Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, LLC et al

Filing 236

OPINION AND ORDER GRANTING PLAINTIFFS MOTION IN LIMINE [#218] AND DENYING DEFENDANT JOHN H. LEMANSKI JR.S MOTION IN LIMINE [#227]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARRETTE OUTDOOR LIVING, INC.,
Plaintiff,
Case No. 11-cv-13335
HON. GERSHWIN A. DRAIN

v.
MICHIGAN RESIN REPRESENTATIVES,
JOHN H. LEMANSKI, JR.,
LISA WELLS,
TAMARA TURNER,
Defendants.
_____________________________________/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION IN LIMINE [#218] AND
DENYING DEFENDANT JOHN H. LEMANSKI JR.’S MOTION IN LIMINE [#227]
I.

INTRODUCTION
On July 29, 2011, Plaintiff Barrette Outdoor Living, Inc. (“Barrette” or “Barrette

Outdoor”), doing business as U.S. Fence, Inc., filed the instant action, alleging several federal
and state-based claims. Plaintiff alleges 11 counts against Defendants; ten of the 11 original
counts remain.1 All of the counts originate from an alleged pass-through scheme, in which
Defendants acted as conduits for the sale and distribution of plastic resin. Plaintiff claims that
Defendant Lemanski, now a former employee of Barrette Outdoor, is the mastermind behind the
scheme.
On October 3, 2014, the immediate civil action was reassigned to this Court. This action
has a long contentious procedural history. On March 22, 2012, Defendant John Lemanski filed a

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In its Response to Defendants’ Motion to Dismiss [#11], entered on September 11, 2011, Barrette
stipulated to a dismissal of Count V—Plaintiff’s claim for inducement of breach of fiduciary duty against
Defendants MRR, Lisa Wells, and Tamara Turner.
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counterclaim for breach of contract. On June 14, 2013, the Court entered an Order granting
Plaintiff’s Motion for Summary Judgment [#80] as to Defendants’ counterclaim. Dkt. No. 132.
In addition, on January 10, 2014, the Court stayed the matter as to Defendant Tamara Turner
pending bankruptcy proceedings. See Dkt. No. 118. After the withdrawal of their last attorney,
Defendants Lemanski and Wells have decided to proceed pro se. See Dkt. Nos. 77, 15.
Presently before the Court are Plaintiff’s Motion in Limine [#218] and Defendant
Lemanski’s Motion in Limine [#227]. The motions have been fully briefed. On Thursday,
January 22, 2015, the Court heard oral arguments on both motions.
II.

FACTUAL BACKGROUND
A. Facts
Plaintiff, Barrette Outdoor, is an Ohio corporation, engaged in the production and

distribution of vinyl lattice. In order to manufacture its products, Plaintiff purchases plastic
resin. Plaintiff-company fits the resin into molds to make products such as fencing and sheds.
Resin is a commodity for which prices can fluctuate as frequently as day-to-day. The
market price of resin is determined by soliciting bids from producers and distributors. Barrette
Outdoor is a participant in this market and purchases about 25 million pounds of Resin per year.
On October 29, 2007, Plaintiff hired Defendant, John H. Lemanski, Jr. to work at
Barrette’s office facilities in Flint, Michigan. Lemanski was a senior buyer at the company. In
this position, Barrette Outdoor claims that Lemanski was responsible for Barrette Outdoor’s
resin purchasing operation.

Specifically, Plaintiff contends that Defendant Lemanski was

responsible for ensuring that Barrette paid no more than the lowest amount possible for resin.
On February 4, 2010, Plaintiff claims that Defendants Wells and Turner formed Michigan
Resin Representatives, LLC; Wells and Turner owned and operated the company. Wells is

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Defendant Lemanski’s sister; Turner and Wells, at the time of MRR’s formation, were
roommates. Neither Wells nor Turner had experience in either sales or the resin industry. MRR’s
principal place of business is Canton, Michigan.
Before placing a resin order, Plaintiff further contends that Lemanski was obligated to
obtain approval from the general manager of Barrette’s Flint facility. In requesting approval,
Lemanski was required to inform the general manager of the quantity, price, and supplier of the
resin being ordered. Plaintiff claims that the general manager and Barrette relied on Lemanski’s
representations that the resin prices were of fair-market value.
Resin Distribution Inc. (“RDI”) is a Massachusetts distribution company that sells resin.
Plaintiff has been purchasing resin from RDI since 2005. Plaintiff alleges that at Defendant
Lemanski’s direction,2 from February 11, 2010 through April 20, 2011, MRR purchased resin
from RDI at fair-market prices. Plaintiff alleges that MRR then resold the resin, purchased from
RDI, at above-market prices to Barrette Outdoor.
Plaintiff further claims that MRR never expended its own funds as a result of any of these
transactions. Instead, the transactions were structured so that Plaintiff first paid MRR before
MRR paid RDI.3 In addition, MRR’s only supplier throughout the course of its existence was
RDI. Likewise, MRR’s only purchaser throughout the course of is existence was Barrette
Outdoor. At no time did Defendant Lemanski disclose to Barrette that MRR was, in part,
controlled by his sister, Defendant Wells. Plaintiff further maintains that the only Barrette

