United States District Court, N.D. New York
DECISION AND ORDER
THOMAS J. McAVOY, Senior District Judge.
Presently before the Court is Plaintiffs' letter motion seeking to have the Court: (1) reconsider an earlier decision granting Defendants summary judgment on Plaintiffs' breach of warranty claims; (2) grant their motion to permit certain witnesses to testify at trial via video transmission or through videotaped trial depositions; and (3) further respond to Defendants' objections to Plaintiffs' pre-trial disclosures. See Dkt. 266. Plaintiffs' have also objected to Defendants' pre-trial submissions. See Dkt. 260. Defendants have responded to these motion filings. They have also filed motions to quash subpoenas issued by the Plaintiffs as well as for sanctions. See Dkts. 205, 240, 254, 273, 274, 277. The Court also has additional rulings to make on the parties' motions in limine. See Dkts. 206, 209, 211. In the interest of completeness, the Court will address all motions in limine filed, whether or not the Court has already ruled on those motions.
Plaintiffs Barbara and Craig Williams commenced the instant personal injury action against Defendants arising out of Barbara Williams' operation of an Arctic Cat Prowler XT 650 H1 manufactured by Defendant Arctic Cat and sold by Defendant Gander Mountain. Plaintiffs asserted claims for strict products liability, negligence, and breach of warranty. In a Decision and Order issued on September 12, 2012, the Court dismissed Plaintiffs' design defect and breach of warranty claims. See Dkt. 150. The Court found the breach-of-warranty claims against Defendant Arctic Cat time barred. Id . On September 19, 2012, the Court clarified that earlier ruling by confirming that breach-of-warranty claims against Defendant Gander Mountain were dismissed. See Dkt. 153. The Court dismissed these claims on the grounds that the evidence could not support a finding that the vehicle in question was not minimally safe, or that Plaintiff's injuries were caused by the failure to warn. Id.
Defendants filed timely motions for reconsideration, and in responding to those motions Plaintiffs also sought reconsideration of the Court's decisions. See Dkts. 156, 157, 162. On December 6, 2012, the Court issued a Decision and Order that addressed these motions. The Court again denied Defendants' motions for summary judgment in part. See Dkt. 181. The Court also denied Plaintiffs' motion for reconsideration on their breach-of-warranty claim. Id . No party filed a motion for reconsideration of that Order.
The Court set a trial date, which has been continued several times at the parties' request. Eventually, the parties submitted pre-trial filings and motions in limine. The Court held a telephonic pre-trial conference on November 27, 2013. The Court granted in part and denied in part the motions in limine. The Court also reserved ruling on some portions of the motions. At no time in that conference did the Court invite the parties to move for reconsideration of the Court's summary judgment decision.
On November 27, 2013, the Gander Mountain Defendants filed a letter brief asserting that the Court had already ruled on the breach of warranty issue, and that the claims were dismissed. See Dkt. 213. Plaintiffs did not respond. On January 21, 2014, however, the Plaintiffs filed the instant letter motion seeking the above-stated relief. See Dkt. 266. Defendants responded to the motion. See Dkt. 272.
Defendants have also objected to Plaintiffs' pre-trial submissions and moved to quash certain subpoenas. See Dkts. 205, 240, 254, 273, 274, 277.
A. Plaintiffs' Motion
Plaintiffs' motion, Dkt. 266, contains three parts, which the Court will address in turn.
i. Motion for Reconsideration
Plaintiffs seek reconsideration of the Court's Order granting Defendants summary judgment on the Plaintiffs' breach-of-warranty claims. Plaintiffs assert that "Your Honor granted us permission to reargue' the Court's earlier rulings regarding dismissal of our warranty claims for failure to warn based upon the statute of limitations." Dkt. 266 at 1.
