CCR/AG Showcase Phase I Owner, L.L.C. v. United Artists Theatre Circuit, Inc.
Filing
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ORDER Denying 173 Motion in Limine requesting a jury view of the property site. Signed by Chief Judge Robert C. Jones on 1/12/2012. (Copies have been distributed pursuant to the NEF - SLR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CCR/AG SHOWCASE PHASE I OWNER, LLC, )
a Delaware Limited Liability Corporation,
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Plaintiff,
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vs.
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UNITED ARTISTS THEATRE CIRCUIT, INC. )
et al.,
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Defendants.
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2:08-CV-00984-RCJ-GWF
ORDER
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This case arises out of a cinema’s alleged failure to pay rent to the owner of commercial
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property at a mall on the Las Vegas Strip, as well as its failure to adhere to a prior agreement to
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change the way customers are charged for parking. The cinema has counterclaimed for
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constructive eviction and breach of the lease with respect to customer parking issues. Pending
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before the Court is Defendant’s Motion in Limine (ECF No. 173) requesting a jury view of the
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property site. For the reasons given herein, the Court denies the motion.
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I.
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FACTS AND PROCEDURAL HISTORY
The Showcase Mall is a retail and entertainment complex located next to the MGM
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Grand Hotel & Casino in Las Vegas, Nevada. (First Am. Compl. ¶ 8, May 13, 2009, ECF No.
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30). In 1995, Defendant United Artists Theatre Circuit, Inc. (“UA”) entered into a lease with
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Showcase Mall Joint Venture (“SMJV”), the then-owner of the Showcase Mall Phase I (“Phase
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I”), to lease approximately 42,000 square feet on the ground level of the Showcase Mall Phase I
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parking garage (the “Garage”) for the use of its employees, invitees, and customers (the “Lease”).
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(Id. ¶¶ 11–13). The Lease was for twenty years, with options to extend for to five-year periods.
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(Id. ¶ 14). Under the Lease, UA agreed to pay a “Minimum Rent” and a “Parking Charge” per
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square foot, both of which were to be paid in monthly installments, and the Minimum Rent was
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to increase by predetermined amounts in certain years. (See id. ¶ 15). The Lease also provided
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that SMJV would charge hourly parking in the Garage, but that UA could validate up to two
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hours of free parking for its employees, invitees, and customers (the “Parking Validation
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System”). (Id. ¶ 16). The Lease also provided for SMJV’s advertisement of the Showcase Mall
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via construction of a pylon sign (the “Sign”) at the entrance of the Garage leading to the theatre,
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and UA had the right to construct, install, and maintain a readerboard (the “Readerboard”) on the
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Sign. (Id. ¶¶ 17–18).
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In or about 1998, SMJV and UA agreed to stop using the Parking Validation System in
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favor of a flat $2.00 parking fee, (id. ¶¶ 23–24), and that customers would be given promotional
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coupons from various tenants of the Showcase Mall at the entrance of the Garage, with UA (and
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presumably other tenants, as well) responsible for the costs of redeeming those coupons (id. ¶
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25). UA never objected to the previous Parking Validation System or alleged it was a violation
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of the Lease. (Id. ¶¶ 26–29).
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In 2004, Plaintiff CCR/AG Showcase Phase I Owner, L.L.C. (“Phase I Owner”) began
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negotiating purchase of Phase I from SMJV and executed an Estoppel Certificate with UA
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indicating that neither landlord nor tenant were in default or other violation of the Lease, and
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Phase I Owner purchased Phase I on February 11, 2005 based upon this representation,
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succeeding to SMJV’s interest in the Lease. (Id. ¶¶ 30–32). Between 2006 and 2008, Phase I
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Owner and UA discussed a promotion under which customers would receive coupons a the
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entrance to the Garage that they could redeem at UA’s concession stands. (Id. ¶ 34).
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In 2006, Phase III Owner, an entity “affiliated with” Phase I Owner, notified UA that it
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intended to construct a building (the “New Building”) between Las Vegas Blvd. and the theatre.
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(Id. ¶ 37). The theatre lacked stadium seating, and in order to make it more competitive, UA
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discussed with Phase III Owner the possibility of leasing space in the New Building to provide
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stadium seating, but ultimately did not do so. (Id. ¶¶ 38–40). Phase III Owner notified UA that
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construction of the New Building might affect business at the theatre, and Phase I Owner offered
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to replace the Sign and Readerboard with new signage in a more visible location and to install
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new heating and air conditioning and a new grease trap and trash compactor. (Id. ¶¶ 41–43). In
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or about April 2007, the parties verbally agreed to the modifications, and Phase I Owner sent UA
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a draft lease modification agreement. (Id. ¶ 45). At this time, Phase I Owner and Phase III Owner
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entered into a Reciprocal Easement. (Id. ¶ 47). UA approved the upgrades in the draft lease
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modification agreement, including designs for the new signage on July 19, 2007, and Phase I
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Owner destroyed the old signage a week later in reliance. (Id. ¶¶ 48–51). Phase I Owner has
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also, with UA’s acquiescence, replaced the heating and air conditioning system and installed a
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new grease trap and trash compactor, installed new signage, and relocated existing signage. (Id. ¶
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53).
