Haddonfield Foods, Inc. v. Southern Hens, Inc.

Filing 229

ORDER granting in part and denying in part 195 Motion in Limine Signed by District Judge Keith Starrett on 3/3/2023 (lm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
HADDONFIELD FOODS, INC.
v.

PLAINTIFF
CIVIL ACTION NO. 2:20-cv-84-KS-MTP

SOUTHERN HENS, INC.

DEFENDANT
DEFENDANTS
ORDER

This cause comes before the Court on Southern Hens, Inc.’s Omnibus Motion in Limine to
Exclude Irrelevant, Unduly Prejudicial, and Other Evidence from Trial [195]. Plaintiff,
Haddonfield Foods, Inc. (“HFI”) has responded [205], [206], and Southern Hens, Inc. (“SH”) filed
a reply [212]. Having reviewed the parties’ submissions, the relevant legal authorities, and
otherwise being duly advised in the premises, the Court finds that the motion shall be granted in
part and denied in part as set forth herein.
I.

BACKGROUND
The particulars of this case have been addressed in numerous orders throughout this

litigation, so a full recitation of facts is not necessary. SH is a full-service chicken processing
company located in Moselle, Mississippi. HFI is not a processor, but instead buys raw material
from suppliers and arranges for the raw material to be shipped to and processed by a “co-packer”
like SH, which in turn ships the finished product to HFI’s customers.
SH and HFI (collectively “the parties”) began doing business together in the 2000s, and
over the course of their business relationship entered into two contracts, one in 2012 and another
in 2014, for the production of fully-cooked chicken products for both HFI’s and SH’s customers.
This lawsuit is predicated on disputes arising from the parties’ 2014 Agreement, which had a ten-

year term. As the time for trial quickly approaches, SH has filed the instant motion seeking to
exclude thirteen (13) categories of evidence at the trial, each of which the Court addresses below.
II.

DISCUSSION
The Federal Rules of Evidence govern the admission of relevant evidence. See Fed. R.

Evid. 402 (“Irrelevant evidence is not admissible.”). Evidence is relevant if “(a) it has any tendency
to make a fact more or less probable than it would be without the evidence; and (2) the fact is of
consequence in determining the action.” Fed. R. Evid. 401. Relevant evidence may be excluded,
however, “if its probative value is substantially outweighed by a danger of” unfair prejudice,
confusing the issues, and misleading the jury, among other things. Fed. R. Evid. 403. The trial
court must determine whether evidence is admissible, and it has broad discretion in so determining.
See Fed. R. Evid. 104(a); United States v. Alaniz, 726 F.3d 586, 606 (5th Cir. 2013) (“A ‘trial court
is afforded wide discretion in assessing the relevance and prejudicial effect of evidence.’”).
“Evidence should not be excluded in limine unless it is clearly inadmissible on all potential
grounds.” Gonzalez v. City of Three Rivers, No. CA C-12-045, 2013 WL 1150003, at *1 (S.D.
Tex. Feb. 8, 2013). “Evidentiary rulings, especially those addressing broad classes of evidence,
should often be deferred until trial so that questions of foundation, relevancy and potential
prejudice can be resolved in the proper context.” Id.
When evaluating a motion in limine, the Court must consider that under Rule 403,
“’[u]nfair prejudice’ . . . is not to be equated with testimony that is merely adverse to the opposing
party.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006). “Virtually all
evidence is prejudicial; otherwise it would not be material. The prejudice must be “‘unfair.’”
Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977). “Prejudice” to one party is the
natural and intended consequence of the admission of evidence by another. Hinojosa v. Butler,

