Brown v. Oakland, County of

Filing 44

ORDER granting 38 Motion to Strike. Signed by District Judge Gershwin A. Drain. (SSch)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCELLA BROWN,
Case No. 14-cv-13159

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
OAKLAND COUNTY,

UNITED STATES MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK

Defendant.
/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S SECOND
MOTION FOR SUMMARY JUDGMENT MISIDENTIFIED AS A MOTION IN LIMINE [38]; AND
STRIKING DEFENDANT’S MOTION IN LIMINE TO PRECLUDE PLAINTIFF
FROM REQUESTING ECONOMIC DAMAGES AT TRIAL [36]
I. INTRODUCTION
On April 22, 2015, Marcella Brown (“Plaintiff”) filed a Second Amended Complaint
against her former employer, Oakland County (“Defendant”). See Dkt. No. 23. In the Second
Amended Complaint, Plaintiff raises seven counts alleging that Defendant wrongfully
discriminated and retaliated against her on the basis of her age, race, and participation in a
protected activity—namely, filing a worker’s compensation claim. Id. Specifically, Plaintiff
asserts that her rights have been violated pursuant to the Civil Rights Act of 1991, 42 U.S.C. §
1981 (“Section 1981”) (Count I); Title VII of the Civil Rights Act of 1964 and 1991 (“Title
VII”), as amended, 42 U.S.C. § 2000e et seq. (Count II); the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. (Count III); the Michigan Elliott-Larsen Civil Rights Act
(“ELCRA”), MICH. COMP. LAWS § 37.2102 et seq. (Counts IV, V and VII); and the Workers
Disability Compensation Act (“WDCA”), MICH. COMP. LAWS § 418.301 et seq. (Count VI). Id

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Presently before the Court are Defendant’s Motion in Limine to Preclude Plaintiff from
Requesting Economic Damages at Trial [36] and Plaintiff’s Motion to Strike Defendant’s Second
Motion for Summary Judgment Misidentified as a Motion in Limine [38]. These Motions are not
fully briefed, but were argued at a September 2, 2015 hearing. After listening to the argument of
the parties, reviewing the briefs, and reviewing the record, the Court will GRANT Plaintiff’s
Motion to Strike [38] and STRIKE Defendant’s Motion in Limine [36]. The Court’s Opinion
and Order is set forth in detail below.
II. BACKGROUND
Defendant filed its Motion in Limine to Preclude Plaintiff from Requesting Economic
Damages at Trial [36]. Defendant brought its Motion in Limine pursuant to Rules 26 and 37 of
the Federal Rules of Civil Procedure because it contends “Plaintiff completely failed to provide
Defendant with damage calculations or supporting documentation within her Rule 26
Disclosures[.]” Dkt. No. 36 at 19. As a result of Plaintiff’s alleged failure to comply with Rule
26 of the Federal Rules of Civil Procedure, Defendant request that this Court “preclude Plaintiff
from seeking economic damages at trial.” Id. at 28.
Plaintiff filed its Motion to Strike Defendant’s Second Motion for Summary Judgment
Misidentified as a Motion in Limine [38] arguing that “Defendant’s motion, while titled a
‘Motion in Limine,’ is in reality a second motion for summary judgment, as it seeks a holding
from the Court disallowing Plaintiff to pursue an element of her claims, thus in essence seeking a
dispositive ruling on her claims.” Dkt. No. 38 at 2. Plaintiff contends that Defendant’s Motion in
Limine must be struck because it is in violation of the Court’s local rules, which require leave of
court to file more than one motion for summary judgment.” See id. at 2-3 (citing E.D. Mich. L.R.
7.1(b)(2)). Plaintiff also seeks costs and attorney fees for bringing the Motion. See id. at 3.

