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Brown v. K&L Tank Truck Service Inc.

United States District Court, D. Kansas

November 15, 2017

JOHN BROWN and BARBARA BROWN, Plaintiffs,
v.
K&L TANK TRUCK SERVICE, INC., ALFONSO MARTINEZ, and TOM HERRELL, Defendants.

          MEMORANDUM AND ORDER

          J. Thomas Marten, Judge

         This matter is before the court on defendants' motions to amend the pretrial order (Dkt. 106) and for rulings on certain issues of law (Dkt. 108). Plaintiffs filed a motion in limine (Dkt. 110) in anticipation of the upcoming trial. For the reasons stated below, defendants' motions are denied. Plaintiffs' motion is granted in part, denied in part without prejudice, and taken under advisement until trial.

         I. Defendants' Motion to Amend the Pretrial Order

         The pretrial order was entered on March 7, 2017. On March 30, 2017, the Board of Directors of K & L Tank Truck Service, Inc. (“K & L”) met and passed a resolution declaring any contract-if it should be determined that such a contract existed-with plaintiff John Brown for lifetime employment to be void.

         Defendants argue that in Kansas, “a contract between a corporation's director and the corporation is voidable at the instance of the corporation or the stockholders if not properly approved or ratified by the corporation.” (Dkt. 107, at 2). Defendants move to add this alternative defense to the pretrial order.

         “The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.” Fed.R.Civ.P. 16(e). Defendants bear the burden to demonstrate manifest injustice. Smith v. Bd. of Cty. Comm'rs of Cty. of Lyon, 216 F.Supp.2d 1209, 1218 (D. Kan. 2002).

         Defendants filed their motion to amend on November 1, 2017. The parties' trial is scheduled to begin on November 28, 2017. Defendants could have filed this motion earlier and therefore, fails to show manifest injustice under these circumstances. Furthermore, plaintiffs will be prejudiced if defendants are allowed to add an alternative defense this late in the case. Defendants' motion is denied.

         II. Defendants' Motion for Rulings on Undecided Issues of Law

         Defendants request the court to rule on undecided issues of law. Plaintiffs oppose defendants' request and argue defendants are attempting to file a second motion for summary judgment.

         Defendants' motion essentially asks for reconsideration of Judge Lungstrum's rulings made in his Memorandum and Order (Dkt. 98). Judge Lungstrum granted summary judgment on several claims; but held that summary judgment was not proper as to whether defendant Alfonso Martinez had actual authority to bind K & L to a contract for lifetime employment. Judge Lungstrum declined to grant summary judgment on plaintiffs' claim of apparent authority because defendants failed to raise it in their opening brief. Furthermore, Judge Lungstrum did not rule on the issue of ratification because a jury must first resolve the issue of apparent authority. The court will not reconsider Judge Lungstrums's rulings. Plaintiffs are correct that defendants may request judgment as a matter of law under Fed.R.Civ.P. 50(a) at the close of plaintiffs' evidence. Defendants' motion is denied.

         III. Plaintiffs' Motion in Limine

         Plaintiffs' motion in limine addresses 26 separate issues, and is largely generic. In many instances, plaintiffs raise general issues of law or requests that defense counsel be directed to follow the federal rules of civil procedure and evidence.

         “The purpose of an in limine motion is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Altman v. New Rochelle Pub. Sch. Dist., No. 13 CIV. 3253 (NSR), 2017 WL 66326, at *5 (S.D.N.Y. Jan. 6, 2017) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). Courts look with disfavor on motions in limine “the gist of which is that the opposing party should be required to comply with the rules of evidence . . . without identifying specific evidence which there is reason to believe may be introduced.” Graham v. Union Pac. R. Co., 2008 WL 4643292, at *1 (E.D. Ark. Oct. 17, 2008). Thus, such a motion “seeking to prohibit generic, unspecified ‘prejudicial' testimony [is] not useful, and is properly denied.” United States v. Enns, No. 15-10045-JTM, 2015 WL 8770006, at *1 (D. Kan. Dec. 14, 2015).

         In their motion, plaintiffs ask the court to exclude or prohibit:

(1) testimony from any witness not timely disclosed;
(2) evidence of any prior litigation involving plaintiffs;
(3) reference to counsel's personal beliefs or opinions regarding the lawsuit or ...

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