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547 F.3d 285, 295 (5th Cir. 2008) (emphasis added). Thus, because Rule 403 requires the exclusion
of relevant evidence, it is an extraordinary measure that should be used sparingly. Whitehead ex
rel. Whitehead v. K Mart Corp., 173 F. Supp. 2d 553, 559 (S.D. Miss. 2000).
A. The Court’s Order Imposing Sanctions
From November 2020 until June 2022, the parties engaged in significant, complex, and
wide-ranging discovery that involved the review and production of tens of thousands of
documents, and more than thirty fact and expert witness depositions. During this time, the parties’
counsel conferred on multiple occasions to resolve discovery issues, and intervention of the Court
was occasionally necessary to resolve these issues. In June 2022, HFI moved the Court to sanction
Southern Hens for alleged discovery misconduct. [113]. The Court granted in part and denied in
part HFI’s motion for sanctions. [188].
In its Order, the Court found that HFI was prejudiced by Southern Hens’ failure to timely
disclose audio recordings and by incurring costs relating to third-party subpoenas for records in
possession of Southern Hens’ attorney. [188] at pp. 6, 12. Accordingly, the Court ordered Southern
Hens to produce all recordings, metadata, and a related privilege log, and it granted HFI leave to
conduct certain depositions, see id. at pp. 8–9, which took place on October 7 and 10, 2022. The
Court further awarded HFI reasonable costs and fees incurred from conducting these depositions
and from issuing subpoenas to individual Southern Hens board members for board minutes. See
id. at pp. 8-9, 12-13.
SH moves the Court to enter an Order precluding HFI from mentioning, alluding to, or
bringing before the jury, directly or indirectly, evidence, testimony, comments and/or arguments
related to the Court’s Order on HFI’s motion for sanctions. SH argues that the Court’s Order
granting in part HFI’s motion for sanctions, as well as any evidence related to sanctions imposed

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by the Court, as well as the predicate acts that the Court found justified sanctions are not relevant
to the issues for trial, and the admission of such evidence is unfairly prejudicial to Southern Hens.
HFI responds that it does not intend to introduce into evidence the Court’s Order imposing
sanctions against SH. However, HFI contends that the “predicate acts” that SH urges be precluded
are too vague to be the subject of a motion in limine. Notwithstanding, HFI goes on to state that it
appears SH seeks to keep HFI from introducing sworn interrogatories and deposition testimony of
SH and several of its witnesses relating to the secret audio recordings and argues that such evidence
is admissible as substantive evidence pursuant to Rule 801(d) of the Federal Rules of Evidence
and Rule 32 of the Federal Rules of Civil Procedure.
In its Reply, SH clarifies that it seeks to exclude not only evidence of the Court’s Order
imposing sanctions but also any mention of the word “sanctions” during trial and that the
“predicate acts” are clearly set forth in the sanctions Order, i.e., the Court’s findings that (1)
Southern Hens failed to timely identify and produce audio recordings, and (2) Southern Hens failed
to timely produce board minutes. SH further clarifies that it does not propose that HFI be unable
to question witnesses with a prior inconsistent statement such as an interrogatory response. Rather,
SH only seeks to preclude HFI from questioning witnesses about sanctions the Court imposed. 1
SH makes clear that it “is simply asking that the Court preclude HFI from referring to ‘sanctions’
during trial, not prevent HFI from presenting its ‘recordings case.’” [212] at p. 3.
With SH having narrowed the issue, the Court finds, as the court did in Candy Craft
Creations, LLC v. Gartner, No. 2:12-CV-91, 2015 WL 6391202 at *6 (S.D. Ga. Oct. 22, 2015),
that if the jury hears that the Court had found that SH was subject to sanctions, they would likely
be biased against SH. As such, it would be difficult for the jury to maintain their objectiveness

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SH gives an example of such questioning from the deposition of John Comino. [212] at p. 2.

