Gold Cross EMS, Inc. v. The Children's Hospital of Alabama, No. 1:2013cv00081 - Document 77 (S.D. Ga. 2015)

Court Description: ORDER denying Plaintiff's 71 Motions in Limine. Signed by Judge J. Randal Hall on 09/14/2015. (jah)
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Gold Cross EMS, Inc. v. The Children's Hospital of Alabama IN THE UNITED Doc. 77 STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION GOLD CROSS EMS, INC., * Plaintiff, * v. THE CHILDREN'S * HOSPITAL OF CV 113-081 ALABAMA, * Defendant, ORDER A Wolf found great difficulty in getting at the sheep owing to the vigilance of the shepherd and his dogs. But one day it found the skin of a sheep that had been flayed and thrown aside, so it put it on over its own pelt and strolled down among the sheep. The Lamb that belonged to the sheep, whose skin the Wolf was wearing, began to follow the Wolf in the Sheep fs clothing; so, leading the Lamb a little apart, he soon made a meal off her, and deceiving for the some sheep, time he succeeded and enjoying in hearty meals. Appearances are deceptive.1 Presently pending before the Court are Plaintiff's Motions in Limine. dismissal (Doc. of Defendant 1 Aesop, Fable 26 71) . The first motion in limine requests the Children's The Wolf in Sheep's (Charles W. Eliot Hospital of Clothing, Ed. 1909), Alabama's (CHoA) in Folk-Lore and available at https: //books .google. com/books/about/Folk_lore_and__Fable. html? id =XDELAAAAIAAJ. counterclaim for attorney's fees and expenses, of any related evidence. (Id. at 1-3) . and the exclusion The second motion in limine argues that Defendant's counterclaim for medical expenses should likewise be dismissed. concludes: limine ''WHEREFORE be granted Gold (Id. at 4-8). Cross which will counterclaim in this action." Plaintiff limine. or States, that thereby (Id. at 8) misunderstands the trial, the to exclude evidence 469 U.S. is 38, 40 purpose of defines motion in limine as " [a] inadmissible evidence Motion in Limine, not be the in CHoA the motion in whether made before prejudicial offered." n.2(1984). motions (emphasis added). anticipated actually its eliminate A motion in limine is "any motion, during before prays Plaintiff's brief Luce Black's evidence v. Law United Dictionary pretrial request that certain referred to Black's Law Dictionary or offered at (10th 2014) . trial." Further, leading treatises criticize the practice of dismissing claims in limine. Fed. E.g., Prac. & Charles Allen Wright & Kenneth W. Graham, Proc. § 5037.18 (2d ed. 2005) ("Now Rule 103 has regularized the motion in limine, that Jr., 21 Revised we can expect to see some lawyers try to use the motion for purposes for which it was never Am. Jur. intended; 2d Trial summarily dismiss the trial courts e.g., § 44 as a (2009) a portion of are delayed ("The use general demurrer."); of motions in limine a claim has been condemned, cautioned not to allow motions in limine 75 to and to be used as unwritten and unnoticed motions for summary judgment 2 or motions to dismiss."). have agreed, defenses and by Intellectual have motion Props. (Fed. Cir. 2012) At least two circuit courts of appeal held Ltd. the dismissal limine in that is improper. v. Bodum, Inc., defense decision and claims See F.3d and Meyer 1354, 1378 ("Because we conclude that it was procedurally improper for the court to dispose of conduct 690 of on a remand for limine, further we inequitable reverse the proceedings."); Cir. 1996) (finding that argument regarding the sufficiency of judgment as motion to typical be proper a matter of exclude in Sys. , Inc. , No. argument law, evidence limine practice the dismissal of 10, a claims. 