Gold Cross EMS, Inc. v. The Children's Hospital of Alabama

Filing 77

ORDER denying Plaintiff's 71 Motions in Limine. Signed by Judge J. Randal Hall on 09/14/2015. (jah)

IN THE UNITED

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