Action Nissan, Inc. et al v. Hyundai Motor America et al
Filing
237
ORDER denying without prejudice 212 Motion in Limine; denying without prejudice 213 Motion in Limine; granting 214 Motion in Limine; denying without prejudice 215 Motion in Limine; denying without prejudice 216 Motion in Limine; granting in part and denying in part 219 Motion in Limine; denying 231 Motion for Leave to File Document. Signed by Judge Wendy W. Berger on 6/25/2021. (MDJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ACTION NISSAN, INC. and WILLIAM
NERO,
Plaintiffs,
v.
Case No: 6:18-cv-380-WWB-EJK
HYUNDAI MOTOR AMERICA and
GENESIS MOTOR AMERICA,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendants’ Motions in Limine (Doc. Nos.
212, 213, 214, 215, 216) and Plaintiffs’ Consolidated Opposition (Doc. 221) and Plaintiffs’
Corrected Omnibus Motion in Limine (Doc. 219) and Defendants’ Memorandum in
Opposition (Doc. 222). Also before the Court is Plaintiffs’ Opposed Corrected Motion for
Leave to File Reply, or in the alternative, Strike (Doc. 231) and Defendants’ Response
(Doc. 232).
I.
BACKGROUND
The facts of this case are fully set forth in this Court’s November 5, 2020 Order
(Doc. 197) on the parties’ opposing motions for summary judgment. (Id. at 1–4).
II.
LEGAL STANDARD
“A court has the power to exclude evidence in limine only when evidence is clearly
inadmissible on all potential grounds.” Stewart v. Hooters of Am., Inc., No. 8:04-cv-40-T17-MAP, 2007 WL 1752843, at *1 (M.D. Fla. June 18, 2007). “Unless evidence meets this
high standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy, and potential prejudice may be resolved in proper context.” United
States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) (quotation omitted).
“The movant has the burden of demonstrating that the evidence is inadmissible on any
relevant ground.” Id.
III.
DISCUSSION
As an initial matter, having considered Plaintiffs’ request for leave to file a reply,
the Court is satisfied that additional briefing is not necessary to resolve Plaintiffs’ Motion
in Limine. To the extent that Plaintiffs, in the alternative, request that some or all of
Defendants’ Memorandum in Opposition be stricken, they have completely failed to brief
the issue before this Court and it is, therefore, deemed abandoned. Kight v. IPD Printing
& Distrib., Inc., 522 F. App’x 849 (11th Cir. 2013) (“A legal claim or argument not briefed
before the Court is deemed abandoned, and its merits will not be addressed.”). Thus, the
Court will deny Plaintiffs’ request and proceed to the merits of each parties’ motions in
limine.
A.
Defendants’ Motions in Limine
Defendants have filed five Motions in Limine requesting the exclusion of various
testimony, evidence, and arguments in this case. Plaintiffs oppose each request.
1.
Motion No. 1
In Defendants’ first Motion, they ask this Court to exclude the testimony of
Plaintiffs’ expert, Patrick Anderson, regarding the definition of open points as not timely
disclosed in accordance with Federal Rule of Civil Procedure 26. Even if this Court were
to assume that the purported opinion is an expert opinion and was not timey disclosed,
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Defendants have not established that any belated disclosure is not substantially justified
or harmless.
Pursuant to Rule 37, a party may not offer the untimely disclosed opinion of an
expert witness “unless the failure [to comply with Rule 26(a)] was substantially justified or
is harmless.” Fed. R. Civ. P. 37(c)(1). In determining if the disclosure is harmless, the
court considers the following factors: “(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent
to which allowing the evidence would disrupt the trial; (4) the importance of the evidence;
and (5) the nondisclosing party’s explanation for its failure to disclose the evidence.”
Woienski v. United Airlines, Inc., 383 F. Supp. 3d 1342, 1345 (M.D. Fla. 2019) (citation
omitted). “Where the opponent of the proffered expert fails to either attempt to resolve the
defective expert report in good faith or fails to move for an order requiring a more detailed
response under Rule 26, that party cannot be heard to complain of prejudice.” Id.
