AIM RECYCLING FLORIDA, LLC et al v. METALS USA, INC., et al

Filing 280

OMNIBUS ORDER ON MOTIONS IN LIMINE. ORDER granting in part and denying in part 224 Motion in Limine; granting in part and denying in part 233 Motion in Limine. Signed by Judge Beth Bloom on 1/15/2020. See attached document for full details. (amb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-60292-BLOOM/Valle
AIM RECYCLING OF FLORIDA, LLC
and LKQ PICK YOUR PART
SOUTHEAST, LLC,
Plaintiffs,
v.
METALS USA, INC., UNIVERSAL
SCRAP MANAGEMENT, LLC, OBED
LENDIAN, and SAMUEL ABREU,
Defendants.
___________________________________/
OMNIBUS ORDER ON MOTIONS IN LIMINE
THIS CAUSE is before the Court upon Defendants Metals USA, Inc. (“Metals USA”) and
Obed Lendian’s (“Lendian”) (collectively, “Defendants”)1 Motion in Limine, ECF No. [224]
(“Defendants’ Motion”), and Plaintiffs AIM Recycling of Florida, LLC (“AIM”) and LKQ Pick
Your Part Southeast, LLC’s (“LKQ”) (collectively, “Plaintiffs”) Amended Motion in Limine, ECF
No. [233] (“Plaintiffs’ Motion”), (collectively, the “Motions”). The Court has carefully reviewed
the Motions, all opposing and supporting submissions, the attached exhibits, the record in this case,
the applicable law, and is otherwise fully advised. For the reasons set forth below, Defendants’
Motion in Limine is granted in part and denied in part, and Plaintiffs’ Amended Motion in Limine
is granted in part and denied in part.

1

The Motions before the Court today pertain only to Defendants Metals USA and Lendian. Any reference
in this Order to “Defendants” should be understood as referring only to Metals USA and Lendian.

Case No. 18-cv-60292-BLOOM/Valle
I.

BACKGROUND2
In Defendants’ Motion, they move to preclude Plaintiffs from introducing the following at

the upcoming trial:
a. Any evidence of Lendian’s prior invocation of his Fifth Amendment privilege;
b. Any reference to, and any evidence obtained from, the Department of Justice’s (“DOJ”)
criminal investigation;3
c. Any reference to the failure of a party to call a witness equally available to all parties;
d. Any references to the motions in limine;
e. Any reference to discovery disputes between the parties; and
f. Any references to persons or the purported testimony of persons who have not been
properly and timely disclosed in the responses to written discovery or in the Rule 26
disclosures.
Similarly, in Plaintiffs’ Motion, they move to preclude Defendants from introducing the
following at the upcoming trial:
a. Any evidence or argument of the DOJ’s previous criminal declination as a basis for
non-liability;
b. Any evidence or argument of Plaintiffs’ alleged prior bad acts; and
c. Any evidence or argument of Plaintiffs’ “extortion” of Defendants.4
The Court will address each Motion individually below.

2

The Court assumes that the parties are familiar with the facts of this case. See ECF No. [276].
In their Reply, Defendants withdrew this motion in limine in light of the Court’s ruling, see ECF No.
[250], on Defendants’ Motion to Strike Plaintiffs’ Pleadings, ECF No. [189], and their Motion for Order to
Show Cause Why Counsel for Plaintiffs Should Not Be Disqualified, ECF No. [190], (collectively, the
“Disqualification Motions”).
4
In their Motion, Plaintiffs indicated that this motion in limine would be rendered moot if the Court were
to deny the Disqualification Motions. The Court ultimately denied the Disqualification Motions, see ECF
No. [250], which thus rendered Plaintiffs’ motion in limine on the alleged “extortion” of Defendants moot.
3

