “minimize[ ] the risk of prejudice” that arises when claims are not bifurcated. Benjamin v. Sparks, 986 F.3d 332, 346 (4th Cir. 2021); see, e.g., Ambrose v. City of New York, 623 F. Supp. 2d 454, 480 (S.D.N.Y. 2009) (“Any spillover prejudice to the individual officers that may be caused by the admission of Rule 404(b) evidence at trial to establish the Monell claim pertaining to the Individual Defendants could be cured by limiting instructions.”) (internal alterations and citations omitted).

The court credits Defendant Kline's argument under Rule 404 that evidence of his driving record could lead a jury to infer he had a propensity to drive poorly and thus acted in accordance with that propensity when he struck Plaintiff's car. And evidence of Kline's reprimands and citizen complaints could support an inference that he had a propensity to disobey rules and laws and to disrespect civilians, and then acted according to that propensity when he sped through Plaintiff's neighborhood. Thus, under Rule 404(b), Kline's personnel record would be inadmissible to prove propensity. However, the personnel record would be admissible “for another purpose,” i.e., proving the Monell claim.

Under Rule 403, the court weighs the personnel record's relevance to the Monell claim against the danger of unfair prejudice. The personnel record is highly relevant to the Monell claim because, as explained above, that claim hinges on what Defendant Wyche knew about Defendant Kline's background when Wyche hired and trained Kline. See supra Part II.B.1. In short, the Monell claim likely could not succeed without the personnel record. As for the danger of unfair prejudice, Kline's personnel record is prejudicial to him. It details at least five (5) citizen complaints against him plus multiple disciplinary infractions, including those related to driving and failures to follow policies and procedures. ECF No. 47-2 at 25-29. The record also details how Kline is ineligible for rehiring by a former law-enforcement employer. Id. at 29. Yet, the court can issue limiting instructions to the jury that could diminish the danger of unfair prejudice. For example, the court could instruct the jury to only consider the personnel record as it relates to the Monell claim, and not to consider the personnel record when assessing Kline's individual liability. Therefore, any danger of unfair prejudice to Kline does not “substantially outweigh” its immense relevance to the Monell claim. See Fed. R. Evid. 403.

Moreover, the personnel record is not the type of inflammatory evidence that merits bifurcation. Defendant Kline merely states his personnel record is “greatly prejudicial,” but it is his record, and he does not fulfil his burden of explaining why it is unfairly prejudicial. ECF No. 56 at 5. In effect, much evidence introduced by an opposing party is prejudicial, but the prejudice must be unfair and “substantially outweigh” the relevance to the opposing party. See Fed. R. Evid. 403.

The Fourth Circuit provided a helpful example of evidence that merited bifurcation in Dixon. 990 F.2d at 1442-45. In that personal injury case, a train operated by the defendant struck a car operated by the plaintiff. Id. at 1442. The plaintiff sued under a federal statute and his wife sued for loss of consortium under state law. Id. The defendant moved to bifurcate a threshold question about whether the federal statute applied, and the district court denied the motion. Id. at 1443. The jury then heard, in relation to the wife's loss of consortium claim, inflammatory and “powerful” evidence in the form of “emotional testimony” from the wife about her “wonderful” marriage that “had been unalterably affected for the worse as a result of the accident.” Id. The evidence also included birthday and anniversary cards that the couple exchanged over the years. Id. This “highly prejudicial evidence was irrelevant to” the claim under the federal statute and the district court's decision to allow the jury to hear this evidence indicated an abuse of discretion. Id. at 1443-45.