(citations omitted).
First, any claim of surprise by Defendants is disingenuous at best. As Defendants
concede in their Motion, the opinions they seek to exclude were offered in response to
questions first posed by Defendants’ counsel at Anderson’s deposition. (Doc. 212 at 2).
Simply put, Defendants cannot ask Anderson a pointed question regarding his opinion on
a topic outside his reports and then claim they are surprised that he answered their
question. Moreover, any surprise could have easily been cured by Defendants. To be
clear, discovery remained open for several months following Anderson’s deposition, but
Defendants have not argued that they attempted to conduct a second deposition. Nor
have they directed this Court to any effort they made to notify Plaintiffs of the alleged
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deficiency, to resolve the issue, or to seek assistance from this Court in obtaining a more
detailed report from Anderson. Thus, any prejudice or surprise to Defendants was of their
own making and they cannot now be heard to cry foul once the time for Plaintiffs to cure
has long passed. Defendants’ first Motion will be denied.
2.
Motion No. 2
Defendants’ second Motion seeks to preclude Plaintiffs’ from referencing certain
documents and exhibits as an initial market study at trial because it would be unfairly
prejudicial and confuse the jury. However, Defendants’ argument consists of two
paragraphs, fails to state how Plaintiffs’ use of a specific term to refer to the documents
and evidence would be unfairly prejudicial or in what way it would confuse the jury, and—
aside from the boilerplate standard applicable to all motions under Federal Rule of
Evidence 403—fails to cite any legal authority in support of prohibition. As the party
seeking exclusion, Defendants bear the burden of proving that the evidence is subject to
exclusion and Defendants’ conclusory argument falls far short of meeting that burden.
See Gonzalez, 718 F. Supp. 2d at 1345. Therefore, Defendants’ second Motion will also
be denied.
3.
Motion No. 3
In their third Motion, Defendants ask this Court to exclude all references to
Plaintiff’s claims for punitive damages. Although Plaintiffs do not dispute that punitive
damages are not available on their remaining claims, Plaintiffs argue that the Motion is a
belated attempt to raise an affirmative defense or falls outside the proper scope of a
motion in limine. With respect to Plaintiffs’ first argument, Plaintiffs appear to
misapprehend the difference between a defense and an affirmative defense. See
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Progressive Express Ins. Co. v. Star Painting & Waterproofing, Inc., 333 F.R.D. 600, 602
(S.D. Fla. 2019); NR Grp. 3 Contractors, Inc. v. Grp. 3 Contractors, LLC, No. 17-21945Civ, 2017 WL 7792718, at *2 (S.D. Fla. Sept. 26, 2017). Turning to Plaintiffs’ second
argument, while the Court agrees that a motion in limine is generally not the proper means
to limit the scope of triable issues, the Court will nonetheless grant Defendants’ request
because it is undisputed that the remaining claims in this case do not support a punitive
damages award and any attempts by Plaintiffs to seek such an award would be improper.
See Yaeger v. Lively, No. 8:19-cv-1161-T-35JSS, 2019 WL 11504743, at *2 (M.D. Fla.
Oct. 25, 2019) (“Florida law makes clear that ‘punitive damages are not recoverable for
breach of contract, irrespective of the motive of defendant’ absent allegations that
constitute a separate and independent tort.” (quoting Lewis v. Guthartz, 428 So. 2d 222,
223 (Fla. 1982))); Waters Place 26, LLC v. Compass Bank, No. 8:09-cv-2418-T-24-EAJ,
2010 WL 1730768, at *4 (M.D. Fla. Apr. 28, 2010) (holding that punitive damages are not
recoverable for a breach of the implied covenant of good faith and fair dealing under
Florida law); Jackson v. Astrue, No. 3:08-cv-461-J-34TEM, 2009 WL 4730550, at *1 (M.D.
