Peshlakai v. Ruiz (39 F. Supp. 3d 1264, 2014)

UNSEALED MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant AmRest, LLC’s Motion in Limine to Exclude Evidence of Apple-bee’s Guest Contact Reports, filed March 3, 2014 (Doc. 159)(“Guest Report Motion”); (ii) AmRest, LLC’s Opposed Motion in Li-mine to Exclude References to and Evidence Regarding Prior Incidents and Prior Liquor Law Violations at Any AmRest Restaurant, filed March 5, 2014 (Doc. 162)(“Prior Conduct Motion”); (iii) Defendant AmRest, LLC’s Motion in Limine to Exclude Evidence of Subsequent Liquor Law Violations at Any AmRest Locations, filed February 26, 2014 (Doc. 144)(“Subse-quent Liquor Law Violations Motion”); (iv) Defendant AmRest, LLC’s Motion in Limine to Exclude Evidence of its Post-Accident Conduct, filed March 10, 2014 (Doc. 196)(“Post-Aceident Conduct Motion”); and (v) Defendant AmRest, LLC’s Motion in Limine to Exclude “Cumulative Conduct” Evidence of Alleged Wrongful Acts by AmRest That Did Not Cause, and Are Not Similar to Conduct That Caused, Plaintiffs’ Injuries, filed March 10, 2014 (Doc. 200)(“Cumulative Conduct Motion”). The Court held hearings on April 1, 2014, and April 2, 2014. The primary issues are: (i) whether the Court should exclude evidence of reports from guests at the Apple-bee’s Neighborhood Grill and Bar in Santa Fe, New Mexico relating to alcohol service; (ii) whether the Court should exclude evidence about incidents and liquor law violations that occurred before the events of March 5, 2010, out of which this case arises; (iii) whether the Court should exclude evidence about liquor law violations that occurred after March 5, 2010; (iv) whether the Court should exclude evidence of AmRest, LLC’s other conduct after March 5, 2010; and (v) whether the Court should exclude evidence of certain other wrongful acts by AmRest, LLC, both before and after the event, on the basis that they violate the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America. The Court will grant in part and deny in part the Guest Report Motion, the Prior Conduct Motion, and the Cumulative Conduct Motion, and will deny the other motions. With respect, to the Guest Report Motion and the Prior Conduct Motion, the Court will admit the first complaint—which involves a complaint of overservice in April, 2008—the third complaint—in which an anonymous person alleges that a bartender had been suspended because she refused to serve intoxicated patrons—and the fourth complaint—about overservice on May 4, 2010—to show that AmRest, LLC was on notice of problems with overser-vice. The Court will exclude the second complaint, which relates to the noise level in the Santa Fe Applebee’s Neighborhood Grill & Bar, because it is irrelevant, and because it is hearsay not within any exception. In all other respects, the Court denies the Guest Report Motion and the Prior Conduct Motion. With respect to the Cumulative Conduct Motion, the Court will admit evidence of subsequent overser-vice within Debbie Passmore’s and Jake Gandhi’s area for the limited purpose of showing AmRest, LLC’s state of mind on March 5, 2010; it will not admit evidence of violations and acts that do not relate to overservice. The Court will deny the other motions in full.

FACTUAL BACKGROUND

The Court takes its facts from the Plaintiffs’ Third Amended Complaint for Wrongful Death, Personal Injuries, Loss of Consortium and Other Damages, filed in state court January 16, 2013, filed in federal court August 14, 2013 (Doc. 2-l)(“Com-plaint”). Two restaurants in Santa Fe, New Mexico—Applebee’s Neighborhood Grill and Bar, and the Blue Corn Café and Brewery—served alcohol to Defendants James Ruiz and Gilbert Mendoza, as well as non-party Veronica Castro, despite that it was reasonably apparent that they were drunk. See Complaint ¶¶ 26-29, at 4-5. Defendant AmRest, LLC is the franchisee responsible for the Applebee’s Neighborhood Grill in Santa Fe; Defendant Apple-bee’s International, Inc. is the franchisor responsible for that restaurant. See Complaint ¶ 17, at 3; id. ¶ 26, at 4. Ruiz, Mendoza, and Castro then got into Mendoza’s car, with Ruiz driving—until he crashed into a vehicle that carried Plaintiffs David Peshlakai and Darlene Thomas, who lived together as common-law husband and wife, and their daughters DeShauna and Del Lynn Peshlakai. See Complaint ¶¶ 30-31, at 5; id. ¶¶ 81-84, at 16. The crash badly injured David and Darlene, and it killed Del Lynn and DeShauna, who were then nineteen and seventeen years old. See Complaint ¶¶ 1-2, at 1. Ruiz ran away without trying to help the family. See Complaint ¶¶ 32, at 2.

PROCEDURAL BACKGROUND

The Plaintiffs allege seven causes of action in their Complaint. Against AmRest, LLC and Applebee’s International, they bring: (i) common-law and statutory dram-shop liability claims, see Complaint ¶¶ 33-48, at 8-9; and (ii) negligence claims related to alcohol marketing and distribution, see Complaint ¶¶ 49-58, at 9-12. Regarding the individual Defendants, the Plaintiffs bring: (i) negligence and negligence per se claims against Ruiz and Mendoza related to driving while intoxicated, see Complaint ¶¶ 59-68, at 12-14; and (ii) a negligent-entrustment claim against Mendoza for allowing Ruiz to drive Mendoza’s vehicle while intoxicated, see Complaint ¶¶ 69-79, at 14-15. Against all Defendants, (i) David Peshlakai and Darlene Thomas bring a negligent infliction of emo-. tional distress claim, see Complaint at ¶¶ 80-85, at 15-16; and (ii) all Plaintiffs bring a loss-of-consortium claim, see Complaint ¶¶ 86-89, at 16-17.

1. Guest Report Motion.

AmRest, LLC moves the Court to exclude “evidence that AmRest had complaints submitted through Applebee’s Guest Services System regarding the service of alcohol at the” Santa Fe Applebee’s Neighborhood Grill. Guest Report Motion at 1. After reviewing the case’s facts, see Guest Contact Report Motion at 1-2, Am-Rest, LLC explains that discovery has revealed information about the following four guest contacts reports about that restaurant:

The first complaint involved a customer who believed the restaurant over served an individual on April 22, 2008. AmRest did not even own the Santa Fe Applebee’s at that time. AmRest did not have an ownership interest in the restaurant until July of 2008.

The second complaint was received on January 23, 2009. It involved a customer who was upset because she and her friends were asked to keep their noise level down during a happy hour.

The third complaint was made by an anonymous person on February 11, 2010. This person claimed that a bartender was suspended for refusing to serve drinks to two intoxicated patrons.

The fourth complaint also was left by an anonymous person. On May 4, 2010, this person complained that some male customers were being really loud, they kept being served drinks, and they were over served. This complaint was made after the date of the automobile accident at issue herein.