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III. LEGAL STANDARD
Under appropriate circumstances, motions in limine may be used to exclude inadmissible
or prejudicial evidence before it is actually offered at trial. See Luce v. United States, 469 U.S.
38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). The use of motions in limine “by the trial
court is purely discretionary and generally confined to very specific evidentiary issues of an
extremely prejudicial nature.” United States v. Certain Land Situated in City of Detroit, Wayne
Cnty., State of Mich., 547 F. Supp. 680, 681 (E.D. Mich. 1982) (citing Wright & Graham,
Federal Practice and Procedure: Evidence, P 5037).
This Court has found “that motions in limine serve the following purposes prior to the
commencement of trial:
[Motions in Limine] (i) facilitate trial preparation by providing information
pertinent to strategic decisions; (ii) reduce distractions during trial and provide for
a smoother presentation of evidence to the jury; (iii) enhance the possibility of
settlement of disputes without trial; (iv) provide some additional insulation of the
jury from prejudicial inadmissible evidence; and (v) improve the conditions under
which the trial judge must address evidence issues by reducing the need for hasty
decisions during the heat of trial.
Gonzalez Prod. Sys., Inc. v. Martinrea Int'l Inc., No. 13-CV-11544, 2015 WL 4934628, at *2
(E.D. Mich. Aug. 18, 2015) (quoting Figgins v. Advance Am. Cash Advance Centers of
Michigan, Inc., 482 F. Supp. 2d 861, 865 (E.D. Mich. 2007) (citation omitted). In particular,
however, motions in limine should not be used as disguised motions for summary judgment. See
Provident Life & Accident Ins. Co. V. Adie, 176 F .R.D. 246, 250 (E.D. Mich. 1997).
The Sixth Circuit has stated that “[o]rders in limine which exclude broad categories of
evidence should rarely be employed. A better practice is to deal with questions of admissibility
of evidence as they arise.” Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975); see also Dunn ex rel. Albery v. State Farm Mut. Auto. Ins. Co., 264 F.R.D. 266, 274 (E.D.

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Mich. 2009) (“Normally, motions in limine are not proper procedural devices for the wholesale
disposition of theories or defenses.”) (citation omitted); Land Situated in City of Detroit, 547 F.
Supp. at 681(“Any broad pretrial exclusion of evidence . . . must be approached with great
caution.”). Thus, throughout this District, “[t]he denial of a motion in limine is warranted where
the moving party seeks to argue the merits of its case and preclude the non-moving party from
presenting its case.” Dunn ex rel. Albery, 264 F.R.D. at 275 (citation omitted); see also Oetman
v. City of Grand Rapids, No. 1:07-CV-125, 2009 WL 2242700, at *1 (W.D. Mich. July 22, 2009)
(citing Goldman v. Healthcare Mgt. Sys., Inc., 559 F.Supp.2d 853, 873 (W.D. Mich. 2008) to
state: “Generally, when a motion in limine does not raise questions about admissibility of
evidence or that evidence would be prejudicial, the motion will be denied.”).
IV. DISCUSSION
Defendant is adamant that its “Motion in Limine represents the appropriate procedural
means to preclude plaintiff from seeking economic damages at trial in light of her failure to
comply with disclosure requirements of Federal Rule of Civil Procedure 26(a).” Dkt. No. 40 at
18 (emphasis added). This Court disagrees.
To reiterate, “motions in limine are meant to deal with discrete evidentiary issues related
to trial, and are not another excuse to file dispositive motions disguised as motions in limine.”
Dunn ex rel. Albery, 264 F.R.D. at 274 (citing, inter alia, SPX Corp. v. Bartec USA, No. 06–
14888, 2008 WL 3850770, at *3 (E.D. Mich. Aug. 12, 2008) (“Normally, motions in limine are
not proper procedural devices for the wholesale disposition of theories or defenses.”); ABC
Beverage Corp. & Subsidiaries v. United States, No.1:07–cv–051, 2008 WL 5424174, at *2
(W.D. Mich. Dec. 4, 2008) (noting that motions in limine are not “substitutes for dispositive
motions”); Goldman, 559 F.Supp.2d at 871-72 (collecting cases).

