Opinion
1:18-CV-02619
06-01-2022
MICHAEL GRASSI, et al., Plaintiffs, v. JOHN GRASSI, et al., Defendants.
MEMORANDUM OPINION AND ORDER
PAMELA A. BARKER U.S. DISTRICT JUDGE
This matter is before the Court upon Plaintiffs-Counterclaim Defendants Michael Grassi and CFOM, Inc.'s (“CFOM”) (collectively, “Plaintiffs”) Motions in Limine and Defendants-Counterclaimants John Grassi and Alotech Limited, LLC's (“Alotech”) (collectively, “Defendants”) Motions in Limine, both filed on May 3, 2022. (Doc. Nos. 101, 103-104.) The parties each filed a Memorandum of Law in Opposition to the opposing motions on May 10, 2022. (Doc. Nos. 112, 114.)
For the following reasons, the Court denies Plaintiffs' first, second, third, and sixth Motions in Limine, grants Plaintiffs' fourth and seventh Motions in Limine, grants in part and denies in part Plaintiffs' fifth Motion in Limine, denies Defendants' fifth Motion in Limine, grants Defendants' first, second, third, and fourth Motions in Limine, and holds Defendants' sixth Motion in Limine in abeyance.
I. Relevant Background
The factual background of this matter is set forth in several previous decisions (see, e.g., Doc. Nos. 77, 83) and will not be repeated in full herein. Rather, the Court presumes familiarity with its prior opinions and will provide only a broad overview of the facts to place the instant Motion in context.
This case arises out of a business dispute between twin brothers-John Grassi and Michael Grassi-regarding the development of a proprietary process for manufacturing alloy castings known as ablation casting. John Grassi is the founder and sole owner of Alotech, a company that began developing the ablation casting process in the early 2000s. Between 2002 and 2009, Alotech continued to refine the ablation casting process and filed six patents related to the technology. Alotech used that technology to manufacture parts for other companies.
Around 2000, Michael Grassi purchased and became the sole owner of CFOM, a company that manufactured valve equipment and mass flow controllers. In 2006, CFOM began supplying equipment to Alotech for use in its ablation casting process. Later, CFOM also began providing to Alotech the services of Charles Rizzuti, who worked for CFOM and assisted Alotech with computer programming equipment.
The parties dispute whether CFOM and Michael Grassi are entitled to further compensation from their contributions to the ablation casting technology. Plaintiffs assert that in 2008, John Grassi and Michael Grassi entered into an agreement to share any proceeds from their endeavors, with each brother receiving 50 percent of the proceeds. Then in 2012, according to Plaintiffs, the parties reached an oral agreement in which John Grassi agreed to share the proceeds of a potential deal between Alotech and Honda, with Alotech receiving 65 percent of the proceeds and CFOM receiving 35 percent of the proceeds. Defendants deny that this agreement occurred, and instead, claim that Alotech simply hired Michael Grassi as an employee. In April 2013, as anticipated, Alotech entered into an agreement with Honda.
Shortly after Michael Grassi started working full time on ablation casting technology in the fall of 2012, Defendants assert that he signed a form Confidentiality and Work Product Agreement (the “IP Agreement”). The IP Agreement provided that Alotech would own Michael Grassi's work product and any value relating to ablation casting created by CFOM while Michael Grassi worked for Alotech. Alotech's files contain two copies of this agreement, one signed on October 22, 2012 and one signed on October 25, 2012. Michael Grassi alleges these signatures are forged.
Michael Grassi also asserts that a third document allegedly signed by him-a June 2017 patent assignment (the “June 2017 Patent Assignment”)-was forged. The June 2017 Patent Assignment purports to assign to Alotech all rights in a pending patent application related to ablation casting.
In late 2016, Michael Grassi, CFOM, and Rizzuti all ceased performing services or providing equipment to Alotech in connection with the company's ablation casting work because they believed they were not being paid their fair share from the Honda deal. Defendants contend that they fired Michael Grassi; Michael contends he was never an employee.
Over the years, Defendants made hundreds of thousands of dollars in payments to Plaintiffs, but the parties disagree on the nature and purpose of those payments. Michael Grassi claims that these payments were merely reimbursements for costs and materials; he never received full compensation for his intellectual contributions to the ablation casting technology; and any money he did receive was a result of the alleged oral agreement. John Grassi disputes this and states that he paid Michael Grassi for improvements Michael made to the technology in connection with the Honda deal and for Michael's salary during his employment with Alotech.
