United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 74]
JOHN
W. SEDWICK SENIOR JUDGE
I.
MOTION PRESENTED
At
docket 74, plaintiffs Kenneth Baker and Jennifer Baker
(jointly “Plaintiffs”) moved for an order in
limine foreclosing introduction of certain evidence.
Defendant Baker Hughes Oilfield Services
(“Defendant”) responded at docket 81. No reply
was filed. Oral argument was not requested.
II.
BACKGROUND
Plaintiffs
are married and jointly own a home on a parcel of land which
is near property owned by Defendant. Plaintiffs contend
Defendant's property was a source of pollution affecting
them. Plaintiffs and certain others filed this action in
state court. Following removal to this court, Plaintiffs and
the others whose claims have been subsequently resolved filed
a second amended complaint.[1] Following resolution of the other
plaintiffs' claims, counsel for Plaintiffs filed a report
describing the remaining dispute in these words: “The
remaining claimants are Kenneth and Jennifer Baker. Kenneth
Baker's claim is limited to diminution of value of
property (family home adjacent to Baker Hughes contaminated
property). Jennifer Baker's claim is for diminution of
the same property and her health problems she connects to
pollution released on Defendant's adjacent
lot.”[2]
III.
DISCUSSION
Plaintiffs'
motion requests exclusion of evidence concerning
Kenneth's use of illicit drugs. Kenneth's use of
illicit drugs at various times is undisputed. Plaintiffs
argue that his drug use is irrelevant to Kenneth's sole
claim-reduction in the value of the real property. Moreover,
it is clear to the court that such evidence has no bearing on
Jennifer's claims. Defendant does not dispute the
proposition that evidence of Kenneth's drug use should be
excluded. The motion in limine will be granted as to
Kenneth's drug use.
Plaintiffs'
motion also seeks exclusion of evidence concerning
Kenneth's conviction of a sex crime. It is undisputed
that Kenneth pled guilty to a misdemeanor count of sexual
abuse by attempting to secretly film his stepdaughter while
she was showering. Plaintiffs argue that this evidence is
irrelevant to the pending claims and that it is highly
prejudicial.
Defendant
contends that the evidence is relevant. Defendant cites AS
34.70.010. That statute obligates the transferor of real
estate to provide a disclosure statement to the transferee
which complies with AS 34.70.050. Section 050 requires that
the disclosure statement be in a form prescribed by the Real
Estate Commission and says the disclosure form must advise
the transferee that the transferee is responsible to
determine if a person who has been convicted of a sex offense
resides in the vicinity of the property. Further, the
disclosure form must advise the transferee where information
about the location of convicted sex offenders may be found.
Defendant agues this statutory scheme “does appear to
require the Bakers to disclose to potential buyers that Mr.
Baker has been convicted of a sex offense for surreptitiously
filming his stepdaughter in the shower.”[3]
There
are two problems with Defendant's argument. First, the
statute explicitly puts the burden on the transferee, not the
transferor, to determine if a sex offender resides in the
vicinity. Second, if a sale were completed, Kenneth would not
be residing in the vicinity of the property. It is not
apparent to this court that the law requires Plaintiffs to
disclose Kenneth's conviction of a sex crime.
Defendant
advances another argument. According to Defendant, Plaintiffs
claim that Defendant's discharge of Portland cement
“has prevented them from using their property as they
would like, including causing Ms. Baker to move from the
property.”[4]Defendant goes on to point out that at her
deposition Jennifer testified that the reason she moved out
of the home she shared with Kenneth was, “I guess his
criminal activity that happened.”[5]
Defendant's
argument is a straw man argument. Defendant points to nothing
in the record asserting that Jennifer moved because of the
pollution. The second amended complaint does not allege that
Jennifer moved because of the pollution.[6] The motion in
limine will be granted with respect to Kenneth's
criminal conviction.
IV.
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