Case: 16-11622 Date Filed: 03/05/2018 Page: 1 of 21
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-11622 ________________________
D.C. Docket No. 6:14-cv-00307-PGB-GJK
BLITZ TELECOM CONSULTING, LLC, a Florida Limited Liability Company,
Plaintiff - Counter Defendant - Appellee,
versus
PEERLESS NETWORK, INC., an Illinois Corporation,
Defendant - Counter Claimant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(March 5, 2018) Case: 16-11622 Date Filed: 03/05/2018 Page: 2 of 21
Before ROSENBAUM, JILL PRYOR, and RIPPLE, ∗ Circuit Judges.
PER CURIAM:
This appeal marks the latest chapter in a tumultuous business relationship
between Defendant-Appellant Peerless Network, Inc. (“Peerless”), and Plaintiff-
Appellee Blitz Telecom Consulting, LLC (“Blitz”). For the better part of four
years, Blitz and Peerless have litigated claims related to the non-payment of “co-
marketing” fees owed under a contract between the parties.
In this latest installment, after a trial in the district court, a federal jury found
in favor of Blitz on a claim that Peerless breached the contract by failing to remit
the co-marketing fee, and awarded Blitz over $2 million in compensatory damages.
Peerless now appeals that judgment, contending the district court committed legal
error on three separate occasions before and during the trial. After careful
consideration, we affirm the district court’s judgment in full.
I.
A.
Appellant Peerless is a telecommunications company whose subsidiaries
operate as “local exchange carriers.” Through its subsidiaries (collectively
∗ Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation.
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“Peerless”), Peerless provides traditional land-line telephone service.1
Specifically, Peerless operates transmission networks that facilitate telephone calls
between end-users, or, in other words, a caller and a receiver.
Appellee Blitz is a buyer and seller of telephone numbers. Its business
involves purchasing telephone numbers from telecommunications carriers, like
Peerless, and reselling those numbers in bulk to companies who, in turn, provide
discount telephone service to end-use consumers. Some, but not all, of the
companies to which Blitz resells telephone numbers are prepaid calling-card
service providers.
On November 9, 2010, Blitz and Peerless entered into an “IP Control
Agreement” (the “Contract”). The Contract contemplated that Blitz would “place”
telecommunication traffic on Peerless’s networks, for which Peerless would be
compensated by other carriers. See Contract §§ 3.5, 7.4. In exchange, Peerless
agreed to pay Blitz a 30% commission each month.2 See Contract App. A § 1.1.
This commission, known as a “co-marketing fee,” is the basis for the parties’
present dispute.
1 Peerless also offers some wireless services. 2 The Contract states that co-marketing fees are “based on collected revenues on InterLata CABS (carrier access billing) charges for Interstate and Intrastate traffic terminating to or associated with the local telephone numbers” assigned to Blitz. Contract App. A § 1.1. “InterLATA” is a statutory term defined as “telecommunications between a point located in a local access and transport area and a point located outside such area.” 47 U.S.C. § 153 (26).
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By all accounts, both parties performed under the Contract throughout 2011
and early 2012. Blitz directed traffic onto Peerless networks, and Peerless
accounted for and paid Blitz the monthly co-marketing fee.
Then, in April 2012, Peerless notified Blitz by letter that it was invoking the
Contract’s “Change in Law” provision and would no longer remit the co-marketing
fee. In relevant part, the Change in Law provision provides that, in the event of
“any legislative, regulatory, judical [sic] or other legal action that materially affects
the ability of a Party to perform any material obligation,” Blitz or Peerless can, on
30 days’ written notice, “require that the affected provision(s) be renegotiated, or
that new terms and conditions be added to this Agreement.” Contract § 23.