During discovery, Plaintiffs have asked multiple witnesses questions regarding each of the complaints. In the deposition of [Andrea Beals, a former bartender for the Santa Fe Applebee’s Neighborhood Grill], it appeared that Plaintiffs’ intent was to use evidence of the Guest Contact Report to support an argument that AmRest had a history of reprimanding bartenders who cut off patrons from further alcohol service. Ms. Beals was questioned regarding the February 11, 2010, incident, at which time she denied she had ever been reprimanded for refusing to serve a patron. Ms. Beals’ immediate supervisor while she was a bartender, Anthony Bonnefil, has confirmed that he was aware Ms. Beals had cut off a couple of customers from further alcohol service, that she was not demoted for having done so, and that he instead supported any bartender’s decision to cut off a customer.

Guest Report Motion at 2-3 (emphasis in original) (citations omitted).

AmRest, LLC argues that the Court should exclude this evidence under rules 402 and 403 of the Federal Rules of Evidence. See Guest Report Motion at 4. It contends that this evidence is irrelevant, because their existence “does not make it any more or less probable that Defendants allegedly over served Ruiz and Mendoza.” Guest Report Motion at 4. It notes that

one of these complaints occurred before AmRest began operating the Santa Fe Applebee’s (April 22, 2008, complaint), one complaint occurred after the automobile accident at issue herein (May 4, 2010, complaint), one complaint did not allege that anyone was over served (January 23, 2009, complaint), and one anonymous complaint improperly assumed a bartender was reprimanded for refusing to serve a patron (February 11, 2010, complaint). As such, evidence of these complaints should be excluded because they have no relevance to Plaintiffs’ claims in this matter.

Guest Report Motion at 4. What is more, in its view, even if the evidence is relevant, the Court should exclude it under rule 403, because it “would tend to mislead the jury into thinking that AmRest is a bad company,” which would unfairly prejudice Am-Rest, and because it would require Am-Rest, LLC to explain unrelated conduct, which would distract the jury. Guest Report Motion at 5.

AmRest, LLC also asks the Court to exclude the evidence under rule 404(b) of the Federal Rules of Evidence, because the Plaintiffs could use it “to suggest to the jury that AmRest and its employees are bad actors who have been negligent before and therefore must have been negligent in their treatment of Ruiz and Mendoza.” Guest Report Motion at 6. Accordingly, in its view, “evidence of any complaint in the Guest Contact Reports should be excluded from evidence at the trial of this matter.” Guest Report Motion at 6.

AmRest, LLC also asks the Court to exclude this evidence, because it is hearsay. See Guest Report Motion at 6. It explains that it anticipates

that Plaintiffs will attempt to admit into evidence testimony or exhibits regarding complaints contained in the Guest Contact Reports to demonstrate complaints at the property at issue regarding the service of alcohol. Such out-of-court statements regarding unsubstantiated complaints are hearsay and do not meet the evidentiary standard for admissibility. Two of the four complaints were provided anonymously. With regard to the complaint involving Ms. Beals, it was based on misinformation and false assumptions. Due to the fact that it is not possible to assure the reliability of these statements, they should be excluded as impermissible hearsay, and AmRest respectfully requests that this motion in limine be granted.

Guest Report Motion at 7.

In the Plaintiffs’ Response to AmRest, LLC’s Motion in Limine to Exclude Evidence of Applebee’s Guest Contact Reports, filed March 17, 2014 (Doc. 231)(“Guest Report Response”), the Plaintiffs ask the Court to deny the Guest Report Motion. Guest Report Response at 1. The Plaintiffs contend that the evidence is relevant to AmRest, LLC’s state of mind and for liability under the New Mexico Wrongful Death Act, N.M. Stat. Ann.1978, § 41-2-1 to -4. See Guest Report Response at 3. The Plaintiffs argue that “[i]t is also particularly relevant what AmRest may or may not have done with the subject complaints, including whether they did anything of substance. The evidence tends to show that AmRest had a routine practice of doing nothing with” such complaints, “showing that [responsible service of alcohol] was not taken seriously, which is relevant to the jury’s aggravating circumstances analysis and for determining whether punitive damages are to be imposed, including in what amounts.” Guest Report Response at 3 (citing Fed.R.Evid. 406). The Plaintiffs explain:

For example, the third complaint was from a bartender who was questioned about the events that led to her demotion from the bar to the floor. AmRest gives a truncated version of her testimony. In addition to the quoted testimony from AmRest, the bartender testified that she felt like she was doing her job the evening that led to the incident where she was suspended. It is of no concern that her direct supervisor testified that she was not disciplined for cutting the customers off, primarily because he was not the person who performed the demotion. That person was Jake Ghandi, who was also the area coach for the geographical area from which all three complaints were generated.

Guest Report Response at 4 (citations omitted).

The Plaintiffs contend that the evidence is admissible as a business record under rule 803(6) of the Federal Rules of Evidence. See Guest Report Response at 4.

Only one of the complaints is an actual statement, in the form of an electronic mail, of a customer. The rest are summaries drafted by intake workers, viz, mental impressions of the Defendant, which can be admitted against the Ap-plebee’s Defendants under Fed.R.Evid. Rule 801(d)(2). The repeated complaints regarding [responsible service of alcohol] issues show a conscious disregard for responsible service of alcohol issues and inadequate policies and procedure for the safe service of alcohol.

Guest Report Response at 4 (citations omitted). The Plaintiffs also argue that, as they have explained, they are not offering this information to show that AmRest, LLC is “a bad company,” but, rather, for other purposes; therefore, in its view, the evidence is not unduly prejudicial. Guest Report Response at 4.

In AmRest, LLC’s Reply in Support of AmRest, LLC’s Motion in Limine to Exclude Evidence of Applebee’s Guest Contact Reports, filed March 31, 2014 (Doc. 293)(“Guest Report Reply”), AmRest, LLC contends that “[ljittle of what Plaintiffs argue is straightforward,” and addresses the Plaintiffs’ arguments that the evidence is admissible under rule 404(b) and rule 406. Guest Report Reply at 1.

As best as AmRest can tell, Plaintiffs are arguing that the Guest Contact Reports are admissible under Rules 404(b) and 406 to prove their statutory dram shop claim. Black letter principles bar both attempts. The premise that can be gleaned from Plaintiffs’ arguments, such as they exist, helps to explain why. Pieced together, Plaintiffs’ arguments reveal that Plaintiffs seek to use the so-called “over service complaints” to argue that, just as on other occasions there was a mindset to over serve customers, so it was on the night of the accident in this case.