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Plaintiff specifically alleges that, beginning in February 2010, Defendant Lemanski contacted Brett
Masotta, RDI’s national sales manager. Lemanski allegedly advised Masotta, and thus RDI, that Barrette Outdoor
would no longer purchase resin directly from RDI. Instead, Lemanski advised Masotta that to sell resin to MRR.
Masotta agreed to Lemanski’s request. Plaintiff further alleges that, at Lemanski’s direction, MRR purchased nearly
six million pounds of resin from RDI.
3
The purchase contracts between MRR and Barrette contained payment terms of 20 days. The purchase
contracts between MRR and RDI contained payment terms of 30 days. As a result, Plaintiff alleges that MRR did
not have to place any of its own capital at risk; MRR never paid RDI before receiving payment from Barrette
Outdoor.
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representative with whom MRR contracted was Defendant Lemanski. On June 14, 2011, Barrette
eliminated Lemanski’s position and terminated Lemanski. Subsequent to Lemanski’s
termination, Barrette uncovered evidence that Lemanski was involved in a fraudulent passthrough scheme.
Plaintiff argues, in 10 separate counts, that Defendants should be found liable for this
alleged fraudulent pass-through scheme. Plaintiff specifically contends that in order to obtain
authorization for the MRR purchase orders, Lemanski falsely represented to his supervisors that
MRR’s inflated charges, over the course of 14 transactions, were of fair-market prices. In total,
Barrette Outdoor alleges that it lost at least $416,826.10 through this alleged scheme.
Defendants, on the other hand, disputes Plaintiff’s entire portrayal of the facts illustrated
here. Defendants contend that Lemanski did not direct RDI to enter into 14 transactions with
MRR.4 Defendants also deny that Lemanski possessed any interest in MRR, including any
proceeds from the 14-listed transactions. See Compl. ¶¶ 28, 31.
B. Relevant Procedural History
On November 30, 2012, Plaintiff filed a Motion for Default Judgment as to MRR and
Defendants Wells and Turner [#75]. In the Motion, Plaintiff contended that the Defendants
failed to comply with its discovery obligations pursuant to the Court’s October Orders. Dkt. No.
75. On April 5, 2013, Magistrate Judge Michelson entered a Report and Recommendation, in
which she recommended to deny Plaintiff’s request for terminating sanctions. Dkt. No. 118.
Magistrate Judge Michelson did find, however, that Defendant Wells did not comply with the
First Discovery Order and also failed to timely respond to Plaintiff’s Second Set of Discovery
Requests. Id. As a result, Magistrate Judge Michelson recommended what amounted to a third
4

Twelve out of the 14 transactions between Defendant MRR and Plaintiff Barrette were at prices more than
the sums that Defendant MRR paid to RDI for the purchase of resin. The total difference between the sums was
$416,826.10. In other words, Defendant MRR inflated the prices at which it sold resin to Barrette by $416,826.10.
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order to comply with discovery requests. She also warned Defendant Wells that further
noncompliance could result in more severe sanctions, including the entry of a default judgment.
Id. Judge Cook adopted the Report and Recommendation. Dkt. No. 125.
On February 6, 2013, Plaintiff filed two motions for sanctions: for Providing False
Interrogatory Answers and Tax Documents [#90] and Against John Lemanski for His Intentional
Destruction of Evidence and Violation of the Court’s Discovery Order [#91]. On March 27,
2013, the Court entered an Order denying Plaintiff’s Motion as to MRR [#90]. Dkt. No. 116.
On April 26, 2013, Magistrate Judge Michelson entered a Report and Recommendation in regard
to the spoliation motion against Defendant Lemanski. Dkt. No. 124.