B. Procedural History
On October 9, 2018, Plaintiffs filed a Complaint against Defendants in the Court of Common Pleas of Cuyahoga County, Ohio, asserting six counts: (1) breach of contract, (2) promissory estoppel, (3) quantum meruit, (4) unjust enrichment, (5) fraud, and (6) misappropriation of trade secrets. (Doc. No. 1-1.) Defendants removed the case to this Court on November 13, 2018 based on diversity jurisdiction. (Doc. No. 1.)
On December 11, 2018, Defendants filed an Amended Answer, Affirmative Defenses to Plaintiffs' Complaint, Counterclaims Against Plaintiffs, and Third-Party Claims Against Charles Rizzuti (“Amended Answer”). (Doc. No. 8.) Defendants asserted counterclaims against both Michael Grassi and CFOM for deceptive trade practices and breach of contract (Counts V and VII) and counterclaims against Michael Grassi individually for business defamation, conversion, and tortious interference with current and prospective business (Counts I, II, and VI). (Id. at 20-22, 25-28.) In Counts III and IV, Defendants also asserted two declaratory judgment counterclaims against Defendants, in which they sought declarations that (1) all intellectual property in ablation casting that Alotech is using in its business and selling to third parties is owned by Alotech and Plaintiffs have no legally cognizable ownership right in such intellectual property, and (2) Plaintiffs do not have any claim to either an ownership stake in Alotech or a share of Alotech's profits from its ablation casting technology. (Id. at 23-25.) Finally, in Count VIII, Defendants asserted a third-party claim against Rizzuti, seeking a declaratory judgment that neither CFOM nor Rizzuti individually have any claim to either additional monetary payments from Alotech or any ownership stake in Alotech. (Id. at 28-29.)
On June 17, 2019, Defendants moved for summary judgment as to all six claims in Plaintiffs' Complaint, as well as Defendants' three declaratory judgment claims. (Doc. No. 24.) Plaintiffs and Rizzuti filed a brief in opposition on July 16, 2019, to which Defendants replied on July 30, 2019. (Doc. Nos. 26, 30.)
On February 5, 2020, this Court granted Defendants' Motion for Summary Judgment with respect to: (1) Plaintiffs' claims for quantum meruit, unjust enrichment, fraud, and misappropriation of trade secrets (Counts III, IV, V and VI of Plaintiffs' Complaint); (2) Defendants' declaratory judgment counterclaim in Count III of their Amended Answer, and declared that Plaintiffs have no legally cognizable ownership right in all intellectual property in ablation casting that Alotech is using in its business and selling to third parties; and (3) Defendants' declaratory judgment third-party claim in Court VIII of their Amended Answer, and declared that Rizzuti does not have any claim to either additional monetary payments from Alotech or any ownership stake in Alotech. (Doc. No. 36.) In its decision on these issues, this Court determined that Michael Grassi's self-serving testimony that his signature on the disputed agreements was forged, standing alone, was insufficient to create a genuine issue of material fact. (Id.) This Court also denied Defendants' Motion for Summary Judgment with respect to (1) Plaintiffs' claims for breach of contract and promissory estoppel (Counts I and II of Plaintiffs' Complaint) and (2) Defendants' declaratory judgment counterclaim in Count IV of their Amended Answer. (Id.)
Defendants voluntarily dismissed their counterclaims for conversion (Count VI), breach of contract (Count VIII), and declaratory judgment (Count IV). (Doc. No. 42; Mar. 3, 2020 Non-Doc. Order.) The following claims remained: Plaintiffs' claims for breach of contract and promissory estoppel (Counts I and II), and Defendants' counterclaims for defamation, tortious interference, and deceptive trade practices (Counts I, II, and V).
A four-day jury trial took place from March 10, 2020 to March 13, 2020. (Doc. Nos. 51-54.) At the close of Defendants' case, Plaintiffs made a motion for judgment as a matter of law, pursuant to Fed.R.Civ.P. 50, as to Defendants' remaining counterclaims for defamation, tortious interference, and deceptive trade practices, which the Court granted. (Doc. No. 54.) The jury then returned a verdict for Defendants on Plaintiffs' remaining claims for breach of contract and promissory estoppel. (Doc. No. 56.)