Guest Report Reply at 1-2. It argues that, because the Plaintiffs have not demonstrated “that they are not seeking to introduce the Guest Contact Reports for an improper propensity purpose, Rule 404(b) does not provide an opening through which the reports can be admitted as evidence.” Guest Report Reply at 2 (citing Bhandari v. VHA Sw. Cmty. Health Corp., 778 F.Supp.2d 1155, 1168 (D.N.M.2011) (Browning, J.)).

AmRest, LLC asserts that the evidence is not habit evidence under rule 406:

Apart from numbering less than a handful (at most three, considering AmRest’s non-involvement in the first Guest Contact Report), the Guest Contact Reports include descriptions of various factual situations and various responses to them. As such, the reports are insufficient to establish the alleged routine practice. 3 M. Graham, Handbook of Federal Evidence § 406:1, at 569 (7[th] ed.2012)(in determining whether proponent of evidence “has established ‘one’ regular response to a repeated specific situation, evaluation of adequacy of the sample and uniformity of response are key factors”); accord 23 C. Wright & K. Graham, Federal Practice and Procedure § 5274, at 47-48 (1980).

Guest Report Reply at 2-3.

AmRest, LLC contends that the Plaintiffs’ arguments regarding the degree of culpability lack a sound basis. See Guest Report Reply at 2. AmRest, LLC states that, because the guest contact reports at issue do not discuss the facts of this case, they “do not provide an evidentiary foundation upon which the jury properly could compare fault.” Guest Report Reply at 3. With respect to the punitive damages argument, AmRest, LLC asserts that State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), requires that evidence about other incidents “be substantially similar to the one at issue,” and argues that the Plaintiffs did not make that showing. See Guest Report Reply at 3-4. In its view, the evidence is not, therefore, admissible for a punitive damages award under the Wrongful Death Act or “to show a culpable mental state for punitive damages apart from the Wrongful Death Act.” Guest Report Reply at 3-4.

With respect to compensatory damages, AmRest, LLC argues that “aggravating circumstances refers not to the alleged culpability of a defendant’s conduct but rather to the damages suffered.” Guest Report Reply at 4. It points to Beller v. United States, 296 F Supp.2d 1277 (D.N.M.2003) (Johnson, J.), in which the Honorable William P. Johnson, United States District Judge for the District of New Mexico, held that the Supreme Court of New Mexico has “made clear that the degree of the defendant state’s culpability or the nature of its conduct was not a factor to be considered in assessing ‘compensatory’ damages under the wrongful death statute.” Guest Report Reply at 4 (quoting Beller v. United States, 296 F Supp.2d at 1282). In its view, the Plaintiffs offer this evidence to prove a culpable mental state, and, therefore, “the incidents are irrelevant to aggravating circumstances analysis as it relates to compensatory damages under the Wrongful Death Act, making the evidence inadmissible.” Guest Report Reply at 4.

Moreover, AmRest, LLC asserts that, even if the evidence is relevant, rule 403 bars its admission; it notes that the Plaintiffs did not respond to its rule 403 arguments and states that they have, therefore, “in effect conceded that the arguments are meritorious.” Guest Report Rely at 4-5. Further, it points out that the Plaintiffs’ argument under rule 406 does not allow them to evade its rule 403 arguments. See Guest Report Reply at 5.

With respect to the hearsay arguments, AmRest, LLC states that the “Plaintiffs try to get around the hearsay issue by simply declaring that the Guest Contact Reports fit within the hearsay exceptions for business records.” Guest Report Reply at 5. AmRest, LLC states that this conclusory declaration does not demonstrate that the exception applies, putting out that, under Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir.2004), there must be a foundational showing for a document to be a business records to fit within the rule’s meaning. See Guest Report Reply at 5. AmRest, LLC continues:

From that point on, Plaintiffs flail [sic] in their attempts to get around the hearsay issue. After arguing that “[o]nly one of the complaints is an actual statement, in the form of an electronic mail, of a customer!,]” Plaintiffs argue that the three remaining the Guest Contact Reports “are summaries drafted by intake workers, viz, mental impressions of the Defendant,” making them admissible as non-hearsay statements under Federal Rule of Evidence 801(d)(2). Apart from neglecting to specify which “Defendant” they have in mind, Plaintiffs neglect to specify the provision under Rule 801(d)(2) upon which they are relying and to show that any applicable foundational requirements are met.

Even if Plaintiffs could establish that the Guest Contact Reports fit within either of the preceding hearsay exceptions, the contents of the reports nevertheless constitute hearsay under Federal Rule of Evidence 801(c). The contents include out of court statements made by a customer that Plaintiffs seek to introduce as the truth of the matter asserted.

Guest Report Reply at 5-6 (citations omitted).

2. Prior Conduct Motion.

AmRest, LLC moves the Court to exclude “evidence and references to prior incidents of alleged over-service of alcohol and prior liquor law citations or violations at any AmRest restaurant.” Prior Conduct Motion at 1. AmRest, LLC states that it is relevant “whether AmRest’s employees served alcoholic beverages to James Ruiz while he was intoxicated, and whether AmRest’s employees knew from the circumstances and from what was reasonably apparent that Mr. Ruiz was intoxicated,” and acknowledges that the Plaintiffs seek punitive damages. Prior Conduct Motion ¶ 1, at 1-2. AmRest, LLC argues that certain evidence that the Plaintiffs seek to introduce

regarding AmRest’s alleged prior incidents of over-service of alcohol and other incident reports at the Santa Fe Ap-plebee’s not related to the incident in question! ]and prior liquor law violations at all AmRest restaurants ... is inadmissible because it is irrelevant, is hearsay, is inadmissible character evidence and unfairly prejudicial, and will confuse the issues and mislead the jury.

Prior Conduct Motion ¶ 2, at 2. AmRest, LLC urges that the prior incidents “have zero tendency to make any fact of consequence in this matter more or less probable.” Prior Conduct Motion ¶4, at 2-3. It notes that these violations “include service to minors, sale without a service permit, failure to timely notify a commissioner of disciplinary action taken against an employee, and not having a liquor license posted,” and argues that none of those violations “occurred at the Santa Fe Ap-plebee’s or involved the over-service of alcohol.” Prior Conduct Motion ¶ 4, at 2. AmRest, LLC argues that “[t]he incident reports regarding over-service at the Santa Fe Applebee’s, in addition to being inadmissible hearsay under Rule 801, are irrelevant.” Prior Conduct Motion ¶ 5, at 3. It contends that the Plaintiffs seem to offer those statements for the truth of the matters asserted, and that rule 802 of the Federal Rules of Evidence, therefore, renders those statements inadmissible. See Prior Conduct Motion ¶ 5, at 3. AmRest, LLC also asserts that “[t]he prior incidents and violations have no bearing on whether AmRest violated the Dram Shop Liability Act or whether AmRest’s conduct warrants punitive damages,” and that, therefore, the “Court should exclude all evidence of or references to any alleged prior incidents and/or liquor law violations at the Santa Fe Applebee’s and at any other AmRest restaurant.” Prior Conduct Motion ¶ 6, at 3.