The transcript of the November 27, 2013 conference conducted by the Court reveals that the Court did not grant such "permission" to the Plaintiffs. At that hearing, the Court addressed a motion to preclude evidence of design defect or breach-of-warranty claims, as they had been dismissed after the summary judgment motions. See Transcript of Hearing, November 27, 2013, Dkt. 269 at 32. The Court noted that "[t]here's no warranty claim left because of my summary judgment ruling." Id . Plaintiffs' Counsel took the opportunity to assert to the Court that Plaintiffs' claim against Gander Mountain was not time-barred. Id . Defense Counsel responded that the issue had already been decided pursuant to the Court's earlier rulings, and "the only issue that's going to be tried in this case is the failure to warn issue." Id. at 33. After the parties disagreed about whether Plaintiffs could reargue the issue, the Court promised to review the earlier decisions and make a determination as to whether the breach-of-warranty claims were still part of the action. Id.
The evidence described above makes clear that the Court did not grant the Plaintiffs permission to seek reconsideration of the Court's earlier rulings on the Defendants' summary judgment motions, or even on the Court's earlier decision on the parties' motions for reconsideration. The Court merely informed the parties that the status of particular claims was unclear, and that the Court would need to examine previous rulings to clarify the matter. As explained above, the Court has granted Defendants summary judgment on Plaintiffs' breach-of-warranty claims, and the issues raised by those claims are no longer present in the case. In addition, the rules in this district require that motions for reconsideration be filed within fourteen days "after the entry of the challenged judgment, order or decree." L.R. 7.1(g). Plaintiffs' motion, coming more than a year after the Court's decision, is clearly out of time and filed without leave of Court. For those reasons alone, the motion will be denied.
Moreover, Plaintiffs' motion does not offer any grounds for denying the Defendants' motions that Plaintiff did not raise at the time the motions were filed. A motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.'" Sequa Corp. v. Gbj Corp. , 156 F.3d 136, 144 (2d Cir. 1999) (quoting United States v. Local 1804-1 , 831 F.Supp. 167, 169 (S.D.N.Y. 1993)). Plaintiffs' motion is clearly an effort to re-litigate an issue decided long ago by this Court, and the motion is denied on that basis as well.
The Court finds that the status of this case has been clear since the Court made its original findings on the Defendants' summary judgment motions. The Court has repeatedly found that the only viable claim in this case is the failure-to-warn claim that will be the subject of the trial in this matter. Plaintiffs' repeated attempts to re-litigate the breach-of-warranty issue are unwarranted, without any basis in the law, and a waste of the Court's time. While the Court will not at this point grant the Defendants' motion for sanctions in reference to this matter, the Court warns the Plaintiffs that any further attempt to reargue the claims the Court has dismissed, or to present evidence at trial pertaining to claims that are no longer part of the case, will result in immediate dismissal of the action as a sanction for Plaintiffs' contempt of Court. This case is about Defendants' alleged failure to warn about the dangers of driving the subject vehicle on a paved surface and any injuries that Plaintiffs suffered as a result of that alleged failure. Any attempt to make the case about any other issues, despite the repeated warnings of this Court, amount to direct disobedience to the Court's orders, and would amount to sanctionable contempt.
ii. Production of Witnesses for Trial
Plaintiffs next seek leave of Court to either (1) arrange for trial testimony by contemporaneous transmission or (2) by the use of newly conducted videotaped trial depositions. Plaintiffs plan to conduct these depositions in Minneapolis, Minnesota. The proposed testimony would involve five witnesses, Mark Esala, Frederic Bernier, and Tracy J. Crocker, who are employed by Defendant Arctic Cat, and Christopher Schindler and Kerry D. Graskewicz, who are employed by Defendant Gander Mountain. Plaintiffs contend that they will not be able to subpoena these individuals to testify under the Federal Rules of Civil Procedure, and thus must be permitted to use alternative procedures to preserve the witnesses' testimony. Plaintiffs further insist that additional discovery should be permitted of Esala, Bernier and Schindler, who have already testified. These witnesses were deposed, Plaintiffs insist, before "all of the evidence was available, " and before the Court limited the action to a single "failure to warn" claim against each of the Defendants. Finally, recognizing that Crocker and Graskewicz were not deposed during discovery, Plaintiffs also argue that the Court must permit testimony from these additional witnesses. Defendants have moved to quash the trial subpoenas issued to these persons.