The action Peerless relied on to invoke this provision was a March 9, 2012,
unpublished partial summary-judgment order issued by the United States District
Court for the Northern District of Texas. Peerless asserted that this order
constituted a change in telecommunications law that “materially affect[ed] the
ability of Peerless to perform in paying [the co-marketing fee] to [Blitz] for prepaid
calling card traffic.” The order, issued in a case captioned Southwestern Bell
Telephone Co. v. IDT Telecom, Inc., No. 3:09-cv-01268-P (N.D. Tex. Mar. 9,
2012), 2012 U.S. Dist. LEXIS 190775 (the “IDT Decision”), involved a dispute
between several local exchange carriers (not including Peerless) and a number of
prepaid calling-card providers. The carriers brought suit on claims that they were
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owed certain “access charge fees” by the prepaid calling-card companies who used
the carrier networks to transmit calls. Id., 2012 U.S. Dist. LEXIS 190775, at *2-
*7. The district court granted partial summary-judgment in favor of the carriers on
the issue of liability, ruling that the prepaid calling-card “traffic [was] subject to
access charges.”3 Id. at *18. According to Peerless, the IDT Decision changed
how much Peerless was compensated by third-party carriers on prepaid calling-
card traffic, thereby lowering Peerless’s collections from these carriers, and so
constituted a change in law entitling Peerless to cease paying Blitz co-marketing
fees. Blitz disagreed that the IDT Decision amounted to a change in law under the
Contract, and the instant litigation ensued.
Meanwhile, as these events were unfolding in late 2011 and early 2012,
Blitz was also exploring the possibility of selling its business. Though Peerless
initially expressed interest in acquiring Blitz, the parties never reached an
agreement for Peerless to do so. Blitz entertained other offers and eventually
entered a tentative purchase agreement with a third party. As it turned out,
Peerless and the third-party buyer were direct competitors.
Upon learning about the potential sale and eager to retain Blitz’s business,
Peerless approached Blitz with an alternative solution. Under the proposal, Blitz
would establish and obtain licensing for a separate entity that would operate as a
3 The case subsequently settled on the issue of damages. See Dollar Phone Access, Inc. v. AT & T Inc., No. 14-CV-3240-SLT-LB, 2015 WL 430286 at *3 (E.D.N.Y. Feb. 2, 2015). 5 Case: 16-11622 Date Filed: 03/05/2018 Page: 6 of 21
local exchange carrier like Peerless. Peerless and the new entity would then enter a
contractual relationship for certain telecommunication services, ostensibly to the
financial benefit of both.
Blitz alleges that it was in the midst of finalizing a purchase agreement with
the third party but was swayed by Peerless’s proposal and backed out. Blitz
created the new entity—Local Access, LLC (“Local Access”)—and Local Access
and Peerless entered into a contractual agreement known as a “Homing Tandem
Service Agreement” (the “Homing Agreement”). Under the terms of the Homing
Agreement, Local Access agreed to pay Peerless for the right to “sublet” a portion
of Peerless’s transmission network, and Peerless agreed to divert a portion of call
traffic to Local Access. Blitz was not a party to the Homing Agreement.
Local Access contends that while it performed under the Homing
Agreement, Peerless breached the contract from the outset. In Local Access’s
view, Peerless never intended to perform and instead merely proposed the Homing
Agreement in order to prevent the sale of Blitz to a competitor. Eventually, Local
Access and Blitz filed a separate action against Peerless on claims related to the
Homing Agreement.
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B.
Blitz initiated the instant dispute in the U.S. District Court for the Middle
District of Florida in February 2014. Blitz Telecom Consulting, LLC v. Peerless
Network, Inc., No. 6:14-cv-00307-Orl-PGB-GJK (M.D. Fla. filed Feb. 24, 2014)
(“Case 307”). In its Complaint, Blitz alleged four claims for relief, including
breach of contract, quantum meruit, declaratory judgment, and equitable
accounting.
Less than a month later, Local Access and Blitz filed a separate suit against
Peerless in the same district court, relating to the circumstances surrounding the
Homing Agreement. Local Access, LLC & Blitz Telecom Consulting, LLC v.