She recommended that

Lemanski pay Barrette a total of $35,000 to compensate for some of the lititgation costs in
bringing the motion as well as for increased expenses in conducting discovery. Dkt. No. 144. In
addition, she recommended that at trial, there exist “an adverse inference that Lemanski’s cell
phone and personal laptop contained information unfavorable to Lemanski, including that he was
involved with MRR.” Id. at 2, 29. Judge Cook adopted this Report and Recommendation. Dkt.
No. 144. Defendant Lemanski has since paid this award to Plaintiff.
On March 13, 2013, Plaintiff filed a Second Motion for Default Judgment [#104] as to
MRR and Defendants Wells and Turner. Plaintiff contended that MRR and Defendants Wells
and Turner completely failed to respond to Barrette’s Second Set of Discovery Requests. Dkt.
No. 104. On April 5, 2013, Magistrate Judge Michelson entered a Report and Recommendation
Dkt. No. 118. In the Report, Magistrate Judge Michelson recommended that default judgment
should be entered for MRR, as it was no longer being represented by counsel and could not
challenge this Motion pro se. Id. She also recommended that the Court deny the Motion as it
pertained to Defendant Wells, as she had made attempts to comply and as the Court had never

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warned her about terminating sanctions. Id. In the Report, Defendant Wells was warned that
further noncompliance of the Federal Rules, the Court’s Discovery Order [#70], and the
immediate Report’s Order could result in more severe sanctions, including an entry of default
judgment. Id. Defendant Turner’s bankruptcy filings precluded the Court from ruling on this
Motion as to her. Id. Judge Cook adopted the Report and Recommendation. Dkt. No. 125.
III.

LAW AND ANALYSIS
A. Standard of Review
A motion in limine is “any motion, whether made before or during trial, to exclude

anticipated prejudicial evidence before the evidence is actually offered.” Louzon v. Ford Motor
Co., 716 F.3d 556, 561 (6th Cir. 2013) (citing Luce v. United States, 469 U.S. 38, 40 n.2 (1984)).
“Unlike a summary judgment motion, which is designed to eliminate a trial in cases where there
are no genuine issues of material fact, a motion in limine is designed to narrow the evidentiary
issues for trial and to eliminate unnecessary trial interruptions.” Id. (citing Bradley v. Pittsburgh
Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990)). In other words, the motion in limine is an
evidentiary device that “provides a useful adjunct to other devices for truncating the trial such as
motions for summary judgment.” Id.
The Parties seek to exclude the evidence herein primarily under evidentiary rules
regarding relevance, character, and authentication. The following legal standards apply:
1. Relevance
The challenges to the inclusion of evidence Rules 401 and 402 of the Federal Rules of
Evidence permit the admission of only relevant evidence. Evidence is relevant if it has any
tendency to make the existence of a fact more or less probable than it would be without the
evidence, and if the fact is of consequence in determining the action. FED. R. EVID. 401. The

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standard for determining for relevance is a low one, as long as the evidence has any probative
value at all. See Douglass v. Eaton Corp., 956 F.2d 1339, 1344 (6th Cir. 1992). Evidence that is
irrelevant is inadmissible. FED. R. EVID. 402. Rule 608 allows the admission of evidence of
specific instances of a witness’s conduct on cross-examination if “they are probative of the
character for truthfulness or untruthfulness of the witness….” FED. R. EVID. 608(b)(1).
Rule 403 permits the exclusion of relevant evidence when its probative value is
substantially outweighed by a danger of unfair prejudice, confusion of the issues, misleading the
jury, undue delay, wasting time or needlessly presenting cumulative evidence. FED. R. EVID.
403. District courts have broad discretion in deciding issues concerning the admissibility of
evidence under Rule 403. Hines v. Joy Mfg., 850 F.2d 1146, 1154 (6th Cir. 1988) (citing Koloda
v. General Motors Parts Div., 716 F.2d 373, 378 (6th Cir. 1983)). The Sixth Circuit has
emphasized that in order to exclude evidence under Rule 403, the evidence, “must be more than
damaging to the adverse party; it must be unfairly prejudicial.” Id.
2. Character Evidence
The Federal Rules of Evidence state that, “[e]vidence of a person’s character or character
trait is not admissible to prove that on a particular occasion the person acted in accordance with
the character or trait.” FED. R. EVID. 404(a)(1). In addition, the Rules state, “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” FED. R. EVID. 404(b)(1).
3. Authenticating or Identifying Evidence
The Federal Rules of Evidence state that, “[t]o satisfy the requirement of authenticating
or identifying an item of evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” FED. R. EVID. 901(a). Rule 901 of the

