United States District Court, D. Nevada
before the court are six motions in limine filed by plaintiff
TDN Money Systems, Inc. (TDN). (ECF Nos. 88-93). Defendant
Everi Payments, Inc., f/k/a Global Cash Access,
Inc. (Everi) responded. (ECF Nos. 106-11).
before the court are five motions in limine filed by Everi.
(ECF Nos. 94-98). TDN responded. (ECF Nos. 101-05).
a breach-of-contract dispute arising from a dealer-resale
agreement. (ECF No. 17). TDN sells ticket-redemption kiosks
on behalf of manufacturers and retailers. (ECF No. 17). Everi
is a manufacturer of these kiosks. (ECF No. 17).
a business relationship with Western Money Systems (WMS), a
former Nevada business that manufactured and sold
ticket-redemption kiosks. (ECF No. 17 at 3). On August 4,
2009, prior to this litigation, Everi acquired WMS. (ECF No.
17 at 3).
entered into a deal with TDN on January 1, 2006. (ECF No.
20). The deal appointed TDN as an authorized non-exclusive
reseller of WMS products. (ECF No. 20). TDN's duties
under the agreement were to make direct sales to end-users in
its respective territory. (ECF No. 20). The agreement also
allowed for WMS to retain its ability to sell directly to
end-users. (ECF No. 20). However, sales made by WMS to
end-users in TDN's territory entitle TDN to a commission
provided that TDN provided the end-user with certain
follow-up services. (ECF No. 20). The commission would be
“equal to the difference between the net sale amount
and the reseller price.” (ECF No. 20).
April 21, 2010, Everi and TDN entered into a new contract,
containing the same terms as the previous contract. (ECF No.
17). On March 12, 2014, Everi sent a letter to TDN informing
TDN of its intent not to renew the agreement for a subsequent
term. (ECF No. 37 at 5). In response, on March 18, 2014, TDN
sent a letter to Everi informing Everi of its intent to renew
the agreement for another year. (ECF No. 37 at 5). The terms
of the contract allowed for automatic renewal at the
discretion of one party. (ECF No. 17). The contract stated
that “if either party delivers notice of its desire to
renew the Agreement to the other party no less than 30 days
prior to the expiration of the current Term, the Agreement
shall be automatically renewed for an additional year.”
(ECF No. 17).
November 19, 2015, TDN filed the original complaint. (ECF No.
1). Later, on January 21, 2016, TDN filed an amended
complaint alleging four causes of action: (1) intentional
interference with contractual relations; (2) intentional
interference with prospective economic advantage; (3) breach
of contract; (4) breach of covenant of good faith and fair
dealing; and (5) special damages. (ECF No. 17).
August 3, 2016, the court dismissed without prejudice
TDN's claims for (1) intentional interference with
contractual relations and (2) intentional interference with
prospective economic advantage. (ECF No. 53).
moved for partial summary judgment, seeking a holding that
§ 16 of the parties' agreement allows one party to
renew the agreement for an additional term over the other
party's objection. (ECF No. 33). On January 3, 2017, the
court granted TDN's motion, holding the following:
[T]he contract clearly states that if either party gives
notice of its desire to renew the agreement 30 days prior to
the expiration of the current term, the agreement will
automatically renew for an additional term. . . . Therefore,
the plain language of the contract states that the agreement
is effectively perpetual.
(ECF No. 70 at 6) (citing ECF No. 53 at 4).
argued in opposition to summary judgment that in any event,
TDN waived its right to unilaterally renew the agreement,
arguing that “TDN's failure to send written notice
in any year before 2014 means it forever lost any purported
right . . . to ‘unilaterally renew' the 2010
[a]greement over [Everi]'s termination.” (ECF No.
37 at 12). This court disagreed, holding that defendant
failed to point to any term in the agreement or any evidence
in support of its contention that failure to provide notice
of intent to renew terminates the parties' ability to
unilaterally renew the agreement under § 16. (ECF No. 70
at 6). The court held that “§ 16 of the agreement
allows one party to renew the agreement, ” and granted
partial summary judgment for TDN. Id. at 6-7.
the parties have filed several motions in limine to exclude
court must decide any preliminary question about whether . .
