Pankey et al v. Western Arkansas Rock, Inc. et al
ORDER granting in part and denying in part 107 Motion in Limine. (See Order for specifics.) Signed by Honorable Susan O. Hickey on April 10, 2015. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TERRELL PANKEY and
SMITH COUNTY STONE, LLC
Civil No. 4:13-cv-4046
WESTERN ARKANSAS ROCK, INC.
Before the Court is a Motion in Limine filed on behalf of Plaintiffs Terrell Pankey and
Smith County Stone, LLC. (ECF No. 107). Defendant Western Arkansas Rock, Inc. (“WAR”)
has filed a response. (ECF No. 116). Plaintiffs have filed a reply. (ECF No. 117). WAR has
filed a surreply. (ECF No. 119). The Court finds this matter ripe for consideration.
Plaintiffs move the Court to enter an Order prohibiting the other parties, attorneys,
witnesses, and other representatives from introducing any evidence of, or making any reference
to the following matters set forth below.
1. Any facts based on an affirmative defense not pled by Defendant, including:
waiver of written notice requirement in contract, and/or oral notice of default, in
contravention of written notice required by contract.
As to the affirmative defense of waiver, the Court finds that the motion should be and
hereby is GRANTED. Plaintiffs’ breach of contract claim against WAR centers on WAR’s
alleged failure to abide by the written notice provision in the parties’ Mining Lease. The notice
provision required two written notices: (1) notice of noncompliance with ten days to cure, and
(2) notice of cancellation following the ten-day cure period. In this case, formal written notice
of noncompliance with ten days to cure was not provided to Plaintiffs. Rather, on August 27,
2010, WAR sent Plaintiffs a Notice of Termination of Lease detailing six reasons for the
In their objections to Judge Bryant’s Report and Recommendation, WAR raised the issue
of waiver for the first time. While the Court has had difficulty deciphering WAR’s waiver
argument, it appears to center on (1) Plaintiffs’ alleged “verbal acknowledgment” of WAR’s
verbal warnings and requests for documents under the Mining Lease that preceded the
Termination Notice; (2) Plaintiffs’ “acknowledgment” and “acceptance” of WAR’s August 27,
2010 Termination Notice; and (3) Plaintiffs’ lack of effort to cure the deficiencies laid out in the
August 27, 2010 Termination Notice. WAR argues that these actions and inactions amount to
waiver of the written notice provision in the Mining Lease.
Failure to plead the affirmative defense of waiver generally results in the defense being
waived. Fed. R. Civ. P. 8(c). “The Supreme Court has indicated that the Rule 8(c) pleading
requirement is intended to give the opposing party both notice of the affirmative defense and an
opportunity to rebut it.” First Union Nat. Bank v. Pictet Overseas Trust Corp., 477 F.3d 616,
622 (8th Cir. 2007).
In this case, WAR did not explicitly set out the waiver defense in its Answer to Plaintiffs’
Complaint. Nonetheless, WAR argues that the defense has not been waived because (1) the facts
pled in their Answer establish the existence of waiver and (2) they raised their waiver arguments
in their objections to the Report and Recommendation, thereby giving Plaintiffs adequate time to
rebut the defense.
The Court disagrees.
The facts pled in the Answer generally refer to
Plaintiffs’ “acceptance” of the August 27, 2010 termination, but the pleadings do not clearly set
out the affirmative defense of waiver so that it can be said that Plaintiffs were put on notice of
the defense. Moreover, the waiver issue was not raised early enough in this case to justify a
liberal reading of WAR’s pleadings. WAR did not allude to the waiver defense in its Motion for
Summary Judgment or reply in support. The issue was not raised until WAR filed its objections
to the Report and Recommendation that recommended a partial denial of WAR’s summary
judgment motion. The objections were filed on February 12, 2015, more than five months after
the close of discovery and only two months before trial. Plaintiffs have not been allowed to
conduct discovery on the waiver issue and have not been allowed adequate time to prepare a
rebuttal to the waiver defense. Accordingly, allowing WAR to argue waiver at trial would result
in prejudice to Plaintiffs. For this reason, the Court finds that the motion in limine as to the
defense of waiver should be granted.
