LaRocca et al v. Playground Destination Properties, Inc.

MOTION in Limine

D. Colo.September 27, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO VINCENT LAROCCA, et al. Plaintiffs, v. PLAYGROUND DESTINATION PROPERTIES, INC. Defendant Case No.: 15-CV-2511-CMA-MEH PLAINTIFFS’ MOTION IN LIMINE Plaintiffs, Vincent LaRocca, et al., hereby file this Motion to request that the Court find that the following matters are inadmissible under the Federal Rules of Evidence. If Defendant, Playground Destination Properties, Inc., injects these matters into the trial it will cause irreparable harm to Plaintiffs’ case, which no jury instruction would cure. For that reason, Plaintiffs would be compelled to move for a mistrial. The granting of the individual components of this Motion will streamline the trial by avoiding the need to excuse the jury and will result in better-informed rulings. Plaintiffs request that opposing counsel, and all witnesses called to testify by defense counsel, be instructed to refrain from mentioning the matters set forth herein. Further, Plaintiffs hereby request that the Court order opposing counsel to first present any argument for the admissibility of these matters to the Court outside the jury’s presence. Plaintiffs’ counsel and defense counsel have discussed each of the in limine items listed below. Plaintiffs anticipate that in advance of trial the parties will be able to agree upon the majority of the items listed below. In advance of trial, Plaintiffs will advise the Court as to which items, if any, will require Court assistance to resolve. Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 1 of 9 2 Respectfully submitted, By: //s// Michael A. Caddel Michael A. Caddell State Bar No. 249469 CADDELL & CHAPMAN 628 E 9th Street Houston TX 77007 Telephone: (713) 751-0400 Facsimile: (713) 751-0906 mac@caddellchapman.com COUNSEL FOR PLAINTIFFS OF-COUNSEL Cynthia B. Chapman State Bar No. 164471 Gregory K. Evans State Bar No. 24002065 Ben Wickert State Bar No. 24066290 Caddell & Chapman 628 E. 9th St Houston TX 77007 Telephone: (713) 751-0400 Facsimile: (713) 751-0906 CERTIFICATE OF SERVICE I, Gregory K. Evans, hereby certify that on this 27th day of September, 2017, I caused the foregoing Motion in Limine to be filed using the Court’s CM/ECF system, thereby serving it upon all counsel of record in this case. Dated: September 27, 2017 /s/ Gregory K. Evans Gregory K. Evans Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 2 of 9 3 PLAINTIFFS’ MOTION IN LIMINE The following matters should be ruled inadmissible and impermissible topics of evidence or argument. 1. Defendant shall not offer any evidence of its financial condition and/or net worth. Such matters are clearly not relevant to the issues in this case under Rule 402. See FED. R. EVID. 402 (providing that irrelevant evidence is inadmissible). Further, the little to no probative value of this evidence is greatly outweighed by the danger of unfair prejudice, confusion, or the potential for misleading the jury, and that presenting it will waste time. See FED. R. EVID. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, or misleading the jury, or by waste of time). GRANTED: ____________________ DENIED: __________________ 2. Although Plaintiffs are unaware of any such matters, Defendant shall not offer any evidence of any arrests or convictions against Plaintiffs or question Plaintiffs about such arrests or convictions. Such matters are clearly: (1) not relevant to the issues in this case under Rule. 402; and (2) improper character evidence under Rule 404(b). Further, the little to no probative value of this evidence is greatly outweighed by the danger of unfair prejudice, confusion, or the potential for misleading the jury, and that presenting it will waste time. See FED. R. EVID. 403 (relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, or misleading the jury, or by waste of time). GRANTED: ____________________ DENIED: _________________ Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 3 of 9 4 3. Any reference to the filing of this Motion in Limine or to any ruling of the Court in response to this Motion. Plaintiffs move that Defendant’s counsel be instructed not to suggest to the jury, by argument or otherwise, that Plaintiffs sought to exclude from proof any matter bearing on the issues in this case or the rights of the parties to this suit. See FED. R. EVID. 103(c) (providing that evidentiary rulings should be made outside the jury’s presence to prevent exposing the jury to inadmissible evidence). GRANTED: ____________________ DENIED: ____________________ 4. Any reference to any Pre-Trial Motions filed by the parties and to any Orders entered by this Court related to such Motions, and any evidence or comments by counsel concerning prior hearings or argument in this case. See FED. R. EVID. 103(c) (evidentiary rulings should be made outside jury’s presence to prevent exposing jury to inadmissible evidence); FED. R. EVID. 402 (providing that irrelevant evidence is inadmissible); FED. R. EVID. 