AmRest, LLC also contends that the Plaintiffs intend to submit this evidence as character evidence, and that rule 404(b), therefore, bars its admission. See Prior Conduct Motion ¶¶ 7-8, at 3-4. AmRest, LLC also argues that rule 403 bars this evidence as well, because the risks of unfair prejudice, of confusion of the issues, and of misleading the jury substantially outweigh the evidence’s probative value. See Prior Conduct Motion ¶¶ 9-11, at 4-5. It contends that “[t]he jury should render its verdict based on AmRest’s actions on March 5, 2010, not based on alleged prior incidents and prior liquor law violations at other restaurants.” Prior Conduct Motion ¶ 11, at 5.

In the Plaintiffs’ Response to AmRest, LLC’s Motion in Limine to Exclude Prior References to and Evidence of Prior Incidences [sic] and Prior Liquor Law Violations at Any AmRest Restaurant, filed March 19, 2014 (Doc. 236)(“Prior Conduct Response”), the Plaintiffs contend that the violations and incidents

are relevant in this lawsuit and admissible for several reasons. The violations and incidences, along with other evidence, show the motive, intent, preparation, plan, knowledge, absence of mistake—i.e., the state of mind—as well as the routine practices of Defendant Am-Rest on the subject of responsible service of alcohol. These issues and the inferences that the jury draws from them will be critical to many questions that must be determined by the jury including AmRest’s overall liability, whether AmRest acted with the requisite willfulness and recklessness to assess punitive damages, and the amount of damages under the Wrongful Death Act. In addition, the evidence of the incidences in question overcomes hearsay objections because they are admissions by a party opponent, and because they are not offered to assert the truth of the matter.

Prior Conduct Response at 1-2.

First, the Plaintiffs detail their view of the evidence. The Plaintiffs note that Ap-plebee’s International has produced a series of four Guest Contact Reports, no date provided, filed March 19, 2014 (Doc. 236-1), “which are reports made to a wholly-owned Applebee’s subsidiary named Ap-plebee’s Services, Inc.” Prior Conduct Response at 2.

The first guest contact is dated April 19, 2008. [Guest Contact Reports] at AppOOl. It is made by a woman identified as April Ortega, who leaves her address and phone. Id. She complains that a man was “at the bar being over served. He passed out several times and was still being served. I called and spoke to the manager Jen. She did not seem to care. I thought this was a very dangerous issue and someone should know about it.” Jake Gandhi, the area coach over the Santa Fe Applebee’s on April 8, 2008, was asked about this complaint and he testified he did not remember it. Deposition of Jake Gandhi, at 7:2-10; 25:9-13; and 191:7-16, [taken December 7, 2012, filed March 19, 2014 (Doc. 263-2) ]. Upon reading it, Gandhi was immediately dismissive, saying “That just doesn’t—that doesn’t happen. It just doesn’t happen.” Id. at 197:20-198:12. Gandhi explains that it was his job to follow up on a complaint if it was manager related. Id. at 196:3-197:2. He admits this complaint involved both a bartender and a manager acting inappropriately. Id. at 197:20-24. The Ap-plebee’s record shows no resolution or follow-up of the matter by Applebee’s or AmRest. See Guest Contact Reports, App001-App002[.]

AmRest likewise can show no follow up or handling of this complaint. Am-Rest Brand President for Applebee’s, Michael Muldoon, was asked why Am-Rest could provide no paper trail for the series of customer complaints provided by Applebee’s, and he could provide no explanation. See Deposition of Michael Muldoon[, taken January 31, 2013, filed 19, 2014 (Doc. 263-3) ], at 36:8-22, attached as Exhibit C.- Further, Plaintiffs requested from AmRest “All AmRest, LLC documents, electronic or otherwise, that show how it handled all reports and complaints generated from January 1, 2008 to December 31, 2010 describing rude, loud or intoxicated behavior by any customer of the Santa Fe Apple-bee’s.” See Defendant AmRest, LLC’s First Supplemental Responses to Plaintiffs’ Fourth Set of Requests for Production, at 5, attached as Exhibit D. The response, supplemented after Mr. Mul-doon’s first deposition, includes emails only related to a complaint dated May 29, 2010. Id. at 7-9. There is no record that anyone did anything to follow up on the April 19, 2008 incident, or the other two guest contacts described below. Id.

Prior Conduct Response at 2-3.

According to the Plaintiffs, the second guest contact involved a call from a guest who left her name, address, and telephone number reporting her unhappiness that she and other guests, who had been drinking during happy hour, were asked to be quiet. See Prior Conduct Response at 3-4. The Plaintiffs note that this guest complained that the restaurant was known for its happy-hour crowd and for the regulars who attended at that time. See Prior Conduct Response at 3-4. “There is no record of follow up regarding this guest contact.” Prior Conduct Response at 4.

The Plaintiffs contend that the third guest contact, which the Prior Conduct Motion addresses, occurred on February 10, 2010—“less than one month before the incident that is the basis of this lawsuit.” Prior Conduct Response at 4. The Plaintiffs note that this complaint, made anonymously, states as follows:

One of the bar tenders, Andrea, got suspended for overserving two men a couple months ago. The bartender actually had cut these people off. These people complained with the supervisor, Tony, saying Andrea was rude. Andrea was suspended from the bar. Last night, I learned Andrea was suspended again because she cut the same people off. I’ve seen these men. They get very obnoxious when they drink. I know Andrea is doing the right thing by cutting them off.

You lost a customer. I’m there at least twice a week. I’m upset the bartender has been punished for cutting people off.

I’ve been trying to get in touch with the managers but there are not available.

Prior Conduct Response at 4 (quoting Guest Contact Reports at APP00006). The Plaintiffs assert that they deposed that bartender, Andrea Beals, and that she had not known a guest had complained about how she had been treated. See Pri- or Conduct Response at 4. Beals noted that the complaint “ ‘makes [her] feel good ... [b]ecause somebody observed me doing my job.... Responsible service of alcohol is my job.’ ” Prior Conduct Response at 4 (quoting Deposition of Andrea Beals at 64:18-24, taken September 11, 2012, filed March 19, 2014 (Doc. 236-5)). Beals further remembered the names of the regulars—Charley and Andrew Cat-nach—stated that she was pulled off of bar service because of this incident, and that she “felt vindicated hearing this statement read to her, because she felt like she was suspended from the bar for doing her job.” Prior Conduct Response at 4.

The Plaintiffs also note that the bar manager, Anthony Bonnefil,

confirmed Beals’ identification of the two regulars who complained about Beals. He said the two brothers contacted area coach Jake Gandhi directly. He testified they made sure they had the area manager’s cell phone number at all times, they thought they owned the place, and they tried “to constantly push the envelope on what my bartenders were allowed to do ...” in terms of responsible service of alcohol. He recalled that Beals had cut them off a couple times, appropriately, because they started acting like “overgrown children.” Bonnefil testified that Beals did a good job on responsible service of alcohol issues, and would cut off those who needed to be cut off.