Fla. Dec. 4, 2009) (holding that claims for punitive damages fall outside the scope of
declaratory judgment); Serra Chevrolet, Inc. v. Gen. Motors Corp., No. 2:01 cv-2682VEH, 2006 WL 8437670, at *2 (N.D. Ala. Sept. 25, 2006) (“The ADDCA does not permit
the recovery of punitive damages.”). Therefore, Defendants’ third Motion will be granted,
and Plaintiffs will not be permitted to present evidence, argument, or testimony regarding
their punitive damages claims at trial.
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4.
Motion No. 4
Defendants’ fourth Motion seeks the exclusion of evidence regarding Defendants’
document retention policy because it is not relevant, any value is outweighed by the
danger of unfair prejudice to Defendants, and Plaintiffs’ failed to request an adverse
inference. Plaintiffs argue that the introduction of the evidence would not be unfairly
prejudicial and that it could be relevant as impeachment or rebuttal evidence.
Having reviewed the allegations and parties’ arguments in this case, the Court is
not satisfied that the document retention policy is clearly inadmissible on all grounds. To
the contrary, the case relied on by Defendants states that such policies “may become
relevant for impeachment or rebuttal purposes, depending upon how the evidence at trial
develops.” Schenone v. Zimmer, Inc., No. 3:12-CV-1046-J-39MCR, 2014 WL 12619911,
at *3 (M.D. Fla. Aug. 27, 2014). And, as Plaintiffs aptly note, Defendants have frequently
argued that Plaintiffs are lacking evidence in support of their case that might have been
in Defendants’ possession at some point in time. Thus, it is possible that the evidence
could become relevant. With respect to unfair prejudice, Defendants have, once again,
made nothing more than a conclusory argument that falls woefully short of meeting their
burden. Finally, Plaintiffs’ failure to seek an adverse inference, without more, does not
require the exclusion of arguments or evidence on which such a request might have been
made. See Peeler v. KVH Indus., Inc., No. 8:12-cv-1584-T-33MAP, 2014 WL 117101, at
*14 (M.D. Fla. Jan. 13, 2014). Defendants’ fourth Motion will be denied.
5.
Motion No. 5
Lastly, Defendants request the exclusion of three news articles related to the
release and sale of Genesis branded vehicles as impermissible hearsay. Defendants’
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broad-brush arguments fail to establish that the articles are inadmissible on all grounds.
Indeed, it is not clear at this juncture for what purpose the articles may be offered—thus,
it is not clear that they are hearsay—and Defendants have also completely failed to
address any possible hearsay exceptions that might apply. See United States v. Michtavi,
155 F. App’x 433, 435 (11th Cir. 2005) (holding that although “[a] newspaper article is
hearsay, and in almost all circumstances is inadmissible[,]” it is not hearsay when it is not
offered to prove the truth of the matter asserted (quotation omitted)); see also Planned
Parenthood Se., Inc. v. Strange, 33 F. Supp. 3d 1381, 1384–85 (M.D. Ala. 2014)
(recognizing that hearsay exceptions can apply to newspaper articles). Thus, while it is
unlikely that Plaintiffs will be able to admit the articles into evidence, the articles are not
clearly inadmissible on all grounds. Defendants’ fifth Motion will also be denied.
B.
Plaintiffs’ Motion in Limine
In their omnibus Motion, Plaintiffs seek the exclusion of eight categories of
evidence, testimony, and argument at trial. Defendants do not oppose Plaintiffs’ requests
to exclude: (1) arguments that William Nero participated in efforts to frustrate the issuance
of a distributors license; and (2) evidence of Plaintiffs’ wealth, financial status, or net worth
with the exception of relevant evidence regarding Action Nissan, Inc.’s business
operations. 1 Accordingly, the Motion will be granted in these respects without discussion.
