The Ohio Willow Wood Company v. ALPS South, LLC

Filing 261

ORDER denying 248 Motion in Limine; denying 249 Motion in Limine; granting 250 Motion for Judicial Notice. Signed by Judge Gregory L Frost on 7/29/14. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

THE OHIO WILLOW WOOD COMPANY,
Plaintiff,
Case No. 2:04-cv-1223
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel

v.
ALPS SOUTH, LLC,
Defendant.

OPINION AND ORDER
This matter is before the Court for consideration of three pre-trial motions and
corresponding briefs: (1) Defendant ALPS South, LLC’s (“Alps”) motion in limine for determine
that certain evidence is “but-for” material as a matter of law (ECF No. 248), (2) Alps’ motion in
limine to preclude OWW from relying on certain arguments relating to the testimony of Jean
Paul Comtesse (ECF No. 249) and Plaintiff Ohio Willow Wood’s (“OWW”) memorandum in
opposition (ECF No. 257), and (3) Alps’ motion for judicial notice (ECF No. 250) and OWW’s
memorandum in opposition (ECF No. 256). For the reasons that follow, the Court GRANTS the
motion for judicial notice and DENIES the motions in limine.
I. DISCUSSION
A. Judicial Notice
“The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.”

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Fed. R. Ev. 201(b). In its motion, Alps asks the Court to take judicial notice of the fact that it
filed a motion for summary judgment in this case, which contained several exhibits, on
September 22, 2006. (ECF Nos. 59, 50 & 61.) OWW opposes the motion on the grounds that it
is unnecessary but, if the Court should be inclined to grant the same, asks the Court to take
judicial notice of the fact that Alps filed its motion for summary judgment under seal.
Although the Court shares OWW’s confusion as to the necessity of Alps’ motion, it will
take judicial notice of anything filed in this case, whether filed under seal or not. The Court
therefore GRANTS Alps’ motion and takes judicial notice of the fact that Alps filed a motion for
summary judgment in this case, under seal, on September 22, 2006, and that Alps attached to its
motion several exhibits appearing at ECF Nos. 60-1–60-31 and 61-1–61-14.
B. Motions in Limine
1. Standard Involved
The inquiry involved in and nature of a motion in limine decision are well settled:
Motions in limine are generally used to ensure evenhanded and
expeditious management of trials by eliminating evidence that is clearly
inadmissible for any purpose. See Jonasson v. Lutheran Child and Family Serv.,
115 F.3d 436, 440 (7th Cir.1997). The court has the power to exclude evidence in
limine only when evidence is clearly inadmissible on all potential grounds. Cf.
Luce v. United States, 469 U.S. 38, 41 n.4, 105 S. Ct. 460, 463 n.4, 83 L. Ed. 2d
443 (1984) (federal district courts have authority to make in limine rulings
pursuant to their authority to manage trials). Unless evidence meets this high
standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved in proper context.
(citations omitted). Denial of a motion in limine does not necessarily mean that
all evidence contemplated by the motion will be admitted at trial. Denial merely
means that without the context of trial, the court is unable to determine whether
the evidence in question should be excluded. The court will entertain objections
on individual proffers as they arise at trial, even though the proffer falls within the
scope of a denied motion in limine. See United States v. Connelly, 874 F.2d 412,
416 (7th Cir.1989) (citing Luce, 469 U.S. at 41, 105 S. Ct. at 463) (“Indeed, even
if nothing unexpected happens at trial, the district judge is free, in the exercise of
sound judicial discretion, to alter a previous in limine ruling.”). Hawthorne
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Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398, 1400-01 (N.D.
Ill.1993).
Weimer v. Honda of Am. Mfg., Inc., No. 2:06-cv-844, 2008 WL 4332525, at *1 (S.D.
Ohio Sept. 17, 2008) (quoting Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846–
47 (N.D. Ohio 2004)).
“Courts are generally reluctant to grant broad exclusions of evidence in limine
because ‘a court is almost always better situated during the actual trial to assess the value
and utility of evidence.’ ” Id. (quoting Koch v. Koch Indus., Inc., 2 F. Supp. 2d 1385,
1388 (D. Kan 1998)). “This presumption is particularly strong in a bench trial.” Bank
One, N.A. v. Echo Acceptance Corp., No. 04-CV-318, 2008 WL 1766891, at *1 (S.D.
Ohio Apr. 11, 2008). “Without the fear that prejudicial or improper evidence will taint
the jury, courts are even more inclined to take a wait-and-see approach.” Id. Moreover,
“motions in limine yield only interlocutory decisions, which are not binding on the Court
at the bench trial where any and all issues that were raised or could have been raised in a
motion in limine are subject to renewed consideration.” Cooey v. Strickland, Case Nos.
2:04–cv–1156, 2:09–cv–242, 2:09–cv–823, 2:10–cv–27, 2011 WL 320166, at *2 (S.D.
Ohio Jan 28, 2011).
Cognizant of this standard, the Court shall address each of Alps’ two categories of
evidence or argument to be excluded.
2. Motion to determine that certain evidence is “but-for” material as a
matter of law (ECF No. 248)
Alps asks the Court to order that certain evidence is “material” as a matter of law
for purposes of this inequitable conduct analysis. Materiality, however, is a question of
fact on which Alps bears the burden of proof at trial. Scanner Technologies Corp. v.

