Woods v. Slater Transfer and Storage, No. 2:2008cv00948 - Document 114 (D. Nev. 2010)

Court Description: ORDER Granting 100 Defendants' Motion in Limine to Exclude Plaintiff's Witnesses- No. 1.; and Granting 101 Defendants' Motion in Limine to Exclude Certain Documents - No. 2. IT IS FURTHER ORDERED that the hearing on the present motions currently set for 8/31/10 is vacated. The Calendar Call in this action will still take place on 8/31/10 at 9:30 am. Signed by Magistrate Judge George Foley, Jr on 8/27/10. (Copies have been distributed pursuant to the NEF - EDS)
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Woods v. Slater Transfer and Storage Doc. 114 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 13 14 TAMARA WOODS, ) ) Plaintiff, ) ) vs. ) ) SLATER TRANSFER AND STORAGE, INC., ) and NORTH AMERICAN VAN LINES, INC. ) ) Defendants. ) __________________________________________) Case No. 2:08-cv-00948-GWF ORDER Motion in Limine No. 1 (#100) and Motion in Limine No. 2 (#101) This matter is before the Court on Defendants’ Motion In Limine to Exclude Plaintiff’s 15 Witnesses - No. 1 (#100); Defendants’ Motion In Limine to Exclude Certain Documents - No. 2 16 (#101), filed August 6, 2010; Plaintiff’s Opposition to Defendants’ Motion In Limine to Exclude 17 Certain Documents - No. 2 and Exclude Witnesses - No. 1 (#108), filed August 11, 2010; Slater 18 Transfer and Storage, Inc. and North American Van Lines, Inc. Reply to Plaintiff’s Response re 19 Motion In Limine to Exclude Plaintiff’s Witnesses - No. 1 (#110), filed August 19, 2010; and Slater 20 Transfer and Storage, Inc. and North American Van Lines, Inc. Reply to Plaintiff’s Response re 21 Motion In Limine to Exclude Plaintiff’s Witnesses - No. 2 (#111), filed August 19, 2010. 22 DISCUSSION 23 1. 24 Plaintiff Tamara Woods has brought this action against Defendants Slater Transfer and Background 25 Storage, Inc. (“Slater Transfer”) and North American Van Lines, Inc. (“NAVL”) alleging breach of 26 the covenant of good faith and fair dealing based on a contract the parties entered into for the 27 28 Dockets.Justia.com 1 moving of Plaintiff’s household goods.1 Woods alleges that, in September 2007, she hired Slater 2 Transfer and NAVL to transport her household goods from Toledo, Ohio to Las Vegas, Nevada. 3 (#8 at 4-5). Prior to signing an Order for Service with Defendants, Plaintiff obtained an oral quote 4 of $1,100.00 from a NAVL customer representative for the cost of moving her household items 5 across the country. (#8 at 8; Ex. A to #71 at 34-36). On September 5, 2007, Ms. Woods received a 6 Binding Estimate from NAVL, which listed the “Guaranteed Not to Exceed” cost as $3,841.28. 7 (Ex. A to #71 at 34-36). Before she signed and initialed the Binding Estimate, Plaintiff alleges that 8 she contacted NAVL to ask why the estimate was so high when she had previously been quoted 9 $1,100.00. (Id.) Plaintiff states that the representative for NAVL reassured her that the final cost 10 would end up being somewhere between $1,100.00 and $3,841.28. (Ex. A to #71 at 34-35, 39). 11 According to Plaintiff, she signed an Order for Service with Defendant NAVL in late 12 September 2007, which memorialized the agreement that NAVL would arrange for her household 13 items to be shipped to Nevada. (#71 at 7; Ex. A to #71 at 53-55). However, Plaintiff states that no 14 price was filled in on the Order for Service form she signed and that she signed based on the 15 understanding that the move would cost around $1,100.00 but potentially up to $3,841.28. (Ex. A 16 to #71 at 34-35, 39, 53-55). Around December 2007, Slater Transfer moved all of Plaintiff’s 17 household goods into its storage facility in Toledo, Ohio. Slater Transfer made arrangements with 18 NAVL to move Woods’ household items from Toledo to her new residence located in Las Vegas. 