Prior Conduct Response at 4-5 (citations omitted). The Plaintiffs contend that Gandhi also testified that he remembered getting an electronic mail transmission regarding this contact, but “did not remember if he heard about Beals cutting guests off, other than receiving this guest contact.” Prior Conduct Response at 5. He also could not, during his deposition, remember which customers had complained. See Prior Conduct Response at 5. He stated that he had not spoken to Beals about the situation. See Prior Conduct Response at 5. He remembered that the general manager, Barry Jenkins, had “defended Beals and did not wish to pull her from the bar, but [stated] that he took her out of the bar anyway,” Prior Conduct Response at 5, explaining: “ ‘There is nothing doing. She is just—-she is pissing guests off ... she needs to go.’ ” Prior Conduct Response at 5. The Plaintiffs note that there is no record, either from Applebee’s International or from AmRest, LLC, of, follow-up with respect to this complaint. See Prior Conduct Response at 5.

The Plaintiffs also note that, soon before AmRest, LLC pulled Beals from the bar, AmRest, LLC and Applebee’s International rolled out a “Late Night” promotion “that doubled the happy hours at AmRest-operated Applebee’s restaurants from 3 to 6 hours every[ ]day ... that was intended to ‘put the “bar” back into Applebee’s Neighborhood Grill & Bar.’ ” Prior Conduct Response at 6(quoting Late Night Rollout Guide, no date provided, filed March 17, 2014 (Doc. 226-2)). The Plaintiffs stated that the Late Night “campaign successfully raised bar percentages in 2010, especially in New Mexico, where bar sales percentages at AmRest-operated Ap-plebee’s were already higher than the Am-Rest national average.” Prior Conduct Response at 6. The Plaintiffs note that part of the Late Night promotion was “casting” the bar using “traffic driving bartenders” whom guests come to see. Prior Conduct Response at 6 (internal quotation marks omitted). The Plaintiffs also note that a fourth guest contact report is not relevant to the Prior Conduct Motion, because the report occurred after March 5, 2010. See Prior Conduct Response at 6.

The Plaintiffs note that, with respect to prior liquor law violations, AmRest, LLC’s corporate representative has provided a list of “the number of times AmRest violated, or understood that it had violated as of January 31, 2013, liquor laws during its operation of Applebee’s restaurants from mid-2008 until the end of 2010.” Prior Conduct Response at 6. The Plaintiffs note that this list “shows a total of 14 liquor law violations occurring at AmRest-operated Applebee’s restaurants from July 31, 2008 through October 29, 2010.” Prior Conduct Response at 6. “AmRest claims it bought and assumed operations of 103 Applebee’s restaurants in July 2008”; these “restaurants were located in eight states.” Prior Conduct Response at 6. The Plaintiffs assert that AmRest, LLC “sold all but a few of its Applebee’s restaurants on October 10, 2012.” Prior Conduct Response at 6-7. The Plaintiffs note a steady uptick of liquor law violations during AmRest, LLC’s ownership: there was only one violation in 2008; there were four in 2009; and there were nine in 2010—the year of the accident underlying this lawsuit—five of which occurred in New Mexico. See Prior Conduct Response at 7. “Finally, the list shows that the only two violations involving the sale of liquor to an intoxicated person both occurred in New Mexico.” Prior Conduct Response at 7.

According to the Plaintiffs, Muldoon, AmRest, LLC’s Applebee’s Neighborhood Grill brand president, testified that: (i) “he was unaware of the facts regarding the liquor law violations”; (ii) “he and other members of management did not give any thought to why the number of liquor law violations doubled from 2009 to 2010”; (iii) management did not consider “that a disproportionately high number of the violations were in New Mexico”; and (iv) Am-Rest, LLC-run Applebee’s Neighborhood Grill restaurants “operating in New Mexico had a higher percentage of bar sales compared to AmRest[-]run Applebee’s generally.” Prior Conduct Response at 7. The Plaintiffs also note that AmRest, LLC

received a warning for sale to an intoxicated person ... on July 8, 2009 in Roswell, New Mexico, and AmRest was cited for “selling” liquor to an intoxicated person ... on March 6, 2010, one day after the' event that is the basis of this lawsuit, at an Applebee’s in Farmington, New Mexico.

Prior Conduct Response at 7. The Plaintiffs state that area coach Gandhi and district coach Deborah Passmore, who oversaw the Santa Fe Applebee’s Neighborhood Grill, also oversaw the Farmington Applebee’s Neighborhood Grill. See Pri- or Conduct Response at 7-8. The Plaintiffs note that the Prior Conduct Motion does not discuss “that the July 8, 2009 incident also involved a warning for sale to an intoxicated person, just as [the Subsequent Conduct Motion omits] the March 6, 2010 Farmington Applebee’s violation for sale to an intoxicated person.” Prior Conduct Response at 8.

The Plaintiffs assert that this evidence is relevant. See Prior Conduct Response at 8. They note that Muldoon intends to testify at trial, and that they anticipate he and other AmRest, LLC representatives will tell the jury “that responsible service of alcohol was always in the forefront at Am-Rest,” LLC, and that they “should be allowed to present the evidence that proves otherwise.” Prior Conduct Response at 8. They note that the evidence at issue in the Prior Conduct Response

shows another state of mind at work in Santa Fe, and shows that it was in fact the routine habit at AmRest to do absolutely nothing to address serious indications that servers, bartenders, and even managers at AmRest[-]run Applebee’s in Santa Fe and in New Mexico were not taking responsible service of alcohol seriously.

Prior Conduct Response at 8. After summarizing the evidence, see Prior Conduct Response at 9, the Plaintiffs argue that AmRest, LLC’s liquor violations and acts demonstrate increased pressure to sell alcohol and diminished attention to safe alcohol service: the “pre-March 5, 2010 incidences and liquor law violations are relevant because the continuing violations make the fact of AmRest’s liability for Plaintiffs’ injuries more probable than it would be without the evidence of the subsequent violations.” Prior Conduct Response at 9.

The Plaintiffs contend that Muldoon and Gandhi’s responses to these violations show “that it was AmRest’s routine practice to not concern itself with its repeated liquor law violations”; in their view, the evidence shows “that AmRest deliberately turned a blind eye to the fact that it was not safely serving alcohol and that the over-service on March 5, 2010 was not simply an accident and mistake.” Prior Conduct Response at 10. The Plaintiffs continue:

The violations show that AmRest was primarily motived to increase its alcohol sales and not to safely serve its customers. The prior incidences and liquor law violations will provide the jury with the basis for making these inferences and that will lead the jury to decide that AmRest is liable. In addition, the evidence regarding AmRest’s prior incidences and liquor law violations will help the jury determine AmRest’s state of mind as it relates to punitive damages— i.e. whether it possessed the requisite wantonness, willfulness, and recklessness that necessitates that it pay punitive damages, and guides the jury in determining the appropriate amount of punitive damages to be paid. Finally, the evidence regarding the violations will help the jury decide appropriate damages under the Wrongful Death Act because AmRest’s callous lack of concern regarding safe service of alcohol is certainly an aggravating circumstance in this case.