Turning to the remaining requests, Plaintiffs first seek the exclusion of a number
of documents, portions of deposition testimony, and portions of Defendants’ expert report
In their response, Defendants argue, in a footnote, that this should be limited
exclusively to evidence, testimony, and argument regarding Nero’s wealth. However, as
this Court has previously warned the parties, arguments raised summarily in a footnote
will not be addressed. (Doc. 197 at 11). Accordingly, Defendants have waived their
objection in this respect and Plaintiffs’ request will be granted as unopposed.
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that were used in support of Defendants’ impossibility defense at the summary judgment
stage because, Plaintiffs argue, they are not relevant to any other matter still at issue in
this proceeding. Although, “[i]t is clear that no party should present evidence or argument
that there were certain claims which have been dismissed by the court . . . , that is not to
say that evidence which may have supported such claims could not also support the
current claims.” Perry v. Schumacher Grp. of La., No. 2:13-cv-36-FtM-29DNF, 2020 WL
6938391, at *2 (M.D. Fla. Nov. 25, 2020); see also King v. Cath. Charities of Nw. Fla.,
No. 3:16cv191, 2018 WL 3848819, at *2 (N.D. Fla. Aug. 12, 2018). Having considered
both parties’ arguments, the Court cannot say that the disputed evidence may not be
relevant to issues that remain to be resolved in this case. Therefore, Plaintiffs’ Motion will
be denied in this respect. Nevertheless, the Court cautions Defendants that they will not
be permitted to attempt to relitigate the issue of impossibility at trial or to use the evidence
to imply such a defense to the jury in contravention of this Court’s Order. (See Doc. 197
at 16–19). To the extent that Defendants fail to heed this warning, Plaintiffs can and
should renew their objections at trial.
Next, Plaintiffs seek to exclude any evidence that their counsel or the law firm of
Bass Sox Mercer were involved with the licensure process for Genesis vehicles in Florida
on behalf of other clients on the basis that such information is irrelevant and unfairly
prejudicial. Specifically, Plaintiffs seek to exclude Defense Exhibits 23, 28, and 30, which
are communications from attorneys at Bass Sox Mercer to representatives from the
Florida Department of Highway Safety and Motor Vehicles (“DHSMV”). (Doc. 219-1 at 2–
3; Doc. 222-1 at 69–77). Although Defendants argue the relevance of the underlying
communications, they fail to specify why the identity or affiliation of the sender is relevant
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to any issue that remains in this case and this Court sees no such relevance. Furthermore,
any relevance would be outweighed by the real possibility of confusing the issues,
misleading the jury, and wasting time on a side trial with regard to the reasonableness of
counsels’ actions that are unrelated to their representation of Plaintiffs in this case.
Accordingly, Plaintiffs’ Motion will be granted in part. To the extent that Defendants wish
to introduce the communications, any and all references to Plaintiffs’ counsel or Bass Sox
Mercer must be redacted. Additionally, Defendants may not argue or present testimony
that specifically states or implies that attorneys or law firms currently representing
Plaintiffs were engaged in the underlying licensure process on behalf of other clients. To
be clear, the communications, contents of the communications, and underlying facts
remain admissible, it is only the irrelevant connection to Plaintiffs’ counsel that will be
excluded at trial. Nevertheless, as Defendants point out, Plaintiffs have included similar
communications between counsel and the DHSMV in their exhibits. (Doc. 222-2 at 110–
11, 113–14). To the extent Plaintiffs introduce such evidence at trial, the Court will
consider their objection withdrawn and will permit Defendants to present the excluded
evidence, testimony, and argument.
Plaintiffs also seek the exclusion of all testimony, evidence, or argument related to
Nero’s lack of adequate property within the eight-county area on which he could have
opened and operated a Genesis franchise if offered one pursuant to the parties’
Agreement (Doc. 176-4). Specifically, Plaintiffs argue that because this Court determined
that the Agreement did not require Defendants to set forth express geographic boundaries
in order to trigger the right of first refusal, (see Doc. 197 at 7–8), evidence relating to
Nero’s ownership of property is not relevant to the issues in this case. Defendants argue
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that the evidence is relevant to the issue of damages and whether Plaintiffs could have
exercised the right of first refusal even if it is determined that Defendants wrongfully failed
to offer it. This Court agrees. To the extent that Plaintiffs argue, in the alternative, that the
evidence would be unfairly prejudicial, Plaintiffs’ argument is perfunctory at best and fails
to state a basis for exclusion at this juncture in the proceedings. Therefore, Plaintiffs’
request will be denied.
