Donovan et al. v. Flamingo Palms Villas, LLC, et al.

Filing 1201

ORDER Denying #1199 Motion for Pretrial Conference. Granting in Part and Denying in Part #1198 Objection to Plaintiffs Proposed Witness Alan Hyman Motion in Limine. Signed by Chief Judge Robert C. Jones on 10/10/2012. (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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FRAN DONOVAN,
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Plaintiff,
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vs.
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FLAMINGO PALMS VILLAS, LLC et al.,
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Defendants.
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2:08-cv-01675-RCJ-RJJ
ORDER

This case arises out of an alleged conspiracy to defraud investors in a condominium

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development in Las Vegas. Pending before the Court is a motion in limine and a motion for a

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pretrial conference. For the reasons given herein, the Court grants the motion in limine in part

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and denies the motion for a pretrial conference.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiffs are eighty-seven individuals who, from 2005 to 2007, purchased condominium

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units in a development called the Palm Villas, Las Vegas Cay Club Condominiums (the

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“Development”). Originally, there were 139 Defendants, 121 of whom remained in the Second

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Amended Complaint (“SAC”) (ECF No. 183). Defendants are individuals and entities who

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allegedly defrauded Plaintiffs, or assisted in defrauding Plaintiffs, into purchasing units in the

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Development. The Development consists of an approximately 12-acre plot of land on which sit

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sixteen three-story apartment buildings, containing a total of 360 rental units. The three

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apartment buildings occupy 2.64 acres. The remaining 9.44 acres consist of several hundred

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parking spaces, swimming pools, and other open land (the “Common Area”).

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Beginning in 2004, Defendants began promoting and selling the 360 units in the

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Development to buyers. Defendants promoted the Development as a “resort community” that

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would be developed into a hotel. Initially, and before assuming its current name, the

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Development was called the Las Vegas Cay Club Resort & Marina. Defendants allegedly

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represented that the Development already boasted numerous valuable amenities, such as large

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covered patios, weight rooms, and spas, and that Defendants planned to enhance the

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Development with many other amenities, such as a game room, a water park, a restaurant, and

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conference facilities. By paying a non-refundable $5,000 payment, Plaintiffs were allowed to

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enter into a Reservation Agreement, which required a $10,000 non-refundable payment per unit

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reserved for purchase. Plaintiffs were later provided with a price list for the units, ranging from

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$199,000 to $499,900. After Plaintiffs invested, Defendants circulated various brochures and

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letters to Plaintiffs, informing Plaintiffs of the status of the Development. These letters and

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brochures described or displayed images of the various improvements that were being done to the

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Development. Defendants also circulated a map of the Development.

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Plaintiffs allege that the deeds they received in the purchase of each unit represented that

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Plaintiffs had an interest not only in their purchased units, but also in the Common Area, which

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included parking spaces, swimming pools, and many other valuable amenities that Defendants

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promised to add to the Development. After the deeds were signed, Plaintiffs allege that

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Defendants circulated a fifty-seven page declaration stating that Plaintiffs’ interests in the

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Development did not in fact include the Common Area, but were limited to their individually

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purchased rental units and the area common to their particular buildings. As a result, Plaintiffs’

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purchased units did not even include any of the Development’s parking spaces. Plaintiffs

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contend that the representations made in the fifty-seven page declaration conflicted with the
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advertising and other promotional representations made by Defendants, the deeds, and the

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appraisals on the units upon which Plaintiffs relied in deciding to invest in the Development.

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Plaintiffs filed the Complaint on November 26, 2008. (Compl., ECF No. 1). The

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operative version of the Complaint is the Third Amended Complaint (“TAC”) (ECF No. 335).

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The Court has adjudicated over one-hundred (100) substantive motions in this case.

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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. See Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing

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Fed. R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible

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evidence 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.

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ANALYSIS
Defendant Commonwealth Land Title Insurance Co. (“Commonwealth”) asks the Court

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to exclude any testimony by Plaintiffs’ attorney Alan Hymen, whom Plaintiffs have identified as

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a potential witness. Commonwealth argues that the only possible testimony Hymen may have to

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offer concerns the tender of a claim from him to Commonwealth on behalf of Plaintiffs, but that

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the Court has excluded that evidence as a discovery sanction. Commonwealth is correct, and any

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such evidence is excluded. The Court will not at this time, however, declare that Mr. Hyman

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may not testify as to other matters about which he may have admissible, direct knowledge. The

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Court will entertain objections to any such proffered testimony at trial. The Court denies

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Commonwealth’s motion for a pretrial conference.

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CONCLUSION
IT IS HEREBY ORDERED that the Motion for Pretrial Conference (ECF No. 1199) is
DENIED.
IT IS FURTHER ORDERED that Defendant Commonwealth Land Title Insurance

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Company’s Objection to Plaintiffs’ Proposed Witness Alan Hyman Motion in Limine (ECF No.

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1198) is GRANTED in part and DENIED in part.

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IT IS SO ORDERED.

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Dated this 10th day of October, 2012.

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_____________________________________
ROBERT C. JONES
United States District Judge

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