Peerless Network, Inc., No. 6:14-cv-00399-Orl-PGB-TBS (M.D. Fla. filed
Mar. 12, 2014) (“Case 399”). In that dispute, Local Access and Blitz raised tort
claims of fraudulent inducement, and Blitz raised a claim for interference with a
business relationship. Local Access, but not Blitz, raised one claim for breach of
contract. As it so happened, both suits came before the same district court judge.
Peerless filed an Amended Answer and Affirmative Defenses in Case 307,
raising two counterclaims against Blitz for breach of contract and quantum meruit
under the Contract. Shortly thereafter, Peerless filed a motion to consolidate Cases
307 and 399. The district court denied the motion, citing the presence of different
contractual relationships, different claims, and different parties in the two actions.
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The parties conducted discovery in Case 307, and Blitz moved for partial
summary judgment on the declaratory-judgment and equitable-accounting claims.
The district court granted partial summary judgment in favor of Blitz on the
declaratory-judgment claim, issuing a judicial declaration that the IDT Decision
was insufficient to invoke the Change in Law provision.4
The district court scheduled trial in Case 307 on the remaining breach-of-
contract and quantum-meruit claims. Some months before trial, Peerless filed a
motion in limine requesting exclusion of all evidence, testimony, exhibits, and
arguments related to “non-InterLATA” telephone traffic. The district court denied
the motion. Peerless moved for consolidation of Cases 307 and 399 a second
time, which the district court again denied.
Case 307 proceeded to trial, and a jury found in favor of Blitz on its breach-
of-contract claim, awarding Blitz $2,347,704.43 in damages. The jury also found
in favor of Blitz on Peerless’s counterclaims. The district court entered a judgment
in accordance with the jury’s verdict. 5 Peerless filed a notice of appeal, which
4 While not directly at issue on appeal, the district court also granted summary judgment in favor of Peerless on Blitz’s claim for an accounting, and it dismissed Count IV of Blitz’s complaint. The district court reasoned that an accounting constituted a remedy for a successful cause of action, rather than a stand-alone claim for relief. So although the district court dismissed Count IV, it noted that an accounting might nevertheless be appropriate if Blitz prevailed on either its breach-of-contract or quantum-meruit claim. 5 On March 31, 2017, the parties to Case 399 filed a joint Notice of Settlement, and the same day, the district court administratively closed the case subject to final notification of settlement. See Local Access, LLC & Blitz Telecom Consulting, LLC v. Peerless Network, Inc., No. 6:14-cv-00399-Orl-PGB-TBS (M.D. Fla. filed Mar. 31, 2017), ECF Nos. 334, 335. 8 Case: 16-11622 Date Filed: 03/05/2018 Page: 9 of 21
became effective to confer appellate jurisdiction following the district court’s
judgment on a post-trial Rule 59 motion.
II.
In a diversity case like this one, we ordinarily apply federal law to procedure
and state law to substantive matters. See Horowitch v. Diamond Aircraft Indus.,
Inc., 645 F.3d 1254, 1257 (11th Cir. 2011) (citing Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938)). However, pursuant to a choice-of-law provision contained in the
parties’ Contract, we will apply Illinois law to the substantive claims. See
Contract § 12. On appeal the parties do not dispute that Illinois law governs.
Appellant challenges the grant of partial summary judgment, the denial of its
motions to consolidate, and the admission of certain evidence at trial. We review
the grant of summary judgment de novo, construing the facts in the light most
favorable to the non-moving party and applying the same legal standards as the
district court. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293-94
(11th Cir. 2013). We review the remaining claims for abuse of discretion. Wright
v. Dougherty Cty., 358 F.3d 1352, 1354 (11th Cir. 2004) (consolidation); City of
Subsequently, the district court reopened the case, ultimately ordering that the settlement agreement be enforced and the case closed again. See ECF No. 363 at 6.
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Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 556 (11th Cir. 1998)
(admissibility of evidence).
III.
Peerless raises three distinct arguments. First, Peerless contends the district
court erred by granting Blitz partial summary judgment on the issue of whether the
IDT Decision was sufficient to invoke the Contract’s Change in Law provision.