Plaintiffs admit that Federal Rule of Civil Procedure 45 does not permit the Court to subpoena these witnesses to Binghamton, New York. Plaintiffs are correct that the Court does not have the power to compel the witnesses' attendance at this Court. Federal Rule of Civil Procedure 45(c)(1) provides that "[a] subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense." FED R. CIV. P. 45(c)(1).
Plaintiffs contend, however, that Rule 43 permits the Court to order these witnesses to appear for videotaped trial depositions in Minneapolis, Minnesota or video conference trial testimony from that location. Plaintiffs do not discuss the requirements of this rule.
To the extent that these witnesses have been deposed and decline to appear for trial testimony voluntarily, Plaintiffs may present the evidence through deposition testimony previously recorded. Plaintiffs may provide this testimony either by reading the testimony through extant transcripts or by offering the relevant portions of any testimony previously videotaped.
As to the first part of their motion, the Plaintiffs contend that they should be permitted to conduct additional depositions to present at trial. Discovery is closed, and the Court will not permit the Plaintiffs to reopen discovery to collect information that could have collected already. Plaintiffs could have asked any questions germane to this litigation at the depositions previously conducted. Plaintiffs wrote the Complaint, after all, and knew well the areas of inquiry necessary to prove their claims. Any assertion that the Court's rulings on summary judgment changed the nature of the case and require additional testimony is misplaced. The Court's ruling dismissed most of the claims in the case, and the only relevant testimony in the case relates to the remaining failure-to-warn claim. That claim was present when Plaintiffs conducted depositions in this matter and Plaintiffs could have questioned the deponents about facts related to those claims during those depositions.
Moreover, it is apparent to the Court that Plaintiffs' request to record "trial depositions" is really an attempt to repeat the depositions that were already conducted and to gather new evidence after the discovery period has closed. Nothing in the law permits this attempt to take a second bite at the apple. Plaintifs' argument that Kerry Graskewicz, who is now the Executive Vice President of Marketing for Defendants Gander Mountain, should be deposed on the marketing practices of Gander Mountain regarding test drives is unpersuasive. Plaintiffs have already conducted a Rule 30(b)(6) deposition on corporate practices, and all the questions that Plaintiffs seek to have answered by Mr. Graskewicz could have been asked at that time. Discovery has closed in this case, the issues to be raised at trial are clear and have been clear for more than a year, and the trial is scheduled. Thus, any subpoena to take additional testimony of any witnesses would be a waste of time and effort for all parties involved. The Court will therefore grant the motions to quash as they relate to taking any additional depositions in this case.
As an alternative to re-deposing the witnesses in preparation for trial, Plaintiff suggests that the Court should permit these witnesses to provide live testimony via videoconferencing. Federal Rule of Civil Procedure 43 provides that "[a]t trial, the witnesses' testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise." FED. R. CIV. P. 43(a). The Rule also provides that "[f]or good cause in compelling circumstances with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location." Id . Courts have found that "the Federal Rules of Civil Procedure specifically authorize a court to issue an order permitting contemporaneous transmission of live witness testimony as well as the issuance of a subpoena to compel such an appearance by a witness (within the location limits and under the conditions defined by Rule 45) for the purpose of the transmission of his or her contemporaneous testimony at trial, if the requirements included within both rules are heeded." Allen v. Takeda (In re Actos (Pioglitazone Prods. Liability Lit.), No. 6:11-md-2299, 2014 U.S. Dist. LEXIS 2231, at *51 (W.D. La., Jan. 8, 2014). A court may grant a request to testify by remote transmission, "but only upon a showing of good cause, compelling circumstances, and with appropriate safeguards." Id. at *23.