On March 27, 2020, Plaintiffs filed a Notice of Appeal to the Sixth Circuit Court of Appeals, followed by an Amended Notice of Appeal on May 15, 2020. (Doc. Nos. 61, 78.) Plaintiffs appealed this Court's decisions: (1) granting summary judgment in Defendants' favor as to Plaintiffs' quantum meruit, unjust enrichment and misappropriation of trade secrets claims; (2) granting summary judgment in Defendants' favor as to Defendants' declaratory judgment claim regarding Alotech's ownership of the intellectual property; (3) excluding evidence relating to the validity of the IP Agreement; (4) excluding Trial Exhibit 8 and related testimony; and (5) the Jury Instructions for Plaintiffs' promissory estoppel claim.
On August 3, 2021, the Sixth Circuit Court of Appeals affirmed in part, reversed in part, and remanded the case for a new trial. Grassi v. Grassi, 2021 WL 3355475 (6th Cir. Aug. 3, 2021). The Sixth Circuit affirmed this Court's dismissal of Plaintiffs' unjust enrichment and quantum meruit claims, but reversed the dismissal of Plaintiffs' misappropriation of trade secrets claim and Defendants' counterclaim for declaratory judgment regarding the ownership of intellectual property. Id. at *5-7. The Sixth Circuit further reversed this Court's rulings excluding Trial Exhibit 8 and Michael Grassi's testimony that the IP Agreements were inauthentic. Id. at *8-9. Ultimately, the Sixth Circuit determined that substantial issues of material fact existed as to whether Michael Grassi's signatures on the IP Agreements and the Patent Assignment were forged and remanded the case for a new trial. Id. at *7-9.
On May 3, 2022, Plaintiffs and Defendants each filed the instant Motions in Limine. (Doc. Nos. 101, 103-104.) The parties each filed a Memorandum of Law in Opposition to the opposing motions on May 10, 2022. (Doc. Nos. 112, 114.)
II. Standard of Review
Although not explicitly authorized by the Federal Rules of Evidence or the Federal Rules of Civil Procedure, the practice of ruling on motions in limine “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 (1984); see also United States v. Dimora, 843 F.Supp.2d 799, 816 (N.D. Ohio 2012). Motions in limine allow the court to rule on evidentiary issues prior to trial in order to avoid delay and to allow the parties to focus remaining preparation time on issues that will in fact be considered by the jury. See United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999); see also Louzon v. Ford Motor Co., 718 F.3d 556, 561 (6th Cir. 2013) (“[A] motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” (quoting Bradley v. Pittsburgh Bd. of Educ., 912 F.2d 1064, 1069 (3d Cir. 1990))). A motion in limine is not, however, intended to resolve non-evidentiary matters prior to trial in civil actions because a mechanism already exists for this purpose, i.e., the summary judgment motion. Louzon, 718 F.3d at 561; see also WEL Cos. v. Haldex Brake Prods. Corp., 467 F.Supp.3d 545, 555 (S.D. Ohio 2020).
Courts should exclude evidence on a motion in limine only when it is clearly inadmissible. See Dimora, 843 F.Supp.2d at 816; Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 846 (N.D. Ohio 2004). If the court is unable to determine whether certain evidence is clearly inadmissible, it should defer ruling until trial so that questions of foundation, relevancy, and potential prejudice can be evaluated in proper context. See Dimora, 843 F.Supp.2d at 816. Ultimately, the determination whether to grant or deny a motion in limine is within the sound discretion of the trial court. Id.; see also Goldman v. Healthcare Mgmt. Sys., Inc., 559 F.Supp.2d 853, 858 (W.D. Mich. 2008). In limine rulings are preliminary, and the district court may change its ruling at trial for any reason it deems appropriate. See, e.g., Allstate Ins. Co. v. Papanek, 2020 WL 246418, at *2 (S.D. Ohio Jan. 16, 2020).
III. Analysis
A. Plaintiffs' First Motion in Limine and Defendants' Second Motion in Limine
Plaintiffs' first Motion in Limine seeks to preclude the admission of three documents: (1) the October 22, 2012 Confidentiality and Work Product Agreement; (2) the October 25, 2012 Confidentiality and Work Product Agreement; and (3) the June 14, 2017 patent assignment (collectively, the “Assignment Documents”). (Doc. No. 101-1 at 2-12.) Defendants' second Motion in Limine seeks to admit copies of the same Assignment Documents. (Doc. No. 104 at 6-9.) As such, the Court will consider these motions together.
