hibu Inc. v. Peck
MEMORANDUM AND ORDER denying 312 MOTION IN LIMINE AS TO PLAINTIFF'S EXPERTS; granting in part, and taken under advisement until trial 313 OMNIBUS MOTION IN LIMINE AS TO LIABILITY ISSUES; denying without prejudice 314 FIRST MOTION IN LIMINE TO PRECLUDE EVIDENCE PERTAINING TO OTHER EMPLOYEE AGREEMENTS OF PECK AND THE SIX SALES REPRESENTATIVES; granting 315 SECOND MOTION IN LIMINE TO PRECLUDE EVIDENCE PERTAINING TO HIBU INC.'S PREVIOUS MERGERS, NAME CHANGES, OR FILINGS WITH THE ST ATE OF KANSAS; denying without prejudice 316 THIRD MOTION IN LIMINE TO EXCLUDE EVIDENCE OF ANY ADVERSE EMPLOYMENT ACTIONS AS TO ANY CURRENT OR FORMER HIBU EMPLOYEE; granting 317 FOURTH MOTION IN LIMINE TO PRECLUDE REFERENCES TO HEARSAY STATEMENT S BY PROSPECTIVE CUSTOMERS ABOUT HIBU; denying without prejudice 318 FIFTH MOTION IN LIMINE TO EXCLUDE MENTION OF RELIANCE ON ADVICE OF COUNSEL AS A DEFENSE TO LIABILITY; granting 319 SIXTH MOTION IN LIMINE TO PRECLUDE REFERENCES TO HIBU INC.'S IN-HOUSE ATTORNEYS; granting 320 SEVENTH MOTION IN LIMINE TO EXCLUDE MENTION OF MEDIATION, SETTLEMENT DISCUSSIONS, OR OFFERS OF COMPROMISE BETWEEN HIBU AND PECK. Signed by District Judge J. Thomas Marten on 1/11/2018. (mam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-1055-JTM
MEMORANDUM AND ORDER ON MOTIONS IN LIMINE
This matter is before the court on the parties’ motions in limine filed in
anticipation of the upcoming trial. Defendant filed a motion in limine as to experts
(Dkt. 312) and another motion in limine on liability (Dkt. 313). Plaintiff filed seven
separate motions in limine concerning its corporate history, employment agreements
defendant claims he signed, hearsay statements, and other matters that are inadmissible
under the federal rules of evidence (Dkts. 314–20).
For the reasons stated below,
defendant’s motion regarding plaintiff’s experts is denied.
regarding liability is granted in part and taken under advisement until trial. Plaintiff’s
motions are granted in part, denied in part without prejudice, and taken under
advisement until trial.
“The purpose of an in limine motion is to aid the trial process by enabling the
Court to rule in advance of trial on the relevance of certain forecasted evidence, as to
issues that are definitely set for trial, without lengthy argument at, or interruption of,
the trial.” Altman v. New Rochelle Pub. Sch. Dist., No. 13 CIV. 3253 (NSR), 2017 WL
66326, at *5 (S.D.N.Y. Jan. 6, 2017) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.
A motion in limine “seeking to prohibit generic, unspecified ‘prejudicial’
testimony [is] not useful, and is properly denied.” United States v. Enns, No. 15-10045JTM, 2015 WL 8770006, at *1 (D. Kan. Dec. 14, 2015).
Defendant’s Motion in Limine as to Plaintiff’s Experts
Plaintiff has designated its Chief Financial Officer, Bryan Turner, and other
officers and managers, Chris Hett, Kevin Jasper, Tod Pike, and Jeff Johanns, as potential
witnesses on damages. Defendant moves to exclude expert testimony from plaintiff’s
employees regarding plaintiff’s damages. Defendant claims plaintiff failed to comply
with Federal Rule of Civil Procedure 26(a), which is required for employee experts.
“Under Rule 26(a), a party seeking to call an expert witness must provide the
opposing party with a written report, prepared and signed by the expert witness, that
outlines, in pertinent part, the opinions that will be expressed at trial by the expert
witness, the facts or data considered by the expert witness in forming those opinions,
the expert witness’s qualifications, the cases in which the expert witness has testified
within the last four years, and the compensation to be paid the expert witness for his
work and testimony in the case.” ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163,
1176 (10th Cir. 2011) (citing Fed. R. Civ. P. 26(a)(2)(B)(i)–(vii).
requirements apply only to expert witnesses, not fact witnesses. Super Film of Am., Inc.