2

Case No. 18-cv-60292-BLOOM/Valle
II. LEGAL STANDARD
“In fairness to the parties and their ability to put on their case, a court should exclude
evidence in limine only when it is clearly inadmissible on all potential grounds.” United States v.
Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010). “The movant has the burden of
demonstrating that the evidence is inadmissible on any relevant ground.” Id. “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.” In re Seroquel
Prods. Liab. Litig., Nos. 6:06-md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL
260989, at *1 (M.D. Fla. Feb. 4, 2009). Likewise, “[i]n light of the preliminary or preemptive
nature of motions in limine, ‘any party may seek reconsideration at trial in light of the evidence
actually presented and shall make contemporaneous objections when evidence is elicited.’” Holder
v. Anderson, No. 3:16-CV-1307-J-39JBT, 2018 WL 4956757, at *1 (M.D. Fla. May 30, 2018)
(quoting Miller ex rel. Miller v. Ford Motor Co., No. 2:01CV545FTM-29DNF, 2004 WL
4054843, at *1 (M.D. Fla. July 22, 2004)); In re Seroquel Prod. Liab. Litig., 2009 WL 260989, at
*1 (“The court will entertain objections on individual proffers as they arise at trial, even though
the proffer falls within the scope of a denied motion in limine.” (citing United States v. Connelly,
874 F.2d 412, 416 (7th Cir. 1989))).
Evidence is admissible if relevant, and evidence is relevant if it has any tendency to prove
or disprove a fact of consequence. Fed. R. Evid. 401, 402; Advisory Comm. Notes, Fed. R. Evid.
401 (“The standard of probability under the rule is ‘more probable than it would be without the
evidence.’”); United States v. Patrick, 513 F. App’x 882, 886 (11th Cir. 2013). A district court
may exclude relevant evidence under Rule 403 if “its probative value is substantially outweighed
by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

3

Case No. 18-cv-60292-BLOOM/Valle
of time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Rule 403 is an
extraordinary remedy which the district court should invoke sparingly, and the balance should be
struck in favor of admissibility.” Patrick, 513 F. App’x at 886 (citing United States v. Lopez, 649
F.3d 1222, 1247 (11th Cir. 2011); United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.
2010)). Rule 403’s “major function . . . is limited to excluding matter of scant or cumulative
probative force, dragged in by the heels for the sake of its prejudicial effect.” United States v.
Grant, 256 F.3d 1146, 1155 (11th Cir. 2001).
III. DISCUSSION
A. Defendants’ Motion
1. Evidence of Lendian’s prior invocation of his Fifth Amendment privilege
Defendants first argue that Plaintiffs should be precluded from mentioning Lendian’s prior
Fifth Amendment invocation pursuant to Rules 401 and 403 because this evidence has little
probative value and any probative value is substantially outweighed by the danger of misleading
the jury. Plaintiffs, however, argue that they should be allowed to present evidence relating to
Lendian’s Fifth Amendment invocation because such invocations are highly probative of his
culpability and this probative value outweighs any possible prejudice.
The Court, in its Omnibus Order on the parties’ competing motions for summary judgment,
has already determined that Lendian’s withdrawal of his Fifth Amendment invocation was
permissible under the circumstances of the instant case. See ECF No. [276] at 15-27. Specifically,
the Court emphasized that, upon learning of the DOJ’s declination letter, Defendants immediately
notified Plaintiffs of Lendian’s availability to sit for a supplemental deposition. Id. at 21-22.
Further, Lendian’s withdrawal of his Fifth Amendment invocation came at the first opportunity
before the close of discovery. Id. at 22-23. Thus, the Court concluded that Lendian’s withdrawal

4

Case No. 18-cv-60292-BLOOM/Valle
of his Fifth Amendment invocation was permissible because it was not done to delay or frustrate
the litigation and resolving the case based on all the relevant facts outweighed the prejudice to
Plaintiffs. Id. at 23-24.
With regard to the instant motion in limine, the Court finds that Lendian’s Fifth
Amendment invocation has little probative value here. Further, any probative value of the prior
assertion of Lendian’s Fifth Amendment rights is substantially outweighed by the dangers
associated with the introduction of such evidence, especially given that Lendian asserted the
privilege due to an ongoing criminal investigation and he withdrew his Fifth Amendment
invocation before the close of the discovery period. Cf. Pervis v. State Farm Fire & Cas. Co., 901
F.2d 944, 948 (11th Cir. 1990) (noting party’s refusal to submit to examination under oath after
Fifth Amendment invocation). Allowing Plaintiffs to benefit from this invocation when they had
the opportunity to re-depose Lendian upon his valid withdrawal of the invocation before the close
of discovery would be unduly prejudicial. Thus, Defendants’ motion in limine on the issue of
Lendian’s Fifth Amendment invocation is granted.
2. References to the failure of a party to call a witness equally available to all parties
Defendants also contend that any reference to a party’s failure to call a witness equally
available to all parties should be excluded under Rules 401 and 403 because the decision on
whether to call a witness is a tactical decision that is of little relevance and would only serve to
confuse the issues and mislead the jury. Plaintiffs generally agree to exclude reference to the failure
of a party to call a witness equally available to all parties, but they reserve the right to counter any
statement or argument made by Defendants that Plaintiffs could have called a witness but chose
not to. Plaintiffs state that they will address the issue with the Court and Defendants before
attempting to make any such argument. Accordingly, such evidence shall be excluded. However,

