Commercial Litigation and Arbitration

Propriety of Motion in Limine to Admit, Rather Than Exclude, Evidence

Bond Pharmacy, Inc. v. AnazaoHealth Corp., 2012 U.S. Dist. LEXIS 103373 (S.D. Miss. July 25, 2012):

Anazao's motion in limine states that the letters in question contain information it learned from CMS officials and through CMS documents. *** Anazao requests a pretrial ruling from the Court on the admissibility of that information, namely, certain "statements by CMS employees to Anazao, the e-mails by the CMS employees and the question and answer by CMS on its official website." *** Otherwise, Anazao says, it will have to subpoena CMS and move to extend the discovery deadlines and trial date. *** Anazao has attached the evidence it seeks to be admitted.

In response, AIS argues that the motion is improper because motions in limine can be used only to exclude prejudicial and inadmissible evidence.... "Defendant's motion is simply not a proper motion in limine, because it is not the role of the court to advise counsel in advance of trial whether certain matter will be admitted in evidence." ***

It is well-established that motions in limine may be used to secure a pretrial ruling that certain evidence is admissible. *** "Revised Rule [of Evidence] 103 permits definitive motions in limine whether they are seeking a ruling either 'admitting or excluding' the evidence. This validates the use of the 'permissive' motion in limine; that is, one that seeks permission to admit evidence rather than to exclude it." Wright & Graham, 21 Fed. Prac. & Proc. Evid. § 5037.15 (2d ed. 2005). Other treatises concur. See 1 McCormick on Evidence § 52, at 255 (6th ed. 2006) ("The proponent of evidence can file an in limine motion to obtain an advance ruling that an item of evidence is admissible."); Weissenberger's Federal Evidence § 103.4, at 45 & n.42 (7th ed. 2011) ("Such motions may be made by either the party seeking admission or the party seeking exclusion, and are usually (although not always) made before trial.").

A number of courts have arrived at the same conclusion. See United States v. Williams, 939 F.2d 721, 723-24 (9th Cir. 1991) (affirming district court's grant of motion in limine to admit evidence) (collecting cases); United States v. Hawpetoss, 478 F.3d 820 (7th Cir. 2007) (same); Walden v. Georgia-Pac. Corp., 126 F.3d 506, 517 (3d Cir. 1997) ("When a definitive evidentiary ruling is made pretrial, there is surely no point to taking the time at trial to make an objection if the in limine ruling admitted certain evidence, or to make an offer of proof if the in limine ruling excluded it."); Ellerton v. Ellerton, 745 F. Supp. 2d 458, 460 (D. Vt. 2010) ("A motion in limine generally seeks a pre-trial ruling regarding the inclusion or exclusion of evidence based upon its admissibility."); United States v. Taylor, 328 F. Supp. 2d 915, 918 (N.D. Ind. 2004) ("Thomas uses a Motion in Limine in an effort to seek a ruling on, not the exclusion of evidence, but rather the inclusion of Williams' proffer statements."); see also United States v. Jerra, No. 06-50081, 2007 WL 580099, *2 (9th Cir. Feb. 16, 2007) (affirming denial of motion in limine to admit evidence on merits, not because motions in limine cannot be used to admit evidence); United States v. Henderson, 409 F.3d 1293, 1303 (11th Cir. 2005) (same); United States v. Masquelier, 210 F.3d 756, 757 (7th Cir. 2000) (same).

AIS has not cited any authority to the contrary. The sources it has advanced speak to the most common role of a motion in limine: excluding prejudicial or inadmissible evidence. See O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 & n.1 (5th Cir. 1977); Caldwell v. Wal-Mart Stores East, LP, No. 3:10-cv-651, 2012 WL 1712377, *1 (S.D. Miss. May 14, 2012); Maggette v. BL Development Corp., No. 2:07-cv-181, 2011 WL 2134578 (N.D. Miss. May 27, 2011); Black's Law Dictionary 1038 (8th ed. 2004). None of these authorities bar a party from seeking to admit evidence before trial.

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