Aitken v. Debt Management Partners, LLC et al

Filing 64

ORDER granting in part and denying in part 58 the Plaintiff's Motion in Limine; granting in part and denying in part 59 the Defendants' Motion in Limine Nos. 1-3; granting 61 the Defendants' Motion in Limine No. 4. See Written Order. Entered by Magistrate Judge Jonathan E. Hawley on 2/2/2015. (KZ, ilcd) Modified on 2/2/2015 to clarify entry as an Order NOT a Text Only Order.(JRK, ilcd).

E-FILED

Monday, 02 February, 2015 02:36:24 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JAY AITKEN,
Plaintiff,
v.

Case No. 1:12-cv-01511-JEH

DEBT MANAGEMENT PARTNERS,
LLC and AUDUBON FINANCIAL
BUREAU,
Defendants.
Order
Now before the Court are the Plaintiff’s Motion in Limine (Doc. 58), and the
Defendants’ Motions in Limine Nos. 1-3 (Doc. 59) and Motion in Limine No. 4
(Doc. 61). The Motions are fully briefed, and for the reasons set forth below, the
Plaintiff’s Motion in Limine is GRANTED IN PART and DENIED IN PART, the
Defendants’ Motions in Limine Nos. 1-3 is GRANTED IN PART AND DENIED
IN PART, and the Defendants’ Motion in Limine No. 4 is GRANTED.
I
The Plaintiff filed this lawsuit on December 14, 2012, and he filed his
Second Amended Complaint on April 18, 2013 against Debt Management
Partners, LLC, Audubon Financial Bureau, LLC, and Fanelli and Associates LLC 1
alleging violations of the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
(FDCPA), the Illinois Collection Agency Act (ICAA), and the Illinois Consumer
Fraud Act (ICFA).

Specifically, the Plaintiff alleged that he received voice

messages in violation of the FDCPA, ICAA, and the ICFA. The Plaintiff and
Defendants filed Motions for Summary Judgment on May 14, 2014. On October
1

Defendant Fanelli and Associates LLC was voluntarily dismissed on June 14, 2013.

1

28, 2014, the Court denied the Defendants’ Motion for Summary Judgment and
granted in part and denied in part the Plaintiff’s Motion for Summary Judgment.
After the Final Pretrial Conference on January 12, 2015, the parties filed their
Motions in Limine. Because there is no objection to the Plaintiff’s Motion in
Limine nos. III, IV, and V and no objection to the Defendants’ Motions in Limine
nos. 1, 2, and 4, all of those Motions are granted. The Plaintiff’s Motion in Limine
nos. I and II and the Defendants’ Motion in Limine no. 3 are all disputed.
II
A
In his Motion in Limine No. I, the Plaintiff seeks to bar the Defendants from
contesting certain facts that he argues they previously admitted during the
course of this litigation, such that the Defendants’ admissions constitute judicial
admissions. The Defendants counter that Federal Rule of Civil Procedure 56
does not automatically bind them to facts established for the purposes of
summary judgment. FRCP 56(g) provides: “If the court does not grant all the
relief requested by the motion, it may enter an order stating any material fact-including an item of damages or other relief--that is not genuinely in dispute and
treating the fact as established in the case.” The Advisory Committee Notes for
FRCP 56(g) state:
Subdivision (g) applies when the court does not grant all the relief
requested by a motion for summary judgment. It becomes relevant
only after the court has applied the summary-judgment standard
carried forward in subdivision (a) to each claim, defense, or part of a
claim or defense, identified by the motion. Once that duty is
discharged, the court may decide whether to apply the summaryjudgment standard to dispose of a material fact that is not genuinely
in dispute. The court must take care that this determination does not
interfere with a party's ability to accept a fact for purposes of the
motion only. A nonmovant, for example, may feel confident that a
genuine dispute as to one or a few facts will defeat the motion, and
2

prefer to avoid the cost of detailed response to all facts stated by the
movant. This position should be available without running the risk
that the fact will be taken as established under subdivision (g) or
otherwise found to have been accepted for other purposes.
If it is readily apparent that the court cannot grant all the relief
requested by the motion, it may properly decide that the cost of
determining whether some potential fact disputes may be
eliminated by summary disposition is greater than the cost of
resolving those disputes by other means, including trial. Even if the
court believes that a fact is not genuinely in dispute it may refrain
from ordering that the fact be treated as established. The court may
conclude that it is better to leave open for trial facts and issues that
may be better illuminated by the trial of related facts that must be
tried in any event.
In light of the FRCP 56(g) Committee Notes and case law within the
Seventh Circuit, the Court finds that the Defendants’ statements identified in the
Plaintiff’s Motion in Limine will not serve as judicial admissions at trial. Notably,
the Defendants did not outrightly admit many of the identified statements.
While judicial admissions must be “deliberate, clear, and unambiguous,” here,
the Defendants conditioned many of their responses rather than deliberately,
clearly, or unambiguously admitting the statements. Keller v United States of
America, 58 F3d 1194, 1198 n8 (7th Cir 1995).

