August 27, 2013 Top Story

Motions in Limine Held Not Dispositive

Motions for summary judgment–not motions in limine–terminate claims

Jonathan B. Stepanian

Although litigants rely on motions in limine and motions for summary judgment to narrow the scope of trial, those motions are not interchangeable. The U.S. Court of Appeals for the Sixth Circuit reversed a judgment entered after a district court ruled in limine to exclude critical evidence, even though the plaintiff conceded that he could not prove his discrimination claims without that evidence. Louzon v. Ford Motor Co. [PDF]. The Sixth Circuit’s decision exemplifies a broadening consensus that litigants must pursue all post-discovery, potentially dispositive arguments through summary judgment motions.

Collateral Attack on Summary Judgment Denial

Ford fired plaintiff Moien Louzon after security issues prevented Louzon from returning from a trip to visit his ill mother in Gaza before his approved leave time expired. Louzon thereafter sued Ford for age discrimination, national-origin discrimination, and retaliation.

Ford moved for summary judgment based on Louzon’s alleged inability to produce evidence of similarly situated individuals who received different treatment (i.e., comparators). The U.S. District Court for the Eastern District of Michigan denied Ford’s motion after Louzon produced evidence that he was treated differently from a comparator who may have worked for a different supervisor.

After the district court reassigned the case to another judge, Ford filed a motion in limine to exclude evidence concerning employees who report to different supervisors as irrelevant under Federal Rules of Evidence 401 and 402. The district court granted Ford’s motion, excluding evidence of potential comparators who reported to different supervisors. Sua sponte, the district court ordered Louzon to demonstrate why the court should not enter summary judgment. Louzon conceded that, in view of the court’s limine ruling, he could not establish his discrimination claims.

Re-litigation of Summary Judgment via Motion in Limine Improper

The Sixth Circuit reversed the judgment entered for Ford, concluding that the district court improperly considered non-evidentiary issues—the legal issue of whether comparators must work for the same supervisor and the factual issue of who was Mr. Louzon’s supervisor—in its ruling on Ford’s motion in limine. The Sixth Circuit deemed it inappropriate to repackage non-evidentiary legal and factual challenges as motions in limine. Otherwise, “a litigant could raise any matter in limine, as long as he included the duplicative argument that the evidence relating to the matter at issue is irrelevant.”

Instead, the court in Louzon reasoned, litigants should raise such legal and factual challenges as part of motions for summary judgment. As Ford’s motion in limine did “not require any rulings relating to the admissibility of evidence at trial,” the circuit court held that Ford’s motion in limine was “no more than a rephrased summary judgment motion” that the district court should not have considered.

The Sixth Circuit’s ruling reflects the prevailing view among federal courts that motions in limine do not provide additional opportunities to seek dismissals of claims. For example, the Federal Circuit recently held that arguments relating to the sufficiency of evidence are the subjects of motions for summary judgment or judgment as a matter of law, not motions in limine. The Seventh Circuit similarly held that a defendant had to raise an argument about the admissibility of evidence directed to whether damages were reasonably certain as part of a summary judgment motion, not a motion in limine. In Louzon, the Sixth Circuit also cited Kentucky, Michigan, and Ohio federal court decisions espousing similar principles.

Achieving an Efficient, Proper Result

Although consistent with other federal courts’ reasoning, the decision in Louzon “was surprising because the plaintiff conceded that, having lost on the limine motion, he didn’t have sufficient evidence to meet his burden of proof,” says Joan K. Archer, Kansas City, MO, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. “A motion in limine or Daubert motion can occasionally eliminate fundamental proof points for parties and make it impossible for them to meet their burden; at that point, as a matter of efficiency and economy to the court and the litigants, it seems prudent to accept the writing on the wall and move on,” Archer observes. She counsels that parties in Ford’s position should consider captioning their motion as both in limine and for summary judgment and “argue that, if granted, how there are no fact issues and judgment can be entered as a matter of law, forcing the trial judge to undertake a summary judgment analysis.”

Timing issues and pretrial planning also affect how effectively litigants use motions in limine and summary judgment motions. “A motion in limine is not intended to be used for summary judgment; it’s a trial lawyer’s vehicle to exclude evidence from trial” and is often addressed shortly before or even during trial, according to Richard M. Gaal, Mobile, AL cochair of the Section of Litigation’s Products Liability Committee. “Dispositive rulings on key evidence should have already been addressed with an earlier summary judgment motion because Rule 56(c)(2) incorporates the Rules of Evidence,” Gaal adds. If faced with a key evidentiary issue, “I would address it as a motion for summary judgment, and if the evidence is excluded or no admissible evidence is put forward, then you’re never going to get to the motion in limine problem” noted by the Sixth Circuit, observes Gaal.


Jonathan B. Stepanian is an associate editor for Litigation News.

Keywords: summary judgment, motions in limine, civil procedure, evidence

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