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toward SH and inhibit the jury’s “truth-seeking function.” Id. Therefore, the motion in limine as
to this issue is GRANTED, and it is ORDERED that neither party shall make any mention or
reference through evidence or testimony of the Court’s imposing sanctions on SH in this matter.
B. Discovery Disputes Between the Parties
Next, in addition to the Court’s sanctions order, SH requests that the Court preclude HFI
from presenting evidence, testimony, comments, and/or argument at trial concerning discovery
disputes between the parties. HFI claims in response that SH’s motion to exclude discovery
disputes between the parties is “so ill-defined that [HFI] and the Court are left to guess what the
parameters of the request are.” [206] at p. 6.
The Court believes counsel for the parties are well aware of what the discovery disputes in
this case were, and this Court itself is aware that it has granted similar motions in limine in the
past. See, e.g., Affordable Care, LLC v. JNM Office Prop., LLC, No. 1:19-CV-827-HSO-RPM,
2022 WL 291716 at *3 (S.D. Miss. Jan. 31, 2022) (granting motion in limine to exclude references
to discovery disputes ); United States v. Auzenne, et al., No. 2:19-CR-53-KS-MTP, 2020 WL
6438665 at *2 (granting motion in limine and finding discovery disputes are irrelevant to the issues
before the jury). This is a trial about the merits, and the mention of discovery disputes has no
relevancy to the issues at hand. Therefore, SH’s motion in limine as to this issue is GRANTED.
Any mention of issues arising between the parties during discovery is excluded, to the extent the
parameters are unclear, the Court will entertain contemporaneous objections at trial.
C. Southern Hens’ Size, Shareholders, Net Worth, and the Net Worth of its
Shareholders
Next, SH states that it anticipates that HFI may attempt to suggest that HFI faces a “David
and Goliath” situation in this case, but that any testimony or evidence regarding SH’s size,
shareholder, and net worth are not relevant to the issues for trial and are unfairly prejudicial to SH.
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As to the issue of shareholders, HFI argues that such evidence is relevant. It contends that
one of SH’s defenses at trial will be that it could not meet its contractually agreed upon yield
because of poor quality raw material supplied by HFI. 2 HFI points out that, ironically, it purchased
raw material from several of SH’s shareholders, which SH routinely inspected and approved,
notwithstanding its current complaints about “quality.” Another reason HFI argues this portion of
the motion in limine is improper is that employees and representatives of shareholders were
deposed and will be included in the pretrial order as witnesses (e.g., George’s Renelius Sims and
Sanderson Farms’ Bob Rosa). The Court finds that the “shareholders” in particular may be relevant
and agrees with HFI that precluding all references to SH’s shareholders would be premature and
improper. 3 Therefore, this aspect of the motion in limine is DENIED.
As to SH’s size, HFI argues that the number of employees working at the processing facility
(Steam Plant) is relevant to discussions about production and capacity. Given the Court’s more
recent rulings on the dispositive motions in this case, it is uncertain whether production and
capacity are still relevant as to the remaining claims. Therefore, this aspect of the motion in limine
is DENIED without prejudice to SH’s raising contemporaneous objections during trial and
allowing the Court to hear additional argument about the relevancy.
Finally, as to SH’s net worth, the Court finds any such evidence irrelevant to the merits of
this case. In its response HFI agrees not to use the words “David and Goliath” or similar references
and represents that it would follow the guidance of the Court should a verdict be rendered and the

The Court also notes that poor quality is the basis for some of SH’s affirmative claims.
In its Reply, SH claims that its motion in limine has “nothing to do with the contractually agreed-upon yield,
production, or capacity. Rather, SH seeks exclusion of evidence relating to of its size, shareholders, or net worth to
the extent that it may be used to improperly influence the jury to assess liability against Southern Hens based on its
ability to pay a judgment.” [212] at 5. However, motions in limine deal with evidence, and the fact that SH has
shareholders and who those shareholders are are simply facts. If they are relevant to issues at trial, the facts are
admitted. The Court cannot control by a motion in limine how a jury construes the facts.