19 Plaintiff expected delivery of her household goods to her residence in Las Vegas in February 2008. 20 However, Plaintiff’s household goods were not delivered to her Las Vegas residence. To date, 21 22 23 24 25 26 27 28 1 In her initial complaint, Plaintiff filed claims against Defendant Slater Transfer for Plaintiff’s claims for breach of contract, negligent misrepresentation and intentional fraud. (#1). On October 7, 2008, the Court dismissed these claims as barred by the Carmack Amendment. (#26 at 4-5) (granting, in part, Slater Transfer’s Motion for Summary Judgment (#10)). Plaintiff subsequently filed an Amended Complaint containing state law claims against Slater Transfer and NAVL for deceptive trade practices (NRS 598.0977) and deceptive trade practices against a person with a disability (NRS 598.0973). (#36). The Court found that these claims were also preempted by the Carmack Amendment. (#48). However, the Court also interpreted Plaintiff’s Amended Complaint as raising a claim for breach of the covenant of good faith and fair dealing based on the contract she held with Defendants related to the transportation and storage of her household items. (Id.) 2 1 Plaintiff has yet to receive her household items (id. at 34-35, 39) and Defendants claim she has not 2 paid for the cost of storage or transportation of her household items (#71 at 7-9). 3 Based on these allegations, Plaintiff contends that Defendants are liable for breach of the 4 covenant of good faith and fair dealing under the contract the parties entered into because (1) Slater 5 Transfer informed Plaintiff that the cost of moving her household items would be $1,100.00 plus 6 the cost of storage for two months and (2) Defendants overcharged her by claiming Woods owed 7 $3,918.11 for moving and storage costs. 8 2. 9 A motion in limine is a procedural device to obtain an early, preliminary ruling on the Motion In Limine Standard 10 admissibility of evidence. Black’s Law Dictionary defines it as “[a] pretrial request that certain 11 inadmissible evidence not be referred to or offered at trial.” Black’s Law Dictionary 1109 (9th ed. 12 2009). “Typically, a party makes this motion when it believes that mere mention of the evidence 13 during trial would be highly prejudicial and could not be remedied by an instruction to disregard.” 14 Id. Although the Federal Rules of Evidence do not explicitly authorize a motion in limine, the 15 Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant to 16 their authority to manage trials. See Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460 17 (1984). 18 Judges have broad discretion when ruling on motions in limine.2 See Jenkins v. Chrysler 19 Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). However, a motion in limine should not be used 20 to resolve factual disputes or weigh evidence. See C & E Servs., Inc. v. Ashland, Inc., 539 21 F.Supp.2d 316, 323 (D.D.C. 2008). To exclude evidence on a motion in limine “the evidence must 22 be inadmissible on all potential grounds.” E.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F.Supp.2d 844, 23 846 (N.D.Ohio 2004). “Unless evidence meets this high standard, evidentiary rulings should be 24 deferred until trial so that questions of foundation, relevancy and potential prejudice may be 25 resolved in proper context.” Hawthorne Partners v. AT & T Tech., Inc., 831 F.Supp. 1398, 1400 26 27 28 2 Courts of appeals “afford broad discretion to a district court’s evidentiary rulings.” See Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140 (2008). 