Dauenhauer v. Green Investment Group, Inc. et al

Filing 89

ORDER granting in part and denying in part 76 Motion in Limine; granting 78 Motion in Limine; granting in part and denying in part 80 Motion in Limine; denying 88 Motion to Vacate. Signed by Chief Judge Dana L. Christensen on 8/20/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
TOM DAUENHAUER,

CV 12–33–M–DLC

Plaintiff,
ORDER

vs.
GREEN INVESTMENT GROUP, INC.,
an Illinois corporation; M2GREEN
REDEVELOPMENT, LLC, an Illinois
limited liability company; ABC
CORPORATION 1–10; and JOHN DOE
A–J;
Defendants.
M2GREEN REDEVELOPMENT, LLC,
an Illinois limited liability company,
Counterclaimant,
vs.
TOM DAUENHAUER,
Counter-Defendant.

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M2GREEN REDEVELOPMENT, LLC,
an Illinois limited liability company,
Third-Party Plaintiff,
vs.
BRIDGER THREE, INC., a Montana
corporation, and JOHN DOES 1–10,
individuals or entities,
Third-Party Defendants.
This case involves a dispute over an alleged agreement for services between
Tom Dauenhauer and the defendants. The Court recently granted in part and
denied in part summary judgment on many of Dauenhauer’s claims, as well as
M2Green Redevelopment LLC’s counterclaims. (Doc. 87.) The defendants filed
three motions in limine, asking the Court to exclude more than 25 categories of
evidence in total. Dauenhauer opposes two of those motions. The Court grants the
motions in part and denies them in part.
The parties also filed a stipulated motion to vacate the trial date and
remaining pretrial deadlines to allow them more time to negotiate a settlement.
They ask for a three-month deadline to file a status report. The Court denies the
motion but offers the parties additional time within the existing schedule for
settlement negotiations.
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Because the parties are familiar with the facts, they are stated here only
when necessary to explain the Court’s decision.
MOTION IN LIMINE STANDARD
Courts have “wide discretion” in considering and ruling on a motion in
limine. Ficek v. Kolberg–Pioneer, Inc., 2011 WL 1316801 at *1 (D. Mont. Apr. 5,
2011) (citing Trichtler v. Co. of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004)). But a
Court will grant a motion in limine and exclude evidence only if the evidence is
“inadmissible on all potential grounds.” BNSF Ry. v. Quad City Testing
Laboratory, Inc., 2010 WL 4337827 at *1 (D. Mont. Oct. 26, 2010) (citations and
internal quotation marks omitted). “Unless evidence meets this high standard,
evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.” Id. (citations
and internal quotation marks omitted). “This is because although rulings on
motions in limine may save time, costs, effort and preparation, a court is almost
always better situated during the actual trial to assess the value and utility of
evidence.” Id. (citations and internal quotation marks omitted).
ANALYSIS
I.

Evidence and testimony from Michele McCann
The defendants first move to exclude evidence and testimony from one of
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Dauenhauer’s experts—Michelle McCann. The defendants argue that her opinions
are irrelevant, speculative, conclusory, and that she is not qualified to offer expert
opinion on Dauenhauer’s emotional condition. The Court grants the motion in part
and denies it in part.
A.