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jury be permitted to consider evidence of net worth. Therefore, this aspect of the motion in limine
is GRANTED, and there will be no mention of SH’s net worth.
D. The Allegation in HFI’s Complaint that SH’s Officers/Supervisors Directed
Employees to “Find Problems” with Raw-material Deliveries from HFI
SH points out that in HFI’s Complaint, HFI alleged that “[o]n information and belief,
[Southern Hens’] officers/supervisors directed one or more employees and/or inspectors to ‘find
problems’ in the Raw Materials from HFI as early as 2018 . . . .” [1] at ¶ 16. SH contends that such
theory is unsupportable because discovery did not reveal any evidence to support this allegation.
HFI gives a full recitation of facts that it believes supports the theory generally although it is true
that no one testified specifically that employees were directed to “find problems” with the raw
materials.
The Court is uncertain as to the overall relevance of such information because it is unclear
what particular remaining claim or defense HFI intends to prove with such evidence.
Notwithstanding, SH’s premise for excluding any theoretical evidence, which is because the fact
has not been proven in discovery, is not proper on a motion in limine. Therefore, this aspect of the
motion in limine is DENIED. Should someone testify as to this “fact” at trial, he or she would be
subject to impeachment evidence with any prior inconsistent testimony or sworn answers in
discovery.
E. The Legality of Recording Telephone Conversations
SH next moves the Court to preclude HFI from questioning witnesses about the legality of
recording telephone conversations. In response, HFI states that SH “misses the point,” arguing that
whether SH’s employees considered the legality of recording conversations is relevant to the
employees’ motives in making the recordings in the first place. [206] at p. 10. SH clarifies in its
Reply that it does not dispute that questions regarding whether an employee considered the legality
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of recording calls may be relevant, but SH points to testimony that contains pointed questions
about whether doing so is legal in certain states. The Court understands from SH’s reply that the
line of questions that SH seeks to preclude HFI from asking is specifically about whether recording
conversations without the other party’s knowledge is legal in various states.
The merits of the claims in this case do not necessitate evidence of any potentially illegal
activity, and the Court will not conduct a “trial within a trial” on such issue. The Court finds that
any testimony about whether recording telephone conversations is actually legal and the law from
any state regarding the legality of such is irrelevant, confusing, and would be highly prejudicial.
Therefore, this aspect of the motion in limine is GRANTED.
F. Any Suggestion that SH Employees Were Obligated to Report to SH’s Board of
Directors that They Recorded Telephone Calls with Representatives of HFI
SH next moves the Court to preclude HFI from suggesting that SH’s employees were
obligated to report telephone recordings to the Board of Directors. [196] at p. 10. SH argues that
any argument or suggestion that SH’s employees were somehow legally and/or ethically obligated
to report the recordings to the Board of Directors is not relevant and would likely confuse the jury
and unfairly prejudice SH. Again, the Court does not intend to conduct any trial within a trial as
to these telephone recordings. The Court finds that whether or not there was any obligation to
report such activity to SH’s Board of Directors is irrelevant to the issues in this trial and will
confuse the jury as to what facts are necessary to determine liability on the remaining claims in
this case. The motion in limine in this aspect is GRANTED. To the extent it is relevant, the fact
of whether an SH employee did or did not discuss the secret recording of telephone calls with the
Board is not precluded.

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G. Any Reference to the AICPA Rules of Ethics as They Relate to Recorded
Telephone Conversations
SH next moves the Court to preclude HFI from questioning witnesses regarding, or
otherwise alluding to the American Institute of Certified Public Accountants’ (“AICPA”) ethical
rules applicable to Certified Public Accounts (“CPAs”), as they relate to recording telephone
conversations between individuals. In particular SH points to HFI’s line of questioning from the
deposition of Brian Izor, a CPA and SH’s Chief Financial Officer, wherein counsel for HFI
questioned Mr. Izor about whether his recording of telephone conversations between Southern
Hens employees and representatives of HFI was a permissible activity under the AICPA’s ethical
rules:
Q: Did you ever verify whether it was permissible activity under the AICPA's
ethical rules to record telephone conversations without revealing to the other
party they were being recorded?
A. No.
Q. You've never looked into that?
A. No.
Q. And have you looked at the Ohio state rules?
A. No.
[195-4] 59:14-24.
In response, HFI states that it is not asking the jury to decide whether under the AICPA’s
rules it was ethical or unethical for Izor to secretly record telephone calls with third parties, but
simply whether he considered the question as a licensed Certified Public Accountant subject to
rules of professional conduct. Mr. Izor’s consideration of his own ethical responsibilities is
relevant to his credibility. The Court disagrees.