Plaintiffs argue that the Assignment Documents should be precluded because these documents are allegedly forged, and inconsistencies exist in the documents. (Doc. 101-1 at 2-10.) Further, because Defendants have not produced the originals of these documents, Plaintiffs argue that Federal Rule of Evidence 1002 requires exclusion of these documents. (Id. at 10-12.) Meanwhile, Defendants argue that the Court should admit these documents “as they are highly relevant to Defendants' defenses, ” and because the Court previously admitted these documents into evidence without objection. (Doc. No. 104 at 6-9.) Further, Defendants argue that Federal Rule of Evidence 1004 allows for the admission of these documents. (Id.) The Court agrees with Defendants that these documents are highly relevant and can be admitted under Rule 1004, and thus denies Plaintiffs' first Motion in Limine and grants Defendants' second Motion in Limine.
As an initial matter, the Court agrees with Plaintiffs that “[t]he Assignment Documents are central to this case.” (Doc. No. 101-1.) Indeed, the Sixth Circuit Court of Appeals held that “there are substantial issues of material fact as to whether Michael Grassi's signatures on the [Assignment Documents] were forged, ” and those “factual questions . . . belong in the domain of the jury.” Grassi v. Grassi, 2021 WL 3355475, at *7 (Aug. 3, 2021). Excluding the Assignment Documents from the purview of the jury would fly in the face of the Sixth Circuit's clear ruling. While most of Plaintiffs' argument centers around whether the Assignment Documents are forged, that issue is for the jury to determine; it is not for the Court to determine in the context of a motion in limine.
The question here, rather, is whether the scanned copies of the Assignment Documents are admissible under the Federal Rules of Evidence. That answer is yes. Rule 1002 of the Federal Rules of Evidence requires that a party introduce an original writing in order to prove the contents unless otherwise provided by the rules. Fed.R.Evid. 1002. Rule 1004 states that “[a]n original is not required and other evidence of the content of a writing, recording, or photograph is admissible if . . . all the originals are lost or destroyed, and not by the proponent acting in bad faith.” Fed.R.Evid. 1004.
Such is the case here. The original ink-signed Assignment Documents are lost and no evidence of bad faith on Defendants' behalf exists. Defendants have attested that they “conducted a reasonable and diligent search of the files and records in their possession, custody, and control, they are not presently in possession of inked originals of these documents.” (Doc. No. 114-1 at 2.) Plaintiffs' arguments to the contrary are unavailing. Because Plaintiffs have established that they have satisfied the requirements under Rule 1004-the ink-signed originals of the Assignment Documents are lost, and such loss is not on the account of Defendants' having acted in bad faith- the Court admits the Assignment Documents. Thus, Plaintiffs' first Motion in Limine is DENIED and Defendants' second Motion in Limine is GRANTED.
Plaintiffs argue that because an employee of Alotech signed a declaration that stated the employee files contained “original copies” of the IP Agreements at issue, and because Alotech's counsel represented during the deposition of another witness that he had an “original” of one of the documents at issue “somewhere, ” this evidences bad faith on Defendants' part. (Doc. No. 101-1 at 12.) However, neither the sworn statement by Alotech's employee or the representation made by Defendants' counsel make it clear to the Court that Defendants were, in fact, stating that they possessed ink-signed originals of the Assignment Documents, and the Court rejects Plaintiffs' argument that these statements are evidence of bad faith.
B. Plaintiffs' Second Motion in Limine
Plaintiffs' second Motion in Limine seeks to preclude evidence related to the April 2017 Patent Assignment (Alotech-34781-34788). (Doc. No. 101-1 at 9.) Plaintiffs argue this document “has internal inconsistencies, was not properly executed, and is otherwise disallowed under Ohio and federal law.” (Id.) Plaintiffs further argue the document “is not relevant, and its introduction would be prejudicial and confuse the jury, ” citing Federal Rule of Evidence 403. (Id.) Defendants, on the other hand, argue that this patent assignment is “squarely relevant to the chronology of events related to the ‘922 patent application, and the jury can and should hear evidence about it.” (Doc. No. 114 at 9-10.)