v. UCB Films, Inc., 219 F.R.D. 649, 658 (D. Kan. 2004). “The Comment to the 2010
amendment to Rule 26 (a)(2)(C) explains,
A witness who is not required to provide a report under Rule 26(a)(2)(B)
may both testify as a fact witness and also provide expert testimony under
Evidence Rule 702, 703, or 705. Frequent examples include physicians or
other health care professionals and employees of a party who do not
regularly provide expert testimony. Parties must identify such witnesses
under Rule 26(a)(2)(A) and provide the disclosure required under Rule
Ledford v. Kinseth Hosp. Cos., No. 15-1156-GEB, 2017 WL 2556020, at *5 (D. Kan. June 13,
Plaintiff claims that its designated officers and employees are lay witnesses
under Fed. R. Evid. 701, not expert witnesses. It argues that Turner’s damage testimony
is not expert testimony, but is a lay opinion because he is plaintiff’s CFO. Its only
expert is Steve Browne, who is designated as a rebuttal expert on damages.
The designated officers and employees are employed with plaintiff and are not
retained or specially employed to provide expert testimony. Nor do these witnesses
regularly provide expert testimony. Therefore, plaintiff was not required to comply
with Fed. R. Civ. P. 26(a)(2)(B). Furthermore, these witnesses were deposed and there is
no prejudice to defendant. Defendant’s motion as to plaintiff’s officers’ and employees’
testimony on damages is denied.
Defendant’s Motion in Limine on Liability
Defendant moves for an order precluding plaintiff from presenting evidence or
argument on the following matters:
1) claims that were granted summary judgment in defendant’s favor pursuant
to the court’s November 15, 2017 Memorandum and Order: defendant
violated the 2006 Employee Agreement during the restricted period by
soliciting plaintiff’s customers; competing or preparing to compete with
plaintiff; and soliciting plaintiff’s employees who did not ultimately leave
plaintiff’s employment for Dex Media.
2) Evidence of any conversations between plaintiff and third parties, including
plaintiff’s employees and customers, regarding defendant’s alleged
solicitation that violates Fed. R. Evid. 801 and 805.
Plaintiff responds that it will not argue or seek damages as to claims that were
dismissed, however, it is entitled to present evidence at trial that is relevant to its
remaining claims even if such evidence also relates to the dismissed claims. Plaintiff
also claims that testimony from Hett and Mike Ball about what others told them
regarding defendant’s actions are admissible for purposes other than the truth of the
matters asserted. Plaintiff further states that customer statements are admissible under
exceptions to the hearsay rule.
The court expects the parties to comply with the federal rules. And to the extent
that such evidence is relevant to and/or provides useful context for the remaining
claims, such evidence is admissible. Likewise, out-of-court statements not being used
for the truth of the matter asserted and/or fall under a hearsay exception are
admissible. See Fed. R. Evid. 801(c); 803. The court will review specific objections at
trial, if necessary.
Plaintiff’s Motions in Limine
First Motion – Evidence of Other Employee Agreements
Plaintiff moves to exclude reference to or evidence of any purported
employment agreements between plaintiff and defendant other than the May 23, 2006
Employee Agreement (the “2006 Agreement”), with the exception of defendant’s
severance agreement. Plaintiff also moves to exclude reference to or evidence of any
purported employee agreements between plaintiff and Brooke Peck, Monica Forrest,
Kari Kimbro, Ricky Baker, Lance Flowers, or Brad Winfrey (the “six sales
representatives”), except those employee agreements that have been produced in the
case and presented to the court at summary judgment.
The court denied summary judgment on defendant’s claim that he signed
subsequent employee agreements because the matter was disputed. Plaintiff claims
that even if defendant signed and returned any of the subsequent employment
agreements, there were no material changes to the non-compete restrictions—thus, a
breach still occurred.
The court appreciates plaintiff’s position, however, it still has the burden to show
the existence of a valid agreement between the parties.
The parties may present
evidence in support of their respective positions. The jury can decide whether any
agreement existed and whether defendant violated its terms.
Second Motion – Evidence of Plaintiff’s Corporate History
Plaintiff seeks to exclude reference of or evidence related to its corporate history,
including “the merger of Yellow Book USA, Inc. into Yellow Book Sales and
Distribution Company, Inc. and the subsequent name change of the surviving company
to Yellowbook Inc. and thereafter to Hibu Inc.; and 2) filings made by [plaintiff] and its
corporate predecessors or their affiliates with the Kansas Secretary of State, including,
but not limited to, Yellow Book USA’s 2009 filing of an Amendment of Withdrawal
with the Kansas Secretary of State.” (Dkt. 315, at 1).