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Evidence Rules governs the ways in which a party can authenticate its evidence. The Rules state
that evidence can be authenticated in a variety of ways, and the list provided within the statute is
not exhaustive. See FED. R. EVID. 901(b).
B. Plaintiff’s Motion in Limine to Preclude Defendant John Lemanski from
Offering Any Evidence and/or Testimony on Subjects He Shielded from
Discovery Through His Assertion of the Fifth Amendment [#218]
Plaintiff seeks to exclude evidence on subjects that he shielded from discovery through
the assertion of his Fifth Amendment rights. These subjects include the cause of the fire that
destroyed his vacation home, insurance claims related to his home and his car, his 2011 tax
returns, and portions of his deposition testimony in which he was questioned about defrauding
Barrette.
Plaintiff contends that this evidence should be excluded as a matter of fairness as well as
under principles of reciprocity. Traficant v. C.I.R., 884 F.2d 258, 265 (6th Cir. 1989). The
Court agrees. While asserting one’s right against self-incrimination is a constitutional one, a
party may not use the Fifth Amendment in order to take advantage of the litigation process. See
United States v. Sixty Thousand Dollars in U.S. Currency, 763 F.Supp. 909, 914 (E.D. Mich.
1991) (“The court would not tolerate nor indulge a practice whereby a defendant by asserting the
privilege against self-incrimination during pre-trial examination and then voluntarily waiving the
privilege at the main trial surprised or prejudiced the opposing party.”).

“Such limits are

properly within the scope of cases holding that a party to civil litigation or other non-criminal
proceedings may encounter costs imposed in exchange for the assertion of the Fifth Amendment
privilege as long as they are not so high as to force abandonment of the privilege.” Id. (citing
Spevack v. Klein, 385 U.S. 511, 515 (1967); Baxter v. Palmigiano, 425 U.S. 308 (1976)).

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Courts have emphasized, though, the importance of specificity at which evidence should
be limited when a party attempts to limit evidence or testimony based on the opposing party’s
assertion of their Fifth Amendment rights. See Dunkin’ Donuts v. Taseki, 47 F.Supp.2d 867, 873
(E.D. Mich. 1999) (“Traficant was careful to note that ‘when the issue is whether a court may
impose broad limits on the admissibility of evidence, the cases permit only limits directly related
to the scope of the asserted privilege” (emphasis in original)).
For this reason, the Court holds that evidence and testimony be excluded at trial only as it
relates to the tailored subjects mentioned herein, and only on those areas of which Defendant
Lemanski asserted his Fifth Amendment rights per Traficant.
C. Defendant John Lemanski’s Motions in Limine [#227]
Defendant Lemanski moves to exclude 15 types of evidences from admission at trial.
Defendant seeks to exclude or limit evidence related to: (1) all electronic evidence; (2) all
evidence relating to his home and its construction, purchases made, and gifts given; (3) the
calculation of Barrette’s damages and the financial transactions of other defendants; (4) expert
evidence and testimony of Garda Solutions; (5) other crimes or bad acts including information
related to GMAC Insurance; (6) certain terms; (7) the financial analysis of Defendant
Lemanski’s expenditures; (8) the Kubota tractor; (9) expenditures from Defendant Lemanski’s
available funds after the close of discovery; (10) certain Bates-stamped documents; (11)
transcripts and affidavits of Defendant Tamara Turner; (12) all documentation produced by
Defendant Lisa Wells on June 24, 2013 via e-mail; (13) all documentation produced by Plaintiff
relating to Resin Market Reports; (14) witnesses that hear the testimony of other witnesses; and
(15) electronic spreadsheets by Jamie Marwitz of Barrette Outdoor during or immediately
following his deposition in this matter.

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The Court will review these issues in turn:
1. All Electronic Evidence
Defendant contends that all electronic evidence (with certain exceptions),5 should be
excluded. This includes the exclusion of: (1) e-mails sent to Tamara Turner; (2) phone records
of contractors, Defendants, or non-party to this litigation that were obtained after the close of
discovery; (3) affidavits obtained after the close of discovery; (4) screenshots or images of data
purportedly printed from SAP; and (5) all documentation that was not produced during discovery
or reasonably supplemented in a timely fashion.
Defendant argues that the evidence mentioned above has not been properly authenticated.
He further argues that none of the items listed above are self-authenticating and require extrinsic
evidence to prove their authenticity.

Defendant also contends that Plaintiff’s search of

Defendant Turner’s devices, prior to having her computer forensically analyzed, spoliated the
original ESI state of those devices.6
Under the evidentiary rules, Defendant also argues that while the evidence is marginally
relevant, the probative value is greatly outweighed by its danger to mislead the trier of fact as
well as undue prejudice. See FED. R. EVID. 403. As a final matter, Defendant contends that
Plaintiff illegally obtained phone records after the close of discovery; he also contends that
Plaintiff attained pictures and screenshots of SAP system data after the close of discovery.
Plaintiff contends, on the other hand, that the electronic evidence is authentic and that his
argument is premature. Plaintiff asserts that it will establish the authenticity of Defendant
Turner’s e-mails at trial through the testimony of Spectrum Forensics and Defendant Turner
herself. See FED. R. EVID. 901(b)(1) (“Testimony of a witness with knowledge”). Prior to trial,
5

Exceptions include: certain Garda Solutions spreadsheets.
Defendant also asserts that Plaintiff has provided him with neither the ESI data nor the Spectrum
Forensics’ Report.
6