Relevance of McCann’s analysis and testimony

The defendants first argue that McCann’s analysis of the value of
Dauenhauer’s services as a site manager is irrelevant because it presents an apples
and oranges analysis. The defendants maintain that Dauenhauer, by his own
admission, has always sought to be compensated for his site manager services on
only a commission basis. McCann, however, analyzed the value of Dauenhauer’s
services in terms of only wages, salary, bonuses, and benefits. So, the defendants
argue, since the two compensation structures are different, McCann’s analysis is
irrelevant.
In support of their claim that Dauenhauer never proposed to be compensated
as a site manager on anything other than a commission basis, the defendants point
to Dauenhauer’s complaint and deposition. Those documents, though, do not
preclude Dauenhauer from basing his damages on a wage/salary-based
computation rather than a commission-based calculation.
First, while the complaint does discuss the alleged commission arrangement,
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it does not state that Dauenhauer calculates his damages resulting from his sitemanager duties on a commission basis. In fact, Dauenhauer’s complaint implies
that his duties as site manager were not contemplated in the commission-based
arrangement.
Second, Dauenhauer’s deposition does not conclusively show how he
calculates the value of his alleged site manager services. On the one hand,
Dauenhauer affirmed that he “never asked for compensation any other way other
than on a commission sales basis.” (Doc. 57 at 95.) But Dauenhauer quickly
clarified that “I think I understand your question—I’m after compensation for
what I did as a site—plant manager as well.” (Id.) Dauenhauer stated he did not
have a compensation arrangement with any of the defendants for his alleged site
manager services, much less a commission-based arrangement. His statement,
then, can be interpreted as claiming that, in addition to the commission-based
services, he also provided site-manager services, for which there was no agreed
upon compensation arrangement (commission-based or otherwise). Dauenhauer’s
deposition, then, is inconclusive.1

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Regardless, statements made at a deposition are not binding on the
deponent. See e.g. Wright v. FBI, 241 Fed. Appx. 367, 368 (9th Cir. June 29,
2007) (“Statements made at a deposition, unlike statements made in response to
requests for admission, are not binding on the deponent.” (citations omitted)).
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Dauenhauer’s complaint and deposition do not help the defendants’
arguments. Without more, the Court will not grant their motion on this basis. The
defendants did not, for instance, provide to the Court Dauenhauer’s initial
disclosures where he was required to lay out how he calculates his damages. See
Fed. R. Civ. P. 26(a)(1)(A)(iii). Those disclosures (and supplements) bind the
parties, and parties who fail to disclose required information (e.g. how a plaintiff
calculates his damages) may be barred from using that undisclosed information at
trial. See Fed. R. Civ. P. 26(e), 37(c)(1).
The defendants make several other arguments as to why McCann’s analysis
is irrelevant, but each goes to the weight, not the admissibility, of her testimony.
(See Defendants’ Opening Br., doc. 77 at 21–22.) The Court defers until trial its
ruling on the relevancy of McCann’s testimony “so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.” BNSF, 2010
WL 4337827 at *1.
B.

Commentary

The defendants next argue that many of McCann’s opinions should be
excluded because they offer hyperbolic color commentary, rather than scientific,
technical, or other specialized knowledge that will assist the trier of fact. See
United States v. W.R. Grace, 455 F. Supp. 2d 1156, 1169–70 (D. Mont. 2006)
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(concluding that expert opinion that “merely comments on the evidence or absence
thereof” is excludable under Fed. R. Evid. 702). The defendants provide more than
20 examples of such comments in their opening brief. (See Defendants’ Opening
Br., doc. 77 at 23–27.) Dauenhauer offers no challenge to this objection.
McCann’s report might very well contain inadmissible commentary, but the
Court will not make a laundry list of what would or would not constitute
impermissible commentary. The defendants are free to object at trial to such
testimony, but the Court’s ruling on that potential testimony is best left for trial
when it can be evaluated in the proper context. BNSF, 2010 WL 4337827 at *1.
C.

Dauenhauer’s emotional well-being

The defendants argue that the Court should bar McCann from offering any
testimony as to the “emotional toll” that Dauenhauer’s business relationship with
the defendants had on Dauenhauer. The defendants argue: (1) McCann is not
qualified to offer such testimony, (2) she has no evidence to support her opinions,
(3) her testimony would confuse the jury, and (4) Dauenhauer has not alleged an
emotional distress claim, which makes the testimony irrelevant. Dauenhauer
responds: “Clearly, eliciting information from clients such as Plaintiff concerning
their feelings and emotions is a normal part of the assessment process and such
information is reasonably and routinely relied upon by experts in the vocational
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field in forming their conclusions.” (Dauenhauer’s Response Br., doc. 82 at 14.)
The relevance of this testimony, though, is not “clear.” Dauenhauer
concludes that the testimony is relevant, but he offers no explanation whatsoever
for why it is relevant to the claims at issue here. He simply states that vocational
experts rely on information about an individual’s stress and emotional well-being,
but he does not identify any component of his case to which that information is
relevant.
The defendants have the better argument. Dauenhauer has not made a claim
for emotional distress. McCann is not qualified to offer an expert opinion on
Dauenhauer’s emotional well-being. And the testimony would likely confuse the
jury.
Dauenhauer has not shown any ground on which McCann’s testimony
regarding his emotional well-being would be admissible. The Court therefore
excludes it.
D.

