Opinion
08-21-2013
PATTI LEMMON, Plaintiff, v. RICHARD AYRES, et al., Defendants.
Judge Thomas M. Rose
ENTRY AND ORDER GRANTING DEFENDANTS' MOTION IN LIMINE
TO EXCLUDE ALL OF PLAINTIFF'S IMPROPERLY IDENTIFIED LAY
WITNESSES (Doc. #47)
This Court originally granted summary judgment in this matter to the Defendants. (Doc. #32.) The Sixth Circuit reversed this grant of summary judgment on appeal and remanded the matter for further proceedings. The Court then set a Final Pretrial Conference for August 28, 2013, and a trial to begin on September 23, 2013.
Now before the Court is Defendants' Motion In Limine To Exclude All of Plaintiff's Improperly Identified Lay Witnesses. (Doc. #47.) On September 21, 2010, Plaintiff Patti Lemmon ("Lemmon") served and filed a Lay Witness List that included only two witnesses, herself and Defendant Richard Ayres ("Ayres"), including contact information for both. (Doc. #11.) After remand, and at the request of the Defendants, the Parties were given until not later than June 24, 2013 to supplement their lay witness lists and until not later than July 26, 2013, to conduct any additional discovery regarding any added witnesses. (Doc. #42.)
On June 24, 2013, Lemmon filed a Lay Witness List that identified herself, Ayres and nineteen (19) other witnesses. She included contact information for herself and Ayres. She also indicates that she intends to call other employees of Subway in North Hampton, Ohio and Ayres Accounting who were employed on or around the time of her employment with those companies. (Doc. #43.) No contact information is shown for the nineteen (19) witnesses added to the list.
On July 11, 2013, and after the Motion that is now before the Court was filed, Lemmon filed an Amended and Supplemental Lay Witness List. (Doc. #48.) This Amended and Supplemental List identifies herself and Ayres as lay witnesses. It also includes twelve (12) of the nineteen (19) previously identified lay witnesses along with the witnesses' addresses and telephone numbers.
RELEVANT LEGAL PROVISIONS
Motions In Limine
The practice of ruling on motions in limine, although not specifically authorized by the Federal Rules of Evidence or the Federal Rules of Civil Procedure, has developed pursuant to the district court's inherent authority to manage the conduct of trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The purpose of a motion in limine is to permit the Court to decide evidentiary issues in advance of trial in order to avoid delay and ensure an evenhanded and expeditious trial. See Indiana Insurance Co. v. General Electric Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004)(citing Jonasson v. Lutheran Child and Family Services, 115 F.3d 436, 440 (7th Cir. 1997)). Decisions on motions in limine may also save the parties time and cost in preparing for trial and presenting their cases.
Because it is almost always better situated during the actual trial to assess the value and utility of evidence, a court is reluctant to grant broad exclusions of evidence in limine. Koch v. Koch Industries, Inc., 2 F. Supp.2d 1385, 1388 (D. Kan. 1998), aff'd in part and rev'd in part on other grounds, 203 F.3d 1202 (10th Cir. 2000). A court will generally not grant a motion in limine unless the moving party meets its burden of showing that the evidence in question is clearly inadmissible. Indiana Insurance, 326 F. Supp.2d at 846. If this showing is not made, evidentiary rulings should be deferred and resolved in the context of the trial. Id. Ultimately, whether a motion in limine is granted or overruled is a matter left to the sound discretion of the trial court. See Hesling v. CSX Transportation, Inc., 396 F.3d 632, 643-44 (5th Cir. 2005).
Lay Witness Disclosures
Fed. R. Civ. P. 26 (a)(3)(A) is entitled "In General." Section (3) is entitled "Pretrial Disclosures." Rule 26(a)(3)(A) provides that:
In addition to the disclosures required by Rule 26(a)(1), a party must provide to the other parties and promptly file... the name and, if not previously provided, the address and telephone number of each witness - separately identifying those the party expects to present and those it may call if the need arises....
Fed R. Civ. P. 26(a)(3)(B) is entitled "Time for Pretrial Disclosures; Objections." It provides that, unless the court orders otherwise, pretrial disclosures must be made at least 30 days before trial. An opposing party then has 14 days to object.
ANALYSIS
The Defendants argue that the seventeen (17) lay witnesses identified by name only in the Lay Witness List filed by Lemmon on June 24, 2013, should be barred from testifying because the disclosure of these witnesses did not include their addresses and telephone numbers. Lemmon responds that her attorney was not able to properly identify many of the addresses of these witnesses at the time of the filing, and that Defendants' attorney made no attempt to resolve the issue prior to filing the Motion In Limine that is now before the Court. Finally, Lemmon argues that she must make witness disclosures at least thirty (30) days before trial and she has made them at least thirty (30) days before trial.
Lay witnesses were initially disclosed by Lemmon's current attorney, as required, on August 17, 2010. This is more that two (2) years ago. Surely Lemmon must have known then who her witnesses would be.
However, the Sixth Circuit intervened and Lemmon was given until not later than June 24, 2013, to resubmit a list of lay witnesses. This she did, but all but two were without address and telephone number as required by Fed. R. Civ. P. 26(a)(3)(A).
The reason given by Lemmon's attorney is disingenuous at best. The attorney had almost two years to identify the names, addresses and telephone numbers of Lemmon's witnesses and apparently did not do so.
Further, Lemmon's attorney cites to "Fed. R. Civ. P. 26(B)" for the proposition that she must make witness disclosures at least thirty (30) days before trial. Assuming that the attorney meant to cite Fed. R. Civ. P. 26(a)(3)(B), the attorney conveniently omitted the language "unless the court orders otherwise." In this case, the Court ordered otherwise. Finally, nothing in the rules or caselaw requires one party to contact another before filing a motion in limine.
Therefore, Defendants' Motion In Limine To Exclude All of Plaintiff's Improperly Identified Lay Witnesses (doc. #47) is granted. Lemmon may not call any lay witnesses except herself and Ayres who were both properly noticed.
DONE and ORDERED in Dayton, Ohio this Twenty-First Day of August, 2013.
______________________
THOMAS M. ROSE, JUDGE
UNITED STATES DISTRICT
Copies furnished to:
Counsel of Record