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion, or misleading jury, or by waste of time). GRANTED: ____________________ DENIED: _________________ 5. Any reference or suggestion that Plaintiffs have not called to testify any witness equally available to both parties in this cause. In this connection, Plaintiffs move that Defendant’s counsel further be instructed not to tender, read from or refer to any ex parte statement or report of any person not present in court to testify and to be examined by counsel for Plaintiffs. See FED. R. EVID. 402, 403, 802, 803 and 804. GRANTED: ____________________ DENIED: ___________________ Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 4 of 9 5 6. The Court should instruct Defendant that if it feels “a door has been opened” as to any of the matters set forth herein, they must, before presenting anything in the jury's presence regarding same, approach the bench and make inquiry to the Court. This particular limine subpart is to be followed regardless of the time of the trial, including arguments. See FED. R. EVID. 103(c) (providing that evidentiary rulings should be made outside the jury’s presence to prevent exposing the jury to inadmissible evidence). GRANTED: ____________________ DENIED: __________________ 7. Any evidence of Plaintiffs’ pleadings that have since been amended. FED. R. EVID 402 (evidence must be relevant to be admissible); FED. R. EVID 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury, or by delay or waste of time. GRANTED: ____________________ DENIED: __________________ 8. Any evidence regarding hurricanes, including but not limited to, hurricanes that impacted Turks & Caicos such as Hurricane Irma and Hurricane Maria. FED. R. EVID 402 (evidence must be relevant to be admissible); FED. R. EVID 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury, or by waste of time). GRANTED: ____________________ DENIED: __________________ Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 5 of 9 6 9. Any reference or suggestion that it is any way improper or unjust for people who reside outside Colorado, particularly the non-US citizens, to be pursuing claims in this federal court in Denver, Colorado. FED. R. EVID 402 (evidence must be relevant to be admissible); FED. R. EVID 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury, or by waste of time). GRANTED: ____________________ DENIED: __________________ 10. Defendant shall not offer any evidence or attempt to solicit any evidence on the no-reliance clauses in the Veranda Purchase Agreement, Paragraph 11.3 and Paragraph 15.4. Pursuant to Rule 402 and 403, federal courts exclude evidence that is not relevant to an essential element of a claim. See, e.g., U.S. v. Gallardo-Moreno, 113 Fed. Appx. 872, 873 (10th Cir. 2004) (upholding district court’s decision granting motion in limine to exclude evidence that was not relevant to any essential element in the case); Nehara v. California, Civ. Act. No. 1:10-cv-00491 JLT, 2013 WL 1281618, at *11 (E.D. Cal. Mar. 26, 2013) (holding that plaintiff could only introduce evidence relevant to the elements of his one remaining claim); Linear Group Services, LLC v. Attica Automation, Inc., Civ. Act. No. 13-10108, 2014 WL 4206871, at *8 (E.D. Mich. Aug. 25, 2014) (granting motion in limine to exclude evidence that was not relevant to prove an essential element of any of the remaining claims). Reliance is not a requisite element of the unjust enrichment claims or any of the following consumer fraud claims: Connecticut, Florida, Illinois, Massachusetts, New York, and Ohio. See Hinchcliffe v. American Motors Corp., 440 A.2d 810, 815-16 (Conn. 1981) (“[t]he CUTPA plaintiff need not prove reliance”); Bowe v. Public Storage, Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 6 of 9 7 No. 1:14-cv-21559, 2014 WL 12029270, at *3 (S.D. Fla. July 2, 2014) (“[m]erger clauses do not bar FDUTPA claims because a FDUPTA claim does not require actual reliance”); Siegel v. Levy Organization Development Co., Inc., 607 N.E.2d 194, 198 (Ill. 1992) (“[s]ignificantly, the [Consumer Fraud and Deceptive Business Practices Act] does not require actual reliance”); Dalis v. Buyer Adver., Inc., 636 N.E.2d 212, 216 (Mass. 1994) (“[u]nlike a traditional common law action for fraud, consumers suing under c. 93A need not prove actual reliance on a false representation”); Stutman v. Chemical Bank, 731 N.E.2d 608, 612 (N.Y. 2000); (noting that New York Supreme Court has held that disclaimers