3 1 (N.D.Ill. 1993). This is because although rulings on motions in limine may save “time, costs, effort 2 and preparation, a court is almost always better situated during the actual trial to assess the value 3 and utility of evidence.” Wilkins v. Kmart Corp., 487 F.Supp.2d 1216, 1219 (D.Kan. 2007). In limine rulings “are not binding on the trial judge [who] may always change his mind 4 5 during the course of a trial.” Ohler v. United States, 529 U.S. 753, 758 n. 3, 120 S.Ct. 1851 (2000); 6 accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to change, especially if 7 the evidence unfolds in an unanticipated manner). “Denial of a motion in limine does not 8 necessarily mean that all evidence contemplated by the motion will be admitted to trial. Denial 9 merely means that without the context of trial, the court is unable to determine whether the 10 evidence in question should be excluded.” Ind. Ins. Co., 326 F.Supp.2d at 846. 11 3. 12 Defendants argue that the Court should exclude Plaintiff’s proposed witnesses because their 13 testimony would not be relevant to the breach of contract claim. (#100). According to Defendants, 14 none of the four witnesses proposed by Plaintiff were present at the signing of the contract at issue 15 or present at any discussion of the terms of the contract. (Id.) Based on these allegations, 16 Defendants contend that the following witnesses should be excluded from testifying at trial: 17 Motion In Limine to Exclude Plaintiff’s Witnesses a. 18 #1); 19 b. 20 c. 22 Mike Schlarmann, Auditor at Fed. Motor Carrier Safety Admin. (Pl.’s Witness #3); 23 25 Steve Forbman, Fed. Motor Carrier Safety Admin. Judicial Counselor (Pl.’s Witness #2); 21 24 Nicole Cooper, Certified Nursing Aide for Tamara Woods (Pl.’s Witness d. Leslie Mickel, FMCA Commercial Enforcement Division (Pl.’s Witness #4). (#100). Plaintiff argues that Nicole Cooper’s testimony will speak to Plaintiff’s physical condition 26 since the time that the dispute arose with Defendants. (#108). However, Woods’ physical 27 condition is not at issue in this case. The only claim remaining in this action is Plaintiff’s breach of 28 4 1 the covenant of good faith and fair dealing3 against the defendants. Therefore, testimony from a 2 nurse or doctor regarding Plaintiff’s medical condition would not be relevant to the claim and is 3 inadmissible on all potential grounds. 4 In regard to the proposed testimony of Steve Forbman and Mike Schlarmann, Plaintiff 5 argues the proposed witnesses should be allowed to testify regarding the law, rules and regulations 6 governing moving companies and why the contract at issue “has violations in it”. (#108 at 2). As 7 discussed above, the law, rules and regulations governing moving companies are not at issue in this 8 breach of covenant case. In addition, Plaintiff offers no explanation for how testimony from either 9 of these witnesses would be relevant to determine the terms of the contract at issue or the intent of 10 the parties entering into the contract. Accordingly, the Court finds that the proposed testimony 11 from Forbman and Schlarmann is inadmissible on all potential ground and as it is not relevant to 12 the alleged breach of the covenant of good faith and fair dealing. 13 Woods does not oppose Defendants’ request to exclude Leslie Mickel as a witness as 14 Mickel is no longer available. As a result, the Court will exclude Nicole Cooper, Steve Forbman, 15 Mike Schlarmann and Leslie Mickel from testifying at trial. 16 4. 17 Defendants move for the Court to exclude from the trial the following twelve (12) 18 Motion in Limine to Exclude Certain Documents categories of documents proposed as exhibits by Plaintiff: 19 a. 20 All Complaints against NAVL and Slater Transfer and Storage (posted on the internet) – 63 Complaints (Pl.’s Ex. #6); 21 b. Doctor’s reports for Tamara Woods (Pl.’s Ex. #7); 22 c. Four character references of Tamara Woods (Pl.’s Ex. #8); 23 d. Federal Motor Carriers Fines and Violations against carriers (Pl.’s Ex. #9); 24 e. Arbitration Information per Congress section 14708 of Title 49 of U.S. DOT 25 26 Codes (Pl.’s Ex. #10); ... 