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Shaffer & Sons Construction, Inc v. Alter Trading Corporation

December 10, 2010

SHAFFER & SONS CONSTRUCTION, INC., PLAINTIFF,
v.
ALTER TRADING CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Opinion Richard Mills, U.S. District Judge:

E-FILED

Friday, 10 December, 2010 03:50:34 PM

Clerk, U.S. District Court, ILCD

This case is before the Court on the Defendant's motion in limine [d/e 45] and the Plaintiff's first motion in limine [d/e 46].

I. Defendant Alter Trading Corporation's Motion in Limine

(1) Evidence regarding settlement negotiations Defendant Alter Trading Corporation seeks to exclude any evidence regarding settlement negotiations, pursuant to Federal Rule of Evidence 408. Plaintiff Shaffer & Sons Construction, Inc. has no objection to the exclusion of such evidence. Accordingly, the Defendant's motion in limine is Allowed to the extent that it seeks to exclude any evidence regarding settlement negotiations.

(2) Evidence based on Trial Exhibits 36, 37, 38 and 39 The Defendant contends that the Plaintiff is seeking to add four entirely new claims. In support of its motion, the Defendant states that on April 30, 2010, the Plaintiff filed its supplement to its motion for leave to file its first amended complaint Instanter which, among other things, sought to amend the complaint by adding four entirely new claims regarding alleged work at the Celotex facility. The Defendant notes that the four purported new claims sought damages of $53,793.00, $54,713.50, $259,370.50 and $73,029.58, respectively.

On June 25, 2010, the Court issued an Opinion denying the Plaintiff leave to add the four entirely new Celotex claims because of "undue delay" and potential prejudice to the Defendant resulting from the new claims. On July 9, 2010, the Plaintiff filed its first amended complaint which does not contain the four new Celotex claims.

The Defendant claims that the Plaintiff has disclosed alleged invoices for the four previously disallowed Celotex claims as Trial Exhibits 36 (alleged Shaffer & Sons Construction Invoice No. 296 seeking $53,793.00), 37 (alleged Shaffer & Sons Construction Invoice No. 300 seeking $259,370.50), 38 (alleged Shaffer & Sons Construction Invoice No. 302 seeking $73,029.58) and 39 (Shaffer & Sons Construction Invoice No. 303 seeking $54,713.50). The Defendant contends that any evidence pertaining to the four new Celotex claims that the Court did not allow the Plaintiff to add to the complaint, including the aforementioned trial exhibits, is irrelevant as the four previously disallowed Celotex claims are not contained in the Plaintiff's first amended complaint and are not at issue. Accordingly, the Defendant asserts that such evidence, including Trial Exhibits 36, 37, 38, and 39, should be excluded as irrelevant.

In response, the Plaintiff states that William Shaffer, its president and sole shareholder, did not participate in any of the corporation's bookkeeping activities, including the creation and communication of invoices for work completed. Those responsibilities were fulfilled by one of his employees, Beverly Howell.

The Plaintiff further alleges that most of the information Ms. Howell utilized in preparing financial records was supplied by Terry Gallaher, the independent contractor employed by the Plaintiff to do manual labor for all of the projects related to this litigation. In turn, Mr. Gallaher would hire whatever manpower was needed to complete the project at hand. Mr. Gallaher would daily record the number of hours worked by each employee and transmit this information by phone to Ms. Howell, who would record it at the business office in Quincy. The Plaintiff further notes that Mr. Gallaher did not find his written records, which are Trial Exhibits 1 through 3, until shortly before his deposition was taken on March 16, 2010. The Plaintiff claims that these records reflect the location and dates he and his employees worked at the various jobs. Mr. Gallaher, and his employees, were paid for every hour they worked by Mr. Shaffer.

The Plaintiff further asserts that Beverly Howell has, and will, testify that Trial Exhibits 36, 37, 38 and 39 are based upon the information provided by Ms. Gallaher and Mr. Shaffer regarding the hours they worked as well as the hours Mr. Shaffer's equipment was used. Her testimony will be that Trial Exhibits 36, 37, 38 and 39 accurately reflect the hours spent by Mr. Shaffer, Mr. Gallaher and Mr. Gallaher's employees at each location.

The Plaintiff alleges that Defendant's position that Trial Exhibits 36, 37, 38 and 39 reflect "four entirely new claims regarding alleged work in Celotex facility" is not true. The cost for these projects was estimated in Counts II and V of the original Complaint.*fn1

The Plaintiff further contends there has been no evidence presented to date which indicates that Ms. Howell's testimony and/or Mr. Gallaher's testimony and records are not accurate. Therefore, the Plaintiff claims that any directive limiting their testimony will prevent the jury from hearing the most relevant information from the two persons who have the most knowledge about the issues in question.

The exhibits at issue are attached to the Pre-Trial Order filed on April 10, 2010, which was filed before the Court denied the Plaintiff leave to add the four new claims on June 25, 2010. Thus, the new claims do not appear in the subsequently-filed first amended complaint, which is the operative complaint before the Court. The Court has carefully reviewed the first amended complaint, especially the amount of damages sought in each of the six counts. It does not appear that the invoice amounts which are listed as trial exhibits are relevant to any claims asserted in the first amended complaint. Consistent with its previous Orders, therefore, the Court finds that Trial Exhibits 36, 37, 38, and 39 are irrelevant and will be excluded. This portion of the Defendant's motion in limine is also Allowed.

II. Plaintiff Shaffer & Sons Construction's Motion in Limine

(1) In its motion in limine, the Plaintiff first seeks the entry of an Order prohibiting the Defendant, and any of its counsel, from any reference regarding whether any sums awarded by the jury could be invested by the Plaintiff to produce a stream of income for the benefit of the Plaintiff (which, if allowed, would have the effect of inviting the jury to either make an additional and unauthorized reduction in future damages, or to reduce sums that should not have been reduced to present value to begin with), Schaffner v. Chicago Northwestern Transportation ...


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