By contrast, Defendant Kline's personnel record does not include the type of intimate details that inflamed the jury in Dixon. The personnel record tersely describes Kline's disciplinary incidents with no more than a few sentences dedicated to each infraction. See, e.g., ECF No. 47-2 at 25 (“Matthew Kline was subject to corrective action due to a speeding complaint. Corrective action take[n] was having his take home car privileges revoked for 30 days.”); id. at 29 (“Citizen complaint — rude unlawful search. Kline told citizen they would be arrested for child endangerment if they did not consent to search. Complaint founded[,] suspended 8 hours with pay.”). One of the personnel record's more troubling entries, a complaint from a school bus driver that Kline “almost ran into the bus head on” is tapered by the record's acknowledgment that the “[c]omplaint was unfounded” because “there was no video.” Id. at 25. Further, introducing the personnel record is unlikely to elicit “emotional testimony” akin to the wife's testimony in Dixon about her injured husband. Again, the personnel record is relevant to the Monell claim only insofar as it shows Defendant Wyche knew about Kline's background when he hired and trained Kline. See supra Part II.B.1. Any testimony that establishes Wyche's knowledge of the personnel record would likely come from Wyche or his employees, who presumably cannot provide details about the incidents beyond what the record contains.

In sum, although Defendant Kline's personnel record is prejudicial to him, that prejudice does not merit bifurcating the claims against Kline from the Monell claim against Wyche, as one claim ultimately relates to the other. Limiting instructions will more efficiently address any prejudice and ensure that Kline receives a fair trial on the claims against him and that Wyche likewise receives a fair trial on the Monell claim.

III. Conclusion

For the reasons stated above, Defendant Kline's Motion to Bifurcate, ECF No. 56, is DENIED, and Defendant Wyche's Motion to Bifurcate, ECF No. 57, is also DENIED. Judicial and litigation economy outweigh the prejudice in this case by trying the Defendants together, as the whole factual scenario relates to both Defendants and any prejudice or confusion can be cured by appropriate limiting instructions to the jury. The court DIRECTS the Clerk to forward a copy of this Memorandum Order to counsel for all parties.

IT IS SO ORDERED.

FOOTNOTES

1.   The Complaint also named Southampton County and the Southampton County Sheriff's Office as Defendants. ECF No. 1 at 1. The parties voluntarily dismissed those two Defendants via a Stipulation filed on December 15, 2023. ECF No. 32.

2.   Plaintiff's Brief in Opposition to Defendant Wyche's Motion “adopts [Plaintiff's] arguments advanced in his Brief in Opposition to Defendant Kline's Motion to Bifurcate (ECF 60).” ECF No. 61. Accordingly, this Memorandum Order only cites ECF No. 60 when discussing Plaintiff's position and arguments.

3.   As for Wyche's vicarious liability for state-law claims, he may be right that a ruling for Kline on Plaintiff's state-law claims would resolve, in Wyche's favor, the vicarious liability claim against Wyche. ECF No. 58 at 3; see Cantrell v. McCoy, 553 F. Supp. 3d 295, 307 (W.D. Va. 2021) (explaining that claims against an employer based on respondeat superior “rise and fall with [the employee's] liability”). However, that information does not tip the scales toward bifurcation considering the various inefficiencies of holding two trials, as discussed herein.

4.   Defendant Wyche produced portions of Kline's personnel record in response to Plaintiff's Motion for Leave to File Revised First Amended Complaint. See ECF Nos. 47-1, 47-2, 47-3. After the court gave Plaintiff an opportunity to contest the authenticity of these records, ECF No. 55 at 9-10, Plaintiff declined to do so. Because ECF Nos. 47-1, 47-2, and 47-3 are the only portions of the personnel record before the court, the court's prejudice analysis is limited to these three documents.

5.   See supra note 4 and accompanying text.

6.   Plaintiff also emphasizes that, because the Monell claim is not premised solely on Kline's disciplinary record, much of the Monell evidence will focus instead on Defendant Wyche's acts and omissions in training and supervising Kline and others. ECF No. 60 at 5-6 (“[M]uch of the evidence the jury will hear in support of Count III has nothing to do with Defendant Kline.”). But that does not change the fact that the jury will hear prejudicial Monell evidence about Kline's record, even if that evidence is less voluminous than other Monell evidence.

7.   Plaintiff argues the personnel record is admissible to prove the Monell claim. See ECF No. 60 at 5-6; infra at 13. Plaintiff does not raise absence of mistake, lack of accident, or any other purpose listed as examples in Rule 404(b)(2).

REBECCA BEACH SMITH SENIOR UNITED STATES DISTRICT JUDGE