Loenco v. Londonderry, et al. CV-95-455-M 01/15/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Loenco, Inc., Plaintiff
v. Civil No. 95-455-M
Town of Londonderry, Board of Sewer Commissioners, Hoyle, Tanner & Associates, Inc., and Pace Industries, Inc., Defendants
O R D E R
This dispute arises out of the construction of the
Charleston Avenue Wastewater Pumping Station in Londonderry, New
Hampshire. In 1992, the Town of Londonderry contracted with
Hoyle, Tanner & Associates, Inc. ("HTA") to design and monitor
construction of the station. The Town then contracted with
plaintiff, Loenco, Inc., to construct the station. When the
project was not completed on schedule, HTA recommended that the
Town terminate plaintiff. The Town accepted that recommendation,
terminated plaintiff, and hired a third party to complete
construction of the station.
Plaintiff now seeks damages, from both the Town and HTA,
which it claims to have suffered as a direct result of its having
been wrongfully terminated from the project. In anticipation of
trial, the Town and HTA have filed a number of motions in limine,
seeking exclusion of certain evidence at trial. Discussion
The primary purpose of a motion in limine is to prevent
unfair prejudice at trial by obtaining a definitive ruling on the
admissibility of certain evidence at the outset, thereby
preventing the non-moving party from referring to inadmissible
and/or inappropriately prejudicial evidence in an opening
statement or eliciting such evidence from a witness. In re
Wyoming Tight Sands Antitrust Cases, No. 85-2349, 1990 WL 155542
at *2 (D.Kan. Sept. 6, 1990). Of particular concern is the
preclusion of plainly inadmissible evidence which, because of its
nature, would undeniably prejudice a jury or taint a trial in
such a profound way that a limiting instruction from the court
would be of no effect or value.
Nevertheless, evidence should not be excluded in limine
unless it is clearly inadmissible on all potential grounds
because, in the context of a trial, evidence which is
inadmissible for one purpose may be admissible for another.
Middlebv Corp. v. Hussmann Corp., No. 90-C-2744, 1993 WL 151290
at * 1 (N.D.I11. May 7, 1993); Estate of Carev v. Hy-Temp Mfg.,
Inc., No. 82-C-7171, 1991 WL 161394 at * 1 (N.D. 111. August 19,
1991). Therefore, rulings on the admissibility of evidence
should ordinarily be deferred until trial, so that the court may
resolve guestions of foundation, relevancy, and potential
prejudice in proper context. See Sperberg v. Goodyear Tire &
Rubber C o ., 519 F.2d 708, 712 (6th Cir. 1975); West Coast Video
2 Enterprises, Inc. v. Ponce De Leon, No. 90-C-1236, 1991 WL 49566
at * 1 (N.D. 111. April 3, 1991). See also Scarboro v. The
Travelers Ins. Co., 91 F.R.D. 21, 22 (E.D. Tenn. 1981) ("In this
circuit [motions in limine] are disfavored. A better practice is
to deal with questions of admissibility of evidence as they arise
during the course of trial.") (citation omitted).
Accordingly, where either the Town or HTA has sought to
exclude broad categories of evidence, the court has generally
denied the motions. Of course, denial of a motion in limine to
exclude evidence at trial does not necessarily mean that all such
evidence will be admitted at trial; a court may deny the motion
simply because it is unable or unwilling to rule on the
admissibility of the evidence out of the context of a trial.
Middlebv Corporation v. Hussmann Corporation, supra.
Consequently, the advance rulings on the admissibility of
evidence issued in this order are subject to modification or
repeal, upon proper motion or objection of the parties at trial.
A. Londonderry's Motion to Preclude Introduction of Evidence Relating to Settlement Discussions (document no. 62).
The Town moves the court to exclude "any evidence concerning
offers to compromise any matter in dispute or any conduct or
statements made in compromise negotiations." The Town is correct
in asserting that evidence of furnishing, or offering, or
accepting consideration in compromising a claim is not ordinarily
admissible to prove liability. See Fed. R. Evid. 408. The Town
3 has not, however, identified any specific evidence with regard to
which it seeks an evidentiary ruling prior to trial.
Accordingly, should plaintiff seek to introduce any evidence at
trial which the Town believes is properly excludable under Rule
408, the Town should interpose a timely objection. The Town's
motion in limine (document no. 62) is denied.