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ICOS Vision Sys Corp. N.V., 528 F.3d 1365, 1374 (Fed. Cir. 2008) (citing Young v.
Lumenis, Inc., 492 F.3d 1336, 1344 (Fed. Cir. 2007)). The Court will make a
determination with respect to materiality after it hears all relevant evidence in this case.
Accordingly, the Court DENIES Alps’ motion in limine for a determination that certain
evidence is but-for material as a matter of law.
3. Motion to preclude OWW from relying on certain arguments relating
to the testimony of Jean Paul Comtesse
Alps asks the Court to exclude certain arguments regarding the testimony of Jean
Paul Comtesse, which Alps contends already were rejected by the Federal Circuit. Alps
asserts that OWW stands by those rejected arguments in its brief. But the arguments
Alps seeks to exclude relate to OWW’s argument that, because Mr. Gayan’s purported
misrepresentations were attorney argument, they are not but-for material in this context.
See ECF No. 245-1, at 13–21. As stated above, materiality is a question of fact, Scanner
Technologies Corp., 528 F.3d at 1374, which this Court will address after hearing all
relevant evidence in this case.1 The Court therefore DENIES Alps’ motion in limine to
preclude OWW from relying on certain arguments relating to the testimony of Jean Paul
Comtesse.
II. CONCLUSION
For the foregoing reasons, the Court GRANTS Alps’ motion for judicial notice
(ECF No. 250) and DENIES Alps’ motions in limine (ECF Nos. 248 & 249). As with all

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Alps’ assertion that these arguments should be excluded under the law of the case doctrine and the mandate rule
are not persuasive given that the Federal Circuit did not make any factual determinations in its November 15, 2013
Opinion and Order. (ECF No. 226.) At most, the Federal Circuit ruled that, viewing the evidence in the light most
favorable to Alps, questions of fact exist that preclude summary judgment (i.e., a ruling that the purported
misrepresentations were not material as a matter of law) in OWW’s favor . Although the Court certainly is
influenced by the Federal Circuit’s comments regarding OWW’s arguments about Mr. Comtesse’s testimony, it
cannot find that those comments preclude OWW from arguing that Alps’ evidence fails to satisfy the materiality
prong of this inequitable conduct analysis.

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in limine decisions, these rulings are subject to modification should the facts or
circumstances at trial differ from that which has been presented in the pre-trial motion
and memoranda.
IT IS SO ORDERED.
/s/ Gregory L. Frost_______________
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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