100 Mid-America Inc. "might Mogi Trading Co., court's Tablewares, evidence v. in motion [defendant's] it of See, for is not prior to federal F.3d 1353, summary trial"). courts In does 2008 WL 2047633 (7th judgment a proper basis e.g. , Witness Sys., 1:06-CV-126-TCB, 1363 for sum, not Inc. a the include v. (N.D. or Nice Ga. May 2008) . However, limine is not acknowledges whether defenses, that, the of dismissing unprecedented. that motions practice the in Eleventh limine may In its Circuit be claims reply has by brief, never dispositive of motion in Plaintiff considered claims or but cites two cases from the Third and Sixth Circuits in specific circumstances, 76 at 1-2)(citing Petty v. Metro. affirmed the practice. (Doc. Govn't of Nashville & Davidson Cnty., 687 F.3d 710, 721 v. Cupola Enters., LLC, The Third (6th Cir. 2012); Howard Johnson, 117 F. App'x 820, 822 Circuit's approach to Int'l (3d Cir. 2004)). dispositive motions in limine is based largely on its precedent in sua sponte summary judgment cases. On two occasions, the Third Circuit reversed the dismissal of claims by motion in limine on grounds that the nonmovants lacked evidence. 1069-70 formal notice and the opportunity to See Bradley v. Pittsburgh Bd. of Educ, (3d Cir. motion 1990) for ("Most importantly, summary judgment, marshal their 913 F.2d 1064, in the absence of a plaintiff was under no formal compulsion to marshal all of the evidence in support of his claims."; 154 Brobst (3d Cir. 1985) in converted the but without federal rules granted."). Bradley the Columbus Services ("In effect, limine motion procedural require before F.2d 148, court's procedure for summary judgment, of into one judgment 761 notice on the which merits may the be the Third Circuit distinguished claims, holding that the procedural protections were satisfied. 117 F. 822. Notably, the district protections In Howard Johnson, affirmed the Int'l, plaintiff's App'x at and v. the dismissal court's of opinion characterizes this practice as a sua sponte grant of summary judgment. 23 ("In sum, we do not permit a district court to Id. at 822sua sponte grant summary judgment unless" the non-movant had notice and an opportunity to marshal its evidence). For its part, the Sixth Circuit relied on a comparison between the Third Circuit cases of Bradley and Howard Johnson to reach its holding that notice and evidence are necessary to dismiss Petty, with 687 Howard Circuit grants of she relied summary is 721 Johnson, also judgment that F.3d at to 117 on 1998). In claims App'x its Univ. Petty, at similar where forward (quoting Salehpour v. Cir. F. judgment, come opportunity the with of the 913 F.2d at 822-833). precedent it to marshal by motion in limine. (comparing Bradley, proper "so long as had an has The that losing party was all of Term. , 159 court her sponte summary on notice evidence." F.3d rejected Sixth sua on held 1069-70 199, the Id. 204 (6th defendant's challenge because it found these two procedural protections were satisfied. Id. But Petty has been distinguished by Louzon v. Ford Motor Co. , 718 F.3d 556 (6th Cir. 2013), its statement affirming the procedural basis was then an alternate holding, Sixth Circuit. Louzon, it and to the extent for the is no longer the 718 F.3d at 563 n.3. dismissal law in the Instead, the Sixth Circuit has joined the Seventh and Federal Circuits in rejecting the dismissal of claims by motion (citing Meyer Intellectual Props., Tablewares, limine. Id. at 562-63 690 F.3d at 1378; Mid-America 100 F.3d at 1363). In short, approaches. in the precedents First, a majority in our sister courts produce two of circuit courts and district courts categorically reject the dismissal of claims by motion in 5 limine. Second, the Third Circuit uses an approach similar to that applied in the sua sponte context, requiring notice and the opportunity judgment. and to marshal evidence in opposition to summary The Court finds the majority approach more persuasive therefore finds that Plaintiff's motion in limine is an improper and untimely motion for summary judgment. Even under arguments are the Third Circuit's unconvincing. It is approach, revealing cited by Plaintiff, Howard Johnson and Petty, related to the sua sponte grant of Plaintiff's that both cases rely on authority summary judgment. In many respects the true relief requested in Plaintiff's motions is for the Court to convert a motion in limine into a sua sponte grant of an untimely deadline. summary (See Order, judgment, Doc. well 41) . While past the the civil motion Eleventh Circuit has never considered the propriety of summary judgment in limine, it has frequently considered when courts may enter summary judgment sua sponte. movants