B. Londonderry's Motions to Exclude Testimony of Mark Dupont, C.P.A. (document nos. 63 and 84).
Plaintiff has represented that it intends to call Mr. Dupont
as both an expert and fact witness. The Town claims that
plaintiff should not be permitted to call Mr. Dupont in either
capacity. The Town previously objected to plaintiff's filing of
Mr. Dupont's expert report, claiming that it was untimely. In
response, the court held:
Per hearing held on 10/6/97: [defendant's] motion granted to the extent that Mr. Dupont may testify as to preparation of company financial statements and financial facts related to the company, but may not give opinion testimony re: future lost profits.
In light of the court's prior order, the Town's motions in limine
(document nos. 63 and 84) are granted in part and denied in part.
Plaintiff may call Mr. Dupont, who may testify to the extent
outlined in the court's prior order.
C. Londonderry's Motion to Exclude Evidence Relating to Claims for Additional Compensation (document no. 64).
4 The Town also moves to exclude any evidence relative to
plaintiff's claim that it is entitled to compensation beyond the
amount of its contract with the Town for work which was: (1)
performed outside the scope of the contract specifications; and
(2) with regard to which plaintiff failed to provide prior
written notice, as required by the contract. While the Town may
be correct in asserting that such evidence is properly excludable
with regard to plaintiff's breach of contract claim, such
evidence is plainly relevant to its claims sounding in quantum
meruit. Accordingly, the Town's motion in limine (document no.
64) is denied.
D. Londonderry's Motion to Exclude Evidence Relating to Reasons the Completion of the Project was Delayed (document no. 65).
The Town moves the court to preclude plaintiff from
introducing any evidence concerning its claim that it was delayed
in completing construction of the project for reasons beyond its
control, unless it first introduces evidence that it promptly
notified the Town in writing of the causes of such delay(s) (as
required by the contract). Plaintiff's objection is,
unfortunately, largely unintelligible. Nevertheless, in the
absence of a more thorough discussion of the issue by the
parties, the court cannot rule that, as a matter of law, the
challenged evidence is inadmissible with regard to all of
plaintiff's claims. Accordingly, the Town's motion in limine
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Loenco v. Londonderry, et al. CV-95-455-M 01/15/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Loenco, Inc., Plaintiff
v. Civil No. 95-455-M
Town of Londonderry, Board of Sewer Commissioners, Hoyle, Tanner & Associates, Inc., and Pace Industries, Inc., Defendants
O R D E R
This dispute arises out of the construction of the
Charleston Avenue Wastewater Pumping Station in Londonderry, New
Hampshire. In 1992, the Town of Londonderry contracted with
Hoyle, Tanner & Associates, Inc. ("HTA") to design and monitor
construction of the station. The Town then contracted with
plaintiff, Loenco, Inc., to construct the station. When the
project was not completed on schedule, HTA recommended that the
Town terminate plaintiff. The Town accepted that recommendation,
terminated plaintiff, and hired a third party to complete
construction of the station.
Plaintiff now seeks damages, from both the Town and HTA,
which it claims to have suffered as a direct result of its having
been wrongfully terminated from the project. In anticipation of
trial, the Town and HTA have filed a number of motions in limine,
seeking exclusion of certain evidence at trial. Discussion
The primary purpose of a motion in limine is to prevent
unfair prejudice at trial by obtaining a definitive ruling on the
admissibility of certain evidence at the outset, thereby
preventing the non-moving party from referring to inadmissible
and/or inappropriately prejudicial evidence in an opening
statement or eliciting such evidence from a witness. In re
Wyoming Tight Sands Antitrust Cases, No. 85-2349, 1990 WL 155542
at *2 (D.Kan. Sept. 6, 1990). Of particular concern is the
preclusion of plainly inadmissible evidence which, because of its
nature, would undeniably prejudice a jury or taint a trial in
such a profound way that a limiting instruction from the court
would be of no effect or value.
Nevertheless, evidence should not be excluded in limine
unless it is clearly inadmissible on all potential grounds
because, in the context of a trial, evidence which is
inadmissible for one purpose may be admissible for another.
Middlebv Corp. v. Hussmann Corp., No. 90-C-2744, 1993 WL 151290
at * 1 (N.D.I11. May 7, 1993); Estate of Carev v. Hy-Temp Mfg.,
Inc., No. 82-C-7171, 1991 WL 161394 at * 1 (N.D. 111. August 19,
1991). Therefore, rulings on the admissibility of evidence
should ordinarily be deferred until trial, so that the court may
resolve guestions of foundation, relevancy, and potential
prejudice in proper context. See Sperberg v. Goodyear Tire &
Rubber C o ., 519 F.2d 708, 712 (6th Cir. 1975); West Coast Video
2 Enterprises, Inc. v. Ponce De Leon, No. 90-C-1236, 1991 WL 49566
at * 1 (N.D. 111. April 3, 1991). See also Scarboro v. The
Travelers Ins. Co., 91 F.R.D. 21, 22 (E.D. Tenn. 1981) ("In this
circuit [motions in limine] are disfavored. A better practice is
to deal with questions of admissibility of evidence as they arise
during the course of trial.") (citation omitted).