Second, Peerless argues the district court erred by denying Peerless’s motion to
consolidate this case (Case 307) with the dispute involving Local Access (Case
399). Third, Peerless challenges the district court’s admission of evidence at trial
over Peerless’s “motion in limine objections.” We address each argument in turn.
We begin with Appellant’s challenge to the district court’s grant of partial
summary judgment in favor of Blitz on the declaratory-judgment claim. As we
have noted, the district court ruled with respect to this claim that the IDT Decision
was insufficient to invoke the Change in Law provision.
The Declaratory Judgment Act grants federal courts discretion to “declare
the rights and other legal relations of any interested party seeking such
declaration.” 28 U.S.C. § 2201(a). A court’s primary objective when construing a
contract is to give effect to the parties’ intentions as expressed in the language of
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the contract. Cent. Ill. Light Co. v. Home Ins. Co., 821 N.E.2d 206, 213 (Ill. 2004).
For that reason, our first inquiry is whether the contract is clear and unambiguous.
Id.
If the terms used in a contract are clear and unambiguous, then a court may
interpret the contract by giving the words their “plain, ordinary, and popular
meaning.” Id. In such circumstances, a court may declare each party’s rights and
obligations under the contract. Id. But if the terms used in a contract are
reasonably susceptible of more than one meaning, or are “obscure in meaning
through indefiniteness of expression,” the contract is deemed ambiguous and
interpretation is a question of fact reserved for the jury. Shields Pork Plus, Inc. v.
Swiss Valley Ag. Serv., 767 N.E.2d 945, 949 (Ill. App. Ct. 2002) (internal quotation
marks omitted). Nevertheless, a contract is not rendered ambiguous simply
because the parties disagree on the meaning of one word or another. A court may
decide the issue of whether a contract is ambiguous as a question of law. Cent. Ill.
Light Co., 821 N.E.2d at 214.
Peerless asserts that two provisions in the Contract contain ambiguous terms
requiring jury interpretation. First, Peerless argues that the “Change in Law”
provision is ambiguous because the terms “materially affects” and “perform” are
not defined. Second, Peerless contends that the “Compensation” provision is
ambiguous. The Compensation provision states that “Peerless will pay a co-
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marketing fee at the stated commission structure of 30% to [Blitz] based on
collected revenues on InterLata CABS (carrier access billing) charges for Interstate
and Intrastate traffic.” Contract App. A § 1.1. Peerless insists that provision is
ambiguous because it does not define what type of “carrier access billing” is
subject to the 30% co-marketing fee. On de novo review, we conclude neither
provision of the Contract is ambiguous.
To begin, Peerless does not disclose what various interpretations reasonably
and fairly apply to the words “material” and “perform.” 6 Citing Oxford’s English
Dictionary, Peerless submits that the plain and ordinary meaning of the word
“material” is “significant.” This is nearly identical to the district court’s
interpretation. The district court, which relied on Black’s Law Dictionary,
concluded the plain and ordinary meaning of “material” was “significant or
essential.” We do not read a meaningful difference between “significant” and
“significant or essential.” Bald declarations of ambiguity, without more, are not
enough to create a genuine dispute of fact. Cent. Ill. Light Co., 821 N.E.2d at 214.
Nor is the Contract ambiguous because of the Compensation provision. The
partial summary-judgment order addressed only the narrow issue of whether the
6 Peerless contends that Blitz defined “material” “to mean a complete frustration or impossibility of performance.” Appellant-Def.’s Reply Br. at 11 (emphasis added). That is inaccurate. Blitz raised the “complete frustration” issue in responding to Peerless’s affirmative defense that the IDT Decision established a frustration of purpose, not in the context of defining “material.” See infra at 15–17.
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IDT Decision was a qualifying event for purposes of the Change in Law provision.
That declaration did not preclude Peerless from litigating, at trial, what specific
billing practices were to be included in the 30% co-marketing fee-compensation
structure.7
Accordingly, we find the Change in Law provision clear and unambiguous.