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The questions posed to Mr. Izor inherently imply that recording telephone conversations
was not permissible; otherwise, why ask the question? Without going into whether it actually was
or was not permissible, which gets into legal conclusions the Court will not allow, the jury will be
confused and possibly misled. Whether or not recording conversations complied with ethical rules
for CPAs is not a question for the jury to decide. Therefore, this aspect of the motion in limine is
GRANTED. HFI is not to refer to, mention, or inquire about the AICPA rules for CPAs.
H. A Southern Hens Employee’s Arrest for Felony Malicious Mischief, a Charge that
Has Been Dismissed
In discovery HFI disclosed the names of three law enforcement officers and neighbors of
SH’s Operations Manager, Mark Ferry, “who witnessed and/or complained of his behavior to the
Jones County Sheriff’s department in March or April 2022” as individuals who are likely to have
discoverable information in this case. [195-5]. SH believes that SH may seek to elicit testimony
from these individuals regarding an alleged incident that occurred in the spring of 2022, for which
Mr. Ferry was arrested. SH advises that, although Mr. Ferry was initially charged with felony
malicious mischief, the County prosecutor declined to prosecute.
SH argues that Mr. Ferry’s interactions with his neighbors during his personal time at home
are irrelevant because they are not related to the issues for trial or Mr. Ferry’s employment with
SH. to the extent that HFI intends to introduce evidence of Mr. Ferry’s interactions with his
neighbors and spring 2022 arrest to support its theory that Mr. Ferry manages employees at
Southern Hens through “fear and intimidation,” such an introduction is impermissible character
evidence and should be excluded under Federal Rule of Evidence 404(a)(1) (“Evidence 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.”).

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In response, HFI argues that there is evidence in an SH email that one of the factors that
can contribute to a lower yield is “employee turnover.” [202] at p. 13. HFI explains that SH’s
former Quality Manager, Tony Zadrozny, testified that Comino and Ferry had a “fear and
intimidation management style” and would call employees “retards” and “stupid” and that there is
other evidence relating to a 500% turnover rate in 2019. HFI states that it will agree not to reference
Ferry’s arrest, but argues that the statements leading to the arrest are relevant. HFI asserts that Ferry
references his work with SH when he mentions to the deputies the number of employees he
supervises and how much money he earns; 4 he then curses and demeans the officers, and “simply
presents the ‘unvarnished truth’ of how Ferry treats others who he considers subordinate to him
like his own employees at the Steam Plant.” [202] at p. 14 (citing to [201-8], [201-9]).
The Court finds the video inadmissible. The incident does not take place at the Steam Plant;
Ferry is not speaking to employees but law enforcement; and the details of the situation are
unavailable. Such evidence appears to be offered, as HFI all but concedes, to prove that how Ferry
acted in the video is how he acts toward employees at the Steam Plant; thus, the video and the
transcript of the audio in the video is improper character evidence, which is precluded under Rule
404. In addition, the relevance of such evidence to prove that SH could not meet its target yield
due to employee turnover is so tenuous, as SH points out in its Reply, it is likely to confuse the
jury. Therefore, this aspect of the motion in limine is GRANTED. HFI shall not introduce
evidence related in any way to the arrest or the video or statements made therein.
I. Alleged Use of Racial Epithets by SH’s Managers
SH next cites to deposition testimony former of Southern Hens employee, Tony Zadrozny,
wherein HFI asked him whether Mr. Comino or Mr. Ferry used racial epithets to describe
The Court has reviewed the transcript, which actually does not contain such statements nor any reference to
“employees” or how much money Ferry makes. [201-8].