The Court finds that good cause and compelling circumstances do not exist to compel these witnesses to submit to video conference depositions, and that Plaintiffs have offered no such evidence to support their request. While these witnesses cannot be compelled by subpoena under Rule 45 to appear for trial, their testimony has already been preserved and can be presented to the jury at trial. Plaintiff had an opportunity to elicit any relevant information during these examinations. The testimony of the witnesses will not disappear if they do not testify in open court, as that testimony has previously been recorded and can be presented in this Court. Thus the value of live video conference testimony would not outweigh the cost and expense of having these witnesses testify by video conference, as well as the inconvenience to the witnesses and parties in this case from such testimony. This case is not multi-district litigation that involves multiple parties choosing to try a case at a courthouse far distant from the residence of any of those parties. See Allen, 2014 U.S. Dist. Lexis at *26. The logistics of the case do not require the complications and expense of video testimony. Moreover, Plaintiffs have known of the location of these witnesses for years and have been aware that the Court could not subpoena them to trial. Despite this knowledge, Plaintiffs failed to request that the witnesses be produced for video testimony until shortly before the trial, when arranging for that process would be only more difficult. Finally, Plaintiffs claim to the need for additional witness testimony, as explained above, is misplaced.
To be sure, the Second Circuit Court of Appeals has emphasized that "the general preference of the federal rules... is for oral testimony so that there will be an opportunity for live cross-examination and observation of the demeanor of the witness." Carter-Wallace, Inc. v. Otte , 474 F.2d 529, 536 (2d Cir. 1972). "While the use of previous testimony is a well-established exception to this rule, it is an exception based on the necessity of using the prior testimony when an alternative is loss of that testimony entirely." Id . When a fact witness is not available, "his unique knowledge of the facts will be lost unless the use of his prior testimony is allowed." Id . Assuming that the witnesses do not appear voluntarily, those witnesses are "unavailable" at trial. Their testimony on the matter is available by other means, however. The testimony that is relevant to this matter-that is, testimony relevant to the remaining failure-to-warn claim-has previously been the subject of depositions of the relevant parties and will be made available to the jury at trial. Since testimony by deposition can be "equivalent to testimony at the trial, " and Plaintiffs had an opportunity to elicit all relevant testimony during the deposition, the Court finds that Plaintiffs will not be prejudiced by presenting the testimony of the unavailable witnesses in this case. Kierce v. Central Vermont R. Inc. , 79 F.2d 198, 200 (2d Cir. 1935); see also Lamb v. Globe Seaways, Inc. , 516 F.2d 1352, 1354 (2d Cir. 1975) (permitting use of deposition testimony when Plaintiff was unavailable). The testimony is also admissible pursuant to Federal Rule of Evidence 804, since the party "against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination." Ball v. Interoceanica Corp. , 71 F.3d 73, 76-77 (2d Cir. 1995).
In addition, Defendants' pre-trial disclosures indicate that the witnesses that Plaintiffs seek to call may be presented by the Defendants as live witnesses at trial. The Court would encourage the Defendants to state as soon as possible whether they intend to call these witnesses to testify at the trial. While the Court may not be able to compel these parties to attend by subpoena, the Court recognizes the value of such testimony and encourages the parties to work out an agreement to ensure that these witnesses testify live at trial.
iii. Defendants' Motions to Quash and for Sanctions
Related to the Plaintiffs' motion concerning depositions and trial testimony, the Defendants have filed various motions to quash subpoenas issued by the Plaintiffs. These motions also seek sanctions against the Plaintiffs. First, the Arctic Cat Defendants seek to quash subpoenas issued to Fred Bernier and Mark Esala to appear at trial. See Dkt. 205. The Court ruled at the pre-trial conference that these persons could not be compelled to appear pursuant to Federal Rule of Civil Procedure 45. For the reasons stated above related to persons who are out-of-state, the subpoenas for these individuals are quashed.
