United States of America et al v. Dish Network LLC

Filing 562

OPINION entered by Judge Sue E. Myerscough on 12/7/2015. Plaintiffs' Motion in Limine to Preclude Argument or Evidence Regarding Registry Hygiene or Composition, d/e 531 is DENIED. (SEE WRITTEN OPINION) (MAS, ilcd)

E-FILED

Monday, 07 December, 2015 04:15:12 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

UNITED STATES OF AMERICA,
and the STATES OF CALIFORNIA,
ILLINOIS, NORTH CAROLINA,
and OHIO,
Plaintiff,
v.
DISH NETWORK, L.L.C.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. 09-3073

OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE:
This matter comes before the Court on Plaintiffs’ Motion in
Limine to Preclude Argument or Evidence Regarding Registry
Hygiene or Composition (d/e 531) (Motion). For the reasons set
forth below, the Motion is DENIED.
Defendant Dish Network, LLC (Dish), intends to present
evidence concerning the composition of the telephone numbers
registered on the National Do Not Call Registry (Registry), and the

Page 1 of 4

operation of the Registry. Proposed Pretrial Order, Exhibit D, Dish
Network L.L.C.’s Proposed Findings of Fact, at 36-38 ¶¶145-57.
The Plaintiffs ask the Court to bar in limine this evidence or
argument related to this evidence. The Plaintiffs seek to bar this
evidence in limine because the evidence is irrelevant and confusing.
Motion, at 2.
The Court will not bar the evidence in limine on relevance
grounds. Evidence is relevant if it has a tendency to make a fact
more or less probable and the fact is of consequence. Fed. R. Evid.
401. To bar the evidence of relevance grounds, the Plaintiffs must
show “that the evidence is inadmissible for any relevant ground.”
Sallenger v. City of Springfield, 2007 WL 2683791, at *1 (C.D. Ill.
September 4, 2007).
In this case, the composition of the telephone numbers on the
Registry is relevant to Count V at least. Count V alleges violations
of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227,
and the Federal Communications Commission Rule (FCC Rule)
promulgated thereunder, 47 C.F.R. § 12.6400. Third Amended
Complaint and Demand for Jury Trial (d/e 483) (Complaint), Count

Page 2 of 4

V. The applicable portions of the TCPA and the FCC Rule bar
calls to residential telephone subscribers whose telephone numbers
are on the Registry. See Opinion entered December 12, 2014 (d/e
445), at 202. The types of numbers on the Registry (e.g., residential
landlines, Voice over Internet Protocol (VoIP), wireless) may be
relevant to determining whether telemarketing calls were directed to
residential telephone subscribers. At this point, the Court will not
bar the evidence in limine on relevance grounds.
The Plaintiffs also argue that the evidence will be confusing.
The Court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of confusion. Fed. R. Evid.
403. This is a bench trial. The Court has reviewed the extensive
filings in this case and is quite familiar with the legal and factual
issues. The risk that the Court would be confused is minimal. The
Plaintiffs have not shown that this minimal risk outweighs the
probative value of the evidence. The Court will not exclude this
evidence under Rule 403.

Page 3 of 4

CONCLUSION
THEREFORE, Plaintiffs’ Motion in Limine to Preclude
Argument or Evidence Regarding Registry Hygiene or
Composition (d/e 531) is DENIED.
Enter: December 7, 2015

/s Sue E. Myerscough
UNITED STATES DISTRICT JUDGE

Page 4 of 4