In response to the identified

statements 1, 2, 3, 4, 5, 6, 7, 16, 30, and 33, the Defendants expressly stated that
those “facts” were immaterial. In response to the identified statements 26 and
32, the Defendants indicated the ways in which those statements were
incomplete. Given such conditioned responses and under the authority of FRCP
56(g), the Court does not find those statements to constitute judicial admissions.
See FRCP 56(g) (providing that the court may enter an order stating that any
material fact not genuinely disputed will be treated as established in the case)
(emphasis added); see also Brown v Navarro, 2012 WL 3987427, *3 (ND Ill)
3

(explaining that nothing in FRCP 56 “provides that facts deemed admitted for
purposes of evaluating a pending summary judgment motion are also deemed
admitted for other purposes, such as another party’s later motion for summary
judgment, or trial”) (emphasis in original); CIVIX-DDI, LLC v Hotels.com, LP, 2012
WL 6591684, *9 (ND Ill) (stating that “Rule 56 . . . does not automatically bind
parties to facts established for the purposes of summary judgment, although a
court may establish a fact in the case by entering an order”).
Though the Defendants simply admitted identified statements 19, 22, 24,
25, 28, 29, 31, 34, 35, and 44 and identified 20 as an “undisputed material fact,”
the Court once again finds that under the authority of FRCP 56(g) and the
considerations set forth in the Committee Notes to FRCP 56(g), those statements
are not judicial admissions to which the Defendants are bound at trial. See FRCP
56(g) Advisory Committee Notes (“A nonmovant, for example, may feel
confident that a genuine dispute as to one or a few facts will defeat the motion,
and prefer to avoid the cost of detailed response to all facts stated by the movant.
This position should be available without running the risk that the fact will be
taken as established under subdivision (g) or otherwise found to have been
accepted for other purposes”). Accordingly, the Plaintiff’s Motion in Limine No. I
is denied.
In his Motion in Limine No. II, the Plaintiff seeks to bar the Defendants
from referring to his settlement with Fanelli & Associates, LLC as irrelevant. The
Defendants counter that they should be allowed to cross examine the Plaintiff as
to why he believes their conduct is worth so much more in damages than
Fanelli’s.

The Court finds that the Plaintiff’s settlement with Fanelli &

Associates, LLC is irrelevant to the issues to be tried in this case, and so the
Plaintiff’s Motion in Limine No. II is granted.
4

B
In the Defendants’ Motion in Limine No. 3, they seek to bar evidence
and/or argument concerning the Plaintiff’s conversations with deceased
witnesses. They argue that such conversations are hearsay which do not fall
within any of the exceptions to the rule against hearsay. The Plaintiff counters
that his conversations with his deceased father and neighbor are allowed under
Federal Rule of Evidence 801(d)(1)(B)(ii) which allows the admission of prior
consistent statements “to rehabilitate the declarant’s credibility as a witness
when attacked on another ground.” The Plaintiff also argues that the Defendants
cannot object to testimony with respect to the conversations because the
Defendants previously conceded that the conversations took place. The Plaintiff
additionally argues that the conversations are not hearsay to the extent they are
not offered for the truth of the matter asserted but, rather, they are offered to
show his state of mind.
The Court finds that the conversations cannot be offered to prove the truth
of the matters asserted in those conversations. FRE 801(c)(2) (defining hearsay).
However, the Plaintiff may offer his testimony as to what he may have said to his
deceased father or deceased neighbor only to show the Plaintiff’s state of mind,
as the Plaintiff’s state of mind is relevant to the issue of whether the Plaintiff
suffered emotional distress as a result of the Defendants’ alleged actions.
Therefore, the Defendants’ Motion in Limine No. 3 is denied. However, any
testimony by Plaintiff as to conversations with his deceased father and deceased
neighbor may only be elicited to the extent that they show the Plaintiff’s state of
mind.
III
For the reasons set forth above, the Plaintiff’s Motion in Limine (Doc. 58) is
GRANTED IN PART and DENIED IN PART. The Plaintiff’s Motion is granted
5

as to Nos. II, III, IV, and V, and denied as to No. I. The Defendant’s Motions in
Limine Nos. 1-3 (Doc. 59) is GRANTED IN PART AND DENIED IN PART. The
Motion is granted as to Nos. 1 and 2, and is denied as to No. 3. Motion in Limine
No. 4 (Doc. 61) is GRANTED.
Entered on February 2, 2015.

s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

6