27 28 3 See discussion fn. 1, supra 2. 5 1 f. 2 Federal Motor Carrier Safety Administration 375 Penalties & Violations U.S. DOT Codes (Pl.’s Ex. #11); 3 g. 4 Federal Motor Carrier Safety Administration Senate Committee on Surface Transportation & Merchant Marine 5/4/2006 (Pl.’s Ex. #12); 5 h. 6 Household Goods Guide from Federal Motor Carrier Safety Administration (Pl.’s Ex. #13); 7 i. 8 Demand Letter dated September 19, 2008 (Stephenson & Dickinson correspondence to Ms. Woods) (Pl.’s Ex. #14); 9 j. 10 Demand Letter dated March 23, 2009 (Stephenson & Dickinson correspondence to Ms. Woods) (Pl.’s Ex. #15); 11 k. PUCO of Ohio information (Pl.’s Ex. #18); and 12 l. Correspondence from Stephenson & Dickinson dated May 29, 2010, April 13 14 15 15, 2010 and June 15, 2009 (Pl.’s Ex. #19). (#96; #101). Plaintiff filed a response to Defendants’ motion, but only opposed the exclusion of “All 16 Complaints against NAVL and Slater Transfer and Storage – 63 Complaints” (Pl.’s Ex. #6). (See 17 #108). In doing so, Plaintiff failed to oppose Defendants’ request to exclude Plaintiff’s proposed 18 exhibits #s 7-15, 18-19.4 LR 7-2(d) states in pertinent part, that “[t]he failure of an opposing party 19 to file points and authorities in response to any motion shall constitute a consent to the granting of 20 the motion.” The Court will exclude Plaintiff’s proposed exhibits #s 7-15, 18-19 as Plaintiff has 21 offered no reason for the Court to consider them relevant or admissible. 22 Even if the Court were to consider the admissibility of Plaintiff’s proposed exhibits #s 7-15, 23 18-19 on the merits, the exhibits would be excluded. The doctor’s reports, character references, 24 federal and state statutes and regulations, demand letters and correspondence at issue constitute 25 inadmissible hearsay that is not relevant to Plaintiff’s breach of the covenant of good faith and fair 26 dealing claim. 27 28 4 Ordered as challenged documents “b” through “l” in the Court’s discussion above. 6 1 In regard to the 63 internet complaints against Defendants (Pl.’s Ex. #6), Plaintiff argues 2 that the complaints about NAVL and Slater Transfer should not be excluded as they are relevant to 3 show that the defendants are not fair in their business dealings with customers. (#108). However, 4 Plaintiff has offered no explanation to the Court as to why these complaints from non-parties would 5 be relevant to Plaintiff’s breach of the covenant of good faith and fair dealing claim. In addition, 6 the Court finds that the internet complaints constitute inadmissible hearsay and have not been 7 properly authenticated as required by Fed.R.Evid. 901. As a result, Plaintiff’s proposed exhibits #s 8 7-15, 18-19 are inadmissible on all potential grounds. Accordingly, 9 IT IS HEREBY ORDERED that Defendants’ Motion In Limine to Exclude Plaintiff’s 10 Witnesses - No. 1 (#100) is granted. The testimony of Nicole Cooper, Steve Forbman, Mike 11 Schlarmann and Leslie Mickel will be excluded and Plaintiff’s proposed witnesses will be 12 prohibited from testifying at trial. 13 IT IS FURTHER ORDERED that Defendants’ Motion In Limine to Exclude Certain 14 Documents - No. 2 (#101) is granted. Plaintiff’s proposed exhibits #s 6-15 and 18-19 are 15 excluded as evidence and may not be introduced at trial. 16 IT IS FURTHER ORDERED that the hearing on the present motions currently set for 17 Tuesday, August 31, 2010 is vacated. The Calendar Call in this action will still take place on 18 Tuesday, August 31, 2010 at 9:30 a.m. 19 DATED this 27th day of August, 2010. 20 21 22 ______________________________________ GEORGE FOLEY, JR. United States Magistrate Judge 23 24 25 26 27 28 7