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Plaintiff contends that only a prima facie showing of genuineness is required, and that the task of
deciding upon a piece of evidence’s authenticity is left to the trier of fact. United States v.
Kilpatrick, 2012 U.S. Dist. LEXIS 110166, at *8 (E.D. Mich. Aug. 7, 2012) (unpublished).
Plaintiff also asserts that the evidence is relevant; the evidence was provided to
Defendants during discovery, and that both Parties had an opportunity to question Defendant
Turner at her deposition. Barrette contends that the e-mail communication challenged here
evidences the commission of the fraudulent pass-through scheme.
The Court finds that electronic evidence is admissible. The Court will judge the
authentication of the evidence at trial.
2. All Evidence Relating to Defendant Lemanski’s Home and Its
Construction, Purchases Made, and Gifts Given
a. Evidence Relating to Defendant’s Home and Its Construction
Defendant primarily contends that there is no probative value in the description of his
home and its construction. He contends in the alternative that, if there is any probative value, it
is substantially outweighed by the danger of undue prejudice.7
Plaintiff, on the other hand, contends that the evidence is relevant to Defendant’s
expenditure of the cash proceeds; Barrette alleges that these cash proceeds were kickbacks from
the pass-through scheme. The Court finds that the evidence is admissible.
Defendant has effectively failed to point to any actual evidence but instead challenges the
manner in which the evidence should be presented; the Court cannot speculate and rule on the
manner in which Plaintiff may present evidence at trial. In addition, Plaintiff cites several cases,
although non-binding on this Court, are nonetheless persuasive. See, e.g., Woods v. United
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Defendant also contends that this evidence should be excluded because it is evidence of a “wrong, crime,
or other act.” FED. R. EVID. 404(b)(1). Defendant’s argument is misguided. Plaintiff alleges wrongdoing and,
therefore, evidence of a wrong or act that directly evidences the facts alleged in this case are admissible
notwithstanding Rule 404(b)(1).
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States, 200 Fed.App’x. 848, 853 (11th Cir. 2006) (noting that the Rule 403 exclusion of undue
prejudice is less persuasive when holding a bench trial).
The Parties should be further advised that, “[a] ruling on a motion in limine is no more
than a preliminary, or advisory, opinion that falls entirely within the discretion of the district
court.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United States v. Luce,
713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38, 105 (1984)). “However, the district court
may change its ruling at trial for whatever reason it deems appropriate,” and “where sufficient
facts have developed to warrant the change.” Id.
b. John H. Lemanski Sr.’s Competency to Serve as a Witness
Defendant contends that John H. Lemanski Sr., his father, is incompetent and therefore
should not serve as a witness at trial. Defendant instead suggests that Lemanski Sr.’s deposition
testimony be read into the record. Lemanski argues that due to his father’s dementia and
memory loss, any testimony that he could provide would be unfairly prejudicial. At oral
arguments, Defendant Lemanski provided medical records that he claimed attested to Lemanski
Sr.’s current mental capacity.
The Federal Rules of Evidence state that, “[e]very person is competent to be a witness
unless these rules provide otherwise. But in a civil case, state law governs the witness's
competency regarding a claim or defense for which state law supplies the rule of decision.” FED.
R. EVID. 601; see generally Legg v. Chopra, 286 F.3d 286, 290 (6th Cir. 2002). Therefore,
Michigan Rule of Evidence 601 governs witness competency and states:
Unless the court finds after questioning a person that the person does not
have sufficient physical or mental capacity or sense of obligation to testify
truthfully and understandably, every person is competent to be a witness
except as otherwise provided in these rules.
MRE 601.
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Plaintiff contends that there has been no showing that Lemanski Sr. lacks the capacity,
“to testify truthfully and understandably.” See MRE 601. Plaintiff further cites United v. Cobb,
in which the court stated that, “many witnesses suffer memory failures when testifying, and,
standing alone, this is not a basis to exclude testimony.” 432 Fed.Appx. 578, 589 (6th Cir. 2011).
Upon review of Lemanski Sr.’s medical records, dated November 6, 2014, it is apparent
that he is competent enough to testify at trial. Lemanski Sr. has not been diagnosed with either
dementia or Alzheimer’s disease, as was implied at oral arguments. In addition, the records
indicate that while Lemanski Sr. has a two-year history of forgetfulness, the primary medical
concern is limited to short-term memory loss. The evaluation concludes that the witness is
otherwise “pleasant, alert and oriented to self, place, and time.”
Based on these records, the Court finds that Lemanski Sr. is competent to serve as a
witness as it concerns this motion. However, “the district court may change its ruling at trial for
whatever reason it deems appropriate,” and “where sufficient facts have developed to warrant the
change.” Yannott, 42 F.3d at 1007 (citing Luce, 713 F.2d at 1239).
3. All Evidence Relating to Barrette’s Damages, Defendants’ Finances, and
the Finances of Any Lay Person
Defendant argues that evidence relating to Barrette’s damages and to Defendants’
financial transactions should be barred because such evidence is not in compliance with Federal
Rule of Evidence 701. Rule 701 states:
If a witness is not testifying as an expert, testimony in the form of an
opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

