You’re preparing your case for a trial that’s less than a month away. You realize that you have a viable argument to strike plaintiff’s expert. Eliminating that testimony would decimate your adversary’s case, resulting in a dismissal. You scramble to put together a persuasive motion in limine to win your case. However, upon receipt of the motion the court refuses to hear it. It’s too late. Your motion, which is effectively a dispositive motion, should have been filed in accordance with the summary judgment rule.
To avoid this unenviable result, practitioners must understand what is, and what is not, a motion in limine.
The term “in limine”—or “on the threshold”—misleadingly suggests that any motion filed shortly before the start of trial is a motion in limine. Stated in the most general terms, a proper motion in limine is an evidentiary motion that seeks a determination as to whether to exclude (or admit) evidence before it is offered at trial. Luce v. United States, 469 U.S. 38, 40 n.2 (1984) (A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.”); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (“[A] motion in limine is designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.”). There are many advantages to an advance ruling on the evidentiary issues outside the presence of the jury, and motions in limine are a powerful tool for astute trial attorneys. See Dep’t of Forestry & Fire Prot. v. Howell, 18 Cal. App. 5th 154, 173, 226 Cal. Rptr. 3d 727, 743 (2017) (highlighting courts inherent power to “control litigation and conserve judicial resources” to decide motions in limine); People v. Michael M., 162 Misc. 2d 803, 806, 618 N.Y.S. 2d 171, 175 (Sup. Ct. 1994) (explaining court’s ruling with respect to in limine motions originates from their inherent power to admit or exclude evidence). But in recent years courts have grown increasingly wary of litigants’ improper use of motions in limine to decide substantive, non-evidentiary issues.
In Cho v. Trinitas Regional Medical Center, 443 N.J. Super. 461 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016), New Jersey’s intermediate appellate court clarified that litigants may not file a dispositive motion, styled as a motion in limine, on the eve of trial. Following Cho, New Jersey adopted a new rule, Rule 4:25-8, which explicitly authorizes motions in limine, limits the nature of such motions, and provides a specific procedural framework. The rule, which went into effect on September 1, 2020, narrowly defines motions in limine to exclude any motion that, if granted, would have a dispositive impact on a litigant’s case.
While New Jersey has implemented a new rule clarifying and limiting the scope of motions in limine, most jurisdictions’ rules of civil procedure, including New York, California, and the Federal Rules, do not provide guidance as to the proper use of motions limine. As such, motions in limine are, for the most part, judicially self-administered, falling within the broad and inherent powers to manage the case and admit evidence. See Dep’t of Forestry & Fire Prot. v. Howell, 18 Cal. App. 5th 154, 173, 226 Cal. Rptr. 3d 727, 743 (2017) (highlighting courts inherent power to “control litigation and conserve judicial resources” to decide motions in limine); People v. Michael M., 162 Misc. 2d 803, 806, 618 N.Y.S. 2d 171, 175 (Sup. Ct. 1994) (explaining court’s ruling with respect to in limine motions originates from their inherent power to admit or exclude evidence). For this reason, motions in limine are often misused and filed to improperly decide substantive, non-evidentiary issues that are more fitting for a motion for summary judgment.
Courts in various jurisdictions have cautioned against bringing dispositive motions as motions in limine. For example, federal courts regularly deny motions in limine asking for a ruling on a dispositive issue that would dispose of a plaintiff’s ability to try their claims on the basis that they should have been filed earlier, as motions for summary judgment. See Sabre Int’l Sec. v. Torres Adv. Enter. Solutions, LLC, 72 F. Supp. 3d 131, 141 (D.D.C. 2014) (“[A] motion in limine is not the appropriate vehicle to seek dispositive relief based on the sufficiency of evidence.”); Louzon v. Ford Motor Co., 718 F.3d 556, 563 (6th Cir. 2013) (“Where, as here, the motion in limine is no more than a rephrased summary judgment motion, the motion should not be considered.”); Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996) (holding court should not allow litigants to raise non-evidentiary matters, such as sufficiency of evidence as a matter of law, in limine).New York has similarly cautioned that despite the absence of a rule with respect to their content, trial courts should limit motions in limine to applications relating to admissibility of evidence, and should “take care that the informal procedure of in limine evidentiary applications is not abused so as to unfairly tip the scales.” Sadek v. Wesley, 117 A.D.3d 193, 203, 986 N.Y.S.2d 25, 32 (App. Div. 1st Dep’t 2014) (finding it also “troubling that defendants waited until the day the jury was empaneled to serve seven in limine motions” and describing same as “something akin to an ambush”), aff’d, 27 N.Y.3d 982 (2016); see also State of N.Y. v. Metz, 241 A.D.2d 192, 198, 671 N.Y.S.2d 79, 83 (App. Div. 1st Dep’t 1998) (“Generally, the function of a motion in limine is to permit a party to obtain a preliminary order before or during trial excluding the introduction of anticipated inadmissible, immaterial, or prejudicial evidence or limiting its use.”).California courts have also explained that motions in limine should not be used “to replace statutorily prescribed dispositive motions.” Howell, 18 Cal. App. 5th at 173, 226 Cal. Rptr. 3d at 743 (while “a court may employ its inherent powers, including the ‘inherent power to control litigation and conserve judicial resources,’ to use a motion in limine to test whether a complaint states a cause of action,” the purpose of in limine motions is to prevent admission of certain evidence, “not to replace statutorily prescribed dispositive motions”).
Regardless of whether there is a specific rule governing motions in limine, litigators in all jurisdictions must be cognizant of the limited nature of such motions, and must be sure to file any motion that may have a dispositive impact within the timeframe and procedural requirements of the applicable summary judgment rules.