Next, the Gander Mountain Defendants seek to quash subpoenas issued to Wendi Bigelow, Christopher Schindler and an unnamed officer of Gander Mountain Corporation. See Dkt. 254. Defendants argue that Wendi Bigelow is no longer a Gander Mountain employee and service on Gander Mountain's counsel was inappropriate. Defendants argue that the subpoenas served on Schindler and the unnamed corporate representative relate to parties outside the Court's jurisdiction and cannot be served. The Court will grant this motion to quash. As explained above, the Court has no power to compel parties in Minnesota to comply with a subpoena to New York and the Court agrees that Gander Mountain's Counsel cannot accept a subpoena for a person no longer in Gander Mountain's employ.
Plaintiffs have also subpoenaed Christopher Schindler and Kerry D. Gaskewicz for depositions to be used at trial. The Gander Mountain Defendants seek to have these subpoenas quashed as improper as well. See Dkts. 273, 274. They also seek to have the Plaintiffs sanctioned for issuing these subpoenas and for raising additional arguments in their filings. Defendants argue that there is no good cause for these additional depositions, as Schindler has already been deposed and Gaskewicz has no information relevant to the remaining claim in this case. Plaintiffs, they insist, have not offered any argument as to the information that could be obtained form him. They also argue that Plaintiffs' actions in relation to these depositions has served only to delay the litigation, increase costs, and harass the Defendants. Those actions, Defendants argue, require sanctions.
For the reasons explained above, the Court will grant the motions to quash. The Court cautions Plaintiffs that additional efforts to subpoena witnesses who are not subject to the Court's subpoena power under the Federal Rules will result in sanctions. The Court will not at this point grant the motion for sanctions, however. Defendant Gander Mountain has established that Plaintiffs have refused to stop attempting to litigate claims dismissed by the Court, but the Court finds that Plaintiffs' actions do not at this point warrant the imposition of sanctions. The Court notes that Defendants contend that Plaintiffs have wasted time by refusing to withdraw portions of their pre-trial submission based on the Court's rulings on motions in limine. As to that particular contention, the Court finds that Defendants' reading is too narrow, and that Plaintiffs' conduct in refusing to withdraw certain designations is not harmful or vexatious. The Court repeats its warning, however, that any efforts by the Plaintiffs to re-litigate issues already decided by the Court or to present evidence related to claims not before the Court will result in sanctions up to and including dismissal of Plaintiffs' case.
The Gander Mountain Defendants also seek an order striking portions of Plaintiffs' pretrial submissions as improper and irrelevant and an order requiring Court approval for any further subpoenas served on Gander Mountain representatives. For the reasons stated below, the Court will reserve ruling on any objections to the Plaintiffs' pre-trial submissions. The Court will also reserve ruling on the propriety of any subpoenas issued by the Plaintiffs. The Court cannot know in advance whether subpoenas issued by the Plaintiffs would violate Court orders or findings until that party is named. The Federal Rules of Civil Procedure provide a procedure for objecting to subpoenas. Defendants may continue to take advantage of this procedure.
Finally, the Arctic Cat Defendants filed a motion to quash subpoenas on February 28, 2014, shortly before the Court held its second pre-trial conference. Defendants complained that Plaintiffs had served "tentative" depositions seeking trial/preservation depositions on Fred Bernier, Mark Esala and Tracy Crocker. The witnesses were to appear in St. Paul, Minnesota, for their testimony. Mr. Bernier and Mr. Esala, as explained above, have already been deposed. Mr. Crocker, who was hired by Arctic Cat in 2012, is Vice President of the Parts Oil Garments and Accessories ATV division. Defendants pointed out that the subpoena could not compel the attendance of Mr. Bernier and Mr. Esala, who live and work more than 300 miles from the location of their proposed testimony, as they are not officers of Arctic Cat. Defendants argued that Mr. Crocker, who is an officer and could theoretically be compelled to attend, had no relevant information on the case and would be unduly burdened by the deposition and the travel the deposition would require.