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As the late Judge Zatkoff of this District explained before denying a wrongly captioned
motion in limine that was actually a dispositive motion filed after the dispositive motion
deadline, “[a]ll evidence related to [a party’s] affirmative defense is not a discrete evidentiary
issue.” Dunn ex rel. Albery, 264 F.R.D. at 275. Here, Defendant broadly seeks to exclude any
particular evidence or documents. Defendant is clear that it seeks to “preclude Plaintiff from
seeking economic damages at trial.” Dkt. No. 36 at 19. Such a request does not deal with a
discrete evidentiary issue. Instead, it seeks to exclude broad categories of evidence, which the
Sixth Circuit has emphasized “should rarely be employed[,]” because the “better practice is to
deal with questions of admissibility of evidence as they arise.” Sperberg v, 519 F.2d at 712. The
Court will follow the Sixth Circuit’s guidance.
Defendant next contends that “[p]retrial motions (whether captioned as motions in limine,
motions to strike or motions to exclude evidence on the basis that the opposing party failed to
comply with disclosure requirements of Fed. R. Civ. P 26(a)), have long been recognized as an
appropriate means to limit or prevent the admission of non-disclosed damage evidence at trial.”
Dkt. No. 40 at 19 (citing, inter alia, Linear Grp. Servs., LLC v. Attica Automation, Inc., No. 1310108, 2014 WL 3400714 (E.D. Mich. July 11, 2014) (Drain, J.); Goodell v. CitiMortgage, Inc.,
No. 12-12979, 2013 WL 3466969 (E.D. Mich. July 10, 2013) (Ludington, J.); Aboubaker v.
Cnty. of Washtenaw, No. 11-13001, 2014 WL 793638 (E.D. Mich. Feb. 27, 2014) (Hood, J.);
Kirk v. Bostock, No. 09-15018, 2012 WL 954716 (E.D. Mich. Mar. 21, 2012) (Hood, J.)); see
also id. at 18-19 (citing Gonzalez Prod. Sys, 2015 WL 4934628, at *2 (Drain, J.), and Figgins,
482 F. Supp. 2d at 865 (Lawson, J.), to state the purpose of motions in limine). However, these
cases do not support Defendant’s position that the instant Motion in Limine is the appropriate
procedural means to preclude plaintiff from seeking economic damages at trial.

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As an initial matter, Defendant’s implied contention that it is insignificant whether the
pretrial motion is captioned as a motion in limine, motion to strike, or a motion to exclude
evidence on the basis that the opposing party failed to comply with disclosure requirements of
Fed. R. Civ. P 26(a) is simply incorrect. As discussed above, Courts throughout this District have
explained that motions in limine are not interchangeable with other motions. See Dunn ex rel.
Albery, 264 F.R.D. at 274 (citing, inter alia, SPX Corp. v. Bartec USA, 2008 WL 3850770, at *3;
ABC Beverage Corp. & Subsidiaries, 2008 WL 5424174, at *2; Goldman, 559 F.Supp.2d at 87172). Again, motions in limine are meant to deal with discrete evidentiary issues related to trial.
Furthermore, “[c]ases cited by [Defendant] in support of [its] motion simply do not
apply.” Dkt. No. 40 at 21. For example, Defendant cites Judge David M. Lawson’s opinion from
Figgins to state the summary judgment standard. See Dkt. No. 40 at 18-19 (citing Figgins, 482 F.
Supp. 2d at 865). But as Plaintiff aptly notes, in Figgins, Judge Lawson denied the employer’s
motion in limine seeking to exclude evidence relating to back pay, front pay and punitive
damages because he found that the employer’s arguments should have been raised in the
employer’s summary judgment motion. See Figgins, 482 F. Supp. 2d at 870-71.
Other cases cited by Defendant are simply not similar to the case presently before the
Court. In Linear Group Services, a case before this Court last year, the Court granted the
Plaintiff’s Motion to preclude monetary damages, but that motion was filed before the summary
judgment deadline. See Linear Grp. Servs., LLC, 2014 WL 3400714. Here, the Motion is after
the summary judgment deadline. Moreover, as Defendant acknowledges, in Aboubaker and Kirk
v. Bostock before Judge Denise Page Hood, Judge Hood granted motions in limine that actually
covered discrete evidentiary issues related to trial. See Dkt. No. 30 at 19 (citing Aboubaker v.
Cnty. of Washtenaw, 2014 WL 793638, to note that Judge Hood denied a “motion in limine to