. evidence is admissible.” Fed.R.Evid. 104. Motions
in limine are procedural mechanisms by which the
court can make evidentiary rulings in advance of trial, often
to preclude the use of unfairly prejudicial evidence.
United States v. Heller, 551 F.3d 1108, 1111-12 (9th
Cir. 2009); Brodit v. Cambra, 350 F.3d 985, 1004-05
(9th Cir. 2003).
the Federal Rules of Evidence do not explicitly authorize
in limine rulings, the practice has developed
pursuant to the district court's inherent authority to
manage the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n.4 (1980). Motions in
limine may be used to exclude or admit evidence in
advance of trial. See Fed. R. Evid. 103; United
States v. Williams, 939 F.2d 721, 723 (9th Cir. 1991)
(affirming district court's ruling in limine
that prosecution could admit impeachment evidence under
Federal Rule of Evidence 609).
have broad discretion when ruling on motions in
limine. See Jenkins v. Chrysler Motors Corp.,
316 F.3d 663, 664 (7th Cir. 2002); see also Trevino v.
Gates, 99 F.3d 911, 922 (9th Cir. 1999) (“The
district court has considerable latitude in performing a Rule
403 balancing test and we will uphold its decision absent
clear abuse of discretion.”). “[I]n limine
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
of a motion in limine does not necessarily mean that
all evidence contemplated by the motion will be admitted at
trial. Denial merely means that without the context of trial,
the court is unable to determine whether the evidence in
question should be excluded.” Conboy v. Wynn Las
Vegas, LLC, No. 2:11-cv-1649-JCM-CWH, 2013 WL 1701069,
at *1 (D. Nev. Apr. 18, 2013).
TDN's motion in limine 1
motion in limine 1 seeks to preclude evidence contradicting
the court's summary judgment order on the meaning of
§ 16 of the parties' agreement. (ECF No. 88). Everi
responded. (ECF No. 106). TDN replied. (ECF No. 113). This
motion is granted in part to the following extent: evidence
offered for the purpose of contradicting a prior holding of
this court-i.e. for the purpose of showing that this
court's ruling on partial summary judgment was wrong-is
not admissible because it is not relevant to the issues that
remain outstanding for trial. Fed.R.Evid. 402. Further, such
evidence is not probative and risks misleading the jury and
confusing the issues. Fed.R.Evid. 403. Specifically, this
means that Everi is not permitted to offer parol evidence for
the purpose of showing that Everi's interpretation of
§ 16 of the contract is correct (see, e.g., ECF
No. 106 at 2 ln. 20-23) and this court's order on summary
judgment is incorrect. The issue of the meaning of this
provision of the contract has been conclusively decided by
this court and is not an open question for trial.
this court will not preclude evidence offered for another,
legitimate purpose just because it may have a tendency to
contradict the court's prior ruling-such an order would
be too broad and unnecessary. This court will remedy any
potential prejudice from the admission of such evidence
through jury instructions.
neither party's counsel is permitted to argue to the jury
that § 16 of the contract means something other than
what this court's order on partial summary judgment
determined. (See ECF No. 70). Everi had the
opportunity to dispute this interpretation of the contract
during the motion for summary judgment proceedings, and
failed to make a convincing case at that time. Therefore, the
court foreclosed the issue from trial. Therefore, this motion
is granted, in part, in accordance with the foregoing.
TDN's motion in limine 2
motion in limine 2 seeks to preclude evidence that TDN did
not send renewal notices in 2011, 2012, and 2013. (ECF No.