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FED. R. EVID. 701. Rule 702 governs the testimony of expert witnesses. Defendant contends that
Plaintiff is attempting to elicit what is truly expert testimony from lay witnesses.
Plaintiff, on the other hand, contends that Barrette’s damages theory is not based on
specialized knowledge but on simple arithmetic. Plaintiff has calculated damages by subtracting
RDI’s resin price from the price that Barrette paid to MRR. The Court agrees with Plaintiff; this
calculation is not within the scope of complexity that calls for expert testimony.
The Court finds that Barrette’s calculation as to damages is admissible. Defendant
provides no basis for excluding the financial transactions of all defendants. As a result, the Court
declines to rule in the Defendant’s favor on this category of evidence. It is therefore admissible.
4. Expert Testimony from Garda Solutions
Defendant argues that expert testimony from Garda Solutions as to the existence of
spreadsheets, which contains evidence about MRR’s alleged after-tax profits, should be
excluded. Defendant questions the authenticity of the spreadsheets and contends that he has not
admitted to populating all of the data.8 This, however, is not a basis for excluding this evidence.
Defendant must look to applicable evidentiary rules. Because Defendant does not provide any
evidentiary rule as a basis for exclusion, the Court finds that Garda Solutions’ expert testimony is
admissible.
5. Crimes or Bad Acts Especially Relating to GMAC Insurance
Defendant contends that evidence relating to his association with GMAC Insurance
should be excluded. He contends that this evidence would force him to defend himself against
the action immediately before the Court and other allegations, which are not at issue in this case.

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Defendant also argues that the expert report has already been reviewed by the court, and that any further
inquiry would be irrelevant and a waste of time. Plaintiff, again, is misguided on the utility of the expert report.
Exhibits that have been reviewed by the Court are admissible at trial barring any restrictions based in the Federal
Rules of Evidence.
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Most convincingly, Defendant argues that this evidence falls squarely in line with Rule 404(b)(1)
of the Evidence Rules.
Plaintiff contends differently. It argues that the GMAC Insurance documents are relevant
to his cash expenditures, which evidences the whereabouts of the cash proceeds that Defendant
Lemanski received from the alleged pass-through scheme. Plaintiff has argued that the cash
proceeds have been used for the construction of Defendant’s home whereas Defendant argues
that he paid for the construction of his home using insurance proceeds.
Plaintiff also cites Federal Rule of Evidence 608(b)(1) to supports its arguments. Rule
608(b)(1) states:
Except for a criminal conviction under Rule 609, extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in order to
attack or support the witness’s character for truthfulness. But the court
may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of: the
witness[.]
FED. R. EVID. 608(b)(1).
The Court agrees, in part, with Defendant. The presentation of evidence in regard to
Defendant’s association with GMAC Insurance should be limited to bolster only the elements of
Plaintiff’s legal claims, and not to insinuate what is prohibited under Rule 404(b)(1). However,
it is not yet certain how Plaintiff will use this evidence. Likewise, the Court declines to
speculate, and Plaintiff has not specified the manner in which the evidence should be limited.
For this reason, the Court reserves for trial the exercise of its discretion to rule on this evidence.
6. Certain Terms
Defendant lists 35 words that he asserts should be prohibited from use during the course
of the trial. Defendant contends that the words are “emotionally-charged terms” and that each
word “conjures up images of Mafioso-type crimes”. Defendant cites a Florida-state case to
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support this request. Goddard v. State, however, has no binding, or persuasive, effect on this
Court.
Defendant further points out that Plaintiff, under Evidence Rule 403, is restricted from
making statements that create a danger of unfair prejudice. Defendant, however, misstates the
Rule. The rule permits the exclusion of relevant evidence when its probative value is
substantially outweighed by a danger of unfair prejudice, confusion of the issues, or misleads the
jury. The Sixth Circuit has emphasized that in order to exclude evidence under Rule 403, the
evidence, “must be more than damaging to the adverse party; it must be unfairly prejudicial.”
Hines v. Joy Mfg., 850 F.2d 1146, (6th Cir. 1988) (citing Koloda v. General Motors Parts Div.,
716 F.2d 373, 378 (6th Cir. 1983)). Furthermore, district courts have broad discretion in deciding
issues concerning the admissibility of evidence under Rule 403. Id. The Court finds that while
these terms may not be favorable to Defendant, they are not statements and certainly do not arise
to the level of unfairly prejudicial.9 These terms are not excludable.
7. Financial Analysis of Defendant Lemanski’s Expenditures
Rule 1006 of the Federal Rules of Evidence governs the use of summaries to prove
content. The Rule states:
The proponent may use a summary, chart, or calculation to prove the
content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court. The proponent must make the originals or
duplicates available for examination or copying, or both, by other parties
at a reasonable time and place. And the court may order the proponent to
produce them in court.
FED. R. EVID. 1006. In addition, the Sixth Circuit has held that Rule 1006 has five requirements:

