Transwest Credit Union v. Cumis Insurance Society
Filing
108
MEMORANDUM DECISION denying 85 Motion in Limine. Signed by Judge Ted Stewart on 09/11/2012. (asp)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
TRANSWEST CREDIT UNION,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE TRANSWEST’S
MOTION IN LIMINE PROHIBITING
EVIDENCE OF MITIGATION OF
DAMAGES
vs.
CUMIS INSURANCE SOCIETY, INC.,
Case No. 2:09-CV-297 TS
Defendant.
This matter is before the Court on Transwest Credit Union’s (“Transwest”) Motion in
Limine Prohibiting Evidence of Mitigation of Damages.1 Transwest moves the Court to prohibit
Cumis Insurance Society (“CUMIS”) from introducing evidence regarding Transwest’s ability to
mitigate its damages.
Transwest’s basic assertion is that the Court should exclude any evidence regarding
mitigation of damages because CUMIS did not identify a witness in its Federal Rule of Civil
1
Docket No. 85.
1
Procedure 26(a)(3) disclosures to testify as to the specific amount Transwest’s damages could
have been reduced through mitigation efforts. Transwest’s Motion overlooks Utah precedent that
allows a defendant to offer evidence of mitigation “through its own witness or on crossexamination.”2 Thus, despite Transwest’s assertions to the contrary, CUMIS may ellicit evidence
regarding mitigation from Transwest’s witnesses.
Transwest also argues that evidence that unspecified amounts could be saved in damages
is not admissible pursuant to Federal Rule of Civil Procedure 403. Rule 403 excludes otherwise
relevant evidence
if its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Here, Transwest has not identified a particular item of evidence to be barred under Rule
403. The Court is not persuaded that the probative value of all mitigation evidence that may be
admitted during trial is substantially outweighed by the considerations provided in Rule 403.
The Court will therefore deny Transwest’s Motion without prejudice subject to Transwest reraising its 403 arguments as to specific evidence at trial.
It is therefore
ORDERED that Transwest’s Motion in Limine Prohibiting Evidence of Mitigation of
Damages (Docket No. 85) is DENIED WITHOUT PREJUDICE.
2
John Call Eng’g v. Manti City, 795 P.2d 678, 680 (Utah App. 1990).
2
DATED September 11, 2012.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?