WHIDDEN v. ROBERTS III (2020)

ORDER

Plaintiff has filed a “Motion in Limine to Accept Evidence.” For the reasons set forth below, this motion must be denied.

I. Background

In plaintiff's motion in limine, he asks this court to “accept” the evidence that he included on a USB drive that he filed in conjunction with his motion in limine. The USB drive contains 2.41 gigabytes of documents and recordings. Specifically, it contains eight folders that Plaintiff labeled “CD1” through and including “CD8.” Each folder, in turn, contains items such as voicemail recordings, deposition transcripts, and documents from Plaintiff's state court case. The USB drive also contains two documents: “Presentation of Evidence #1 Recordings and FOIA,” and “Plaintiff's Supplemental Statement of Compliance with Rule 26(A, F).” ¹

II. Discussion

Courts use the term “motion in limine” to refer to a motion to exclude or admit anticipated “evidence before the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 n.2, 105 S. Ct. 460, 462 n.2, 83 L.Ed.2d 443 (1984). A motion in limine affords a trial court an opportunity “to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quotation and citation omitted); see Brodit v. Cambra, 350 F.3d 985, 1004-05 (9th Cir. 2003) (noting that motions in limine “allow parties to resolve evidentiary disputes ahead of trial, without first having to present potentially prejudicial evidence in front of a jury”). “Motions in limine are designed to avoid the delay and occasional prejudice caused by objections and offers of proof at trial ․” Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999) (en banc). Motions in limine may be filed to address potential evidentiary objections such as hearsay, privileges, authentication, and the best evidence rule. Although such motions often can be helpful to litigants and judges, courts asked to address motions in limine sometimes are “handicapped in any effort to rule on subtle evidentiary questions outside a factual context.” Luce, 469 U.S. at 41, 105 S. Ct. at 463. This is particularly true in cases involving multiple claims, some of which might not survive a motion to dismiss or a motion for summary judgment.

Plaintiff's motion in limine is deficient in several respects. First, Plaintiff's motion is premature. This case is not currently scheduled for a trial in the near future. A party generally should file a motion in limine only when a trial is imminent. See Betts v. City of Chicago, 784 F. Supp. 2d 1020, 1023 (N.D. Ill. 2011) (noting that evidentiary rulings usually should be deferred until closer to trial “so that questions of foundation, relevancy and potential prejudice may be resolved in proper context”); Jones v. Harris, 665 F. Supp. 2d 384, 404 (S.D.N.Y. 2009) (denying a motion in limine without prejudice as premature because in limine “motions deal with evidentiary matters and are not to be filed until” trial is imminent); see also United States v. Goodale, 831 F. Supp. 2d 804, 808 (D. Vt. 2011) (noting that courts sometimes reserve judgment on motions in limine “until trial to ensure the motion is considered in the proper factual context”).

Trial is not imminent in this case. Indeed, the court has not even set the trial date, the discovery process is still ongoing, and each Defendant has moved to dismiss three of Plaintiff's claims. As it stands now, the court lacks sufficient familiarity with the case to determine whether the materials submitted by Plaintiff are even relevant to his claims and any possible defenses. The court also does not know what objections, if any, opposing counsel might make. It would be a substantial waste of judicial resources for the court to address the admissibility of 2.41 gigabytes of data unnecessarily. Hawthorne Partners v. AT & T Techs., Inc., 831 F. Supp. 1398, 1400-01 (N.D. Ill. 1993) (noting that “evidentiary rulings should be deferred” until “questions of foundation, relevancy and potential prejudice may be resolved in proper context”).

Courts are “almost always better situated during the actual trial to assess the value and utility of evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007). When confronted with a broad motion in limine, therefore, the “better practice is to deal with questions of admissibility of evidence as they arise” during the trial. Sperberg v. The Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975); see United States v. Marino, 200 F.3d 6, 11 (1st Cir. 1999) (recognizing that proffered evidence can be more accurately assessed in the context of other evidence). Plaintiff's motion in limine, therefore, is substantially premature. See Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F. Supp. 2d 1093, 1094 (C.D. Cal. 2012) (noting that motions in limine are improper when filed to “resolve issues prematurely”). Plaintiff should not file another motion in limine at least until all dispositive motions have been adjudicated by this court.

Second, prior to filing a motion in limine, the parties must confer and discuss whether opposing counsel objects to the admission of a particular exhibit. Local Rule 7.1(B) requires a meaningful conference with the adverse party in which the parties “attempt in good faith to resolve the issue ․” See N. D. Fla. Loc. R. 7.1(B). If opposing counsel does not object to a particular exhibit, the parties may stipulate to the admissibility of particular exhibits, obviating the need for the court to make an evidentiary ruling and thereby preserve judicial resources. Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999) (noting that parties may stipulate to the admissibility of evidence). Insofar as it is unlikely that opposing counsel will object to all of Plaintiff's exhibits, Plaintiff's motion in limine also likely is moot in many respects. On the other hand, if opposing counsel opposes the admission of a particular exhibit on a particular ground, the party can so inform the court, and the court can focus its analysis on the discrete issues posed by a particular exhibit and any objection to its admission.

Third, in light of the volume of material and to ensure that the parties and the court can discuss particular exhibits intelligently, Plaintiff should have marked each discrete item with an exhibit sticker prior to moving for an in limine ruling. Without such markings, it would be difficult for the court and the parties to have an intelligent discussion about these items. The parties and the court must be able to ensure that all parties are talking about the same item, and the best way to ensure that is to mark proposed exhibits with an exhibit sticker and an exhibit number. Plaintiff has not done so in this case.