Objections to expert disclosures

Finally, the defendants filed two separate objections to McCann’s expert
disclosures, one objection on January 23, 2013, (doc. 43) and one on March 7,
2013 (doc. 46). Dauenhauer’s first objection (doc. 43) makes many of the same
arguments that he makes in his motion in limine, so the Court need not address
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them again. But Dauenhauer also argues that McCann’s expert disclosure was
untimely because an exhibit, intended to be attached to the disclosure, was sent to
Dauenhauer one day late. The defendants ask that Dauenhauer be sanctioned as a
result.
A day after Dauenhauer’s expert disclosures were due, he sent the
defendants a letter saying: “Mr. Beal and Mr. Horrell: My apologies—enclosed
please find information that should have been included as part of Exhibit B of Tom
Dauenhauer’s Expert Disclosure. Please do not hesitate to contact me with
questions or concerns.” Despite their objection to what facially appears to be an
accidental oversight, the defendants do not allege that they suffered any harm at all
from Dauenhauer’s one-day-late disclosure. Indeed, it is hard to imagine that they
would have. And it is equally hard to imagine that challenging a seemingly
harmless one-day-late disclosure (due to an apparent accidental omission) is the
best use of an attorney’s time. The Court notes the defendants’ objections but
imposes no sanctions.
The defendants’ second objection (doc. 46) is more problematic for
Dauenhauer. The defendants argue that McCann produced a substantial amount of
new information at her deposition on February 26, 2013, that she should have
produced in her initial disclosures by January 9, 2013. The defendants claim that
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much of this new information was available to McCann before January 9, 2013, so
McCann could have timely disclosed it. The defendants do not ask for a specific
sanction or remedy in their objection (e.g., barring the use of the previously
undisclosed information at trial), but the Court nonetheless orders Dauenhauer to
respond to the objection.
II.

Defendants’ motion as to various categories of evidence
The defendants also filed a motion to exclude 15 categories of evidence