do not bar claims under New York’s consumer fraud statute because it does not require reliance); Ferron v. Metareward, Inc., 698 F. Supp.2d 992, 1001 (S.D. Ohio 2010) (“under the Consumer Sales Practices Act it is not necessary that a sale actually take place before a supplier may be held liable to a consumer for deceptive acts. . . [a]ccordingly, [the CSPA] does not require a plaintiff to allege reliance on . . . the deceptive scheme”). Because reliance is not required for these claims, evidence regarding reliance – including the no-reliance disclaimers – is irrelevant and inadmissible. See FED. R. EVID. 402 (providing that irrelevant evidence is inadmissible). Further, the no-reliance disclaimers should also be excluded under Rule 403 because even if they are relevant, their modest relevance is greatly outweighed by the danger of unfair prejudice, confusion, and the potential for misleading the jury. If exposed to the no-reliance disclaimers, the jury could find that Plaintiffs cannot recover here because they were not permitted to rely on Playground’s representations. In so finding, the jury would thereby inject actual reliance into the consumer fraud claims identified above contrary to the well-established law cited above. Accordingly, the no-reliance disclaimers pose a Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 7 of 9 8 serious risk of severely confusing the jury to Plaintiffs’ detriment. As for the remaining claims where reliance is an element – the California and Virginia consumer fraud claims, and all negligent misrepresentation claims – the disclaimers are not enforceable under law and, therefore, not admissible. The disclaimers are not enforceable as to the California consumer fraud and negligent misrepresentation claims because such disclaimers are void against California public policy. See [Doc. No. 29 ] at pp. 18-19, Pls.’ Resp. to Def.’s MSJ. The disclaimers are not enforceable as to all the other negligent misrepresentation claims, as well as the Virginia consumer fraud claims, because the disclaimers did not clearly and specifically inform Plaintiffs they were waiving their right to rely on Playground’s representations that their deposits would be safe. Rather, the only specific language in the disclaimers concern “forecasts.” Hence, through the disclaimers here, the parties agreed that Plaintiffs could not sue for representations regarding the financial forecasts for Veranda. However, the parties did not agree that Plaintiffs were precluded from suing Playground for misrepresenting that the worst-case scenario was the safe return of their deposits. The negligent misrepresentation jurisprudence of Canada, the United Kingdom, and five U.S. states – Connecticut, Florida, Massachusetts, New York, and Virginia – require specificity in disclaimers. For a detailed discussion, see [Doc. No. 29] at pp. 7-20, Pls.’ Resp. to Def.’s MSJ. Absent specificity, the courts in those jurisdictions do not enforce reliance disclaimers. Hence, the disclaimers here are not enforceable as to the negligent misrepresentation claims of Plaintiffs from Canada, the United Kingdom, Connecticut, Florida, Massachusetts, New York, and Virginia (as well as the Virginia consumer fraud claims) because the disclaimers did not specifically eliminate Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 8 of 9 9 Playground’s liability for representations regarding the deposits. For this reason, the disclaimers are not relevant evidence and, therefore, should be excluded from the trial. Further, Playground has conceded that the disclaimers are not enforceable against the Illinois, Ohio, and West Virginia negligent misrepresentation claims because it did not even cite any case law from those jurisdictions in its Motion for Summary Judgment. See [Doc. No. 28], Def.’s MSJ. Lastly, Rule 403 also supports exclusion. Again, the little to no probative value of this evidence is greatly outweighed by the danger of unfair prejudice, confusion, or the potential for misleading the jury associated with this evidence, and that presenting it will delay and waste time. See FED. R. EVID. 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or misleading the jury, or by delay or waste of time). If exposed to the no-reliance disclaimers, the jury could find that Plaintiffs cannot recover here because they were not permitted to rely on Playground’s representations. This would be contrary to the law cited above, which provides that due to lack of specificity, the disclaimers did not eliminate Plaintiffs’ right to rely on Playground’s representations regarding the safety of their deposits. GRANTED: ____________________ DENIED: __________________ Case 1:15-cv-02511-CMA-STV Document 43 Filed 09/27/17 USDC Colorado Page 9 of 9