9

Again, Defendant has effectively failed to point to any actual evidence but instead challenges the manner
in which the evidence should be presented; the Court cannot speculate and rule on the manner in which Plaintiff may
present at trial. There is little doubt that such an exclusion would collide with the First Amendment of the U.S.
Constitution.
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(1) [T]he underlying documents must be so voluminous that they cannot
be conveniently examined in court, (2) the proponent of the summary must
have made the documents available for examination or copying at a
reasonable time and place, (3) the underlying documents must be
admissible in evidence, (4) the summary must be accurate and
nonprejudicial, and (5) the summary must be properly introduced through
the testimony of a witness who supervised its preparation.
United States v. Modena, 302 F.3d 626, 633 (6th Cir. 2002) (citing United States v. Bray, 139
F.3d 1104, 1109-10 (6th Cir. 1998)).
Plaintiff argues that only the summary was obtained in accordance with Federal Rule of
Evidence 1006. The Court agrees because, in fact, the summary is the only piece of evidence
that Defendant describes in this motion that must be in compliance with Rule 1006, as it governs
summaries. Plaintiff himself conceded that the summaries account for 500+ documents, and are
therefore voluminous. It appears, at the time of the filing of this motion, that Plaintiff meets all of
the Sixth Circuit’s criteria for entering this evidence at trial. The Court denies Defendant’s
motion.
8. The Kubota Tractor
Defendant contends that any evidence about the Kubota Tractor is irrelevant, its
probative value is substantially outweighed by confusion and undue prejudice, and amounts to
evidence related to other crimes and bad acts. Plaintiff, on the other hand, contends that inquiry
into the Kubota tractor has high probative value as it evidences his cash expenditures and
discovery abuses.
The Court finds that inquiry into the Kubota Tractor is admissible. There is evidence in
the record that supports this inquiry in regard to the legal matter. Plaintiff is in possession of
evidence that buoys its proposition that supported its argument that cash expenditures from an

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alleged pass-through scheme were used for its purchase. In addition, its probative value in
relation to the alleged existence of a pass-through scheme is not outweighed by undue prejudice.
9. Defendant Lemanski’s Expenditures from Available Funds After the
Close of Discovery
Defendant contends that this evidence will lead to a confusion of the issues. Plaintiff, on
the other hand, contends that this evidence is directly related to the issues. Plaintiff argues that
these expenditures evidence furtherance of the pass-through scheme even to present-day.
Plaintiff also argues that Defendant’s ability to shield his expenditures until after discovery
should not make expenditures, post-discovery, off limits.
The Court finds that Defendant does not elaborate to how these expenditures will confuse
the issues and simply relies on asserting Rules 401, 402, and 403. Plaintiff provides a convincing
explanation of how these expenditures evidence its claim that Defendant engaged in a passthrough scheme. This evidence is therefore admissible.
10.

Certain Bates-Stamped Documents

Defendant asserts that Plaintiff refers to nearly 1,200 pages of Bates-stamped
documents.10 These documents include affidavits, Lemanski’s AT&T and Sprint phone records,
and the records of a home contractor. Plf.’s Response to Def.’s Mot. In Limine 21. Defendant
contends that although this evidence was in Plaintiff’s possession as early as 2013, its existence
was not disclosed until eight months after the close of discovery in February of 2014.
Plaintiff contends, on the other hand, that not only has Defendant been in possession of
these documents, the documents have, in fact, been attached as exhibits to briefs. In addition,
some of these documents were made available, after the close of discovery, due to Defendant’s

10

Bates stamping is a process for applying a set of identifying numbers to a document collection of PDFs.
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discovery abuses. Furthermore, Plaintiff asserts that the phone records were produced by
Lemanski himself.
Defendant cites Federal Rule of Civil Procedure 37(c)(1) as a basis for excluding this
evidence. Rule 37 states:
If a party fails to provide information or to identify a witness as required
by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.
FED. R. CIV. P. 37(c)(1). The harmless standard “involves an honest mistake on the part of a
party coupled with sufficient knowledge on the part of the other party.” Sommer v. Davis, 317
F.3d 686, 692 (6th Cir. 2003) (quoting Vance v. United States, No. 98-5488, 1999 WL 455435,
at *5 (6th Cir. June 25, 1999)).
The Court holds that these documents are admissible and denies Defendant’s motion to
exclude. This portion of Defendant’s motion can be rejected on many fronts. The Court finds,
as a primary matter, that Plaintiff’s failure to provide the Bates-stamped documents during the
discovery period were both substantially justified and harmless under Rule 37.
Defendant received sufficient notice of the documents’ existence as well as access to
them in February 2014, which was one full year, and well in advance, of the February 2015 trial
date.

