United States of America v. Sauer, Inc. et al
ORDER denying 121 Sauer's Motion in Limine; granting 127 SHA's Motion in Limine Signed by District Judge Keith Starrett on 1/17/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA,
FOR THE USE OF S. H. ANTHONY, INC.
CIVIL ACTION NO. 1:15-CV-128-KS-RHW
SAUER INCORPORATED, et al.
For the reasons below, the Court denies the Motion in Limine  filed by
Sauer, Inc. and grants the Motion in Limine  filed by S. H. Anthony, Inc.
Sauer’s Motion in Limine 
The Court previously discussed the background of this case. See United States
ex rel. S. H. Anthony, Inc. v. Sauer, Inc., No. 1:15-CV-128-KS-RHW, 2016 U.S. Dist.
LEXIS 169149, at *1-*4 (S.D. Miss. Dec. 7, 2016). Sauer, Inc. (“Sauer”) filed a Motion
in Limine , seeking an order prohibiting S. H. Anthony, Inc. (“SHA”) and Hartford
Fire Insurance Company (“Hartford”) from introducing evidence or argument related
to the claims asserted by SHA against Sauer and Federal Insurance Company
(“Federal”), which the Court dismissed  on October 14, 2016.
The Court found that SHA executed Partial Waiver and Lien Releases which
included the following language:
[T]he undersigned does hereby waive, release and relinquish any and all
rights, claims, demands, liens, claims for relief, causes of action and the
like, whether arising at law, under a contract, in tort, in equity, or
otherwise, which the undersigned has now or may have had arising out
of the performance of work or the furnishing of labor or materials by the
undersigned through [date to be inserted], the effective date of this
Waiver and Release pursuant to Subcontract or Purchase Order in
connection with . . . Potable Water System Upgrades Stennis Space
Center, MS . . . .
This Waiver and Release applies to all facts, acts, events, circumstances,
changes, constructive or actual delays, acceleration, extra work,
disruptions, interferences and the like which have occurred, or may be
claimed to have occurred, prior to the effective date hereof . . . .
See Exhibit 2 to Motion for Partial Summary Judgment, United States ex rel. S. H.
Anthony, Inc. v. Sauer, Inc., No. 1:15-CV-128-KS-RHW (S.D. Miss. Sept. 8, 2016), ECF
No. 99-2. Accordingly, the Court dismissed several claims asserted by SHA against
Sauer and its surety, Federal. However, the Court specifically reserved ruling on the
admissibility of evidence regarding the dismissed claims, or the work which SHA
asserts is the basis thereof.
Sauer now argues that, in addition to its claims against Sauer, SHA also waived
its right to admit any evidence related to the dismissed claims or the facts underlying
them. The language of the waiver does not support this argument. It does not refer to
the admission of evidence at a trial on Sauer’s own claims against SHA. At most, the
document could be possibly interpreted as waiving claims arising from “all facts, acts,
events, circumstances, changes, constructive or actual delays, acceleration, extra work,
disruptions, interferences and the like which have occurred, or may be claimed to have
occurred, prior to the effective date hereof . . . ,” and the Court has already dismissed
the relevant claims asserted by SHA.
In response to Sauer’s motion, SHA provided reasonable explanations as to why
evidence of each dismissed claim is relevant to its defense of Sauer’s counterclaims.
Among other things, Sauer claims that SHA breached its subcontract with Sauer by
failing to perform the work in a timely manner. Each of the dismissed claims relate to
Field Change Requests (“FCR’s”) or Change Order Requests (“COR’s”) which allegedly
precipitated delays in the project. SHA intends to introduce evidence as to the factual
circumstances surrounding each FCR and COR, and the reasons for delay in
performance of the subcontract. SHA’s counsel specifically represented in briefing that
SHA will not refer to its dismissed claims or the monetary amounts at issue, and that
it will not seek recovery of such. The disputed evidence is plainly relevant, and the
Court believes that there is little risk that the jury will be confused. Sauer’s Motion in
Limine  is denied.
SHA’s Motion in Limine 
The parties agree that the Court should prohibit the admission of any evidence
of and references to any past or pending litigation, arbitration, or mediation involving
the parties, with the exception of an arbitration involving SHA and its subcontractor,
MP NexLevel. The Court grants SHA’s Motion in Limine  as unopposed.
For these reasons, the Court denies Sauer, Inc.’s Motion in Limine and grants
S. H. Anthony, Inc.’s Motion in Limine.
SO ORDERED AND ADJUDGED, on this, the
day of January, 2017.
UNITED STATES DISTRICT JUDGE
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