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Cooley v. Marshal.

United States District Court, D. Nevada

October 23, 2014

J. MARSHAL., et al., Defendants.


MIRANDA M. DU, District Judge.


Before the Court are Defendants Karen Coyne, Kathryn O'Hara, Jonathan McCormick, S. Meads, and C. Polinenker's ("City Defendants") two motions in limine. (Dkt. nos. 162, 163.) Motion in limine no. 1 (dkt. no. 162) seeks to exclude evidence relating to settlement negotiations. Motion in limine no. 2 (dkt. no. 163) seeks to exclude evidence of damages for Plaintiff's failure to comply with Fed.R.Civ.P. 26. Plaintiff did not respond to motion in limine no. 1. He opposes motion in limine no. 2. (Dkt. no. 164.) City Defendants filed a reply (dkt. no. 167) without leave of court.[1]


A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area. United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). It is a preliminary motion that is entirely within the discretion of the Court. See Luce v. United States, 469 U.S. 38, 41-42 (1984). To exclude evidence on a motion in limine, "the evidence must be inadmissible on all potential grounds." See, e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). This is because although rulings on motions in limine may save "time, costs, effort and preparation, a court is 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, 1219 (D. Kan. 2007).

In limine rulings are provisional. Such "rulings are not binding on the trial judge [who] may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if the evidence unfolds in an unanticipated manner). "Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded." Ind. Ins. Co., 326 F.Supp.2d at 846.


City Defendants seek to exclude evidence relating to the parties' settlement discussions under Fed.R.Evid. 408. Plaintiff has not opposed City Defendants' request. Failure to file points and authorities in opposition to a motion constitutes consent that the motion be granted. L.R. 7-2(d); see also Abbott v. United Venture Capital, Inc., 718 F.Supp. 828, 831 (D. Nev. 1989). Moreover, the Court agrees with City Defendants that evidence pertaining to settlement negotiations is inadmissible. City Defendants' Motion in Limine No. 1 is granted.


A. Background

The facts underlying this action are summarized in the Court's July 28, 2011, Order. ( See dkt. no. 69.) Because City Defendants seek exclusion of evidence of damages as sanctions for discovery violations, the Court will briefly summarize the procedural background relevant to discovery in this case.

Plaintiff initiated this action on March 25, 2009. (Dkt. no. 1.) Plaintiff was granted leave to amend to assert claims against City Defendants on September 27, 2010, who responded to the Amended Complaint on February 9, 2011. (Dkt. nos. 22, 33.) City Defendants contend that after they appeared in the case, they made numerous requests for a copy of Plaintiff's Initial Disclosures, which Plaintiff failed to provide. (Dkt. no. 163 at 3.) City Defendants then attempted to obtain damages information from Plaintiff by way of written discovery requests. ( Id. ) Plaintiff responded but City Defendants claim his response failed to provide them with information on his computation of damages. ( Id. ) Plaintiff does not appear to dispute that he did not provide Initial Disclosures to City Defendants.

B. Discussion

City Defendants argue that the Court should exclude any evidence or testimony relating to Plaintiff's alleged damages and to limit his recovery to nominal damages in the amount of one dollar ($1.00) as sanctions pursuant to Fed.R.Civ.P. 37(c)(1) for Plaintiff's failure to comply with his Rule 26(a) disclosures. They contend that they are harmed because they are unaware of Plaintiff's alleged damages and his discovery response failed to provide meaningful information, including any itemization or calculation of his damages. Plaintiff counters that his failure to provide damage computation is justified and harmless because City Defendants are aware of his damages through the parties' settlement discussions and Plaintiff does not intend to call an expert ...

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