The Court orally granted this motion to quash at a conference held in chambers on February 28, 2014, and confirms the order here. For the reasons stated above, the testimony of Mr. Bernier and Mr. Esala can be presented by other means. Moreover, the testimony could not be compelled in St. Paul. In terms of Mr. Crocker, the Court finds, as above, that discovery in this matter has closed, that travel to St. Paul for testimony would be an undue and unnecessary burden, and that Mr. Crocker is not likely to have any information that would lead to the discovery of admissible evidence. The motion to quash is granted. The Court will deny the motion for costs and attorneys fees, however. The Court had not yet ruled fully on the motions for trial testimony by video conference when the subpoenas were issued, and the Court must therefore find that the subpoenas were not issued to harass, annoy or burden the Defendants. The Court has now ruled, however, and any additional attempts to subpoena these witnesses, or any other witnesses on this bases, will result in immediate sanctions.
C. Objections to Pre-Trial Disclosures
Plaintiffs filed objections to the Defendants' pre-trial disclosures. See Dkt. 260. The parties have filed their motions in limine, and the Court has resolved them at a conference with the parties and in this order. Plaintiffs' nevertheless lodge additional objections and seek rulings from the Court on this matter rather than waiting for those objections to be resolved at trial. The Court will address each objection in turn.
i. Arctic Cat
a. List of Witnesses
Plaintiffs contend that one of the witnesses on the list, John Hussar, was not named in the Defendants' initial disclosures and not the subject of any supplementation. Plaintiffs also complain that Defendant has not identified the subject of Mr. Hussar's expected testimony. Plaintiffs seek to exclude his testimony. Defendant Arctic Cat responds by agreeing that Mr. Hussar was only recently disclosed as a potential witness. During the initial disclosures under Rule 26, Defendant points out, Defendant reserved the right to "call any witness necessary to lay the foundation for or authenticate any exhibit." Mr. Hussar resides in the home near the accident site that is this case's subject. Plaintiffs have objected to any photographs of the accident scene. As a result, Defendant asserts, a witness will be necessary to lay a foundation for the admission of such documents. Mr. Hussar's presence on the witness list, Defendant asserts, is to fulfill this purpose.
The Court will dismiss any objection to this witness. Mr. Hussar's testimony is necessary only because of Plaintiffs' unwillingness to stipulate to the authenticity of photographs. Mr. Hussar's testimony is not material to any fact other than those photographs, and his presence in the case will not prejudice the Plaintiffs. Indeed, refusing to allow his testimony would allow Plaintiffs to undermine Defendants' case due to a problem that Plaintiffs created. As such, the objection is baseless, and the Court will dismiss it.
b. Deposition Designations
Plaintiffs next assert that Arctic Cat has failed to identify the pertinent portions of the deposition testimony of each witness that Defendant intends to offer. Plaintiffs complain that these improper designations make objecting to the depositions impossible. They reserve the right to make such objections at trial. Defendant Arctic Cat responds that Arctic Cat has made counter-designations and stated grounds for objections and points appropriate under the circumstance.
The Court has reviewed the designations and counter-designations made by the defendants for each of the depositions to be presented at trial. These designations point to the specific page and line designated, and point to objections that were made in the depositions. The Court finds that these designations are sufficient for the purposes of Federal Rule of Civil Procedure 26(a)(3)(B), which requires that a party provide "the designation of those witnesses whose testimony is expected to be presented by means of deposition[, ]" and this Court's pre-trial order, which requires the parties to identify "the pertinent portions of the deposition testimony to be offered[.]" FED. R. CIV. P. 23(a)(3)(B); Pre-Trial Order 11(I)(b) Plaintiffs are not prejudiced by the way that Defendants have designated the depositions, and the Court will dismiss the objections on these grounds.