5

Case No. 18-cv-60292-BLOOM/Valle
to the extent that Defendants “open the door” regarding a party’s failure to call a witness that was
equally available to all parties, such evidence may become relevant, and “the court may alter its
ruling based on [such] developments at trial or on its sound judicial discretion.” Id.
3. References to the motions in limine
Further, Defendants move under Rule 403 to exclude any reference to the instant Motions
for the purpose of demonstrating that a party sought to exclude any matter relevant to this action
because the introduction of such evidence is inherently prejudicial to either side and has the
potential to confuse or mislead the jury. Plaintiffs agree not to make any reference to the parties’
motions in limine unless they unexpectedly become an issue at trial, at which point Plaintiffs state
that they will address the issue with the Court and Defendants before attempting to make any such
reference. Based on this agreement, any references to the parties’ motions in limine will be
excluded.
4. References to discovery disputes between the parties
Defendants request that any reference to discovery disputes or motions to compel discovery
in this case be excluded under Rules 401 and 403 because such evidence is not relevant to the case
and is prejudicial and confusing to the jury. Plaintiffs agree not to reference any discovery disputes
between the parties unless they unexpectedly become an issue at trial, at which point Plaintiffs
state that they will address the issue with the Court and Defendants before attempting to make any
such reference. Therefore, any references to discovery disputes between the parties in this case
shall be excluded.

6

Case No. 18-cv-60292-BLOOM/Valle
5. References to persons or the purported testimony of persons who have not been
properly and timely disclosed in the responses to written discovery or in the Rule 26
disclosures
Defendants move, under Rule 801 and Federal Rule of Civil Procedure 26, for the
testimony of any person who has not been properly and timely disclosed in written discovery
responses or in Rule 26 disclosures to be excluded. Defendants also request that all in-court
references to other individuals’ statements be excluded as impermissible hearsay. Plaintiffs argue
that this motion in limine is improper because it requests enforcement of black-letter procedural
and evidentiary rules, rather than case-specific issues. The Court agrees.
“Motions in limine should be limited to specific pieces of evidence and not serve as
reinforcement regarding the various rules governing trial, or (re)-addressing substantive motions
such as motions for summary judgment.” Holder, 2018 WL 4956757, at *1 (citing Royal Indem.
Co. v. Liberty Mut. Fire Ins. Co., No. 07-80172-CIV-COOKE, 2008 WL 2323900, at *1 (S.D. Fla.
June 5, 2008)). Further, a district court may deny a motion in limine when it “lacks the necessary
specificity with respect to the evidence to be excluded.” Bowden ex rel. Bowden, 2001 WL 617521,
at *1 (quoting Nat’l Union v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287 (S.D. N.Y. 1996)).
Federal Rule of Civil Procedure 37(c)(1) states that, “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “The burden of
establishing that a failure to disclose was substantially justified or harmless rests on the
nondisclosing party.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 2009) (quoting
Leathers v. Pfizer, Inc., 233 F.R.D. 687, 697 (N.D. Ga. 2006)).

7

Case No. 18-cv-60292-BLOOM/Valle
Defendants’ final motion in limine is overbroad in that it “lacks the necessary specificity
with respect to the evidence to be excluded.” Bowden ex rel. Bowden, 2001 WL 617521, at *1
(citation omitted). The Court cannot categorically exclude the testimony of any potential witness
that was not timely disclosed, if any such testimony is submitted to the Court, without first being
apprised of the nature of the testimony and providing Plaintiffs with an opportunity to establish
that their failure to disclose was substantially justified or harmless. Fed. R. Civ. P. 37(c)(1);
Mitchell, 318 F. App’x at 824. As such, this request is denied. Moreover, the request to exclude
in-court references to other individuals’ testimony is also denied for the same reasons, but may be
renewed at trial based upon proper legal objections. See Frederick v. Kirby Tankships, Inc., 205
F.3d 1277, 1285 (11th Cir. 2000) (“Generally, a party must object to preserve error in the
admission of testimony, even when a party or a court violates an in limine ruling.”). Until the
nature of such testimony is known, however, this motion is premature. Thompkins v. Lil’ Joe
Records, Inc., No. 02-61161-CIV, 2003 WL 25719229, at *2 (S.D. Fla. Dec. 3, 2003).
Lastly, to the extent that Defendants are requesting that the Court enforce the rules
governing trial, this request is not properly the subject of a motion in limine. Holder, 2018 WL
4956757, at *1.
Plaintiffs’ Motion
1. Evidence of the DOJ’s previous criminal declination as a basis for non-liability
Plaintiffs first move, pursuant to Rules 401, 402, and 403, to exclude evidence or argument
of the DOJ’s declination of criminal prosecution against Defendants as a basis for proving a
Defendants’ non-liability in this action. Defendants oppose this motion, arguing that allowing
Plaintiffs to introduce evidence of the criminal investigation and the evidence derived from this

