Banque Hypothecaire Du Canton De Geneve v. Union Mines, Inc., Civ. No. S 85-997.

• Decision Date: 04 February 1987
• Docket Number: Civ. No. S 85-997.
• Citation: 652 F. Supp. 1400
• Parties: BANQUE HYPOTHECAIRE DU CANTON DE GENEVE v. UNION MINES, INC.
• Court: U.S. District Court — District of Maryland

652 F. Supp. 1400

BANQUE HYPOTHECAIRE DU CANTON DE GENEVE v. UNION MINES, INC.

Civ. No. S 85-997.

United States District Court, D. Maryland.

February 4, 1987.

Robert F. Brodegaard, Weil, Gotshal & Manges, New York City, Charles M. Kerr, Venable, Baetjer & Howard, Baltimore, Md., for plaintiff.

Lewis A. Noonberg, Richard E. Dunne, III, Piper & Marbury, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

SMALKIN, District Judge.

The Court has reviewed the plaintiff/counterdefendant's (BCG's) motion in limine to exclude certain evidence as to damages on the counterclaim, as well as the defendant/counter-plaintiff's (UMI's) opposition thereto.

At the outset, I agree with UMI's contention that a motion in limine is not the appropriate procedural vehicle by which to raise these issues. The office of a motion in limine (which is, by the way, not a creature of either the Federal Rules of Evidence or the Federal Rules of Civil Procedure) is to aid the trial process by enabling the Court to rule in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely set for trial, without lengthy argument at, or interruption of, the trial. See Graham, Handbook of Federal Evidence § 103.8 (2d ed. 1986) at 31 n. 5. The motion in limine is, in my opinion, not a device to narrow or fix the issues to be tried. The Federal Rules of Civil Procedure provide at least three motions designed to narrow or fix the issues for trial — motions to dismiss, for judgment on the pleadings, and for summary judgment—and motions in limine are not among them. This Court, in the interests of orderly pretrial proceedings, routinely fixes deadlines for filing such dispositive motions. This Judge has noticed an increasing tendency for last-minute summary judgment motions (often, like this one, supported by evidentiary material as per Fed. R.Civ.P. 56(e)) to sneak up in limine clothing shortly before trial, after the deadline for orderly filing of summary judgment motions has passed. It is a practice strongly to be discouraged.

Nevertheless, in the interests of justice, I have considered the motion as if properly made under Fed.R.Civ.P. 56.¹ As to the issue of consequential damages to UMI incurred from difficulties with the Platoro project after BCG's dishonor of the escrow agreement, I find that there are genuine disputes of material fact as to proximate cause, mitigation, and foreseeability, which the jury will have to resolve, that preclude this Court from withdrawing the issue from the trier of fact under Rule 56 case law, see, e.g., Anderson v. Liberty, Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, quite obviously, the Court cannot withdraw the issue of consequential damages from the trier of fact as "irrelevant" under Article IV of the Federal Rules of Evidence pursuant to a motion in limine.

With regard, however, to the issue of attorney's fees, the Court finds no genuine dispute of material fact. The entitlement to attorney's fees under the governing substantive law² is not automatic, but is dependent upon a...