Plaintiff has also successfully demonstrated that the phone records appeared after

discovery as a result of multiple requests as recorded in several of Plaintiff’s motions for
sanction due to spoliation of evidence and court discovery orders. In any case, the phone records
mentioned herein were produced by Defendant himself; it is then evident that Defendant had
access to his own phone records.
Defendant also contends that the probative value of this evidence is substantially
outweighed by undue prejudice. As the Court has explained, under Rule of Evidence 403, the
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evidence “must be more than damaging to the adverse party; it must be unfairly prejudicial.”
Hines, 850 F.2d at 1154. Again, Defendant had knowledge of and access to the Bates-stamped
documents a full year in advance of trial. Therefore Defendant would not be unduly prejudiced
at trial, as these pieces of evidence have been disclosed and with plenty of time remaining for
Defendant to properly prepare for trial.
11.

Inclusion of Transcripts and Affidavits of Defendant Tamara Turner

Defendant contends that the previous testimony of Defendant Turner be included as
evidence.

Defendant, however, does not offer any grounds for admitting all of Turner’s

“testimony, documentation of testimony, transcripts of testimony, and affidavits.”

The Court

relies “on the parties to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S. 237, 243 (2008). As
a result, at this time, the Court declines to rule on this evidentiary issue.
12. Inclusion of All Documentation Produced by Defendant Lisa Wells on
June 24, 2013 via E-mail
While motions in limine are more frequently used to exclude evidence, the Court also
permits motions in limine in order to include evidence before trial. Defendant, however, must
indicate, with specificity, that evidence for which he seeks to include. Due to the uncertainty of
the evidence being presented, this motion does not actually truncate the evidentiary issues but
requires further inquiry into them. Thus the Court is inclined to agree with Plaintiff and, at this
time, does not exercise its discretion to include into evidence all documentation produced by
Defendant Wells on June 24, 2013, via e-mail.

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13. Inclusion of All Documentation Produced by Plaintiff Relating to
Resin Market Reports
Defendant contends that Plaintiff should be compelled to enter into evidence certain
reports on resin market conditions. Defendant confuses motions in limine with a motion to
compel. The Court does not have the authority to compel a party to enter into evidence that to
which it chooses not. Motions in limine only serve to grant or deny a party’s request to enter
evidence on its own behalf, or to exclude the evidence on which the opposing party anticipates
entering. Neither of those conditions are presented here. For this reason, the Court declines to
rule on this motion.
14.

Witnesses That Hear the Testimony of Other Witnesses

Because there are no objections to this motion, the Court will grant this request and will
sequester the witnesses who testify.
15. Electronic Spreadsheets by Jamie Marwitz of Barrette Outdoor
During or Immediately Following His Deposition
Defendant contends that Barrette’s IT Manager, Jamie Marwitz produced multiple
spreadsheets prior to, during, and following his deposition. Plaintiff refers to these documents as
Marwitz’s Resin Transaction Summaries. Defendant contends that these spreadsheets are critical
to his defense. The Court declines to exercise its discretion in ruling on the inclusions or
exclusion of these documents. The Court construes this motion as a motion to compel. The
Court does not have the authority to compel a party to enter items into evidence what that party
chooses not to include.11 Motions in limine only serve to grant or deny a party’s request to enter
evidence on its own behalf, or to exclude the evidence on which the opposing party anticipates
entering. Neither of those conditions is presented here. In addition, as Plaintiff notes, Defendant

11

The Court should have Defendant clarify his position as to this motion. Is he requesting that Plaintiff
enter the evidence, or is moving to be permitted to enter the evidence himself? In the motion, it is not entirely clear.
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can choose to enter the evidence himself on cross-examination. For this reason, the motion to
compel Marwitz’s Resin Transaction Summaries is denied.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s Motion in Limine [#218] is GRANTED and

Defendant Lemanski’s Motions in Limine [#227] are DENIED, or deferred until trial.
The Defendant’s Motion to Sequester Witnesses is GRANTED.
IT IS SO ORDERED.

Dated: January 27, 2015

/s/Gershwin A Drain
GERSHWIN A. DRAIN
US District Court Judge

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