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INTERNATIONAL PAPER CO. v. ANDROSCOGGIN ENERGY LLC

April 22, 2004.

INTERNATIONAL PAPER COMPANY, a New York Corporation, Plaintiff
v.
ANDROSCOGGIN ENERGY LLC, a Delaware Limited Liability Company; POLSKY ENERGY CORPORATION OF MAINE, an Illinois Corporation; and ANDROSCOGGIN ENERGY, INC., an Illinois Corporation; Defendants; ANDROSCOGGIN ENERGY LLC, Counter-Claimant; vs. INTERNATIONAL PAPER COMPANY, Counter-Defendant



The opinion of the court was delivered by: CHARLES KOCORAS, District Judge

MEMORANDUM OPINION

Before the court are eight motions in limine brought by Plaintiff International Paper Co. ("IP") and thirteen motions in limine brought by Defendant Androscoggin Energy LLC ("AE"). For the reasons set forth below, the parties' motions are granted in part and denied in part. BACKGROUND

This case arises out of AE's breach of a steam generation and supply contract entered into with IP. The facts of this case are detailed in our previous decisions in International Paper Co. v. Androscoggin Energy LLC. 2002 WL 31507176 (N.D. Ill. 2002); 2003 WL 22955995 (N.D. Ill. 2003). Discovery has been completed and the cased is poised for trial. The parties have filed various motions in limine.

  LEGAL STANDARD

  A federal district court's authority to manage trials includes the power to exclude evidence pursuant to motions in limine. Falk v. Kimberly Services, Inc., 1997 WL 201568, *1 (N.D. Ill. 1997). However, a court has the power to exclude evidence in limine only when that evidence is clearly inadmissible on all potential grounds. Hawthorne Partners v. AT & T Technologies. Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). A district court should be mindful that some proposed evidentiary submissions cannot be accurately evaluated in a pretrial context via a motion in limine. Tzoumis v. Tempel Steel Co., 168 F. Supp.2d 871, 873 (N.D. Ill. 2001). For this reason, certain evidentiary rulings should be deferred to trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context. Hawthorne Partners at 1400. Denial of a motion in limine does not automatically mean that all evidence contemplated by the motion will be admitted at trial. Id. at 1401. Instead, the court will entertain objections to individual proffers as they occur at trial. Id. In any event "the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling." Luce v. U.S., 469 U.S. 38, 41-42 (1984).

  DISCUSSION

  IP has filed eight motions in limine, while AE has filed thirteen.

 IP's Motions

  IP's first motion seeks to exclude any evidence, argument, or instruction regarding AE's anticipatory repudiation theory. Citing case law from the Ninth Circuit, IP argues that, because AE breached the AESA in May 1998, AE's December 1, 1998, communication about the loss of the Rio Alto gas contract could not constitute an anticipatory breach "as a matter of law." AE responds that it does not intend to argue that it anticipatorily breached the AESA on December 1, 1998, but rather that the date is significant for damages purposes as the date IP conclusively learned that the AESA had been breached. AE suggests that because IP became aware of the AE's loss of the Rio Alto contract on December 1, 1998, a repudiation of the AESA might be deemed to have occurred on that date. We accept AE's statement that it does not intend to rely on any anticipatory repudiation theory at trial, rendering IP's motion moot. IP's second motion seeks to bar the opinion and testimony of AE's expert Jan van Egteren. AE plans to have Mr. van Egteren opine on the availability of natural gas from other suppliers that could have been obtained in response to the loss of the Rio Alto contract. Because we find that this information is potentially relevant to the issue of damages, including any duty on the part of IP to mitigate, this motion is denied.

  IP's third motion seeks to exclude evidence concerning the question whether AE actually or intentionally terminated the Rio Alto contract. The undisputed fact found previously by the court is that Rio Alto actually terminated its contract with AE. The issue to be tried is whether AE constructively terminated its contract with Rio Alto, not whether AE actually or intentionally terminated the Rio Alto contract. Constructive termination by AE is central to IP's breach claim as to Section 6.01(j); the jury should be able to hear that Rio Alto, not AE, actually terminated the contract. Since the jury will decide whether AE had constructively terminated its contract with Rio Alto prior to the AESA, the fact that Rio Alto actually terminated the contract will be relevant in that it will help provide the jury a context for answering the constructive termination question.

  IP's fourth motion seeks to exclude the testimony of James Shield (an AE manager who executed the AESA) and Patrick Scully (an AE attorney who counseled AE on its contracts with IP). Because Mr. Shield negotiated and executed the AESA, the contract at issue, his testimony is potentially relevant to the case. In addition, he is listed as a "May Call" witness by IP in the Final Pretrial Order. As for Mr. Scully, IP has included a letter he authored as an exhibit for trial. Pl. Ex. 74. Since IP may potentially introduce this letter at trial, we find that it is premature to prohibit his testimony. Accordingly, IP's motion as to Mr. Shield and Mr. Scully is denied.

  IP's fifth motion seeks to exclude the testimony, report, and opinion of AE's expert witness Professor Ann Lousin. IP wants to bar Professor Lousin's testimony because it will concern AE's theory of anticipatory repudiation. AE responds that Professor Lousin will offer testimony on subjects other than anticipatory repudiation. On that basis, we will not bar Professor Lousin from testifying. Whether she will offer relevant evidence is better decided at trial.

  IP's sixth motion seeks to exclude evidence, argument, and instruction regarding causation, and also asks us to deem the element of causation established in IP's favor as a matter of law. However, we have already stated that the causation element in IP's breach of contract claim has yet to be determined, that genuine issues of fact exist concerning the causal connection between AE's breach and IP's increased steam costs, and that the causation question is one for the jury. Mem. Op. Dec. 11, 2003, at 8-9. Because the question of causation is unsettled and is to be answered by the jury, this motion is denied. IP's seventh motion seeks to exclude any evidence, argument, and instruction concerning AE's affirmative defense of waiver. Motions in limine are generally not proper vehicles for determining the validity of affirmative defenses, as such questions require the resolution of factual issues. Miles v. Barrington Motors Sales. Inc., 2003 WL 22889373, *2 (N.D. Ill. 2003) (citing U.S. v. Tokash. 282 F.3d 962, 967 (7th Cir. 2003)). IP's motion is, accordingly, denied.

  IP's eighth motion seeks to bar AE from offering evidence, argument, and instruction, concerning AE's affirmative defense of failure to mitigate. However, as we have already determined that as a matter of law AE is not precluded from raising the mitigation defense and that whether a party should have ...


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