TESLER v. MILLER HOWARD INVESTMENTS, INC

Filing 148

ENTRY ON PENDING MOTIONS IN LIMINE - For the reasons stated above, the Court DENIES Miller/Howard's First Motion in Limine (Filing No. 130 ) and GRANTS its Second Motion in Limine (Filing No. 131 ), as to settlement discussions or severance negotiations only. An order in limine is not a final, appealable order. If the parties believe that evidence excluded by this Order becomes relevant or otherwise admissible during the course of trial, counsel may approach and request a hearing ou tside the presence of the jury. Likewise, if the parties believe that specific evidence is inadmissible during the course of the trial, counsel may raise specific objections to that evidence. (See Entry.) Signed by Judge Tanya Walton Pratt on 5/13/2019. (NAD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ERIC S. TESLER,
Plaintiff,
v.
MILLER/HOWARD INVESTMENTS, INC., a
Delaware Corporation,
Defendant.

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Case No. 1:16-cv-00640-TWP-MPB

ENTRY ON PENDING MOTIONS IN LIMINE
Before the Court are Defendant Miller/Howard Investments, Inc.’s (“Miller/Howard”)
First Motion in Limine (Filing No. 130) and Second Motion in Limine (Filing No. 131). Plaintiff
Eric Tesler (“Tesler”) has responded to both motions (Filing No. 142; Filing No. 143). For the
following reasons, Miller/Howard’s First Motion in Limine is DENIED. Miller/Howard’s Second
Motion in Limine is GRANTED.
I. LEGAL STANDARD
The Court excludes evidence on a motion in limine only if the evidence clearly is not
admissible for any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F. Supp.
1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings
must be deferred until trial, so questions of foundation, relevancy, and prejudice may be resolved
in context. Id. at 1400–01. Moreover, denial of a motion in limine does not necessarily mean that
all evidence contemplated by the motion is admissible; rather, it only means that, at the pretrial
stage, the court is unable to determine whether the evidence should be excluded. Id. at 1401.

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II.

DISCUSSION

The Court’s Entry on Defendant’s Motion for Summary Judgment recites the facts of this
case in detail. (Filing No. 111.) In short, Tesler was employed by Miller/Howard, a financial
management corporation that sells securities, between October 2010 and March 2014. Tesler
contends that, despite leaving the company, he is entitled to continued commission payments on
accounts he generated during his employment there. He brought this suit seeking to recover those
payments from Miller/Howard.
While Miller/Howard was recruiting Tesler, Tesler spoke to Tracee Cannon-Gordon, a
recruiter employed by a recruiting firm that Miller/Howard had hired to assist in filling the position
Tesler applied for. Tesler testified in his deposition that Ms. Cannon-Gordon told him “the way
the contract was written [he] would receive those commissions regardless if [he] was employed
with Miller/Howard.” (Filing No. 85-2 at 14.) Tesler also claimed Ms. Cannon-Gordon told him
that “she worked on behalf of Miller/Howard as their agent and brought that to their attention, that
they would have to continue to pay commissions whether [Tesler] left the firm or they let [him]
go, and they chose not to do anything in regard to the contract.” Id.
A.

First Motion in Limine

In its First Motion in Limine, Miller/Howard seeks to prevent Tesler from introducing Ms.
Cannon-Gordon’s pre-employment representations, arguing they are inadmissible hearsay.
Miller/Howard contends that Ms. Cannon-Gordon’s statements are not statements of a partyopponent, which are excluded from the definition of hearsay by Federal Rule of Evidence
801(d)(2), because Ms. Cannon-Gordon did not have the authority to negotiate the terms and
conditions of Tesler’s employment.

