Great Southland Limited v. Landash Corporation, et al.

Filing 265

OPINION AND ORDER DENYING Plaintiff's 261 Motion to Clarify. GSL fails to sustain its burden so its request for § 1292(b) certification is denied. Signed by Judge Sarah D. Morrison on 6/2/2022. (tb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:17-cv-00719-SDM-KAJ Doc #: 265 Filed: 06/02/22 Page: 1 of 3 PAGEID #: 4905

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREAT SOUTHLAND LIMITED,
Plaintiff,

Case No.: 2:17-cv-719
Judge Sarah D. Morrison

vs.
LANDASH CORPORATION, et al.,

Magistrate Judge Kimberly A. Jolson

Defendants.
OPINION & ORDER
The Court’s January 28, 2022 Opinion and Order addressed various motions
in limine of Defendants XPO Logistics, Inc. and XPO Global Forwarding, Inc. (ECF
No. 257.) The Order pertinently held: (1) GSL cannot present evidence and
testimony for an unplead negligent hiring, supervision, and retention claim; (2) GSL
cannot present evidence and testimony for an unplead RICO conspiracy claim under
18 U.S.C. § 1962(d); and (3) GSL cannot present evidence and testimony for interest
damages from the Landash loan that it failed to properly substantiate. (ECF No.
257.) Accordingly, the Order precluded evidence and testimony as to those three
categories from being presented at trial.
Feigning confusion, GSL now seeks “clarification” as to the effect of the
Order. (ECF No. 261.) None is needed. The in limine Order clearly directs that it is
“‘no more than a preliminary, or advisory, opinion.” Id. at PageID 4815 (quoting
United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994)). Accordingly, the Court
will “‘entertain objections on individual proffers of evidence as they arise at trial,

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even though the proffered evidence falls within the scope of a . . . motion in limine.’”
Id. (quoting United States v. Kistner, No. 2:11-cr-00283, 2013 U.S. Dist. LEXIS
2129, at *4-5 (S.D. Ohio Jan. 7, 2013) (Frost, J.)).
Alternatively, GSL seeks certification of the Order under 28 U.S.C. § 1292(b)
to permit interlocutory appeal. (ECF No. 261.) Certification is reserved for
exceptional cases and requires GSL to prove that the Order raises a controlling
issue of law, that the substantial grounds for difference of opinion exist about the
correctness of the Order, and that an interlocutory appeal would materially advance
termination of the litigation. Alexander v. Provident Life & Accident Ins. Co., 663 F.
Supp. 2d 627, 639 (E.D. Tenn. 2009) (the “party seeking an interlocutory appeal has
the burden of showing exceptional circumstances exist warranting an interlocutory
appeal”); see also In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002) (setting
fourth the three factors). “If any of these factors is absent, the certification cannot
issue.” Emples. Ret. Sys. v. Jones, No. 2:20-cv-4813, 2021 U.S. Dist. LEXIS 219201,
at *4 (S.D. Ohio Nov. 12, 2021) (Marbley, C.J.).
No controlling question is present. Decisions about in limine matters are
discretionary. Oster v. Huntington Bancshares Inc., No. 2:15-cv-2746, 2017 U.S.
Dist. LEXIS 118997, at *8 (S.D. Ohio July 28, 2017) (Marbley, J.). The Sixth Circuit
directs that “such discretionary decisions on the admissibility of evidence are not
‘controlling’ for purposes of § 1292(b).” Rover Pipeline LLC v. 5.9754 Acres of Land,
No. 3:17CV225, 2019 U.S. Dist. LEXIS 56521, at *26 (N.D. Ohio Apr. 2, 2019)

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(citing In re City of Memphis, 293 F.3d at 351). GSL fails to sustain its burden so its
request for § 1292(b) certification is DENIED. (ECF No. 261.)
IT IS SO ORDERED.
s/Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

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