8

Case No. 18-cv-60292-BLOOM/Valle
investigation, while simultaneously excluding evidence of the DOJ’s ultimate declination letter
would be unduly prejudicial to Defendants and would mislead the jury.
As an initial matter, the Court notes that Defendants mischaracterize the nature of Plaintiffs
Motion. As Plaintiffs explain, they do not oppose the introduction of all evidence related to the
criminal declination. Rather, Plaintiffs request that the Court exclude the introduction of such
evidence to specifically establish Defendants’ non-liability in the instant civil action.
Nevertheless, the Court believes that any evidence of or reference to the DOJ’s criminal
investigation into Lendian or Metals USA would be highly prejudicial and immaterial in this case.
See Aetna Cas. & Sur. Co. v. Gosdin, 803 F.2d 1153, 1160 (11th Cir. 1986) (noting that “the
different standards of proof between a criminal prosecutorial decision and a civil case might
mislead the jury”); see also State Farm Mut. Auto. Ins. Co. v. Romano, No. 12-20438-CIV, 2013
WL 12061865, at *2 (S.D. Fla. Oct. 30, 2013). The admission of such evidence would only serve
to confuse and mislead the jury on the issues that are relevant in making a determination on
Plaintiffs’ RICO and unjust enrichment claims. See Hiscox Dedicated Corp. Member, Ltd. v.
Matrix Grp. Ltd., Inc., No. 8:09-CV-2465-T-33AEP, 2011 WL 4356201, at *2 (M.D. Fla. Sept.
19, 2011). While the parties are permitted to introduce evidence relating to the criminal
investigation into Abreu, such as the recordings of telephone conversations between Abreu and
Lendian, the Court will not permit any references, implications, or evidence of the underlying
criminal investigation into Lendian or Metals USA at trial. Therefore, Plaintiffs’ motion in limine
is granted in part and denied in part.
2. Evidence of Plaintiffs’ alleged prior bad acts
Plaintiffs also seek to exclude any evidence or reference to Plaintiffs’ alleged prior bad acts
— e.g., evidence that Plaintiffs allegedly engaged in the sale or purchase of ferrous metals before

9

Case No. 18-cv-60292-BLOOM/Valle
7:00 a.m. in violation of § 538.18-.28, Florida Statutes — under Rules 401, 402, and 403 because
such evidence is not probative of any fact in this case and the admission of such evidence would
be unduly prejudicial because it would confuse and mislead the jury. Further, Plaintiffs move to
exclude evidence of any alleged prior bad acts because Defendants have not asserted an affirmative
defense of unclean hands. Defendants, however, argue that the evidence of Plaintiffs’ prior bad
acts is relevant to rebut Plaintiffs’ arguments that, by purchasing ferrous materials before 7:00
a.m., Defendants knew that their scrap purchases from Abreu were improper or illicit.
The Court concludes that, to the extent that Plaintiffs open the door to Defendants’ alleged
violations of § 538.18-.28, rebuttal evidence of Plaintiffs’ similar conduct that establishes a regular
practice in the industry of purchasing ferrous materials before 7:00 a.m. is relevant because it tends
to disprove Plaintiffs’ claims that Defendants should have known that the materials purchased by
Abreu were stolen, given the time the sales occurred. Further, any prejudice to Plaintiffs from the
introduction of such evidence does not rise to the level of prejudice that would warrant exclusion.
See United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (“Relevant evidence is inherently
prejudicial; but it is only Unfair prejudice, Substantially [sic] outweighing probative value, which
permits exclusion of relevant matter under Rule 403. . . . As to such, Rule 403 is meant to relax
the iron rule of relevance, to permit the trial judge to preserve the fairness of the proceedings by
exclusion despite its relevance. It is not designed to permit the court to “even out” the weight of
the evidence, to mitigate a crime, or to make a contest where there is little or none.”); Patrick, 513
F. App’x at 886 (citing Lopez, 649 F.3d at 1247; Alfaro-Moncada, 607 F.3d at 734). Accordingly,
Plaintiffs’ motion in limine on the issue of their alleged prior bad acts is denied.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:

10

Case No. 18-cv-60292-BLOOM/Valle
1. Defendants’ Motion, ECF No. [224], is GRANTED in part and DENIED in part
consistent with this Order.
2. Plaintiffs’ Motion, ECF No. [233], is GRANTED in part and DENIED in part
consistent with this Order.
DONE AND ORDERED in Chambers at Miami, Florida, on January 15, 2020.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

11