Marsh v. Skateland 132nd Street, Inc

Filing 46

MEMORANDUM AND ORDER - The defendant's motion in limine, filing 40 , is overruled at this time without prejudice to reassertion at trial. Ordered by Judge Joseph F. Bataillon. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JANE MARSH,
8:11CV143
Plaintiff,
vs.

MEMORANDUM AND ORDER

SKATELAND 132ND STREET, INC., a
Nebraska Corporation;
Defendant.

This matter is before the court on the defendant’s motion in limine, Filing No. 40.
The is an action for age discrimination in employment pursuant to 29 U.S.C. § 629
et seq.
In its motion in limine, the defendant seeks preclusion of several categories of
evidence: 1) testimony from former workers and persons not employed by Skateland
regarding the plaintiff’s skills, work performance and character; 2) witnesses’ testimony
regarding how Marsh’s termination affected them emotionally; 3) testimony concerning
Marsh’s subjective beliefs; 4) witnesses’ opinions of unfair treatment or violations of the
law; 5) Skatelands’ financial status or financial comparisons; 6) evidence of other
lawsuits, pretrial matters, discovery, or privileges; 7) any references to the “golden rule,”
that is, asking the jury to put themselves in the plaintiff’s place; 8) solicitation of juror
promises; 9) references to equitable relief; 10) any “me too” evidence; 11) evidence of
criminal history, alleged criminal activity, or involvement in another lawsuit; 12) evidence
concerning the work history or discipline of Skateland’s management and employee
witnesses; and 13) testimony of witnesses who were not disclosed.

Although the motion in limine is an important tool available to the trial judge to
ensure the expeditious and evenhanded management of the trial proceedings,
performing a gatekeeping function and sharpening the focus for later trial proceedings,
some evidentiary submissions cannot be evaluated accurately or sufficiently by the trial
judge in such a procedural environment.

Jonasson v. Lutheran Child and Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997).

A motion in limine is appropriate for

“evidentiary submissions that clearly ought not be presented to the jury because they
clearly would be inadmissable for any purpose.” Id. In other instances, it is necessary
to defer ruling until during trial, when the trial judge can better estimate the impact of the
evidence on the jury. Id. To the extent that a party challenges the probative value of
the evidence, an attack upon the probative sufficiency of evidence relates not to
admissibility but to the weight of the evidence and is a matter for the trier of fact to
resolve. United States v. Beasley, 102 F.3d 1440, 1451 (8th Cir. 1996).
The court is unable to evaluate the relevance of the challenged evidence in the
context of a pretrial motion. The defendant’s concerns may warrant a cautionary or
limiting instruction, but the court cannot determine the ambit of such an instruction at
this time. The court will admit the evidence at issue only on a showing that it is relevant
to the issues in the case, and only to the extent that the relevance of the evidence
outweighs its potential to cause prejudice or confusion under Fed. R. Evid. 403. Most of
the defendant’s contentions are more in the nature of an objection that can be asserted
at trial. The court finds the motion can be adequately resolved at trial, either in a
hearing immediately prior to commencement of the trial, as an objection with a sidebar,
or with a review of the evidence outside the presence of the jury. Accordingly, the court
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finds that the motion in limine should be overruled at this time, without prejudice to its
reassertion via timely objection to the admissibility of such evidence at trial.
IT IS ORDERED that the defendant’s motion in limine is overruled at this time
without prejudice to reassertion at trial.
DATED this 17th day of July, 2012.

BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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