89). Everi responded. (ECF No. 107). This court has already
ruled that Everi's argument for summary judgment-that TDN
waived its right to renew the contract by failing to send a
letter of removal in prior years-is unpersuasive and
unsupported. (ECF No. 70 at 6). Everi has not pointed this
court to any provision of the contract or any evidence that
shows that the failure to provide notice of intent to renew
one year would terminate the contract and a party's
rights under § 16 in a later year. Id.
said, this is not the question for trial: the question of
whether TDN's purported 2014 renewal of the contract
under § 16 was effectual depends on whether § 16
was still in effect at the time TDN attempted to execute it.
There are many ways parties might renew a contract, and here,
exercising § 16 of the contract is one of them. Whether
the parties had somehow agreed, explicitly or implicitly, to
continue operating under the contract through March of 2014
determines whether TDN had the right under § 16 to
unilaterally extend the contract for an additional year
evidence of whether the contract was still in effect at the
time that TDN purported to unilaterally renew it will be
admissible. This includes the evidence that TDN did not send
renewal letters under § 16 in 2011, 2012, and 2013
because-though not dispositive alone, as there might be other
ways that the parties agreed to renew the contract-this fact
would tend to eliminate one possible basis for claiming that
it was still in effect. Thus, at this stage in the
proceedings, this evidence appears relevant to a material
issue. Fed.R.Evid. 401. TDN's motion in limine 2 is
denied. . . . . . . . . .
TDN's motion in limine 3
motion in limine 3 seeks to preclude parol evidence that the
contract allowed Everi to compete with TDN. (ECF No. 90).
Everi responded. (ECF No. 108). TDN replied. (ECF No. 113).
nutshell, TDN argues that Everi's witnesses cannot
testify regarding the meaning of the contract because they
were not witnesses to the writing and formation of the
original written agreement. This is not a valid basis, in
itself, to deem their testimony inadmissible.
even if these witnesses did not observe or participate in the
formation of the original written contract, they may have
been present and have first-hand knowledge of the intent of
the parties at the time of one of the several renewals of the
contract. If any of the renewals of the contract occurred as
the result of a mutual agreement between the parties (as
opposed to a unilateral renewal under § 16), then the
mutual understanding of the parties at the time of the
renewal would govern the meaning of the new, updated
under the circumstances in which a court may consider parol
evidence, evidence by witnesses present at the time of
contract formation is not the only form of parol evidence a
court may consider: “[B]oth integrated and unintegrated
agreements are to be read in the light of the circumstances
and may be explained or supplemented by operative usages of
trade, by the course of dealing between the parties, and by
the course of performance of the agreement.”
Restatement (Second) of Contracts § 209 cmt. a. (1981).
TDN has not argued that the court cannot consider parol
evidence here; indeed, TDN seeks to present parol evidence of
the intent of the parties. (See ECF No. 108 at 1).
To the extent that Everi's witnesses will testify to a
valid form of parol evidence, such as the course of dealings
of the parties after entering the contract, the evidence is
relevant and thus admissible. Accordingly, TDN's motion
in limine 3 is denied.
TDN's motion in limine 4
motion in limine 4 seeks to preclude defendant's rebuttal
expert from offering an alternative calculation of damages
because the expert's initial report does not provide any
such alternative calculation. (ECF No. 91). Everi responded.
(ECF No. 109).
argues that Everi's rebuttal expert intends to testify to
a specific alternative damages calculation (one substantially
less than TDN's damages calculation) that did not appear
in the rebuttal expert's original report, but only in a
later supplemental report. The original rebuttal report
contained only critiques of TDN's expert report. Everi
counters that the supplemental calculation of damages
provided by its rebuttal expert was necessitated by
late-filed supplemental reports by TDN's expert. Everi
asks the court to refrain from entering any pretrial order
that limits the scope of its rebuttal expert's testimony.
seeking to introduce expert testimony at trial must disclose
to the opposing party a written report that includes “a
complete statement of all opinions the witness will express
and the basis and reasons for them.” Fed.R.Civ.P.
26(a)(2)(B). Failure to comply with that rule may preclude
the party from, “us[ing] that witness or relevant
expert information to supply evidence on a motion, at a
hearing, or at trial, unless the failure was substantially
justified or is ...