Mach 4 Construction, LLC v. Operating Engineers Local #3

Filing 65

ORDER. IT IS ORDERED that defendant's motions in limine 88 89 90 91 are DENIED. IT IS FURTHER ORDERED that plaintiff/counter-defendant's motions in limine 41 42 in member case no. 3:09-cv-0565-LRH-WGC are DENIED. IT IS SO ORDERED. Signed by Judge Larry R. Hicks on 11/15/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRUSTEES of the NORTHERN NEVADA
OPERATING ENGINEERS HEALTH &
WELFARE TRUST FUND, et al.,

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Plaintiffs,

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v.

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MACH 4 CONSTRUCTION, et al.,

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Defendants.

3:08-CV-0578-LRH-WGC
3:09-CV-0565-LRH-WGC
ORDER

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Before the court are defendant Mach 4 Construction’s (“Mach 4") various motions in limine

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to preclude certain evidence at trial. Doc. ##88, 89, 90, 91.1

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I.

Facts and Background

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On October 30, 2008, plaintiffs filed the present action against Mach 4 for breach of

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contract arising from alleged unpaid union and trustee contributions. Doc. #1.2 Thereafter, Mach 4

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filed the present motions in limine to preclude certain evidence from the trial currently scheduled

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for December 6, 2011. Doc. ##88, 89, 90, 91.

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Refers to the court’s docket number.

For a complete history of this action see this court’s order denying plaintiffs’ motion for summary
judgment. Doc. #59.

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II.

Motion in Limine #1 (Doc. #88)

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In its initial motion in limine, Mach 4 seeks to preclude evidence regarding alleged

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contribution entitlements for any time after the filing of the initial complaint, or at most, the date

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the initial audit was concluded. See Doc. #88. Specifically, Mach 4 argues that because the

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complaint was filed in October 2008, evidence of additional contributions accruing after that date

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are irrelevant. Id. The court disagrees.

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Evidence is relevant if it has “any tendency to make the existence of any fact that is of

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consequence to the determination of the action more probable or less probable than it would be

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without the evidence.” FED . R. EVID . 401. Here, the court finds that all evidence of damages,

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including those arising after the filing of the complaint and completion of the initial audit are

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relevant to the underlying action. Moreover, a plaintiff may seek unpaid contributions that accrue

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after the filing the complaint without seeking leave to amend as a matter of law. See Roofers Local

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Union No. 81 v. Wedge Roofing, Inc., 811 F. Supp. 1398, 1402 (N.D. Cal. 1992). Therefore, the

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court finds that plaintiffs are entitled to present evidence of unpaid contributions accruing since the

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filing of the initial complaint and shall deny Mach 4's motion in limine accordingly.

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III.

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Motion in Limine #2 (Doc. #89)
In its second motion in limine, Mach 4 seeks to have the court exclude the testimony of

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plaintiffs’ expert auditor and report. See Doc. #89. The court has already addressed this issue when

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it denied Mach 4's motion to exclude the testimony of the auditor. See Doc. #58. The court finds no

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basis to reconsider its prior order. Therefore, the court shall deny Mach 4's second motion in limine

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for the same reasons outlined in the court’s prior order (Doc. #58).

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IV.

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Motion in Limine #3 (Doc. #90)
In its third motion in limine, Mach 4 seeks to preclude defendant Operating Engineers

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Local #3 (“Local #3”), one of the defendants in the member case 3:09-cv-0565, from utilizing any

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evidence, including the audit report, from plaintiffs’ disclosed experts because Local #3 did not

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also disclose those same experts during discovery. See Doc. #90. The court has reviewed the

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documents and pleadings on file in this matter and finds that this motion is without merit. The

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identified experts are not Local #3's experts, and as such, did not have to be separately disclosed.

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Further, to preclude Local #3 from utilizing or referring to evidence at trial that will already be in

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the record is nonsensical. A party to an action may utilize all evidence properly admitted even if

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they did not proffer that evidence. Accordingly, the court shall deny Mach 4's third motion in

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limine.

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V.

Motion in Limine #4 (Doc. #91)

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In its fourth motion in limine, Mach 4 once again seeks to preclude the auditor’s report

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arguing that it allegedly does not take into account both covered and non-covered work and is

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therefore unreliable. See Doc. #91. The court has already determined that the audit report is both

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relevant and reliable. Any issues with the way that the audit report was calculated, or any other

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issue concerning the audit report, can be raised by Mach 4 at trial. Further, the raised issues go to

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the weight of the report rather than its admissibility. Accordingly, the court shall deny Mach 4's

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fourth motion in limine.

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IT IS THEREFORE ORDERED that defendant’s motions in limine (Doc. ##88, 89, 90, 91)
are DENIED.
IT IS FURTHER ORDERED that plaintiff/counter-defendant’s motions in limine
(Doc. ##41, 42) in member case no. 3:09-cv-0565-LRH-WGC are DENIED.

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IT IS SO ORDERED.

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DATED this 15th day of November, 2011.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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