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employees at Southern Hens. Zadrozny said, “no, I never heard that.” [195-7]. Because those
questions were asked, SH asks the Court to exclude all race-related questioning and arguments
similar to HFI’s counsel’s questioning during Mr. Zadrozny’s deposition. The Court finds the
request improper for a motion in limine, as there is not specific evidence sought to be excluded.
Should such a question be asked, as it relates to any derogatory term, SH may raise a
contemporaneous objection, and the Court will address argument in the moment. As HFI notes,
the risk is HFI’s whether to ask witnesses about such language before the jury. Therefore, this
aspect of the motion in limine is DENIED.
J. Any Reference to “Industry Standards” that Southern Hens Should Have
Allegedly Followed
Southern Hens moves the Court to preclude HFI’s counsel from referencing alleged
“industry standards” or “industry custom and practice” in the poultry-processing industry because
no witness identified any set, specific, industry-wide standards, customs or practices during
discovery. This again is an improper basis for a motion in limine. Both parties appear to have
produced witnesses who utilize such terminology, and each of those witnesses will be subject to
cross-examination to defend its use of such term, which the jury is free to believe or not believe.
Therefore, this aspect of the motion in limine is DENIED. 5
K. The Ability of Southern Hens to Expand the Size of its Steam Plant
SH next moves the Court to preclude HFI’s counsel from suggesting that SH could have
expanded the Steam Plant because one of HFI’s expert stated in his report that SH could have
expanded the actual structure of the Steam Plant. [195-10] at pp. 11-13. Once again, the purpose
of a motion in limine is to preclude particular irrelevant or prejudicial evidence—precluding

To the extent HFI intends to try to prove liability for a failure to follow industry standards, the jury instructions on
the substantive law should clear up any misconceptions with the jury.

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“counsel’s suggestion” is not a proper basis. Notwithstanding, in light of the summary judgment
granted in favor of SH as to HFI’s claim that SH did not meet its contractual obligation as to a
certain quantity, it is uncertain whether the size of the Steam Plaint, or adding another steam line
or adding another production shift are even relevant anymore. This can be addressed as necessary
during trial. Therefore, this aspect of the motion in limine is DENIED without prejudice.
L. The Jurors Putting Themselves in HFI’s shoes
SH next seeks to preclude HFI’s counsel from making any comment to the effect that the
jury should put themselves in the shoes of HFI and/or its representatives, such as asking the jurors
how they would feel if they were recorded without their knowledge. Again, counsel’s comments
are not evidence, but HFI represents that it will respect the general prohibition against using
“golden rule” type questions of the jury. However, HFI opposes any limitations on questioning its
witnesses about their reaction to learning that SH had been secretly recording them. SH clarifies
in its Reply that it does not seek to preclude HFI from questioning its witnesses in this regard, just
in addressing the jury. Thus, it appears the parties are now on the same page, and HFI shall not in
any way suggest that the jury put themselves in HFI’s shoes regarding being recorded without their
knowledge. This aspect of the motion in limine is GRANTED.
M. Offers to Compromise by SH.
“The purpose of motions in limine is not to re-iterate matters which are set forth elsewhere
in the Rules of Civil Procedure or Rules of Evidence . . . .” Regions Com. Equip. Fin., LLC v.
Performance Aviation, LLC, No. 2:16-CV-110-KS-JCG, 2017 WL 11608831, at *1 (S.D. Miss.
July 14, 2017). Offers of compromise and settlement negotiations are clearly addressed in Federal
Rule of Evidence 408, by which the parties shall abide. This aspect of the motion in limine is
denied as moot.

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III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that Southern Hens, Inc.’s Omnibus

Motion in Limine to Exclude Irrelevant, Unduly Prejudicial, and Other Evidence from Trial [195]
is granted in part and denied in part as stated herein.
SO ORDERED and ADJUDGED this 3rd day of March 2023.

/s/ Keith Starrett __________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

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