Progressive Minerals LLC. v. Rashid et al, No. 5:2007cv00108 - Document 99 (N.D.W. Va. 2009)
Court Description: MEMORANDUM OPINION AND ORDER denying 88 Progressive Minerals LLC's Motion in Limine to Preclude defendant David M. Bernstein from Presenting Evidence. Signed by Senior Judge Frederick P Stamp, Jr on 9/30/09. (c to defendant O'Nurkera by cert mail, c to defendant David M. Bernstein by registered mail) (cc) (Additional attachment(s) added on 10/1/2009: # 1 certified mail receipt) (cc). (Additional attachment(s) added on 10/1/2009: # 2 Registered mail receipt) (cc).
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA PROGRESSIVE MINERALS, LLC, Plaintiff, v. Civil Action No. 5:07CV108 (STAMP) MUHAMMAD HAROON RASHID, GERALD D. HENDRIX, DAVID M. BERNSTEIN, JOHN DOUGLAS REYNOLDS, JOHN C. CROSBIE and JUDE O NURKERA, Defendants. MEMORANDUM OPINION AND ORDER DENYING PROGRESSIVE MINERALS, LLC S MOTION IN LIMINE TO PRECLUDE DEFENDANT DAVID M. BERNSTEIN FROM PRESENTING EVIDENCE Plaintiff, Progressive Minerals, LLC ( Progressive ), a West Virginia limited liability company with its principal place of business located in West Virginia, filed this action before this Court pursuant to diversity jurisdiction under 28 U.S.C. ยง 1332, asserting claims of fraud, negligent misrepresentation, conspiracy to defraud, and negligence against several alleged managing members of Global Empire Investments and Holdings LLC. During the days leading up to trial, Progressive filed a motion in limine to preclude pro se1 defendant David M. Bernstein ( defendant Bernstein ) from presenting any evidence at the trial of this action. 1 In support of this motion, Progressive contends Pro se describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black s Law Dictionary 1341 (9th ed. 2009). that defendant Bernstein has refused to answer discovery requests, appear for his deposition, and attend court-ordered hearings, evidentiary or otherwise. Defendant Bernstein did not file a response. This Court must deny Progressive s motion in limine to preclude defendant Bernstein from presenting any evidence at trial. On September 30, 2009, this Court entered a memorandum opinion and order granting Progressive s motion for default under Rule 37 of the Federal Bernstein. Rules of Civil Procedure as against defendant In that memorandum opinion and order, this Court directed the Clerk to enter default against defendant Bernstein pursuant to Federal Rule of Civil Procedure 37 because of his egregious and flagrant refusal to comply with several court orders, as well as general discovery rules. Nevertheless, this Court held that it would permit defendant Bernstein to appear at trial, but limit his evidence to only that revealed through discovery that he has already provided to the parties, which is limited. Thus, because Progressive s motion in limine requests that defendant Bernstein from presenting any evidence at trial, Progressive s motion is DENIED. IT IS SO ORDERED. The Clerk is directed to transmit a copy of this order to the pro se defendant by certified mail and to counsel of record herein. 2 DATED: September 30, 2009 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 3
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