Fourth, Plaintiff's request that this court “accept” his evidence indicates that Plaintiff does not fully comprehend the purpose and inherent limitations of a motion in limine. A motion in limine is not a substitute for a trial. A motion in limine also “is not the proper vehicle for seeking a dispositive ruling on a claim.” Hana Fin., Inc. v. Hana Bank, 735 F.3d 1158, 1162 n.4 (9th Cir. 2013). Similarly, a motion in limine cannot “be used to resolve factual disputes or weigh evidence.” C & E Servs., Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D. D.C. 2008); Bowers v. Nat'l Collegiate Athletic Ass'n, 563 F. Supp. 2d 508, 532 (D. N.J. 2008) (noting that motions in limine should be used to “address evidentiary questions and are inappropriate devices for resolving substantive issues, such as the sufficiency of the evidence to support a claim or defense”).

Motions in limine cannot be used to elicit a ruling that certain facts or statements in exhibits are “accepted” or “established” for purposes of establishing elements of a claim or defense. See TVT Records v. Island Def Jam Music Group, 250 F. Supp. 2d 341, 344-45 (S.D.N.Y. 2003) (“[I]n the guise of addressing limited evidentiary issues, the parties' motions in limine would effectively serve as a form of advance trial of substantive portions of the case, or indeed as a substitute for the trial itself.”). Only the trier of fact may make such a determination in its deliberations, and only after having had an opportunity during a trial to consider all of the evidence elicited by all parties. See Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L.Ed.2d 105 (2000); Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (noting that a “verdict must be based upon the evidence developed at the trial”) (internal quotation marks omitted); James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 150 (1893) (“The court must not, even negatively, undertake to pass upon the facts in jury cases.”).

To the extent Plaintiff seeks to narrow factual and legal issues for trial, this must be done through a motion for summary judgment. A motion in limine is not a permissible substitute for a motion for summary judgment. See Provident Life & Accident Ins. Co. v. Adie, 176 F.R.D. 246, 250 (D. Mich. 1997) (noting that a motion in limine cannot be used as substitute for a motion for summary judgment); 21 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5037.18 (2019) (stating that motions in limine cannot be used “as a substitute for a motion for summary judgment or other peremptory ruling in civil cases”).

Fifth, Plaintiff's motion does not address or discuss the myriad evidentiary issues presented by each piece of evidence that he proffers. For example, Plaintiff has not discussed, much less demonstrated, that:

a. each piece of evidence is relevant to this action;

b. each piece of evidence can be authenticated;

c. the danger of causing unfair prejudice, confusion of the issues, undue delay, or needlessly presenting cumulative evidence does not substantially outweigh the probative value of each piece of evidence; and

d. all of the evidence that appears to be hearsay is not hearsay, is non-hearsay, or is admissible under an exception to the rule excluding hearsay evidence.

Because Plaintiff has not addressed these subjects, to adjudicate Plaintiff's motion in limine the court would be required to speculate about these and other issues regarding the large volume of materials submitted by Plaintiff. A court should not resort to speculation to decide important evidentiary issues.

Plaintiff's failure to address these issues violates Rule 7 of the Federal Rules of Civil Procedure. Rule 7(b)(1) requires that motions “state with particularity the grounds for seeking” the requested relief. Fed. R. Civ. P. 7(b)(1). “ ‘By requiring notice to the court and the opposing party of the basis for the motion, rule 7(b)(1) advances the policies of reducing prejudice to either party and assuring that “the court can comprehend the basis of the motion and deal with it fairly.’ ” Calderon v. Kansas Dept. of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1192 (2d ed. 1990)). As stated by the Federal Circuit: “The purpose of the particularity requirement in Rule 7 is to afford notice of the grounds and prayer of the motion to both the court and to the opposing party, providing that party with a meaningful opportunity to respond and the court with enough information to process the motion correctly.” Registration Control Sys., Inc. v. Compusystems, Inc., 922 F.2d 805, 807 (Fed. Cir. 1990).

Finally, Plaintiff should note that “in limine rulings are not binding on the trial judge, and the judge may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n.3, 120 S. Ct. 1851, 1854 n.3, 146 L.Ed.2d 826 (2000); United States v. Nivica, 887 F.2d 1110, 1116 (1st Cir. 1989) (noting that “a trial court, exercising sound judicial discretion, may always alter such rulings as the case unfolds”). An in limine rule “is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the proffer.” Luce, 469 U.S. at 41, 105 S. Ct. at 463.

Even “if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Id.; see Fed. R. Evid. 103, Advisory Committee's Note to 2000 Amendment (“Even where the court's ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered.”); see also United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (“a ruling on a motion in limine is essentially a preliminary opinion that falls entirely within the discretion of the district court”); see also Wilkins, 487 F. Supp. 2d at 1219 (“A trial court may alter its limine ruling based on developments at trial or on its own sound judicial discretion.”). Indeed, certain in limine rulings, like those involving Rule 403, “are necessarily preliminary because the required balancing may be reassessed as the evidence actually comes in.” United States v. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996) (citation omitted). Thus, to the extent Plaintiff requests a definite and irrevocable ruling in limine on a broad spectrum of evidence prior to trial, he seeks the impossible.

III. Conclusion

For the reasons set forth above, Plaintiff's “Motion in Limine to Accept Evidence,” (Doc. 61), is DENIED without prejudice. The clerk of the court shall return to Plaintiff the USB drive he filed in conjunction with his motion in limine.

SO ORDERED this 28th day of January, 2020.

FOOTNOTES

1.   On December 27, 2019, Plaintiff attempted to file these documents with this court. On December 31, 2019, the clerk of the court returned both documents to Plaintiff accompanied by a deficiency letter directing Plaintiff to Rule 5(d) of the Federal Rules of Civil Procedure. Plaintiff still has not complied with Rule 5(d), and this court will not consider these documents.

Michael J. Frank, United States Magistrate Judge