Under Federal Rule of Evidence 401, relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. “Irrelevant evidence is not admissible.” Fed.R.Evid. 402. A court may exclude relevant evidence under Federal Rule of Evidence 403 “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed.R.Evid. 403. Evidentiary rulings are made subject to the district court's sound discretion. Frye v. CSX Trans., Inc., 933 F.3d 591, 598 (6th Cir. 2019).
The Court determines that the April 2017 Patent Assignment is relevant to Michael Grassi's intent to assign his rights in the patent and thus, should be admitted. Plaintiffs' arguments regarding the document's inconsistencies are issues for the jury to consider in determining the weight of the evidence. Contrary to Plaintiffs' argument, the issue here is whether the document should be admitted, not whether the document is enforceable. As Defendants point out, Plaintiffs offer no reason why this document would be prejudicial and confuse the jury. (Doc. No. 114 at 10; Doc. No. 101-1 at 9.) Indeed, the inked-signed copy of the April 2017 assignment for the ‘922 patent application is relevant to Michael Grassi's intent to be bound by the Patent Assignment. The probative value of such evidence is not substantially outweighed by any alleged risk of unfair prejudice or confusing the jury.
Plaintiffs' second Motion in Limine is DENIED.
C. Plaintiffs' Third Motion in Limine
In their third Motion in Limine, Plaintiffs seek to preclude evidence and argument that Michael Grassi “cheated” Charles Rizzuti, or otherwise acted improperly because Rizzuti never received any of the payments that Alotech made to CFOM. (Doc. No. 101 at 2.) Plaintiffs argue that any such evidence or argument is false, not relevant, and “its inflammatory and prejudicial effect grossly outweighs any probative value requiring it to be excluded under Fed.R.Evid. 403.” (Doc. No. 101-1 at 12-13.) Defendants argue that this evidence is relevant to the claims at issue, and at a minimum, is relevant to the credibility and character of Michael Grassi. (Doc. No. 114 at 11.)
Evidence that Rizzuti did not receive any portion of the payments that Alotech made to CFOM is relevant to Michael Grassi's claims that Defendants made an oral agreement with him that they did not honor, and is also relevant to explaining Defendants' decision [REDACTED].
This evidence is further relevant to Michael Grassi's credibility and character, which is squarely at issue before the jury as they consider allegations of oral agreements and forged documents. While Plaintiffs cite to Rizzuti's testimony from the first trial [REDACTED] (Doc. No. 101-1 at 12-13), the fact remains that Rizzuti did not receive any of those payments. Plaintiffs have included Rizzuti on their witness list (Doc. No. 120-1 at 3), and they will have the opportunity to elicit testimony from Rizzuti, consistent with his testimony during the first trial, [REDACTED] (Doc. No. 101-1 at 12-13). Accordingly, the Court finds that Plaintiffs will not be prejudiced by Defendants [REDACTED]; and assuming any prejudice exists, it is not unfair prejudice that outweighs the probative value of the evidence. Thus, Plaintiffs' third Motion in Limine is DENIED.
D. Plaintiffs' Fourth Motion in Limine and Defendants' Third Motion in Limine
Plaintiffs' fourth Motion in Limine and Defendants' third Motion in Limine both seek to preclude any evidence referencing the March 2020 trial in this case. (Doc. No. 101-1 at 13; Doc. No. 104 at 9-10.) As the parties are seemingly in agreeance on this issue, the Court grants both parties' motions. To the extent Defendants object to Plaintiffs' broad reference to “prior disputes or proceedings between parties” (Doc. No. 112 at 10), the Court interprets Plaintiffs' Motion as seeking to preclude all references to prior litigation between the parties.
On those grounds, Plaintiffs' fourth Motion in Limine and Defendants' third Motion in Limine are GRANTED.
E. Plaintiffs' Fifth Motion in Limine
Plaintiffs' fifth Motion in Limine seeks to preclude evidence regarding witness testimony from the previous trial in this case for impeachment purposes “to the extent that prior testimony relates to any claims at issue in the upcoming trial that were excluded from the March 2020 trial.” (Doc. No. 101-1 at 13.) Plaintiffs argue that admission of testimony from the first trial violates the law of the case doctrine, is not relevant, and its probative value is highly outweighed by the risk of unfair prejudice and confusion of the jury. (Id. at 14.) Defendants argue that all testimony from the first trial was given under oath and is admissible for impeachment purposes under Federal Rule of Evidence 801(d)(1). (Doc. No. 114 at 12.)