Accordingly, where either the Town or HTA has sought to
exclude broad categories of evidence, the court has generally
denied the motions. Of course, denial of a motion in limine to
exclude evidence at trial does not necessarily mean that all such
evidence will be admitted at trial; a court may deny the motion
simply because it is unable or unwilling to rule on the
admissibility of the evidence out of the context of a trial.
Middlebv Corporation v. Hussmann Corporation, supra.
Consequently, the advance rulings on the admissibility of
evidence issued in this order are subject to modification or
repeal, upon proper motion or objection of the parties at trial.
A. Londonderry's Motion to Preclude Introduction of Evidence Relating to Settlement Discussions (document no. 62).
The Town moves the court to exclude "any evidence concerning
offers to compromise any matter in dispute or any conduct or
statements made in compromise negotiations." The Town is correct
in asserting that evidence of furnishing, or offering, or
accepting consideration in compromising a claim is not ordinarily
admissible to prove liability. See Fed. R. Evid. 408. The Town
3 has not, however, identified any specific evidence with regard to
which it seeks an evidentiary ruling prior to trial.
Accordingly, should plaintiff seek to introduce any evidence at
trial which the Town believes is properly excludable under Rule
408, the Town should interpose a timely objection. The Town's
motion in limine (document no. 62) is denied.
B. Londonderry's Motions to Exclude Testimony of Mark Dupont, C.P.A. (document nos. 63 and 84).
Plaintiff has represented that it intends to call Mr. Dupont
as both an expert and fact witness. The Town claims that
plaintiff should not be permitted to call Mr. Dupont in either
capacity. The Town previously objected to plaintiff's filing of
Mr. Dupont's expert report, claiming that it was untimely. In
response, the court held:
Per hearing held on 10/6/97: [defendant's] motion granted to the extent that Mr. Dupont may testify as to preparation of company financial statements and financial facts related to the company, but may not give opinion testimony re: future lost profits.
In light of the court's prior order, the Town's motions in limine
(document nos. 63 and 84) are granted in part and denied in part.
Plaintiff may call Mr. Dupont, who may testify to the extent
outlined in the court's prior order.
C. Londonderry's Motion to Exclude Evidence Relating to Claims for Additional Compensation (document no. 64).
4 The Town also moves to exclude any evidence relative to
plaintiff's claim that it is entitled to compensation beyond the
amount of its contract with the Town for work which was: (1)
performed outside the scope of the contract specifications; and
(2) with regard to which plaintiff failed to provide prior
written notice, as required by the contract. While the Town may
be correct in asserting that such evidence is properly excludable
with regard to plaintiff's breach of contract claim, such
evidence is plainly relevant to its claims sounding in quantum
meruit. Accordingly, the Town's motion in limine (document no.
64) is denied.
D. Londonderry's Motion to Exclude Evidence Relating to Reasons the Completion of the Project was Delayed (document no. 65).
The Town moves the court to preclude plaintiff from
introducing any evidence concerning its claim that it was delayed
in completing construction of the project for reasons beyond its
control, unless it first introduces evidence that it promptly
notified the Town in writing of the causes of such delay(s) (as
required by the contract). Plaintiff's objection is,
unfortunately, largely unintelligible. Nevertheless, in the
absence of a more thorough discussion of the issue by the
parties, the court cannot rule that, as a matter of law, the
challenged evidence is inadmissible with regard to all of
plaintiff's claims. Accordingly, the Town's motion in limine
(document no. 65) is denied.
5 E. Londonderry's Motion to Exclude Evidence that the Town Refused to Allow Plaintiff to Perform Additional Work at the Project (document no. 66).
The Town also moves to exclude any evidence that it refused
to allow plaintiff to cure any alleged breaches of the
construction contract. The Town claims that the contract
permitted it to unilaterally terminate plaintiff upon seven days'
written notice. It also claims that plaintiff had no contractual
right to cure the default(s) which gave rise to its termination.
Plaintiff, on the other hand, claims that the contract
specifically gave it ten days within which to cure any alleged
defaults. Accordingly, plaintiff claims that the Town's refusal
to allow it to enter the project and cure any alleged defaults is
both relevant and material to its claims.
It appears that the relevance of the evidence referenced in
the Town's motion will turn upon (among other things) a
determination of whether plaintiff was terminated pursuant to
section 22.1 or 22.2 of the contract. At this stage, that
factual guestion appears to be disputed. Accordingly, the court
cannot rule, as a matter of law, that the challenged evidence is
properly excludable. The Town's motion in limine (document no.