Prior Conduct Response at 10.

The Plaintiffs assert that this evidence shows AmRest, LLC’s “routine practice to hype alcohol sales figures and turn a blind eye to its problems regarding the safe service of alcohol.” Prior Conduct Response at 11. The Plaintiffs contend that the evidence demonstrates management’s dismissive and oblivious attitude towards complaints about alcohol service. See Pri- or Conduct Response at 11. They submit that “the continuing violations show that Amrest [sic] and its employees’ conduct on March 5, 2010 was in conformity with its routine practices both before the events in this case and subsequent to them.” Prior Conduct Response at 11 (citing Fed. R.Evid. 406). The Plaintiffs also contend that AmRest, LLC’s acts are also relevant “to the lost evidence in this case.” Prior Conduct Response at 11. They explain:

AmRest’s routine practice was to not investigate serious responsible service of alcohol problems. The investigation of this incident was being directed by Jake Gandhi. The jury may conclude that the loss of critical evidence and the confusion of facts, including how many beers and drinks were served to Ruiz, Mendoza and Castro, was no accident, but rather a result of AmRest’s routine habit of choosing to turn a blind eye to the truth about its irresponsible service of alcohol. Thus the facts will be relevant to the inferences the jury will be permitted to make concerning spoliated evidence.

Prior Conduct Response at 11.

The Plaintiffs also contend that this evidence is admissible under rule 404(b)(2). See Prior Conduct Response at 12. In their view, this evidence shows that Am-Rest, LLC knew of “substantial problems within the organization regarding safe service of alcohol to customers,” because the liquor law violations are like the overser-vice of Ruiz and Mendoza. Prior Conduct Response at 12. They also note that these events—“especially the violation in Roswell, New Mexico on July 8, 2009, the violation in Clovis[,] New Mexico on February 5, 2010, and the demotion from the bar of Andrea Beals”—occurred very near March 5, 2010. Prior Conduct Response at 12. The Plaintiffs submit that the Prior Conduct Motion “is designed to prevent the jury from hearing the extent of Am-Rest’s knowledge of deficiencies in its service of alcohol” and that, “from the very outset of its launch of ‘Late Night’ and other programs to increase bar sales, throughout 2010 and beyond, there were obvious signs that AmRest was putting the public at danger, yet AmRest chose not to heed those warnings.” Prior Conduct Response at 12.

The Plaintiffs also argue that AmRest, LLC’s prior acts “show that the events at issue in this trial were not simply a mistake or accident.” Prior Conduct Response at 13. The Plaintiffs further submit that the prior acts, taken together with its subsequent violations, “show AmRest’s motive was to profit from alcohol sales at the expense of safe service of alcohol.” Prior Conduct Response at 13.

The Plaintiffs note that, if the Court allows the jury to consider whether to award punitive damages, “the jury will be asked to decide whether the conduct of AmRest and its employees was willful, reckless, or wanton.” Prior Conduct Response at 13. The Plaintiffs contend that the prior violations “will allow the jury to infer that it was AmRest’s routine practice to reward every increase in alcohol sales and to consistently diminish the importance of safe service.” Prior Conduct Response at 13. In their view, this evidence also “will allow the jury to infer that Am-Rest was on notice that it had system-wide problems with safe service of alcohol, that AmRest’s actions on March 5, 2010 were not simply an accident or mistake, [and] that AmRest purposely diminished safe' service because its paramount motivation was more alcohol profits.” Prior Conduct Response at 14. The Plaintiffs contend that “[t]hese inferences will aid the jury in its determination about whether AmRest possessed the requisite culpable state of mind on March 5, 2010 to justify an award for punitive damages.” Prior Conduct Response at 14. The Plaintiffs also contend that the same inferences will help the jury “consider the aggravating circumstances attending the wrongful acts that gave rise to Plaintiffs[’] injuries” for purposes of liability under the Wrongful Death Act. Prior Conduct Response at 14.

The Plaintiffs finally argue that the rule against hearsay does not bar this evidence:

First, none of the evidence at issue may be said to be hearsay. The guest contact reports were provided by a party opponent, namely Applebee’s. The reports themselves are not hearsay pursuant to Rule 801(d)(2), to the extent they will be offered against Applebee’s. They are also not hearsay to the extent they will be offered against AmRest, pursuant to Rule 801(d)(2) because Applebee’s Services, Inc. collected these guest contacts as a service for Apple-bee’s franchisees. As such, they are (1) made by the party in an individual or representative capacity, (2) made by a person who the party authorized to make the statement on the subject, or (3) made by the party’s co-conspirator during and in furtherance of the conspiracy. See Federal Rule of Evidence 801(d)(2)(A), (C), and (E); see also U.S. v. El-Mezain, 664 F.3d 467, 502 (5th Cir.2011) “([Conspiracy as an eviden-tiary rule differs from conspiracy as a crime. Just as coconspirators are generally considered partners in crime and therefore agents of each other, joint ven-turers may be considered partners in the joint undertaking.”).

Prior Conduct Response at 14-15. The Plaintiffs also contend that, “even if the guest contacts themselves [were] hearsay as presented against AmRest, they fall within the exception to hearsay under Federal Rule of Evidence 803(6), because they are a record of a regularly conducted activity.” Prior Conduct Response at 15.

The Plaintiffs submit that AmRest, LLC’s hearsay argument—which it did not develop in the Prior Conduct Motion— probably “relates to the statements made by guests contained within the guest contacts.” Prior Conduct Response at 15. The Plaintiffs argue that the objection lacks a sound basis. See Prior Conduct Response at 15. As to the first and third complaints, the Plaintiffs would offer them to demonstrate that AmRest, LLC and Applebee’s International did not investigate alcohol-service issues. See Prior Conduct Response at 15. They continue:

It is obviously disturbing to hear that a bartender continued to serve a man who passed out at a bar, and the manager learned of that and allowed it to continue (first complaint). Likewise, it is disturbing to hear that a bartender was demoted from the bar due to a complaint by the drunk and obnoxious regulars she cut off (second complaint). But far more disturbing, and the reason this evidence is being offered, is that these issues were reported to Applebee’s and AmRest, reduced to writing, and no record exists showing anything was done to investigate the incidences and address the underlying problems that may or may not have allowed them to happen.