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Under Rule 801(d)(2)(D), “[a] statement that meets the following conditions is not hearsay:
The statement is offered against an opposing party and … was made by the party’s agent or
employee on a matter within the scope of that relationship while it existed.” The rule “simply
requires that the statement be made by an individual who is an agent, that the statement be made
during the period of the agency, and that the matter be within the subject matter of the agency.”
Young v. James Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir. 2003).
Miller/Howard argues that the conversation Tesler seeks to introduce was made “outside
the scope of [Ms. Cannon-Gordon’s] agency,” and thus is hearsay. (Filing No. 130 at 3.) Tesler
responds that “Ms. Cannon-Gordon was retained to recruit Tesler to Miller Howard. She was
aware of the terms of the offer and stated that she had discussed the terms with Miller Howard.
She then discussed the terms with Tesler. The terms of employment were part and parcel of her
role as an Executive Recruiter and her role on behalf of Miller Howard to recruit Tesler for
employment.” (Filing No. 142 at 2.)
The Court is persuaded by Tesler’s argument. Ms. Cannon-Gordon was an agent of
Miller/Howard tasked with recruiting someone to fill its open Regional Sales Director position.
The terms of any offer of employment Miller/Howard made to Tesler to fill that role are within
the scope of Ms. Cannon-Gordon’s relationship to Miller/Howard, and therefore qualify as
statements of a party-opponent. It does not matter whether Miller/Howard actually authorized Ms.
Cannon-Gordon to discuss or negotiate terms with Tesler because Miller/Howard held her out to
be its agent on the matter of the open Regional Sales Director position.
Miller/Howard argues “apparent authority” is insufficient to buttress a statement of a partyopponent, citing Estate of Gee ex rel. Beeman v. Bloomington Hosp. and Health Care Sys., Inc.,
2012 WL 729269 at *5 (S.D. Ind. March 6, 2012). In that case, the Court determined that a

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statement made by a doctor who was not an employee of the defendant hospital was not a statement
of a party-opponent just because the decedent mistakenly thought the doctor was an employee of
the hospital. Id. Estate of Gee is not analogous to this situation because in Estate of Gee the doctor
who made the statement had no agency relationship with the defendant at all. Here, both parties
agree that Ms. Cannon-Gordon was engaged by Miller/Howard to help fill the open Regional Sales
Director position, and that Miller/Howard compensated her for that work. Because an agency
relationship existed between Miller/Howard and Ms. Cannon-Gordon, Mrs. Cannon-Gordon’s
statements were textbook admissions of a party-opponent’s agent.
Having found that Ms. Cannon-Gordon’s statements are not hearsay under Rule
801(d)(2)(D), the Court need not determine whether Tesler intends to offer them for the truth of
the matter asserted. Miller/Howard’s First Motion in Limine is denied.
B. Second Motion in Limine
In its Second Motion in Limine, Miller/Howard argues “discussions [Tesler] had with
Miller/Howard representatives following his termination” are “inadmissible under Federal Rule of
Evidence 408.” (Filing No. 131.) Rule 408(a) makes inadmissible any evidence “furnishing,
promising, or offering – or accepting, promising to accept, or offering to accept – a valuable
consideration in compromising or attempting to compromise the claim; and conduct or a statement
made during compromise negotiations about the claim….” Miller/Howard argues that discussions
occurring between its representatives and Tesler after he was terminated “were made in the context
of attempting to negotiate Tesler’s severance package, which included his claim that
Miller/Howard underpaid him commissions during his employment.” (Filing No. 131.) Tesler
characterizes Miller/Howard’s request as overly broad “because it prohibits all discussions
regardless of whether or not they were settlement discussions.” (Filing No. 143 at 1.) Tesler also
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explains that he “does not intend to build his case upon the parties’ post-termination settlement
discussions.” Id.
Rule 408 prohibits only evidence dealing with compromise negotiations about the claim.
The Court agrees with Tesler that a blanket order prohibiting admission of any post-employment
discussions between Tesler and Miller/Howard representatives, regardless of whether they dealt
with his severance package, would be overbroad. Accordingly, the Court grants Miller/Howard’s
motion as to any settlement discussions or severance negotiations Tesler had with Miller/Howard
representatives following his employment at Miller/Howard. That evidence will not be admitted
at trial.
III.

CONCLUSION

For the reasons stated above, the Court DENIES Miller/Howard’s First Motion in Limine
(Filing No. 130) and GRANTS its Second Motion in Limine (Filing No. 131), as to settlement
discussions or severance negotiations only. An order in limine is not a final, appealable order. If
the parties believe that evidence excluded by this Order becomes relevant or otherwise admissible
during the course of trial, counsel may approach and request a hearing outside the presence of the
jury. Likewise, if the parties believe that specific evidence is inadmissible during the course of
the trial, counsel may raise specific objections to that evidence.

SO ORDERED.

Date:

5/13/2019

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Distribution:
Michael A. Clements
CLEMENTS LEGAL GROUP LLC
[e-mail]
Michael H. Michmerhuizen
BARRETT & MCNAGNY LLP
[e-mail]
Michael W. Padgett
JACKSON LEWIS PC (Indianapolis)
[e-mail]
Melissa K. Taft
JACKSON LEWIS PC (Indianapolis)
[e-mail]

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