                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



RAMONA WILSON,
        Plaintiff,
                v.                                    Civil Action No.: 1:11-CV-00973 (JDB)
SUPERCLUB IBIZA, LLC,

        Defendant.




                          MEMORANDUM OPINION AND ORDER

       This matter comes before the Court on plaintiff Ramona Wilson’s motion to exclude

witnesses identified in defendant Superclub Ibiza, LLC’s (“Superclub Ibiza”) pre-trial statement.

For the reasons discussed below, the Court denies plaintiff’s motion.

                                         BACKGROUND

       Wilson filed suit on May 25, 2011 against Superclub Ibiza alleging violations of the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and the D.C. Human Rights Act,

D.C. Code § 2-1401.01 et seq. Wilson alleges that Superclub Ibiza discriminated against her

based on her status as a person with a disability by denying her entry into its nightclub on

September 11, 2010.

       In advance of trial, Superclub Ibiza filed a pre-trial statement that listed “[c]ertain

handicap patrons of Superclub Ibiza, LLC” as witnesses who may be called to testify. The Court

directed Superclub Ibiza to disclose the identities of these witnesses to Wilson by February 28,

2013, and limited the number of such witnesses to two (2) individuals. Superclub Ibiza provided

the names of two witnesses, Musa Kaun and Mimi Xang Ho, as well as the phone number for



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Mimi Xang Ho, to Wilson on February 28, 2013. Superclub Ibiza also disclosed that Musa Kaun

is deaf, and Mimi Xang Ho walks with the aid of a walker or crutches. The following day,

March 1, 2013, Superclub Ibiza provided Wilson with the phone number for Musa Kaun.

        On March 6, 2013, Wilson filed the instant motion with the Court to exclude Kaun and

Ho because “(1) their testimony is inadmissible under Federal Rules of Evidence 401 and

404(b)(1), and (2) the defendant failed to identify these witnesses in compliance with Federal

Rule of Civil Procedure 26(a)(3)(A), Local Civil Rule 16.5, and with this Court’s February 28,

2013 Order.” Superclub Ibiza responded that the testimony of the two witnesses will not violate

the Federal Rules of Evidence 401 and 404(b)(1) because the testimony will be used to rebut

evidence presented by Wilson that “create[s] an inference that Ibiza has a systemic problem of

discriminating against people with disabilities.” Superclub Ibiza also filed a supplemental pre-

trial statement that named Kaun and Ho, provided their phone numbers, and stated that their

testimony would be in regard to their ability “to use and access the Club without incident despite

[their] disability.”

                                          DISCUSSION

    I. Evidentiary Concerns under the Federal Rules of Evidence

        A. Rule 401

        Federal Rule of Evidence 402 states that “[r]elevant evidence is admissible” unless

provided otherwise in the United States Constitution, a federal statute, the Federal Rules of

Evidence, or other rules prescribed by the Supreme Court. Rule 401 further explains that

evidence is relevant if “it has any tendency to make a fact more or less probable than it would be

without the evidence,” and “the fact is of consequence in determining the action.” Generally,

rebuttal evidence “is admitted for the purpose of explaining or refuting evidence offered by the




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other side,” United States v. Carter, 70 F.3d 146, 149 (D.C. Cir. 1995), and is relevant insofar as

the evidence it rebuts is relevant.

        Here, Superclub Ibiza proposes to introduce at trial the testimony of Kaun and Ho to

rebut any evidence proffered by Wilson in an attempt “to create an inference that Ibiza has a

systemic problem of discriminating against people with disabilities.” Opp’n to Pl.’s Mot. to

Exclude Witnesses (“Def.’s Opp’n”) at 3. Wilson argues that the testimony of Kaun and Ho is

irrelevant because “[h]ow the Defendant has treated other persons with other disabilities at other

times is utterly meaningless to this case.” Pl.’s Mot. to Exclude Witnesses (“Pl.’s Mot.”) at 2.