And under that provision, as we have noted, to constitute a change in law, an event
must be (1) a legislative, regulatory, judicial, or other legal action (2) that
materially affects (3) a material obligation or the ability to perform under the
Contract. Applying the plain, ordinary and, popular meaning of “material,” we
conclude that the effect of a judicial or legal action, as well as the obligation
affected by that action, must be “significant.” Cent. Ill. Light Co., 821 N.E.2d at
213.
Having resolved the threshold inquiry of whether the Contract is ambiguous,
we now consider whether the IDT Decision was a change in law sufficient to allow
renegotiation of the contract. We conclude it was not.
Peerless has not raised any genuine dispute that the IDT Decision did not
interfere with its material obligation to pay Blitz the 30% co-marketing fee on the
revenues Peerless actually collected from Blitz traffic. Rather, the most Peerless
argues is that the IDT Decision hindered Peerless’s ability to collect revenues on 7 Incidentally, the alleged ambiguity in the Compensation provision did not ultimately present an obstacle during the two years Peerless timely paid Blitz the co-marketing fee.
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Blitz traffic in the first place. Specifically, Peerless’s President and CEO averred
that Peerless collected only 16% of the access-charge and reciprocal compensation
revenue after the IDT Decision that it collected before the IDT Decision.
According to Peerless, because its revenues were affected, it must therefore be
excused from its obligation to pay the co-marketing fee.
But Peerless has its wires crossed. The relevant obligation is the payment of
co-marketing fees on the amounts actually collected, not the collection of revenue.
The value of collected revenue is merely a yardstick by which Peerless measures
the 30% co-marketing fee. As the value of that collection declines or increases, so
too does the value of the co-marketing fee Peerless owes Blitz.
Any other conception of the parties’ intent runs smack into to the express
terms of the Contract. The Compensation provision states “[t]he intention of this
section is that Peerless pays [Blitz] only on collected revenues.” Contract App. A
§ 1.3 (emphasis added). We read this provision as a clear expression of the parties’
intent that Peerless would pay co-marketing fees in proportion to the value of
revenues collected. No more; no less. That Peerless has grown disenchanted with
the value of its collected revenue does not mean it can short-circuit its obligation to
pay Blitz the 30% co-marketing fee.
Peerless also challenges the summary-judgment order by attempting to raise
a factual dispute over whether the IDT Decision frustrated the Contract’s purpose.
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Peerless submits that because it collects less revenue than it anticipated when
entering the Contract, it must be excused from paying the co-marketing fee. Here
again, we find this argument does not stand up to scrutiny.
Under Illinois law, the doctrine of commercial frustration is an extension of
the defense of impossibility and excuses nonperformance of a contractual
obligation where an unforeseeable event renders the value of a party’s performance
“totally or almost totally destroyed.” Illinois-American Water Co. v. City of
Peoria, 774 N.E.2d 383, 390–91 (Ill. App. Ct. 2002). To survive summary
judgment, a non-moving party must demonstrate “specific facts showing that there
is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(internal quotation marks omitted).
In this case, therefore, Peerless can survive summary judgment by
presenting “specific facts” showing a triable dispute on both of the following
issues: whether the IDT Decision was “not reasonably foreseeable,” and whether
the IDT Decision “totally or almost totally destroyed” the value of the Contract.
Illinois-American Water Co., 774 N.E.2d at 390–91.
The parties dispute whether Peerless properly pled frustration of purpose as
an affirmative defense. But we need not determine that issue on appeal because we
conclude that, even if Peerless properly pled frustration of purpose in its Amended
Answer, Peerless has nonetheless failed to show specific facts that a triable issue of
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fact remains on whether the IDT Decision “totally or almost totally destroyed” the
value of the Contract. Id.