Under Federal Rule of Evidence 801(d)(1), a statement is not hearsay if it “is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Fed.R.Evid. 801(d)(1)(A).
Regardless of the stipulations set forth by this Court during the first trial, all testimony was given under oath and the Court did not preclude any party from telling the truth. Plaintiffs cannot now avoid any testimony given during the first trial as all previous trial testimony is admissible for impeachment purposes under Rule 801(d). To the extent either party introduces such evidence for impeachment purposes, the parties can refer to the prior testimony as being given “on a prior occasion, ” so as to avoid reference to the prior trial. Plaintiffs' motion is thus DENIED in part.
However, Defendants cannot use prior testimony for impeachment purposes to evidence that the witness did not previously state that the Assignment Documents were forged or that Plaintiffs have rights to the intellectual property at issue. Because the Court limited the ability of Plaintiffs and Plaintiffs' witnesses to allege that the Assignment Documents were forged or that Plaintiffs had any rights to the intellectual property, Defendants cannot now use that limitation for impeachment purposes. To this extent, Plaintiffs' motion is GRANTED in part.
F. Plaintiffs' Sixth Motion in Limine
Plaintiffs' sixth Motion in Limine seeks to preclude evidence regarding Michael Grassi's communications with third parties. (Doc. No. 101-1 at 14.) Plaintiffs argue that any evidence related to Michael Grassi's alleged interference with Defendants' business is not relevant. (Id.) Defendants, on the other hand, argue that such evidence is relevant to the claims at issue. (Doc. No. 114 at 13-14.) Defendants argue that communications between Michael Grassi and third party Parker Hannifin regarding IP ownership rights, for example, are relevant to the issues at hand and should be presented to the jury as evidence of Michael Grassi's credibility, or lack thereof. (Id. at 14-15.) Defendants also argue that these communications provide context to the motives and conduct of the parties during that time period, and are relevant to Defendants' Declaratory Judgment claim. (Id.)
The Court agrees that this evidence is relevant and admissible. Michael Grassi's communications with third parties regarding his ownership in the technology are not only directly relevant to the claims at issue, but are also relevant to Michael Grassi's character for truthfulness. The jury is entitled to hear evidence regarding Michael Grassi's communications with third parties regarding his ownership or lack thereof of the technology.
Additionally, the Court finds that evidence regarding Michael Grassi's third party communications may also constitute relevant background information regarding the relationship between the parties and the context for why [REDACTED] . As Defendants point out, [REDACTED](Doc. No. 114 at 14.) The Court agrees with Defendants that evidence of third-party communications between Michael Grassi [REDACTED]Such evidence is admissible. See, e.g., JGR, Inc. v. Thomasville Furniture Indus., Inc., 370 F.3d 519, 526-27 (6th Cir. 2004) (in breach of contract action, affirming district court's admission of evidence about an alleged prior oral contract between the parties “for the limited purpose of background information”); Tucker v. Nelson, 390 F.Supp.3d 858, 861 (S.D. Ohio 2019) (“[E]vidence can be relevant even if it does not relate to a fact in dispute, provided the evidence supplies background information about a party or issue”).
Plaintiffs' argument that evidence regarding Michael Grassi's alleged tortious interference or false statements is not relevant because it relates to claims that were dismissed is without merit. District courts have found that, at trial, parties may not reference claims that were previously disposed of by the court. See, e.g., Holloway v. Kings Dodge, Inc., 2019 WL 13093580, at *2 (S.D. Ohio Aug. 23, 2019); Irvin v. City of Shaker Heights, 2012 WL 13028095, at *5 (N.D. Ohio May 17, 2012). However, those same courts have recognized “to the extent that there are facts that relate to a claim that was dismissed and a claim that is still pending in this action, those facts and evidence are admissible.” Irvin, 2012 WL 13028095, at *5 (emphasis added); see also Holloway, 2019 WL 13093580, at *2. Here, as set forth above, the Court finds that facts and evidence of communications between Michael Grassi and third parties are relevant to the pending claims at issue. Accordingly, Plaintiffs' sixth Motion in Limine is DENIED.
