Gladwill v. Ruby Pipeline, LLC, a Delaware Limited Liability Company

Filing 36

ORDER DENYING 30 Motion in Limine. See Order for details. Signed by Chief Judge Robert C. Jones on 9/6/2012. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ALICE M. GLADWILL,

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This case arises out of the alleged breach of an express easement via unreasonable use.

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Plaintiff,
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vs.
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RUBY PIPELINE, LLC,
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Defendant.

3:11-cv-00251-RCJ-WGC
ORDER

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Pending before the Court is Defendant’s motion in limine. For the reasons given herein, the

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Court denies the motion.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Alice M. Gladwill is the owner of a cattle ranch located in Washoe County, at

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the extreme northwest corner of Nevada. (See V. Compl. ¶ 4, Mar. 7, 2011, ECF No. 2).

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Defendant Ruby Pipeline, LLC (“Ruby”) is constructing a 42-inch natural gas pipeline from

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Wyoming to Oregon, for which it obtained an express easement across Gladwill’s land. (See id.

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¶¶ 5–7). Ruby purchased a permanent 50-foot easement and a 115-foot construction easement to

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lay the pipeline across 6519.57 feet (approximately 1-1/4 miles) of Gladwill’s land. (See id. ¶ 6).

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According to the agreements, Ruby was to dig a well and ditch for water to test the

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pipeline. (See id. ¶¶ 7–9). Ruby allowed bentonite or another substance it added to the well to

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harden improperly, making the well useless and allowing water to flow freely over Gladwill’s

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property, causing damage. (Id.). Gladwill suspects that because Ruby bungled the well on her

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property, it contracted with a neighboring landowner to transport that landowner’s water over

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Gladwill’s land by pipe or ditch, which transport would constitute a trespass, because such

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transport is beyond the scope of Ruby’s easements. (See id.). Ruby has also: (1) left gates open

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and improperly constructed fences, permitting Gladwill’s cattle to escape; (2) failed to impound

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the water in the permitted pipeline ditch, resulting in runoff from rain and snow that has eroded

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the topsoil that is essential to the grass Gladwill’s cattle graze upon; and (3) buried grazing land

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beyond the scope of the easements with construction debris. (Id. ¶ 10). Ruby argues that it has

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bent over backwards to satisfy Gladwill, having spent upwards of $100,000 to return the land to

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its original condition, but that Gladwill simply will not be satisfied.

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Gladwill filed the Verified Complaint against Ruby in state court for breach of contract,

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seeking a preliminary and permanent injunction. Ruby removed. Gladwill has moved for a

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preliminary injunction. The Court has set that motion for hearing and has granted Plaintiff’s

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motion to consolidate the preliminary injunction hearing with a trial on the merits under Rule

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65(a)(2). Defendant has filed a motion in limine to exclude the testimony of certain of Plaintiff’s

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witnesses whom Plaintiff did not disclose until after the deadline to disclose expert witnesses.

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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
Ruby argues that certain witnesses1 disclosed after the deadline to disclose expert

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The challenged witnesses are Roy Halliburton and Kevin Linderman of Q&D
Construction, Inc., Michael Turnipseed of Turnipseed Engineering, LaVor Smith, and Lee
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witnesses should be excluded from testifying as a Rule 37 sanction. Gladwill responds that the

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witnesses Ruby identifies will testify only as lay witnesses, i.e., as to the pre- and post-easement

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condition of the land and the price those witnesses would charge Gladwill to perform certain

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work she claims is necessary to return the land to its pre-easement condition. The Court denies

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the motion in limine. Witnesses undisclosed as experts will not be allowed to testify as experts

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and will not be permitted to introduce any expert-type reports, but Gladwill claims to proffer

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these witnesses only as percipient witnesses. See Fed. R. Evid. 701. If these witnesses attempt to

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testify as to topics that require “scientific, technical, or other specialized knowledge,” the Court

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will hear objections at that time. See Fed. R. Evid. 701(c), 702(a). Without hearing the

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testimony at trial, however, the Court cannot yet determine whether any particular piece of

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testimony is better characterized as lay testimony under Rule 701 or expert testimony under Rule

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702.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion in Limine (ECF No. 30) is DENIED.

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IT IS SO ORDERED.

16 Dated this 31st day of August, 2012.2012.
Dated this 6th day September,
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_____________________________________
ROBERT C. JONES
United States District Judge

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Connor.
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