In their sixth request, Plaintiffs argue that Defendants should be precluded from
offering damages evidence or testimony that includes the value of additional dealerships
at or after the time that Defendants offered Genesis franchises to all existing Hyundai
dealers in Florida because such evidence is not relevant to a proper damages calculation
if Defendants are found to have breached the parties’ Agreement. Plaintiffs’ argument
incorrectly assumes that they would have been the first and only dealers in the area had
the Agreement been performed. As Defendants note, the Agreement only provides a right
of first refusal for two new dealerships. It does not, however, guarantee that Plaintiffs
would be the first dealership to offer a new luxury line or that it would be the exclusive
dealer within a given area. (Doc. 176-4 at 4, 10–16). Furthermore, exclusivity is not
guaranteed by Florida law. See Fla. Stat. § 320.642(3)(b) (setting forth the challenge
procedures for proposed dealerships, but not categorically excluding new dealerships
from opening within a given radius of an existing dealership). Thus, Plaintiffs have not
established that the evidence is inadmissible on all possible grounds and the Motion will
be denied.
Next, Plaintiffs argue that Defendants should be precluded from offering evidence,
testimony, or argument regarding Nero’s ability to actually exercise a right of first refusal
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if one had been offered in connection to his anticipatory breach claim. Defendants argue
that the evidence is relevant to the issue of damages. As Plaintiffs have failed to argue
that there is any theory of recovery under which they would be entitled to damages even
if they could not have actually accepted an offer to open dealerships under the
Agreement, they have not carried their burden in establishing that the evidence is
excludable. The Motion will be denied.
Finally, Plaintiffs seek an order prohibiting Defendants from referring to Section 11
of the Agreement as a liquidated damages clause. In support thereof, Plaintiffs argue that
the provision cannot be a liquidated damages clause as a matter of law, which is an
argument that this Court has already rejected. (Doc. 197 at 19–20). Accordingly, Plaintiffs’
final request amounts to little more than a thinly veiled request for reconsideration of this
Court’s November 5, 2020 Order or, alternatively, requests a substantive ruling on the
correct contract interpretation, neither of which is a proper subject to consider in limine.
See Kennedy v. Elec. Ins. Co., No. CV418-148, 2020 WL 1493935, at *3–4 (S.D. Ga.
Mar. 24, 2020); Plaza S. Ass’n v. QBE Ins. Corp., No. 11-60048-Civ, 2012 WL 13005529,
at *3 (S.D. Fla. Jan. 24, 2012). Plaintiffs’ last request will also be denied.
IV.
CONCLUSION
For the reasons set forth herein, it is ORDERED and ADJUDGED as follows:
1. Defendants’ Motion in Limine No. 1 (Doc. 212) is DENIED without
prejudice.
2. Defendants’ Motion in Limine No. 2 (Doc. 213) is DENIED without
prejudice.
3. Defendants’ Motion in Limine No. 3 (Doc. 214) is GRANTED.
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4. Defendants’ Motion in Limine No. 4 (Doc. 215) is DENIED without
prejudice.
5. Defendants’ Motion in Limine No. 5 (Doc. 216) is DENIED without
prejudice.
6. Plaintiffs’ Corrected Omnibus Motion in Limine (Doc. 219) is GRANTED in
part as set forth in this Order and DENIED without prejudice in all other
respects.
7. Plaintiffs’ Opposed Corrected Motion for Leave to File Reply, or in the
alternative, Strike (Doc. 231) is DENIED.
DONE AND ORDERED in Orlando, Florida on June 25, 2021.
Copies furnished to:
Counsel of Record
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