United States District Court, D. Maryland
JOHN H. MACSHERRY, JR., Plaintiff,
SPARROWS POINT, LLC, et al., Defendants.
L. Hollander, United States District Judge.
case has a long history, arising from a dispute as to a
commission allegedly due and owing to plaintiff John
Macsherry, Jr., occasioned by the sale of commercial
property. Defendants Michael Roberts; Sparrows Point, LLC
(“SPLLC”); and Commercial Development Company,
Inc. (“CDC”) dispute plaintiff's entitlement
to a commission.
motions in limine are now pending. “A motion in
limine is a request for guidance by the court regarding
an evidentiary question.” United States v.
Luce, 713 F.2d 1236, 1239 (6th Cir. 1983),
aff'd, 469 U.S. 38 (1984). Motions in limine
help to streamline a case, because such motions
“enable a court to rule in advance on the
admissibility of documentary or testimonial evidence and thus
expedite and render efficient a subsequent trial.'”
INSLAW, Inc. v. United States, 35 Fed. Ct. 63, 65-66
(1996) (citation omitted). To be sure, rulings on such
motions assist counsel in preparation for trial. However,
such rulings are preliminary, and are made in the discretion
of the court. Luce, 713 F.2d at 1239-40. When the
evidence is actually offered at trial, the trial court may
opt to change its ruling. Id. at 1239.
has filed a motion in limine (ECF 90), seeking an order
designating that “the terms of Macsherry's
employment concerning his start date, vacation, holidays and
expense reimbursement as set forth in the Term Sheet . . .
are established for purposes of this action.”
Id. at 1. The motion is supported by exhibits.
Defendants oppose the motion (ECF 92), and the opposition is
also supported by exhibits. No. reply was filed.
have filed a motion in limine to exclude
“compromise” statements of Mr. Roberts, pursuant
to Fed.R.Evid. 408. ECF 91. The motion is supported by
exhibits. Plaintiff opposes the motion (ECF 93), supported by
exhibits. Defendants have replied (ECF 96) and have submitted
an additional exhibit.
hearing is necessary to resolve these motions. Local Rule
105.6. I shall discuss each motion, in turn.
Michael Roberts was deposed on behalf of himself and as the
Rule 30(b)(6) corporate designee of defendants. At his
deposition on December 2, 2015, Roberts was unable to testify
to certain items that had been identified in the Rule
30(b)(6) notice. See ECF 90-3.
particular, Item 5 of the Rule 30(b)(6) notice provided, ECF
90-3 at 11:
The employment of Plaintiff, including but not limited to
position, full or part time, start date, duties, employment
agreement . . . salary, commission and how it was to be
calculated and paid, health benefits, vacation time,
holidays, expense reimbursements, company cell phone, and the
marketing and sale of the Property . . . .
the notice, Mr. Roberts was unable to answer rather basic
employment information concerning Mr. Macsherry, such as his
“start date”; his vacation time; his paid
holidays; and his entitlement to reimbursement for expenses.
See ECF 90 at 3-5; ECF 90-4. However, after the
deposition, plaintiff never requested another corporate
designee, nor did he file a motion to compel testimony.
Discovery closed on January 29, 2016. ECF 36.
April 21, 2016, plaintiff's counsel sent a detailed and
lengthy letter to defense counsel regarding “an
apparent discovery dispute . . . .” See ECF
92-1. The letter concerned defendants' responses to
plaintiff's request for admissions. Id.;
see ECF 92-9. According to plaintiff, the responses
did not comply with Fed.R.Civ.P. 36. Plaintiff's attorney
pointed out in the letter that, if the parties did not
resolve the disputed issues, he “will have no choice
but to seek relief from the Court.” ECF 92-1 at 11.
Counsel agreed to meet in an attempt to resolve the disputes.
See ECF 92-7.
letter from defense counsel to plaintiff's counsel dated
April 29, 2016, defense counsel claimed that plaintiff had
“waived any right to challenge the deficiency of
Defendants' corporate designee testimony by failing to
request that either SPLLC or CDC (or both) make a second
corporate designee available to address the topics [that
plaintiff] now contend[s] was not fully answered.” ECF
92-6 at 2. Defense counsel pointed out that plaintiff failed
to file a motion to compel any allegedly inadequate
testimony, ” as required by the Local Rules and
Fed.R.Civ.P. 30 and 37. Id. at 3.
designee who is not responsive to a notice of deposition,
claiming lack of knowledge or only limited knowledge, may be
subject to sanctions. Wilson v. Lanker, 228 F.R.D.
524, 529-30 (D. Md. 2005). Moreover, Rule 30(b)(6) requires a
good faith effort “‘to collect information,
review documents, and interview employees with personal
knowledge.'” Dorsey v. TGT Consulting,
LLC, 888 F.Supp.2d 670, 685 (D. Md. 2012) (citation
omitted). And, depending on the “nature and extent of
the obfuscation, the testimony given by [a] nonresponsive
deponent (e.g., ‘I don't ...