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exclude documents”) (emphasis added); id. at 20 (citing Kirk v. Bostock, 2012 WL 954716, to
note that Judge Hood granted in part “defendant’s motion in limine to limit the scope of the
testimony of Plaintiff’s treating physicians[.]”) (emphasis added). As discussed above, this case
does not deal with discrete evidentiary issues.
The only case that Defendant cites that could help its position is Goodell v. Citimortgage,
which was before Judge Thomas L. Ludington. No. 12-12979, 2013 WL 3466969 (E.D. Mich.
July 10, 2013). However, this Court is not bound by that decision. See Camreta v. Greene, 563
U.S. 692, 131 S. Ct. 2020, 2033 n.7, 179 L. Ed. 2d 1118 (2011) (citing 18 J. Moore et al.,
Moore's Federal Practice § 134.02[1] [d], p. 134–26 (3d ed.2011) to note: “A decision of a
federal district court judge is not binding precedent in either a different judicial district, the same
judicial district, or even upon the same judge in a different case.”). Moreover, given the
extensive precedent to the contrary, it does not follow that “Goodell clearly demonstrates that a
pretrial motion to exclude evidence of damages not disclosed as required by Fed. R. Civ. P. 26(a)
may properly be brought in a pleading other than a motion for summary judgment.” Dkt. No. 40
at 21. To the contrary, the decision to grant or deny a motion in limine is within a trial court's
discretion. Land Situated in City of Detroit, 547 F. Supp. at 681. This Court uses its discretion to
emphasize that Defendant’s Motion in Limine does not represent the appropriate procedural
means to preclude Plaintiff from seeking economic damages at trial.
Defendant’s Motion in Limine makes it readily apparent that the Motion would have been
filed as a dispositive motion if the information were provided before the dispositive cut-off date.
As plaintiff points out, in this situation, the appropriate course of action would have been to seek
leave to file an additional summary judgment motion. See Dkt. No. 38 at 2-3 (citing E.D. Mich.
L.R. 7.1(b)(2)). This course of action is not only contemplated by the Court’s Local Rules, but

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also the Federal Rules of Civil Procedure. Cf. FED. R. CIV. P. 16(b)(4) (noting that a scheduling
order “may be modified only for good cause and with the judge’s consent.”); see also Carter v.
City of Detroit, No. 11-15322, 2015 WL 3678433, at *1 (E.D. Mich. June 12, 2015) (quoting
Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014), to note that “[d]istrict courts have
‘broad discretion under the rules of civil procedure to manage the discovery process and control
their dockets.’”); Enwonwu v. Fulton–Dekalb Hosp. Auth., 286 Fed. App’x. 586, 595 (11th Cir.
2008) (noting district courts “enjoy broad discretion in deciding . . . whether to consider untimely
motions for summary judgment.”) (internal quotations marks and citation omitted).
Plaintiff may possibly have “only herself to blame for the timing of this Motion,” Dkt.
No. 40 at 17, but Defendant certainly only has itself to blame for using the improper means to
preclude Plaintiff from seeking economic damages. Along the same lines, granting the instant
motion to strike despite Plaintiff’s alleged failure to provide disclosures pursuant to Rule 26
might “reward Plaintiff for allegedly failing to follow the basic dictates of discovery.” Id.
However, allowing Defendant to file a motion in limine as a substitute for a dispositive motion
will definitely subvert the purpose of Motions in Limine. See Figgins, 482 F. Supp. 2d at 870
(quoting Provident Life, 176 F.R.D. at 250); see also Louzon v. Ford Motor Co., 718 F.3d 556,
561 (6th Cir. 2013) (“[A] mechanism already exists in civil actions to resolve non-evidentiary
matters prior to trial—the summary-judgment motion. Allowing a party to litigate matters that
have been or should have been resolved at an earlier stage not only allows those dissatisfied with
the court's initial ruling a chance to relitigate, but also deprives their opponents of the procedural
protections that attach at summary judgment.”) (citations omitted). Accordingly, the Court will
STRIKE Defendant’s improperly captioned Motion in Limine.

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V. CONCLUSION
For the reasons discussed, the Court HEREBY GRANTS Plaintiff’s Motion to Strike
Defendant’s Second Motion for Summary Judgment Misidentified as a Motion in Limine [38],
but will not provide costs and attorney fees.
Additionally, the Court HEREBY STRIKES Defendant’s Motion in Limine to Preclude
Plaintiff from Requesting Economic Damages at Trial [36].
IT IS SO ORDERED.
Dated: September 10, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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