B. Modification of the Mining Lease
In their objections to the Report and Recommendation, WAR appears to argue that the
parties orally agreed to modify the existing Mining Lease and that this modification resulted in
the written notice requirement becoming inapplicable. In their Motion in Limine, Plaintiffs point
out that the defense of modification of contract was not pled in WAR’s Answer or raised in
The defense of modification of contract is an affirmative defense. See Helm Fin. Corp. v.
Iowa N. Ry. Co., 214 F. Supp. 2d 934, 976 (N.D. Iowa 2002); CSX Transp. Inc. v. Schuykill Rail
Car Inc., No. 1:13-CV-1409, 2014 WL 2864781, at *5 (M.D. Pa. June 24, 2014); 5 Wright &
Miller, Fed. Prac. & Proc. Civ. § 1270, 561 (3d ed. 2004) (“A defense must be raised in the
defendant's answer if it will defeat the plaintiff's claim, even if all the allegations in the
complaint are true.”). Much like WAR’s waiver defense, the alleged modification of the
agreement between the parties was not sufficiently raised in the pleadings and was argued for the
first time in the objections to the Report and Recommendation. WAR does not refer to a contract
modification or new agreement in its pleadings. Rather, WAR simply states that it terminated
the lease and Plaintiffs “accepted” the termination and moved off of the property.
allegations were not sufficient to put Plaintiffs on notice of the defense.
circumstances, allowing WAR to argue modification at trial would result in prejudice to
Accordingly, the Court finds that the motion in limine as to the defense of
modification should be GRANTED.
C. Oral notifications of default
In their objections to the Report and Recommendation, WAR appears to argue that their
oral notifications of default were sufficient under Mining Lease’s notice provision. Plaintiffs
argue that this is directly contrary to the Mining Lease’s written notice provisions and ask the
Court to prevent WAR from mentioning any oral notifications.
The Court finds that the motion should be DENIED WITHOUT PREJDUICE at this
time. The question of the sufficiency of the alleged oral notifications, or any other forms of
notification, are issues of contract interpretation that will likely need to be answered by the Court
on a directed verdict or answered by the jury.
2. Any reference to any other claims, debts, or lawsuits asserted or filed against
It is not clear to the Court what “claims, debts or lawsuits” Plaintiffs are referring to in
their motion. WAR’s response to the motion does not add much clarity. Accordingly, the
motion is DENIED WITHOUT PREJUDICE at this time.
The Court will take up the
relevance of specific pieces of evidence as they are presented at trial.
3. Any reference to the fact that certain parties were previously Defendants in this
suit but have now been dismissed.
The Court finds that the motion should be GRANTED. Many claims and defendants
have been previously dismissed from this case. The merits of these dismissed claims are not
relevant to the merits of the claims that are still pending. Moreover, any mention of dismissed
claims or parties would likely cause confusion to the jury.
In their response to the this motion in limine, WAR indicates that they will seek to offer
evidence that Plaintiffs “previously filed suit against a number of people in Texas State Court
containing much of the same allegations….” WAR claims this evidence “will show that the
Plaintiffs lost money operating the quarry, and in desperation, have become litigious to raise
money.” Again, the Court finds that this information is irrelevant to the merits of the breach of
contract claim and has the potential of causing confusion to the jury.
4. Any reference to any ex parte statement or report of any person not then and
there present in court to testify and be cross-examined, or reference to what would have
been the testimony of any witness not actually called.
The Court finds the motion should be GRANTED. All parties will be prohibited from
submitting hearsay evidence.
5. Any references regarding the profitability of Plaintiffs’ operations in other
quarries not a part of the operations in Sevier County, Arkansas.
The Court finds that the motion should be GRANTED. In their response to the motion
in limine, WAR argues that Plaintiffs’ failed mining ventures in other areas are relevant because
they reveal a lack of success and a lack of “business acumen” that the jury should consider “in
estimating whether there were any profits to be expected from [the Sevier County] operations.”
The Court finds that the slight relevance of the success of other mining ventures is outweighed
by the possibility of prejudice to Plaintiffs and confusion to the jury. An award of damages
should be based solely upon evidence relating to the revenue, expenses, and “business acumen”
applied to the Sevier County operation for the term set out in the Mining Lease.
IT IS SO ORDERED, this 10th day of April, 2015.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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