G. Plaintiffs' Seventh Motion in Limine
Plaintiffs' seventh Motion in Limine seeks to preclude evidence regarding Michael Grassi's relationship [REDACTED] as its probative value is vastly outweighed by the risk of unfair prejudice. (Doc. No. 101-1 at 15.) Defendants do not oppose this Motion. (Doc. No. 114 at 15.)
The Court agrees with Plaintiffs and holds that such evidence is not relevant and should not be admitted. Thus, Plaintiffs' seventh Motion in Limine is GRANTED.
H. Defendants' First Motion in Limine
Defendants' first Motion in Limine seeks to preclude any reference to a prior criminal conviction of [REDACTED], who they expect to call as a witness during trial. (Doc. No. 104 at 4-6.)[REDACTED] (Id.) [REDACTED] (Id.) Defendants contend evidence of her conviction should be precluded pursuant to the Court's previous ruling precluding such evidence as well as Federal Rule of Evidence 609(b). (Id.) Plaintiffs, however, argue that they “should not be hampered by the failures of their prior counsel, ” and that evidence of[REDACTED] conviction may be relevant for impeachment purposes. (Doc. No. 112 at 1-2.) Plaintiffs argue that to the extent [REDACTED] testimony opens the door to her character and integrity, she should be subject to impeachment, including regarding her [REDACTED](Id.) Plaintiffs further argue that depending on [REDACTED]testimony, evidence of her prior criminal conviction may also be admissible “by contradiction.” (Id.)
Evidence of [REDACTED]conviction is precluded both under the law of the case doctrine and Rule 609(b). “Under the law of the case doctrine, findings made at one stage in the litigation should not be reconsidered at subsequent stages of that same litigation.” Dixie Fuel Co. v. Dir., Off. of Workers' Comp. Programs, 820 F.3d 833, 843 (6th Cir. 2016). This doctrine “discourages ‘perpetual litigation' and promotes finality in proceedings.” Burley v. Gagacki, 834 F.3d 606, 619 (6th Cir. 2016) (quoting United States v. McKinley, 227 F.3d 716, 719 (6th Cir. 2000)). The law of the case doctrine applies unless one of three “exceptional circumstances” is present: “(1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice.” Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006).
The Court agrees with Defendants that none of the “exceptional circumstances” apply so as to preclude application of the law of the case doctrine and prohibit any reference to[REDACTED] prior criminal conviction.
Further, “Fed.R.Evid. 609(b) limits, for the purpose of impeachment, the admissibility of prior conviction evidence ‘more than 10 years old.'” United States v. Rodriguez, 409 Fed.Appx. 866, 869 (6th Cir. 2011) (quoting Fed.R.Evid. 609(b)). Specifically, Federal Rule of Evidence 609(b) “applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later.” Fed.R.Evid. 609(b). Whenever ten years have passed since the witness's conviction or release, evidence of the conviction is admissible only if “(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” Id. The Sixth Circuit has held that “evidence of convictions more than ten years old should be admitted very rarely and only in exceptional and [sic] circumstances.” Rodriguez, 409 Fed.Appx. at 869 (quoting United States v. Sloman, 909 F.2d 176, 181 (6th Cir. 1990)).
In fact, “Rule 609(b) creates, in effect, a rebuttable presumption that convictions over ten years old are more prejudicial than helpful and should be excluded.” United States v. Sims, 588 F.2d 1145, 1150 (6th Cir. 1978). Factors the Court may take into consideration in determining if an “exceptional circumstance” exists to allow for this evidence to be admissible includes: “(1) [t]he impeachment value of the prior crime[;] (2) [t]he point in time of the conviction and the witness' subsequent history[;] (3) [t]he similarity between the past crime and the charged crime[;] (4) The importance of the [witness's] testimony[; and] (5) [t]he centrality of the credibility issue.” Id. at 1149.
While neither party addresses these factors, the Court will address the relevant factors here. [REDACTED] prior conviction has little to no probative value as there is no indication that her conviction has any bearing on her character for truthfulness. [REDACTED]prior conviction does not involve a crime of dishonesty and evidence of her conviction is not “probative of credibility.” See Sims, 588 F.2d at 1150. Second, [REDACTED]was both convicted and released from custody more than ten years ago, there is no evidence of any subsequent criminal history, and the staleness of such conviction again decreases its probative value. While credibility will be important during this trial, Plaintiffs fail to demonstrate how this instance constitutes an “exceptional” circumstance so as to admit evidence of [REDACTED]more than ten-year-old conviction. As such, the Court finds that Rule 609(b) applies and prevents the admission of evidence regarding [REDACTED]conviction for purposes of impeaching her testimony. Further, Plaintiffs have not identified any such testimony on [REDACTED]behalf that would possibly allow for impeachment by contradiction as [REDACTED]conviction does not at all relate to the issues at hand.