Prior Conduct Response at 15. As to the second complaint, in which a “guest states that the Santa Fe Applebee’s is ‘... known for the happy hour crowd ... ’ and ... known for their “regulars” at happy hour,” the Plaintiffs concede that it is hearsay, but argue that it falls under the exception in rule 803(21) of the Federal Rules of Evidence as reputation concerning its character. Prior Conduct Response at 14 (ellipses in original)(quotations unattributed). The Plaintiffs also submit that rule 807 of the Federal Rules of Evidence—commonly called the residual exception—renders the evidence admissible. See Prior Conduct Response at 16. They explain: :

As described above, the statement by the anonymous customer was confirmed in the depositions of Andrea Beals and Anthony Bonnefil. It therefore has circumstantial guarantees of trustworthiness. Further, though it is not being offered primarily to prove the truth of the matter asserted, the evidence does prove a dual purpose of evidencing a material fact, that Beals was demoted for cutting drunk customers off. Thus, Rule 807 makes a limiting instruction both unnecessary and inappropriate. In addition, the evidence is more probative than other evidence, namely the testimony of Beals, Bonnefil, Jenkins and Gandhi, because all four of those witnesses remain in the exclusive control of Am-Rest. Beals, the bartender, and Jenkins, the general manager who demoted her, remain employed at the Santa Fe Applebee’s. These witnesses cannot be counted on to not attempt to reverse or equivocate their candid deposition testimony at trial. Therefore, admitting this evidence will serve the purposes of these rules and the interests of justice.

Prior Conduct Response at 16.

The Plaintiffs also contend that the evidence, although prejudicial, “is only duly prejudicial.” Prior Conduct Response at 17 (emphasis in original). They explain:

Showing AmRest’s state of mind—craven for profit, indifferent to public endangerment—is a permissible purpose for the jury to consider this evidence, and is not unfair prejudice. The evidence of prior incidences and liquor law violations is not offered to show that AmRest continued to act in conformity with its actions on March 5, 2010. Rather, the evidence of the subsequent violations is highly probative for all the permissible reasons listed above including routine practice and state of mind and should be admitted.

Prior Conduct Response at 17 (citations omitted).

AmRest, LLC did not file a reply.

3. Subsequent Liquor Law Violations Motion.

AmRest, LLC moves the Court “to exclude evidence of any liquor law violations at any AmRest location occurring after March 5, 2010, the date of the accident.” Motion at 1. After reviewing the case’s facts, see Subsequent Liquor Law Violations Motion at 1-2, AmRest, LLC asserts that the number of beers that Ruiz and Mendoza consumed at the Applebee’s Grill is disputed, and that, after Ruiz and Mendoza left, they went to Blue Corn, where they consumed at least six additional drinks each. See Subsequent Liquor Law Violations Motion at 2. “It was after Ruiz and Mendoza left Blue Corn Café and Brewery that they caused the accident. AmRest was never issued a citation for its service of Ruiz and Mendoza earlier that day.” Subsequent Liquor Law Violations Motion at 2.

AmRest, LLC asserts that it was the franchisee of, among other Applebee’s Neighborhood Grill restaurants, locations

in Meridian Idaho; Roswell, New Mexico; Boulder, Colorado; Rio Rancho, New Mexico; Boise, Idaho; Lakewood, Colorado; and Greeley, Colorado. All seven of these locations were found to have committed violations of liquor laws after March 5, 2010. Six violations were for serving alcohol to a minor, and one violation was for failing to have copies of alcohol server cards on file or having expired cards on file. Despite thé fact that these violations have nothing to do with the issues in this case, AmRest is concerned that Plaintiffs intend to offer evidence of them at any trial of this matter. Such evidence is irrelevant, prejudicial, and inadmissible character evidence, and this Court should prohibit Plaintiffs from making any reference to it at trial.

Subsequent Liquor Law Violations Motion at 2-3 (citations omitted). It first argues that the evidence is irrelevant under rule 401: that is, “[a]ny subsequent liquor law violations at the Santa Fe Applebee’s or at any other AmRest location could not have caused Plaintiffs’ injuries, and evidence of such violations has no tendency to make any material fact more or less probable.” Subsequent Liquor Law Violations Motion at 3. AmRest, LLC contends that the Plaintiffs do not allege that “AmRest served alcohol to a minor, failed to have copies of server cards on file, or had expired cards on file,” and any evidence of those violations does not satisfy rule 401. Subsequent Liquor Law Violations Motion at 3. “Accordingly,” in its view, “evidence of any subsequent liquor violations at the Santa Fe AmRest location, much less any other AmRest location, is not relevant and should not be admitted for any purpose at trial.” Subsequent Liquor Law Violations Motion at 3.

AmRest, LLC also asserts that the Court should exclude the evidence under rule 403, because the evidence “would tend to mislead the jury into concluding that the restaurant AmRest operated in Santa Fe received, or should have received, a citation or violation for its service of Ruiz and Mendoza earlier in the day on March 5, 2010.” Subsequent Liquor Law Violations Motion at 5. It points out that it did not receive such a citation and that “all of the violations that were issued after March 5, 2010 were issued at other AmRest locations.” Subsequent Liquor Law Violations Motion at 5 (emphasis in original). Moreover, it argues that this evidence would confuse the issues and unduly prejudice AmRest, LLC, “because the company would be forced to defend against those claims at the trial of this matter,” which “would essentially create a trial within a trial by presenting the jury with violations having nothing to do with Plaintiffs’ claims.” Subsequent Liquor Law Violations Motion at 5. In AmRest, LLC’s view, “[a]ny one of these dangers, and certainly all of them combined, far outweigh any negligible probative value of evidence regarding subsequent violations at other AmRest locations.” Subsequent Liquor Law Violations Motion at 5.

In the Plaintiffs’ Response to AmRest, LLC’s Motion in Limine to Exclude Evidence of Subsequent Liquor Law Violations at Any AmRest Locations, filed March 17, 2014 (Doc. 226)(“Subsequent Liquor Law Violations Response”), the Plaintiffs contend that

[l]iquor law violations at the AmRest-operated Applebee’s that were committed after March 5, 2010—the date of the event that is the basis of this lawsuit— are relevant in this lawsuit for several reasons. The violations, along with other evidence, show the motive, intent, preparation, plan, knowledge, absence of mistake—i.e., the state of mind—as well as the routine practices of Defendant AmRest on the subject of responsible service of alcohol. These issues and the inferences that the jury draws from them will.be critical to many questions that must be determined by the jury including AmRest’s overall liability, whether AmRest acted with the requisite willfulness and recklessness to assess punitive damages, and the amount of damages under the Wrongful Death Act.

