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

Filing 71

ORDERED D's # 37 Motion in limine #2 is DENIED in-part and GRANTED in-part in accordance with this order. FURTHER ORD that P's # 57 Motion to amend pre-trial order is DENIED. FURTHER ORD that the court's November 17, 2011 order in ca se no. 3:08-cv-0578 (Doc. #125) is AMENDED to confirm that a jury trial is not required and that P's motion to strike jury demand (Doc. #112) is GRANTED. The clerk of court shall STRIKE D's jury demand. Signed by Judge Larry R. Hicks on 11/23/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MACH 4 CONSTRUCTION, LLC,

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Plaintiff,

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v.

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OPERATING ENGINEERS LOCAL NO. 3,

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Defendant.

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OPERATING ENGINEERS LOCAL NO. 3,
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Counter-Claimant,
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v.
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MACH 4 CONSTRUCTION, LLC,
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Counter-Defendant.
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03:09-CV-00565-LRH-RAM
ORDER

Before the court is defendant/counter-claimant Operating Engineers Local No. 3 (“OE3")

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motion in limine #2. Doc. #37.1 OE3 seeks to preclude plaintiff/counter-defendant Mach 4

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Construction, LLC (“Mach 4") from proffering evidence on its three affirmative defenses identified

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in the proposed joint pre-trial order (Doc. #35)2: (1) fraud in the inducement; (2) estoppel; and

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Refers to the court’s docket number.

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The proposed joint pre-trial order (Doc. #35) has not been signed by the court.

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(3) unclean hands. Id.
The court has reviewed the documents and pleadings on file in this matter and finds that

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Mach 4 should not be precluded from pursuing its affirmative defense of unclean hands. This

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affirmative defense was raised in Mach 4's answer and has yet to be addressed by the court.

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Although OE3 claims that liability has already been established in this action based on the court’s

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order granting its partial motion for summary judgment, that order only established that Mach 4

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failed to properly terminate the underlying contracts. See Doc. #33. Nowhere in that order did the

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court examine the equitable issue of unclean hands. This issue is still relevant for trial, and as such,

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Mach 4 is entitled to pursue this defense.

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However, as to Mach 4's affirmative defense of fraud in the inducement, the court finds that

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this affirmative defense was not properly raised in Mach 4's answer or in any prior pleading before

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this court. As such, this affirmative defense cannot now be raised by Mach 4. See FED . R. CIV . P.

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12(b). Therefore, the court finds that Mach 4 is precluded from pursuing the affirmative defense of

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fraud in the inducement. Likewise, the court finds that Mach 4 is precluded from raising its newly

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proposed affirmative defense of void under NRS 613.250, identified in its recent motion to amend

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the proposed joint pre-trial order (Doc. #57), because that affirmative defense is untimely.

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Finally, as to Mach 4's affirmative defenses of estoppel, the court finds that Mach 4 is

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precluded from pursuing this defense at trial because the court has already denied this defense and

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determined it was without merit. See Doc. #33.

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As an additional note, the court has reviewed the remaining issues for trial in this matter,

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including Mach 4's remaining affirmative defenses, and finds that there are no causes of action or

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disputed issues of fact which necessitate a jury trial in this matter. All remaining issues and

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defenses are equitable in nature and ripe for a bench trial. Accordingly, the court shall amend its

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November 17, 2011 order in the base case, case no. 3:08-cv-578 (Doc. #125), to confirm that a jury

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trial is no longer warranted in these consolidated actions and strike Mach 4's jury demand.

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IT IS THEREFORE ORDERED that defendant’s motion in limine #2 (Doc. #37) is
DENIED in-part and GRANTED in-part in accordance with this order.
IT IS FURTHER ORDERED that plaintiff’s motion to amend pre-trial order (Doc. #57) is
DENIED.
IT IS FURTHER ORDERED that the court’s November 17, 2011 order in case no.

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3:08-cv-0578 (Doc. #125) is AMENDED to confirm that a jury trial is not required and that

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plaintiff’s motion to strike jury demand (Doc. #112) is GRANTED. The clerk of court shall

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STRIKE defendant’s jury demand.

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IT IS SO ORDERED.
DATED this 23rd day of November, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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