Peerless states that the IDT Decision produced “a shift in the intercarrier
compensation structure after the parties entered into the Contract, which frustrated
the purpose of the Contract and denied Peerless the benefit of the bargain.” But
Peerless was not “denied” the benefit of the bargain. Under the bargained-for
terms of the Contract, Peerless received an incremental growth in telecom traffic
and the right to keep 70% of the revenue it collected thereon. In exchange,
Peerless agreed to pay Blitz a 30% co-marketing fee. The record indicates, and
Peerless does not dispute, that Peerless continued to receive Blitz traffic and
continued to collect revenue on that traffic after the IDT Decision. Though we
recognize the amount of collected revenue declined, the parties’ arrangement was
not “totally or almost totally destroyed” by the IDT Decision. Id.
Since Peerless fails to genuinely dispute that the IDT Decision did not
interfere with its obligation to pay co-marketing fees to Blitz, Peerless cannot rely
on the IDT Decision to invoke the Change in Law provision. We therefore affirm
the district court’s grant of summary judgment on Count III, the declaratory-
judgment claim.
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Peerless also argues the district court erred in denying Peerless’s motion to
consolidate this action, Case 307, with the separate Local Access lawsuit, Case
399. We review a district court’s decision whether to consolidate multiple actions
for a “clear abuse of discretion.” Eghnayem v. Boston Sci. Corp., 873 F.3d 1304,
1313 (11th Cir. 2017) (internal quotation marks omitted). On that standard, “we
must affirm unless we find that the district court has made a clear error of
judgment, or has applied the wrong legal standard.” Id. (citing United States v.
Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009)).
Federal Rule of Civil Procedure 42(a) provides that, “[i]f actions before the
court involve a common question of law or fact, the court may . . . join for hearing
or trial any or all the matters at issue in the actions; . . . consolidate the actions; or .
. . issue any other order to avoid unnecessary cost or delay.” Fed. R. Civ. P.
42(a)(1)–(3). Rule 42(a) codifies the district court’s “inherent managerial power to
control the disposition of the causes on its docket with economy of time and effort
for itself, for counsel, and for litigants.” Young v. City of Augusta, 59 F.3d 1160,
1168 (11th Cir. 1995) (internal citations omitted). A trial court’s decision to
consolidate suits is discretionary. Id.
When deciding if separate lawsuits should be consolidated into a single
action, a trial court weighs several factors, including (1) the risk of prejudice in
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allowing the matters to proceed separately, (2) the potential for confusion of facts
or legal issues, (3) the risk of inconsistent verdicts, (4) the burden on parties,
witnesses, and the court, and (5) the length of time and relative expense involved
in conducting a single trial or multiple trials. See Hendrix v. Raybestos-
Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985).
In this case, Peerless moved to consolidate Cases 307 and 399 on two
separate occasions. Both times, Peerless argued consolidation was appropriate in
light of “overlapping questions of law and fact.” When Peerless moved for
consolidation the second time, it also asserted that the “motivation, purpose, and
intent” in entering the Homing Agreement was to “modify[] the Blitz Contract by
creating a new arrangement between the parties.”