Subsequent Liquor Law Violations Response at 1. The Plaintiffs lay out more specifically the information they want to admit: a list of liquor law violations in AmRest, LLC’s Applebee’s Neighborhood Grill restaurants from mid-2008 until the end of 2010, which AmRest, LLC provided in response to a document request that the Plaintiffs made before the deposition of AmRest, LLC’s rule 30(b)(6) corporate representative, Muldoon. See Subsequent Liquor Law Violations Response at 2. They continue:

This list of violations shows a total of 14 liquor law violations occurring at Am-Rest-operated Applebee’s restaurants from July 31, 2008 through October 29, 2010. [See Liquor Violations, no date provided, filed February 26, 2014 (Doc. 144-1)]. AmRest bought and assumed operations of 103 Applebee’s restaurants in July 2008. Deposition of Michael Muldoon (Feb. 21, 2014) at 104:17-18, 115:12-13, attached as Exhibit B [ (Doc. 226-2) ]. AmRest’s 103 Applebee’s restaurants were located in eight states, Deposition of Michael Muldoon (Feb. 21, 2014) at 104:18, attached as Exhibit B. AmRest sold all but a few of its Apple-bee’s restaurants on October 10, 2012. See Deposition of Jake Gandhi at 6:7-11, attached as Exhibit C [Doc. 226-4],

Subsequent Liquor Law Violations Response at 2. The Plaintiffs notes that, during 2008, when AmRest, LLC took over the restaurant, there was only one violation, and that the number increased to four in 2009 and nine in 2010, the year of the accident underlying this case. See Subsequent Liquor Law Violations Response at 2. The Plaintiffs note that five of the fourteen listed violations occurred within New Mexico, and “that the only two violations involving the sale of liquor to an intoxicated person both occurred in New Mexico.” Subsequent Liquor Law Violations Response at 2-3. Muldoon testified that he did not know about the facts of the individual liquor law violations; “that he and other members of management did not give any thought to why the number of liquor law violations doubled from 2009 to 2010”; “that management did not give any consideration to the fact that a disproportionately high number of the violations were in New Mexico”; and “that AmRest run Applebee’s operating in New Mexico had a higher percentage of bar sales compared to AmRest run Applebee’s generally.” Subsequent Liquor Law Violations Response at 3.

The Plaintiffs also point out that Am-Rest, LLC created a “Late Night” program to increase alcohol sales by “doubling] the happy hours at AmRest-operated Applebee’s restaurants from 3 to 6 hours everyday ... that was intended to ‘put the “bar” back into Applebee’s Neighborhood Grill & Bar.’ ” Subsequent Liquor Law Violations Response at 3 (quoting Late Night Rollout Guide). The Plaintiffs note that the Late Night campaign increased AmRest, LLC’s bar sales in 2010—particularly in New Mexico, “where bar sales percentages at AmRest-operated Applebee’s were already higher than the AmRest national average.” Subsequent Liquor Law Violations Response at 3-4. The Plaintiffs also note that AmRest, LLC sold liquor to an intoxicated person, thereby violating relevant liquor regulations, “on March 6, 2010, one day after the event that is the basis of this lawsuit, at an Applebee’s in Farmington, New Mexico.” Subsequent Liquor Law Violations Response at 4. The Plaintiffs state that area coach Gandhi and district coach Pass-more—who oversaw the Santa Fe Apple-bee’s Neighborhood Grill—also oversaw the Farmington restaurant. See Subsequent Liquor Law Violations Response at 4. The Plaintiffs note that AmRest, LLC does not mention that event, or that another “liquor law citation [was] issued to Am-Rest, LLC arising out of sales to an intoxicated person by Santa Fe, [sic] Applebee’s bartender Brooke Mitchell,” which occurred shortly after “Mitchell signed the AmRest Meal and Alcohol Policy (a policy Plaintiffs’ [sic] will show was counter productive to responsible service of alcohol training, and that was in use March 5, 2010).” Subsequent Liquor Law Violations Response at 4.

The Plaintiffs note that subsequent violations “are relevant because the existence of those continuing violations make the fact of AmRest’s liability for Plaintiffs’ injury more probable than it would be without the evidence of the subsequent violations.” Subsequent Liquor Law Violations Response at 4. The Plaintiffs argue:

The evidence of subsequent violations, and particularly Michael Muldoon and other upper management’s lack of consideration of those violations, shows that is [sic] was AmRest’s routine practice to not concern itself with its repeated liquor law violations. The subsequent violations show that AmRest deliberately turned a blind eye to the fact that it was not safely serving alcohol and that the over-service on March 5, 2010 was not simply an accident and mistake. The violations show that AmRest was primarily motived to increase its alcohol sales and not to safely serve its customers. The subsequent liquor law violations will provide the jury with the basis for making these inferences and that will lead the jury to decide that AmRest is liable. In addition, the evidence regarding Am-Rest’s subsequent liquor law violations will help the jury determine AmRest’s state of mind as it relates to punitive damages—i.e. whether it possessed the requisite wantonness, willfulness, and recklessness that necessitates that it pay punitive damages, and guides the jury in determining the appropriate amount of punitive damages to be paid. Finally, the evidence regarding the violations will help the jury decide appropriate damages under the Wrongful Death Act because AmRest’s callous lack of concern regarding safe service of alcohol is certainly an aggravating circumstance in this case.

Subsequent Liquor Law Violations Response at 5-6.

With respect to the “routine practice” argument, the Plaintiffs contend that the “subsequent liquor law violations show that it was this defendant’s routine practice to hype alcohol sales figures and turn a blind eye to its problems regarding the safe service of alcohol,” and “show that Amrest’s [sic] and its employees’ conduct on Ma[r]eh 5, 2010 was in conformity with its routine practices both before the events in this case and subsequent to them.” Subsequent Liquor Law Violations Response at 6 (citing Fed.R.Evid. 406). The ■Plaintiffs assert that it was AmRest, LLC’s routine practice to serve alcohol without management oversight, and that it “made a habit of celebrating increases in liquor sales and praising the managers of every restaurant that achieved certain sales levels.” Subsequent Liquor Law Violations Response at 6. The Plaintiffs contend that AmRest, LLC “also made a habit of consistently diminishing the importance of safe service of alcohol through its lack of training, lack of management oversight, and even disciplining employees that attempted to safely serve alcohol at the expense of AmRest’s bottom line.” Subsequent Liquor Law Violations Response at 6. Accordingly, they argue that “[ejvidence that these habits and routine practices continued after the events in this case will help the jury infer that AmRest acted in accordance with its routine on March 5, 2010 and that inference will assist the jury in ultimately deciding AmRest’s liability.” Subsequent Liquor Law .Violations Response at 6-7.

The Plaintiffs also contend that the evidence is admissible under rule 404(b)(2). See Subsequent Liquor Law Violations Response at 7. The Plaintiffs argue that the violations demonstrate that AmRest, LLC knew “of substantial problems within the organization regarding safe service of alcohol to customers.” Subsequent Liquor Law Violations Response at 7. The Plaintiffs