Accordingly, Defendants' first Motion in Limine is GRANTED.
I. Defendants' Fourth Motion in Limine
Defendants' fourth Motion in Limine seeks to preclude any evidence not disclosed or otherwise produced in accordance with Federal Rules of Civil Procedure 26 and 37 prior to trial. (Doc. No. 104 at 10-15.) Specifically, Defendants seek to exclude evidence regarding Plaintiffs' undisclosed handwriting expert and evidence regarding [REDACTED] as not being properly disclosed under the Federal Rules. (Id.) Further, Defendants argue any evidence regarding is irrelevant and poses a danger of unfair prejudice and jury confusion. (Id.) Plaintiffs do not oppose Defendants' Motion “as it relates to excluding evidence that has not been produced or disclosed in accordance with the applicable rules and orders of this Court, ” including the exclusion of an undisclosed handwriting expert, but object to the exclusion of the [REDACTED] as it “has been disclosed to defendants well in advance of the upcoming trial, and there is no basis to exclude it.” (Doc. No. 112 at 10.)
Because Plaintiffs do not oppose Defendants' Motion “as it relates to excluding evidence that has not been produced or disclosed in accordance with the applicable rules and orders of this Court, ” and as that is the extent to which this Court interprets Defendants' Motion, Defendants' Motion is granted. Further, as Plaintiffs have not provided any evidence that the [REDACTED] at issue was disclosed to Defendants in accordance with the Federal Rules, the Court will grant Defendants' motion in its entirety. This is a preliminary ruling, and to the extent Plaintiffs can demonstrate that this evidence was produced in discovery under the applicable rules, and such evidence is relevant and otherwise admissible, the Court will reexamine its ruling as to the [REDACTED].
Defendants' fourth Motion in Limine is GRANTED.
J. Defendants' Fifth Motion in Limine
Defendants' fifth Motion in Limine seeks to admit all exhibits previously admitted by this Court in the first trial pursuant to the law of the case doctrine. (Doc. No. 104 at 14-15.) Plaintiffs argue that the Sixth Circuit's decision disrupts the law of the case doctrine here, and “the upcoming trial necessarily will be a new and different trial with issues not previously litigated, and with other issues that will not be litigated because they have been determined.” (Doc. No. 112 at 11.)
The Court agrees with Plaintiffs that this trial will involve litigation of new issues, specifically including the alleged forgery issue, while certain other issues will not be relitigated. The Court will admit previously admitted documents that relate to causes of action still at issue, but the Court will not issue a blanket order allowing the admittance of all previously admitted documents at this time. Each exhibit must be properly identified and relevant to be admitted herein.
Accordingly, Defendants' fifth Motion in Limine is DENIED.
K. Defendants' Sixth Motion in Limine
Defendants' sixth Motion in Limine seeks to exclude approximately 1, 055 privileged communications in Plaintiffs' possession. (Doc. No. 104 at 15-20.) Plaintiffs argue that these communications are not privileged. (Doc. No. 112 at 11-21.) Noting the parties' arguments regarding privilege, the issue of privilege in this context is complex and the Court does not have enough information to determine the privilege of each of the documents at issue at this time. The Court will conduct an in-camera review of the exhibits Plaintiffs plan to introduce that Defendants claim are subject to attorney-client privilege and determine the admissibility of each document at that time. As such, Defendants' sixth Motion in Limine is HELD IN ABEYANCE.
IV. Conclusion
For the reasons set forth above, Plaintiffs' first, second, third, and sixth Motions in Limine are DENIED, Plaintiffs' fourth and seventh Motions in Limine are GRANTED, Plaintiffs' fifth Motion in Limine is GRANTED in part and DENIED in part, Defendants' fifth Motion in Limine is DENIED, Defendants' first, second, third, and fourth Motions in Limine are GRANTED, and Defendants' sixth Motion in Limine is HELD IN ABEYANCE.
IT IS SO ORDERED.