The court previously ruled that plaintiff may enforce the 2006 Agreement against
defendant as Yellow Book Sales and Distribution Company, Inc.’s successor and
surviving corporation following its merger with Yellow Book USA, Inc. Defendant
does not intend to introduce evidence of plaintiff’s corporate history to dispute/reargue
this matter. However, to the extent that plaintiff’s corporate history is relevant to the
remaining claims and/or provides helpful background information to the jury, such
evidence is admissible.
Third Motion – Evidence of Adverse Employment Actions
Plaintiff wants to prevent defendant from introducing evidence of any adverse
employment action as to any current or former employee of plaintiff’s, other than
defendant, the six sales representatives, or Randy Riekenberg. Plaintiff argues that such
evidence is not relevant to any claim or defense, would lead to mini-trials regarding
each disciplinary action, and would distract the jury from the pertinent issues.
Defendant responds that evidence of plaintiff’s general dealings with its
employees will give the jury a better understanding of the work atmosphere and allow
the jury to assess how defendant was able to recruit the six sales representatives to Dex
Defendant further argues that evidence of layoffs, terminations, and other
departures of plaintiff’s employees is relevant to damages and causation.
The court finds that evidence of plaintiff’s work environment is relevant to
defendant’s defense that the six sales representatives left plaintiff’s employment for
personal reasons, as opposed to being recruited by defendant. The parties’ witnesses
may testify about their reasons for leaving plaintiff’s employment and their opinion
about plaintiff’s work environment. However, plaintiff may object to such evidence to
the extent it is irrelevant, cumulative, or consists of hearsay statements. The court will
rule on any objections at trial.
Fourth Motion – Hearsay Statements by Prospective Customers about Plaintiff
Plaintiff moves to exclude evidence of hearsay statements made by defendant’s
and/or the six sales representatives’ prospective customers. As noted above, the parties
are expected to follow the federal rules of evidence. Out-of-court statements may not be
used for the truth of the matter asserted or must fall under a hearsay exception under
Fed. R. Evid. 803.
Fifth Motion – Defendant’s Reliance on Legal Advice from Counsel or Dex Media
Plaintiff claims that defendant waived the affirmative defense of reliance on
advice of counsel because it was not asserted in the Final Pretrial Order. Defendant
responds that he is not asserting an advice-of-counsel defense.1 Defendant, however,
argues that Dex Media took comprehensive steps to ensure that defendant and the six
sales representatives returned potential confidential information to plaintiff and
“In the Tenth Circuit, to establish a good faith reliance on counsel defense, the defendant must show (1)
a request for advice of counsel on the legality of a proposed action, (2) full disclosure of the relevant facts
to counsel, (3) receipt of advice from counsel that the action to be taken will be legal, and (4) reliance in
good faith on counsel’s advice.” United States v. Wesberry, 656 F. App’x 895, 899 (10th Cir. 2016) (quoting
United States v. Wenger, 427 F.3d 840, 853 (10th Cir. 2005).
complied with their non-compete agreements. Defendant claims that evidence of Dex
Media’s procedures and defendant’s compliance thereof are relevant to determine
whether defendant breached the 2006 Agreement.
The court finds that defendant’s proffered use of Dex Media’s communications
and defendant’s reliance on advice from Dex Media’s legal counsel is relevant to claims
contained within the Final Pretrial Order, i.e. whether defendant used plaintiff’s
confidential information and violated the terms of his 2006 Agreement. As a result,
plaintiff’s motion is denied.
Sixth Motion – Reference to Plaintiff’s In-House Attorneys
Defendant does not oppose plaintiff’s motion, and requests that plaintiff also
refrain from referencing, mentioning, or identifying defendant’s in-house lawyers.
Subject to opening the door to this matter, the parties shall not refer to each other’s inhouse counsel.
Seventh Motion – Reference to the Parties’ Settlement Discussions
Defendant does not oppose plaintiff’s motion in limine to exclude evidence
related to settlement discussions. However, defendant reserves the right to use such
evidence for any permissible purpose contemplated by Fed. R. Evid. 408 or any other
applicable law or rule. Plaintiff’s motion is granted, subject to defendant’s limitation.
IT IS THEREFORE ORDERED this 11th day of January, 2018, that defendant’s
motion in limine as to experts (Dkt. 312) is denied. Defendant’s motion in limine on
liability (Dkt. 313) is granted in part, and taken under advisement until trial.
IT IS FURTHER ORDERED that plaintiff’s first, third, and fifth motions in limine
(Dkts. 314, 316, and 318) are denied without prejudice.
IT IS FURTHER ORDERED that plaintiff’s second, fourth, sixth, and seventh
motions in limine (Dkts. 315, 317, 319, and 320) are granted subject to the limitations
s/ J. Thomas Marten
J. Thomas Marten, Judge
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