Confining Motions In Limine To Evidence Issues

The Sixth Circuit notes a circuit consensus and trend against permitting motions in limine to be converted into summary judgment motions; a motion in limine should focus on narrowing evidentiary issues for trial or precluding unnecessary trial interruptions and not resolving a legal matter which is cast as an evidentiary issue, in Louzon v. Ford Motor Co., _ F.3d _ (6th Cir. June 4, 2013) (No. 11-2356)

Generally appellate review of a trial judge's evidentiary decision accords the trial court considerable discretion under the abuse of discretion standard of review. Some circuits have noted the danger that through use of the motion in limine procedure, a party can resolve a dispositive legal issue by casting the legal issue as an evidentiary one. The Sixth Circuit recently discussed this strategy, as well as a growing concensus among that courts that have recognized the problem.

In the case, plaintiff Louzon sued his employer Ford for age and national origin discrimination in a dispute over a supervisor's handling of the plaintiff's request for a leave of absence so that he could visit his mother in Gaza. The plaintiff thought he had received approval, but found his return to Ford at the end of the leave hindered -- as a "dual national" he was unable to return to the United States due to a "worsening security situation" in Gaza. While seeking assistance from the American Embassy, the plaintiff informed Ford of the reason he had not returned. Yet, "[t]wo days prior to the end of Louzon's approved extended leave," Ford sent him letters (which the plaintiff never received), informing him that his "continued absence from work was unauthorized" and that it would be treated as a "voluntary quit" from employment with Ford. Upon getting evacuated back to the U.S. and "having not yet received" the termination notifications the plaintiff "was informed that he had been terminated." He sued Ford for age and national-origin discrimination and retaliation.

After discovery in the case, Ford moved for summary judgment, which the district court denied. Then, upon the case being transferred to a different judge:

Ford filed a motion in limine to exclude all evidence relating to the seven Ford employees that Louzon sought to proffer as comparators [to show disparate treatment]. The district court granted Ford's motion and entered an order to show cause why summary judgment should not be granted in light of the in-limine ruling. Louzon conceded that he could not support his discrimination claims if the evidence of the seven employees were excluded, and the district court granted summary judgment on behalf of Ford.

Louzon, __ F.3d at __ (citations excluded).
In Louzon's appeal of this result, he placed before the circuit a legal matter that had been resolved as an evidentiary question:

The district court determined that none of the seven comparators proffered by Louzon were similarly situated because there were material differences between Louzon and each of the comparators — namely, that they all reported to different supervisors. Therefore, the district court concluded, all evidence relating to these comparators must be excluded under Federal Rules of Evidence 401 and 402. In reaching this conclusion, the district court made both the legal determination that a comparator must have worked for the same supervisor as the plaintiff in order to be similarly situated and the factual finding that [a manager in Ford's Powertrain Controls, whom plaintiff alleged, and Ford denied,] supervised Louzon. In light of these determinations, Louzon argues that the district court not only considered issues improperly raised in limine, but also abused its discretion by resolving genuine issues of material fact.

Louzon, __ F.3d at __ (citations excluded).

The Sixth Circuit agreed with the plaintiff's argument, reversed the grant of summary judgment to the defendant and remanded for further proceedings. The circuit noted the different standards applicable to the two types of motions: "A motion in limine is 'any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." “Unlike a summary judgment motion, which is designed to eliminate a trial in cases where there are no genuine issues of material fact, a motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Louzon, __ F.3d at __ (citing Luce v. United States, 469 U.S. 38, 40 n.2 (1984); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (Trial court erred by dismissing claim following rulings on motions in limine because a basic purpose of in limine motions, as contrasted with those for summary judgment was that the in limine motions failed to provide notice sufficiently in advance of dismissal and did not allow the opposing party adequate opportunity to marshal evidence of his claim.))

The circuit noted that "[o]ur sister circuits that have addressed" the overlap of a motion in limine with a motion for summary judgment have taken a position similar to that adopted by the Sixth Circuit. These circuits:

have recognized these dangers and reversed the underlying decisions. For example, the Federal Circuit recently reversed a district court after it had “essentially converted [a] motion in limine into a motion for summary judgment.” The Federal Circuit explained that “[i]n doing so, the court did not allow for full development of the evidence and deprived [the defendant] of an opportunity to present all pertinent material to defend against the dismissal of its inequitable conduct defense.” The Third Circuit has also considered this issue, explaining that “the district court's procedure converted the in limine motion into one for summary judgment, but without the procedural protections of notice which the federal rules require before judgment on the merits may be granted.” . Finally, the Seventh Circuit affirmed a district court's denial of a motion in limine because “Mogi's argument that Mid–America could not prove its lost profits with reasonable certainty is an argument that goes to the sufficiency of Mid–America's evidence. While this might be a proper argument for summary judgment or for judgment as a matter of law, it is not a proper basis for a motion to exclude evidence prior to trial.”

Louzon, __ F.3d at __ (citing Meyer Intellectual Props. Ltd. v. Bodum, Inc., 690 F.3d 1354, 1378 (Fed.Cir. 2012); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir. 1990)(internal quotation marks omitted); Mid–America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir.1996)).

The Louzon case essentially states that if a motion "rests entirely on the presumption" that the opposing party "would not be able to make out a prima facie case," it should not be decided in liminewhen "if true [it] would render null the need for any evidentiary rulings." The circuit anticipated this "tactic[ ]" as equivalent to getting two bites of the apple -- "a litigant could raise any matter in limine, as long as he included the duplicative argument that the evidence relating to the matter at issue is irrelevant. Where, as here, the motion in limine is no more than a rephrased summary-judgment motion, the motion should not be considered." Louzon, __ F.3d at __ (citing Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1078 (3d Cir. 1990)(“Because we conclude that it was procedurally improper for the court to dispose of Bodum's inequitable conduct defense on a motion in limine, we reverse the court's decision and remand for further proceedings.”)).

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