V5 Technologies v. Switch Ltd. et al

Filing 549

ORDER Denying 447 Motion in Limine to Exclude Character Evidence. Signed by Judge Kent J. Dawson on 11/12/2021. (Copies have been distributed pursuant to the NEF - DRS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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V5 TECHNOLOGIES, LLC d/b/a COBALT
DATA CENTERS,
Plaintiff,

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ORDER DENYING PLAINTIFF’S
MOTION IN LIMINE

v.
SWITCH, LTD.
Defendant.

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Case No. 2:17-cv-02349-KJD-VCF

Before the Court is Plaintiff’s Motion in Limine No. 3 to Exclude Character Evidence
Concerning John Ritter (ECF #447). Defendant responded in opposition (ECF #478).
I.

Factual and Procedural Background

Plaintiff V5 Technologies, LLC d/b/a Cobalt Data Centers (“Cobalt”) seeks to exclude
evidence regarding John Ritter’s (“Ritter”) personal bankruptcy, other lawsuits Ritter is involved
with, Ritter’s previous business ventures, Ritter’s involvement in the legal marijuana industry,
and Ritter’s alleged unethical conduct at Cobalt. Ritter is the representative of the main investor
in Cobalt and was a Cobalt board member. Cobalt argues that this evidence is substantially more
prejudicial than probative, irrelevant, inadmissible character evidence under Rule 404(b), and
that Defendant Switch, Ltd.’s, (“Switch”) witnesses lack personal knowledge of Ritter’s alleged
unethical behavior as required under Rule 602. Switch argues that the evidence is highly relevant
because it shows that Cobalt’s failure is attributable to its poor management, not anticompetitive
conduct. Switch also argues that the evidence of Ritter’s business track record is not character
evidence subject to Rule 404(b) and that evidence of Ritter’s unethical and untruthful behavior is
relevant. Switch also argues that its witnesses who knew Ritter and traveled in the same circles
as him have sufficient knowledge to testify about his character for untruthfulness.

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II.

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“A motion in limine is a procedural mechanism made in advance to limit testimony or

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evidence in a particular area” and is “entirely within the discretion of the Court.” Diamond X

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Ranch, LLC v. Atlantic Richfield Co., No. 3:13-cv-00570-MMD-WGC, 2018 WL 2127734, at

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*1 (D. Nev. May 8, 2018). A “motion in limine should not be used to resolve factual disputes or

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weigh evidence.” IGT v. Alliance Gaming Corp., No. 2:04-cv-1676-RCJ-RJJ, 2008 WL

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7084605, at *2 (D. Nev. Oct. 21, 2008). “To exclude evidence on a motion in limine, ‘the

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evidence must be inadmissible on all potential grounds.’” Diamond X Ranch, 2018 WL

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2127734, at *1 (quoting Indiana Ins. Co. v. General Elec. Co., 326 F.Supp.2d 844, 846 (N.D.

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Legal Standard

Ohio 2004)).

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III.

Analysis

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The Court does not see how the proposed evidence constitutes impermissible character

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evidence. Rule 404(b) states that “[e]vidence of a person’s character or character trait is not

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admissible to prove that on a particular occasion the person acted in accordance with the

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character or trait.” FED. R. EVID. 404(b)(1). Cobalt has not indicated what character trait Switch

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has asserted or how the evidence will be used to show that Ritter acted in accordance with that

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trait. Therefore, the evidence is not excluded under Rule 404(b).

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Additionally, the bankruptcies and civil suits are relevant to the issue of why Cobalt

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failed. The evidence tends to show the possibility that management decisions contributed to

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Cobalt’s dissolution, not simply anticompetitive conduct. The evidence is also relevant to

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determine if Cobalt would have secured the required investments it needed to grow. A business

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executive’s track record is relevant when the business seeks funding, investments, or loans and

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Ritter’s history is relevant to the question of whether Cobalt would have secured the necessary

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investments to fit Cobalt’s going-concern value calculation. The potential prejudice does not

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outweigh the probative value and the evidence is admissible.

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Ritter’s involvement with the legal marijuana industry may be relevant, depending on its

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use. If used solely to inform the jury that Ritter is involved in what some might consider an

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unsavory business, it would not be relevant. However, it could be relevant to Ritter’s business

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history and his ability to assist in Cobalt’s growth. Its admissibility will be determined at trial.
Finally, Cobalt’s argument that Switch’s witnesses do not have the personal knowledge

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necessary to testify regarding Ritter’s alleged unethical behavior at Cobalt, and Switch’s

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argument that during cross-examination evidence of the witness’s character for untruthfulness is

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admissible, will be handled at trial. Their admissibility will depend upon the foundation laid and

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the circumstances regarding the testimony.

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IV.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Exclude Character

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Conclusion

Evidence (ECF #447) is DENIED.
Dated this 12th day of November, 2021.
_____________________________
Kent J. Dawson
United States District Judge

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