their must be evidence touchstone Massey v. 1997) And like the Third Circuit, of given in the notice opposition and to the the principle that non- opportunity summary judgment to marshal has been Eleventh Circuit's precedent as well. Congress Life Ins. (citing Celotex Corp. Co., v. 116 F.3d 1414, Catrett, 477 U.S. 1417 317, a E.g. , (11th Cir. 326, 106 S.Ct. 2548, 2554 (1986)).2 2 The Eleventh Circuit has distinguished what notice required in cases "involving purely legal questions based is on Additionally, the Eleventh and perhaps fatally to Plaintiff's request, Circuit has also held that converts a motion to dismiss under Fed. into a summary judgment motion the when R. a Civ. court district Proc. must court 12(b)(6) "notify the parties that the motion has been converted, and give the parties 10 days in which to v. Inc., ESLU, supplement the record." Trustmark Ins. 299 F.3d 1265, In the present case, that it motions was in notice—which most to meet passing gave remark in summary Defendant authorities this Circuit's its (11th Cir. 2002). the Court has never notified Defendant considering limine 1267 Co. judgment. any notice consider brief at Plaintiff's all, improper—was requirements.3 reply Only that too Moreover, Defendant and that slight Plaintiff's "has notice that these motions are dispositive and hinge on narrow questions of law" is insufficient to cure this defect. (Doc. 76 at 5). complete evidentiary records" from those involving factual disputes without a full record. Artistic Entm't, Inc. v. City of Warner Robbins, 331 F.3d 1196 (11th Cir. 2003). At present, the Court is not satisfied that this case falls into the "purely legal" category, and, in any event, the Court declines to sua sponte convert Plaintiff's motions in limine into a motion for summary judgment. 3 To be sure, Defendant's response to Plaintiff's motions in limine (Doc. 75) demonstrates that it knows the motions are requesting the dismissal of its two counterclaims. But the response brief uses only five pages of argument against the motion and provides no exhibits to defend its counterclaims from dismissal. Though Plaintiff would likely say this demonstrates only Defendant's lack of credible arguments and evidence, Defendant's brevity may signal that it was not on notice that the Court would sua sponte convert Plaintiff's motions in limine into an untimely motion for summary judgment on the eve of trial. Defendant cannot be on notice that the Court would sua sponte convert Plaintiff's motions in limine into a motion for summary judgment even though Plaintiff filed its motions 503 days after the summary judgment deadline. the dismissal the Court finds in limine is proper, of claims procedural The protections afforded by that, even if Defendant Federal Rule lacked of Civil Procedure 56. Finally, this Court considers the traditional purpose of a motion in limine: the exclusion of evidence. Explicit in Plaintiff's first motion and implicit in its second are requests to exclude medical reply the evidence expenses. brief, of Neither provide any attorney's fees Plaintiff's argument or and initial expenses brief, authority for nor why and its this evidence should be excluded apart from its more general argument that the Defendant's no reason counterclaims should counterclaims at present to remain be in exclude dismissed. this case, evidence Given the that Court finds relevant to those counterclaims.4 In conclusion, the Federal Rules of Civil Procedure contain multiple rules allowing parties to dismiss claims; there is no need to disguise a motion for summary judgment in the clothing of a motion in limine. Instead, the proper courses are a timely 4 Notwithstanding Plaintiff's request to exclude evidence, elsewhere it has joined a proposed stipulation to the value of attorney's fees and expenses at issue in this case. (Proposed Pretrial Order, Doc. 70, Attachment A(i)) filed motion for summary judgment or a motion for judgment as a matter of law. ORDER September, Plaintiff's motions in limine are hereby DENIED. ENTERED at Augusta, Georgia, this 2015. HO|JORAB^E J. RATSIDAL HALL UNITEJKSTATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA day of