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In March 2008, UA represented that it was prepared to execute the draft lease
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modification agreement, but UA then announced it would not do so and for the first time claimed
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that it had been constructively evicted and threatened to terminate the Lease. (Id. ¶¶ 56–58).
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Phase I Owner alleges that UA is simply attempting to cut its losses and abandon its obligations
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under the Lease because of the theatre’s poor performance. (See id. ¶¶ 60–63). UA now claims
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that the New Building isolates the theatre from potential customers and has caused its losses, that
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Phase I owner has breached the Lease by adjusting the signage and failing to continue the
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Parking Validation System, and that it has been constructively evicted. (Id. ¶¶ 64–67). UA has
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demanded a return to the previous Parking Validation System under the Lease and that Phase I
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Owner reimburse certain past parking charges. (Id. ¶¶ 68–69).
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In July 2008, Phase I Owner sued UA in this Court. The First Amended Complaint
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(“FAC”) filed in May 2009 lists five causes of action: (1) breach of contract; (2) breach of the
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implied covenant of good faith and fair dealing; (3) promissory estoppel (theatre upgrades); (4)
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promissory estoppel (parking charges); and (5) declaratory relief. Defendant filed a
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Counterclaim listing two causes of action: (1) breach of contract; and (2) constructive eviction.
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The Court denied Plaintiff leave to file an untimely motion for defensive summary judgment and
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partial offensive summary judgment and struck the proposed motion. (See Min. Order, May 20,
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2011, ECF No. 142). Plaintiff has filed four motions in limine, and Defendant has filed one.
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The present order addresses Defendant’s motion only.
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II.
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LEGAL STANDARDS
A motion in limine is a procedural device to obtain an early and preliminary ruling on the
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admissibility of evidence. Black’s Law Dictionary defines it as “[a] pretrial request that certain
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inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion
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when it believes that mere mention of the evidence during trial would be highly prejudicial and
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could not be remedied by an instruction to disregard.” Black’s Law Dictionary 1109 (9th ed.
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2009). Although the Federal Rules of Evidence do not explicitly authorize a motion in limine,
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the Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant
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to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.
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R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence
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from being suggested to the jury by any means”)).
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A motion in limine is a request for the court’s guidance concerning an evidentiary
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question. See Wilson v. Williams, 182 F.3d 562, 570 (7th Cir. 1999). Judges have broad
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discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d
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663, 664 (7th Cir. 2002). However, a motion in limine should not be used to resolve factual
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disputes or weigh evidence. See C&E Servs., Inc., v. Ashland, Inc., 539 F. Supp. 2d 316, 323
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(D.D.C. 2008). To exclude evidence on a motion in limine “the evidence must be inadmissible
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on all potential grounds.” E.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D.
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Ohio 2004). “Unless evidence meets this high standard, evidentiary rulings should be deferred
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until trial so that questions of foundation, relevancy and potential prejudice may be resolved in
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proper context.” Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.
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1993). This is because although rulings on motions in limine may save “time, costs, effort and
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preparation, a court is almost always better situated during the actual trial to assess the value and
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utility of evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1219 (D. Kan. 2007).
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In limine rulings are provisional. Such “rulings are not binding on the trial judge [who]
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may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753,
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758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to
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change, especially if the evidence unfolds in an unanticipated manner). “Denial of a motion in
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limine does not necessarily mean that all evidence contemplated by the motion will be admitted
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to trial. Denial merely means that without the context of trial, the court is unable to determine
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whether the evidence in question should be excluded.” Ind. Ins. Co., 326 F. Supp. 2d at 846.
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III.
ANALYSIS
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Defendant asks the Court to permit the jury to view the subject real property in this case.
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Defendant argues that viewing the configuration of the property will aid the jury in determining
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whether there has been a constructive eviction or a material breach of the lease. Defendant
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argues that although it intends to introduce photographic evidence of the visibility of the signage
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and accessibility of the property, a visit to the site will better aid the jury in understanding the
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changes in visibility between the former pylon sign and the sign that replaced it, as well as the
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effect of the addition of the new Phase III building on the visibility of and access to Defendant’s
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building in Phase I.
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Although most states have statutes expressly governing jury views, the Federal Rules of
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Evidence do not address jury views expressly, though rules of relevancy, prejudice, and
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efficiency apply. 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and
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Procedure § 5176 (1978). Logistical problems in coordinating a jury view weigh against a view
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under a Rule 403 analysis. Id. (2011 Supp.). The Ninth Circuit appears to permit such visits. See
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Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1266–67 (9th Cir. 2001) (“Neither is
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there anything wrong with official excursions by a judge or jury to view evidence that simply
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cannot, because of physical limitations, be brought into a courtroom.”). Here, the Court is not
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convinced the proposed photographic evidence will be insufficient for Defendant to present its
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case, and the logistics of a jury view on the Las Vegas Strip outweigh the additional value of the
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view to the jury.
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CONCLUSION
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IT IS HEREBY ORDERED that the Motion in Limine (ECF No. 173) is DENIED.
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IT IS SO ORDERED.
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Dated this 12th day of January, 2012.
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ROBERT C. JONES
United States District Judge
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