However, in prior filings for this case, Wilson has raised the issues of Superclub Ibiza’s policies,

practices, and procedures, and its treatment of other disabled persons. In particular, Wilson’s

complaint alleges that “[d]efendant’s failure to comply with the ADA has resulted in and will

continue to result in harm to Ms. Wilson and other individuals with disabilities, unless and until

defendant is ordered by this Court to modify its policies, practices, and procedures.” Compl. ¶

54 (emphasis added). Additionally, Wilson’s reply states that “proving the [d]efendant’s failure

to modify its policies, practices, and procedures is an element of one of Ms. Wilson’s

discrimination claims.” Pl.’s Reply to Def’s Opp. to Mot. to Exclude Witnesses (“Pl.’s Reply”)

at 2. Based on this record, the Court concludes that Superclub Ibiza’s polices, practices, and

procedures may be a relevant issue at trial and that Wilson may attempt to demonstrate

discrimination on a broader scale than the alleged individual incident involving Wilson. As a

result, the Court has determined that testimony by Superclub Ibiza’s proposed witnesses, Kaun

and Ho, in regard to their ability to use and access Superclub Ibiza as disabled patrons could be

relevant as potential rebuttal evidence. 1


1
  The Court recognizes that the case presented by Wilson at trial may not include any evidence (or argument)
relating to a policy or practice by Superclub Ibiza, in which case the testimony of Kaun and Ho may not be relevant.
Wilson is not precluded from raising this issue again at that point in the trial.

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         B. Rule 404(b)(1)

         Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.” Plaintiff contends that the testimony of Kaun

and Ho is inadmissible under Rule 404(b)(1) because such testimony would constitute

inadmissible propensity evidence. See Pl.’s Mot. at 1-2. The court agrees with Wilson that,

under Rule 404(b)(1), the testimony of Kaun and Ho is not admissible to establish propensity on

the part of Superclub Ibiza. However, because the Court finds that the testimony of Kaun and Ho

may be relevant as rebuttal evidence, the testimony would be admissible for that purpose.

    II. Procedural Concerns under the Federal Rules of Civil Procedure and the Local Civil
        Rules

         Federal Rule of Civil Procedure 26(a)(3)(A)(i) requires, as a pre-trial disclosure, the full

name and “the address and telephone number of each witness.” Additionally, Local Rule

16.5(b)(5) of this Court requires that a party’s schedule of witnesses “shall set forth the full

names and addresses of all witnesses the party may call.” Furthermore, this Court directed

Superclub Ibiza to disclose to Wilson by February 28, 2013, the identities of the proposed

witnesses identified as “[c]ertain handicap patrons.” Superclub Ibiza has since provided the full

names and phone numbers of Kaun and Ho, but has neglected to disclose their addresses. Wilson

argues that it is prejudiced by Superclub Ibiza’s failure to properly identify Kaun and Ho. See

Pl.’s Reply at 3. However, because Wilson is aware of the names and phone numbers of the

witnesses, as well as the planned scope of their testimony, and has chosen not to depose them, 2

the Court finds that Superclub Ibiza’s failure to provide addresses has not caused prejudice to

Wilson. Nonetheless, in order to provide Wilson with sufficient time to conduct an investigation

2
 “While Plaintiff has chosen not to devote her remaining trial preparation time and resources to deposing these
witnesses, Plaintiff would like to have the ability to employ other investigatory means of collecting information from
and about these individuals should the Court permit them to testify.” Pl.’s Reply at 3.

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of these witnesses prior to trial, Superclub Ibiza shall disclose to Wilson the addresses of Kaun

and Ho by not later than March 25, 2013.

                                               CONCLUSION

        For the reasons discussed above, the Court will deny plaintiff's motion to exclude

witnesses identified in defendant’s pre-trial statement as “[c]ertain handicap patrons of Superclub

Ibiza, LLC.” Accordingly, it is hereby

        ORDERED that [36] plaintiff’s motion to exclude witnesses identified in defendant’s

pre-trial statement as “[c]ertain handicap patrons of Superclub Ibiza, LLC” is DENIED without

prejudice to renewal at trial; it is further

        ORDERED that defendant may introduce the testimony of Musa Kaun and Mimi Xang

Ho at trial as rebuttal evidence only; and it is further

        ORDERED that defendant shall disclose the addresses of Musa Kaun and Mimi Xang

Ho to plaintiff by not later than March 25, 2013.

SO ORDERED.


                                                                                /s/
                                                                            JOHN D. BATES
                                                                       United States District Judge
Dated: March 20, 2013




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