regarding various issues. (See doc. 80.) At the outset, the Court is mindful of the
standards governing motions in limine. Even if evidence is clearly inadmissible on
some grounds, a motion in limine should be granted only if the evidence is
“inadmissible on all potential grounds.” BNSF, 2010 WL 4337827 at *1. “Unless
evidence meets this high standard, evidentiary rulings should be deferred until trial
so that questions of foundation, relevancy and potential prejudice may be resolved
in proper context.” Id. (citations and internal quotation marks omitted).
Subject to a couple exceptions below, the Court denies the defendants’
motion. For most of the 15 categories of evidence at issue, the defendants’ ask the
Court to assess the admissibility of nuanced factual allegations concerning the
relationship between the parties, the parties’ relationships with other persons and
entities, the parties’ histories, and representations and promises the parties
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purportedly made to one another. (See doc. 80.) Certainly, much of this evidence
might be inadmissible in some respects, but these are precisely the types of
evidentiary rulings that “should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved in proper context.”
Id. And, significantly, many of the categories of evidence might no longer be at
issue in light of the Court’s previous summary judgment order, but that is not
entirely clear, since the summary judgment order was filed after briefing for the
motions in limine was complete.
Consistent with the discussion above, though, the Court grants the
defendants’ motion to preclude McCann from offering evidence related to
Dauenhauer’s emotional condition.
The Court also grants the defendants’ motion to preclude evidence that
Dauenhauer “complied with, satisfied, or essentially complied with/satisfied the
real estate statutes or standard of care for real estate salespersons/brokers.” The
Court previously granted summary judgment in favor of M2Green on this issue,
which precludes Dauenhauer from arguing that he complied with the statutes or
standard of care.
As part of their motion, the defendants also ask the Court to bar witnesses
from offering legal opinions. Indeed, witnesses may not offer opinions on ultimate
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issues of law. Fed. R. Evid. 704; see e.g. Nationwide Transport Fin. v. Cass Info.
Sys., Inc., 523 F.3d 1051, 1058 (9th Cir. 2008). But the Court need not issue a
general, blanket exclusion in the absence of some specific dispute. The attorneys,
not the Court, are charged with making proper objections at trial to such
testimony. This aspect of the defendants’ motion is therefore denied subject to
renewal at trial, when it may be raised in a specific context.
The defendants motion is denied in all other respects, subject to renewal at
trial. While some of the categories of evidence at issue might be inadmissible on
some grounds, the defendants have not shown that they are inadmissible on all
possible grounds. BNSF, 2010 WL 4337827 at *1. That determination can only be
made at trial when the facts of the case and the parties’ arguments are fully
developed. Moreover, as noted above, many of the categories of evidence might
no longer be at issue in light of the Court’s previous summary judgment order.
III.

Defendants’ unopposed motion in limine
Finally, the defendants move to exclude 10 categories of evidence, which

Dauenhauer does not oppose. (See doc. 78). The Court grants the motion.
IV.

Parties’ stipulated motion to vacate
The parties jointly move to vacate the trial and remaining pretrial deadlines

to allow them more time to negotiate a settlement. They ask for a three-month
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deadline to file a status report. The Court denies the motion. The existing schedule
provides sufficient time to continue settlement negotiations, particularly in light of
the summary judgment order that substantially narrowed the issues in this case.
The Court is mindful of counsels’ need for time to engage in negotiations, but that
need must be balanced against the parties’ interest in an expeditious resolution of
their case. The Court, however, modestly extends the remaining pretrial deadlines.
CONCLUSION
IT IS ORDERED that the defendants’ motion to exclude evidence and
testimony from Michele McCann (doc. 76) is GRANTED IN PART and DENIED
IN PART. McCann is barred from offering testimony or evidence concerning
Dauenhauer’s emotional well-being. The motion is denied in all other respects,
subject to renewal at trial.
IT IS FURTHER ORDERED that the defendants’ motion in limine as to
various issues (doc. 80) is GRANTED IN PART and DENIED IN PART.
Dauenhauer is barred from offering evidence or testimony (1) related to his
emotional well-being and (2) that he complied with real estate statutes or the
standard of care for real estate salespersons or brokers. The motion is denied in all
other respects, subject to renewal at trial.
IT IS FURTHER ORDERED that the defendants unopposed motion in
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limine (doc. 78) is GRANTED.
IT IS FURTHER ORDERED that no later than seven days from the date of
this order, Dauenhauer shall respond to the defendants’ second objection (doc. 46)
regarding Dauenhauer’s expert disclosure.
IT IS FURTHER ORDERED that the parties’ stipulated motion to vacate
the trial date and remaining pretrial deadlines (doc. 88) is DENIED. The trial date
remains September 16, 2013. The final pretrial conference, however, is moved to
September 10, 2013, at 1:30 p.m. at the Russell Smith Courthouse in Missoula,
Montana. The pretrial deadlines are adjusted as follows:
Week of August 26, 2013

attorney conference to prepare final pretrial order

September 5, 2013

e-file final pretrial order, proposed jury
instructions, proposed voir dire questions, and trial
briefs to [e-mail]; provide
notice to court reporter of intent to use Real Time;
provide notice to I.T. Supervisor of intent to use
CD-ROM or videoconferencing.

Dated this 20th day of August 2013.

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