                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2007

Olabode v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2588




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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                        No. 06-2588
                       ____________

                 GBOLAHAN OLABODE,

                                      Appellant

                               v.

             CITY OF PHILADELPHIA;
       THOMAS MARTINKA, Detective, Badge #921
                  ____________

       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                   (D.C. No. 05-cv-02873)
        District Judge: Honorable Timothy J. Savage
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                     October 22, 2007

Before: FISHER, ALDISERT and GREENBERG, Circuit Judges.

                (Filed: November 16, 2007)
                       ____________

                OPINION OF THE COURT
                     ____________
FISHER, Circuit Judge.

       After being tried and acquitted on charges of trying to lure a young girl into his

car, Gbolahan Olabode filed a claim in state court against Detective Thomas Martinka 1

for allegedly falsifying his arrest warrant and violating his constitutional rights. The case

was removed to the Eastern District of Pennsylvania, and after a trial, the jury returned a

verdict in favor of Martinka. Olabode now appeals, alleging that the District Court

abused its discretion by allowing the victim’s mother to read a note she allegedly made on

the day of the incident, indicating Olabode’s license plate number and car description as

she observed it. For the reasons that follow, we find that the District Court did not abuse

its discretion and affirm its decision.

                                              I.

       As we write only for the parties, we will forgo a lengthy recitation of the factual

and legal background to this case. On a number of occasions in May 2003, a man tried to

lure 16-year-old Stacey Schubert into his green car as she was walking to school. On

May 29, 2003, Stacey’s mother accompanied her on her way to school and upon

observing a black male in a green car attempting to speak to her daughter, she wrote

down the license plate number of the car. Stacey’s mother then reported the incident to

police, who assigned the case to Detective Thomas Martinka. After interviewing both


       1
        The City of Philadelphia was also a defendant in this action, but on April 3, 2006,
the District Court granted summary judgment for the City, removing it from this lawsuit.
Olabode does not challenge this ruling on appeal.

                                              2
Schubert and her mother, Martinka went to the site of the incident, and soon observed

Olabode, driving a green car with the same license plate number given to him by Stacey’s

mother. Stacey subsequently identified Olabode as the man who had been accosting her,

at which point he was arrested. A criminal trial ensued, but Olabode was ultimately

acquitted.

       Olabode subsequently instituted a civil suit, which went to trial on the 42 U.S.C.

§ 1983 and intentional infliction of emotional distress claims arising out of Martinka’s

conduct in relation to the investigation and arrest of Olabode. Neither Stacey nor her

mother was a party to the civil action. Stacey’s mother testified at that trial regarding the

make, model, and license plate number, and gave a brief description of the events. For

much of her recollection, particularly the license plate number, she relied on a note she

had allegedly written to herself immediately after observing the incident. Olabode

objected on the grounds that the note had not been turned over during discovery. The

mother claimed that she had only recently discovered the note. The District Court

overruled the objection, on the grounds that Martinka was not aware of the existence of

the note, and because the mother was not a party to the action, the note was never in

Martinka’s possession or control. At the end of the trial, the jury returned a verdict in

favor of Martinka.

       On appeal, Olabode alleges that Martinka concocted the case against him and

coerced Schubert’s mother into fabricating the story that resulted in his arrest. Olabode



                                              3
argues that the note, produced immediately before the mother’s testimony, was prejudicial

to him in that it tended to corroborate the Martinka’s position, and because the District

Court’s pre-trial order precluded the admission of the evidence not handed over before

trial, the District Court abused its discretion in allowing it to come in to evidence.

Olabode alleges that Martinka knew or should have known about the note prior to trial,

and should have produced it.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. When we are

reviewing a decision of the District Court to deviate from its own pretrial order, we will

not disturb the decision “absent a clear abuse of discretion.” Berroyer v. Hertz, 672 F.2d

334, 338 (3d Cir. 1982).

                                              III.

       The District Court issued a pretrial order stating that “[o]nly those exhibits . . .

identified in the manner set forth in this order shall be considered by the Court for

admission into evidence at trial. . . .” Federal Rule of Civil Procedure 16(e) provides that

Pretrial Orders “control the subsequent course of the action unless modified” and that an

order “shall be modified only to prevent manifest injustice.” Olabode alleges that the

District Court’s decision to admit the notes, which were not presented to him prior to

trial, was a modification of the pre-trial order, and that Martinka failed to show that

modification of the order was necessary to prevent manifest injustice.



                                               4
       We have held that district courts have the discretion to admit exhibits not

previously identified, and that we will determine whether they have abused that discretion

by considering “(1) the prejudice or surprise in fact to the opposing party, (2) the ability

of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient

trial of the case, and (4) the bad faith or willfulness of the non-compliance.” Greate Bay

Hotel & Casino v. Tose, 34 F.3d 1227, 1236 (3d Cir. 1994) (quoting Beissel v. Pittsburgh

and Lake Erie R.R. Co., 801 F.2d 143, 150 (3d Cir. 1986), cert. denied, 479 U.S. 1088

(1987)). Olabode, while not specifically acknowledging this test, argues that he was

unfairly surprised by the District Court’s decision to allow Schubert’s mother to read the

contents of the note. This argument is unavailing. While Olabode was not necessarily

aware that the note would be presented at trial, Schubert’s mother told Olabode that she

had made such a note at her deposition, but did not have it with her. Moreover, the

cumulative prejudicial effect of this evidence was minimal, since the police department’s

radio report and the incident report, also generated immediately after the incident,

corroborated the information contained in the note. Finally, there is no indication in the

record that this evidence disrupted the orderly working of the trial or that there was any

bad faith in non-compliance with a pre-trial order. As a non-party to the action,

Schubert’s mother had no duty to comply with any pre-trial order. As such, the District

Court was within its discretion in allowing the note into evidence.




                                               5
                                            IV.

       We have reviewed all of the arguments and motions made by the parties and find

that additional discussion is not necessary. For the reasons set forth above, we will affirm

the order of the District Court.




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