The district court denied both motions. In its first denial, the district court
found that although “both actions share a common, albeit limited, factual
background, consolidation of these disparate actions is likely to result in confusion
and will not significantly promote judicial economy.” The court explained that
while Case 307 “involve[d] a fairly straightforward breach of contract wherein
Blitz contends Peerless had a duty to remit certain payments and failed to do so,”
Case 399 entailed “a completely separate business relationship entered into
between Local Access and Peerless, the alleged fraud which induced that
relationship, and allegations of tortious interference with a competing bidder for
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that business.” Given the disparate claims and “completely separate business
relationship[s],” the district court determined that any measure of judicial economy
achieved by consolidation was “substantially outweighed” by the risk of confusing
a jury and prejudicing the parties. 8
When the district court denied consolidation for the second time, it reiterated
that although “both cases involve[d] Blitz and Peerless and the evolution of their
relationship over the course of several years, the similarities end there. Neither
case involves the same facts, the same contracts, or the same claims for relief.” As
before, the district court also determined that “prejudice would more likely result
from consolidation than be avoided.” And to the extent Peerless argued the
Homing Agreement was a “modification” of the Contract with Blitz, the district
court rejected the notion that that theory supported consolidation as “Peerless never
pleaded this defense (or any facts that would place Blitz on notice that such a
defense might exist) in the 307 Case.”9
8 The district court explained that a jury in Case 307 “will not need to understand the creation of Local Access and the dispute arising thereafter in order to duly consider” the “breach of contract/failure to remit payment action.” Likewise, a jury in Case 399 will not “be required to know anything about the alleged failure by Peerless to remit money to Blitz pursuant to a separate contract in order to decide the tortious interference and fraudulent inducement allegations” at issue there. The court also expressed concern that in “a consolidated trial, the jury will hear evidence that not only did Peerless allegedly fail to remit money to Blitz in violation of a contractual obligation,” but also “that Peerless allegedly deceived Blitz into foregoing a lucrative sale, caused Blitz to create a new entity (Local Access) and then breached the contract with this newly formed entity.” 9 Indeed, in its Amended Answer in Case 307, Peerless states only that it “attempted to negotiate modifications,” and not that the parties actually reached an agreement. Am. Answer, 19 Case: 16-11622 Date Filed: 03/05/2018 Page: 20 of 21
At two separate phases of the litigation, the district court engaged in a
thorough assessment of the factors delineated in Hendrix. Both times the district
court ruled consolidation was neither appropriate nor beneficial. We find no abuse
of discretion on either occasion, and we affirm the denial of Peerless’s motions to
consolidate.
C.
Finally, Peerless argues that the district court erred by denying its motion in
limine to exclude as irrelevant evidence of Blitz’s entitlement to co-marketing fees
based on non-InterLATA traffic. 10 We review the district court’s ruling on the
admissibility of evidence for abuse of discretion, see City of Tuscaloosa v. Harcros
Chems., Inc., 158 F.3d 548, 556 (11th Cir. 1998), and find no such abuse occurred
in the district court. As the district court explained, Blitz’s breach-of-contract and
¶ 20 (emphasis added). Also, we note that Peerless raised the “modification” issue only after the district court’s summary-judgment order finding the IDT Decision insufficient to trigger the Change in Law provision. As the district court surmised, it “appears that Peerless now attempts to use consolidation as a Trojan Horse to insert a defense its [sic] alleges in the 399 Case into the 307 Case.” 10 Blitz contends that Peerless waived this argument because it merely sought to have the evidence excluded in a motion in limine and did not ultimately object when such evidence was introduced at trial. Quoting this Court’s decision in Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1504 (11th Cir. 1985) (internal quotations omitted), Blitz asserts that “a party whose motion in limine has been overruled must object when the error he sought to prevent with his motion is about to occur at trial.” But since Hendrix, the Federal Rules of Evidence have been amended to provide that a party need not renew an objection previously articulated in a motion in limine in order to preserve that objection for appeal. See Advisory Committee’s Notes on 2000 Amendment to Fed. Rule Evid. 103, 28 U.S.C.App., p. 1007. And our current precedent provides that “[a] motion in limine may preserve an objection when the district court has ‘definitively’ ruled on the matter at issue,” which the district court did here. ML Healthcare Servs., LLC v. Publix Super Markets, Inc., No. 15-13851, 2018 WL 747392, at *7 (11th Cir. Feb. 7, 2018) (citing Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1178 (11th Cir. 2013)). 20 Case: 16-11622 Date Filed: 03/05/2018 Page: 21 of 21
quantum-meruit claims implicate both InterLATA and non-InterLATA traffic. At
least as to the quantum-meruit claim, the Complaint asserts that Blitz sought
recovery of its share of revenues deriving from telecommunications traffic Blitz
placed on Peerless’s networks, which necessarily includes non-InterLATA traffic.
Therefore, we cannot say that the district court abused its discretion when it
admitted evidence of non-InterLATA traffic.
IV.
For the foregoing reasons we AFFIRM the district court’s judgment.
AFFIRMED.