c. Exhibit Lists
Plaintiffs assert that exhibits have not been exchanged and request that they be permitted to object to exhibits based on any grounds apparent only after exchange. The Plaintiffs nevertheless find the exhibit lists objectionable. They contend that the exhibit lists are not specific enough, identifying groups of documents when those documents should be identified individually. They also object that some documents have not been provided to the Plaintiffs, and object on all available grounds. Plaintiffs also append a list of objections to many of the documents on the exhibit list. Defendant Arctic Cat responds that specific objections to the exhibit list were lodged in Defendant's motion in limine seeking to exclude evidence of leg guarding, doors and off-road magazines, and that the Court granted the motion and excluded the evidence. Otherwise, Defendant does not offer a specific response to these objections.
In terms of Plaintiffs' general objections about how the exhibit lists are worded and divided, the Court finds no basis for relief. Plaintiffs do not point to particular exhibits which are improperly described, and the detailed list of exhibits and objections provided by the Plaintiffs belies any claim that Plaintiffs have been left incapable of ascertaining the nature of the documents or why they are objectionable. In terms of Plaintiffs' objection that some of the documents have not yet been provided, the Court recognizes that objections can more easily be made when the documents are in front of the parties. That is why the Court's uniform pre-trial rules contain the requirement that the parties meet before trial to discuss stipulations. The Court anticipates that many of the evidentiary issues regarding the authenticity and admissibility of exhibits will be resolved at that time, and that these issues need not presently trouble the Court. The Court will therefore dismiss any objection to the pre-trial disclosures, anticipating that particular exhibits may raise particular concerns at the time of trial.
d. Waiver of Objections
Plaintiffs next argue that Defendant has waived any objections to the Plaintiffs' disclosures by failing to file them in a timely manner according to the Court's rules. They assert that Defendants have waived their right to object to any deposition designations in this matter, and that any objections to deposition testimony from another matter, Ortiz v. Arctic Cat, are deficient. Defendant Arctic Cat responds that Defendant did object to the pre-trial disclosures, both by filing motions in limine and in filing Defendants' own pre-trial disclosures, which contained objections to designations and evidence.
In terms of the Ortiz v. Arctic Cat matter, the Court agrees with the Defendant that Arctic Cat properly objected to the Plaintiffs' pre-trial disclosures in Defendant's own disclosures. As explained above, the objections are clearly stated in the Defendant's filings. To the extent that Plaintiffs raise this objection with regard to Defendant Gander Mountain, the same finding applies. The Court will dismiss the Plaintiffs' objections in this respect as well.
ii. Gander Mountain
Plaintiffs also seek an order of Court preventing the Gander Mountain Defendants from presenting any witnesses, including expert witnesses, at trial, and from presenting any witnesses via deposition testimony. Plaintiffs assert that Defendant failed to comply with the Court's rules regarding pre-trial disclosures, that Plaintiffs have suffered prejudice, and that as a result, Defendant should be precluded from presenting testimony. Defendant responds that Gander Mountain provided both a witness list and an exhibit list on December 2, 2013, as part of pre-trial filings. In addition, Defendant has now filed an additional Pre-trial Disclosure Statement. As such, Defendant contends, Plaintiffs' objections have been met and no action from the Court is required.
The Court agrees with the Defendant. Defendant has provided the Plaintiffs with the information required by Rule 23(a)(3) and at a time sufficient for Plaintiffs to respond to that information and prepare for trial. The objections are dismissed on these grounds as well.
D. Motions in Limine
After the Court's November 27, 2013 ruling, several motions in limine remained to be decided by the Court, subject either to additional briefing or other consideration of the parties' filings. The Court will address all motions pending, even if the Court earlier decided to reserve judgment and now continues to do so. If the Court has already ruled on a motion, the Court will restate that ruling and point to the ...