66) is denied.
F. Londonderry's Motion to Exclude Evidence Regarding Lost Profits (document no. 67) .
The Town says that conseguential damages arising from a
breach of contract are only recoverable if they were reasonably
6 foreseeable when the contract was formed. It then claims that
plaintiff should be precluded from introducing any evidence
regarding conseguential damages because "upon information and
belief, the plaintiff will not be able to introduce any evidence
that loss of profits on future construction contracts was a
reasonably foreseeable result" of the Town's conduct.
For reasons that should be obvious, the Town's motion is
denied. At this juncture, the court is not prepared to rule that
plaintiff cannot prove that its damages were reasonably
foreseeable. They may well have been — it is entirely likely
that engineering firms are well aware that terminating a
contractor will adversely affect the ability to obtain bonding in
the future, without which most jobs become unavailable. Plainly,
that is a factual guestion that will be resolved in the context
of trial. The Town's motion in limine (document no. 67) is
denied.
G. HTA's Motion to Exclude Evidence Regarding Conseguential Damages (document no. 87).
HTA seeks to preclude plaintiff from introducing evidence of
conseguential damages (in the form of, among other things, lost
profits). HTA claims that such damages are purely "economic
losses," which are not recoverable in a tort action (HTA and
plaintiff had no contractual relationship). While HTA raises an
interesting legal guestion concerning the extent to which a
plaintiff may recover economic losses from a defendant with whom
7 it was not in privity, it has failed to establish that such
evidence is plainly inadmissible on all potential grounds.
Accordingly, HTA's motion in limine is denied, with leave to
object in the context of trial. To the extent that evidence of
plaintiff's economic losses is admissible against the Town, but
not HTA, the court will entertain HTA's suggestions regarding an
appropriate limiting instruction.
H. HTA's Motion to Exclude Evidence Regarding Intentional Interference Claim (document no. 88).
HTA moves to exclude any evidence that it may have
tortiously interfered with plaintiff's contractual relationship
with the Town. It claims that as the project engineer, it is
entitled to guasi-judicial immunity from liability for any claims
relating to the professional advice it rendered to the project
owner (the Town). Conseguently, it says that the challenged
evidence is simply not relevant.
HTA has, however, failed to persuade the court that its
asserted right to guasi-judicial immunity in this matter is
consistent with the governing law of New Hampshire. Moreover, to
the extent that such immunity turns upon a determination of
whether HTA acted in good faith (see, e.g., HTA's motion at 3),
that factual issue must be resolved at trial. Accordingly, HTA's
motion (document no. 88) is denied. I. HTA's Motion to Exclude Testimony and Documents Prepared by Mark Dupont (document no. 8 9) .
HTA, like the Town, moves to exclude certain testimony of
Mark Dupont. For the reasons discussed above in section B and in
the court's order dated October 6, 1997, HTA's motion is granted
in part and denied in part. Plaintiff may call Mr. Dupont, who
may testify to the extent outlined in the court's prior order.
Summary
Consistent with the findings and rulings discussed above,
and subject to modification in the context of trial, the court
rules as follows with respect to the parties' pending motions in
limine:
A. Londonderry's Motion to Preclude Introduction of Evidence Relating to Settlement Discussions (document no. 62) is denied.
B. Londonderry's Motions to Exclude Testimony of Mark Dupont, C.P.A. (document nos. 63 and 84) are granted in part and denied in part.
C. Londonderry's Motion to Exclude Evidence Relating to Claims for Additional Compensation (document no. 64) is denied.
D. Londonderry's Motion to Exclude Evidence Relating to Reasons the Completion of the Project was Delayed (document no. 65) is denied.
E. Londonderry's Motion to Exclude Evidence that the Town Refused to Allow Plaintiff to Perform Additional Work at the Project (document no. 66) is denied.
F. Londonderry's Motion to Exclude Evidence Regarding Lost Profits (document no. 67) is denied.
G. HTA's Motion to Exclude Evidence Regarding Conseguential Damages (document no. 87) is denied. H. HTA's Motion to Exclude Evidence Regarding Intentional Interference Claim (document no. 88) is denied.
I. HTA's Motion to Exclude Testimony and Documents Prepared by Mark Dupont (document no. 89) is granted in part and denied in part.
SO ORDERED.
Steven J. McAuliffe United States District Judge
January 15, 1998
cc: Martha e. Howe, Esg. Andrew W. Serell, Esg. Jeffrey L. Alitz, Esg.