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Tesler v. Miller/Howard Investments, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

May 13, 2019

ERIC S. TESLER, Plaintiff,
v.
MILLER/HOWARD INVESTMENTS, INC., a Delaware Corporation, Defendant.

          ENTRY ON PENDING MOTIONS IN LIMINE

          TANYA WALTON PRATT, JUDGE

         Before the Court are Defendant Miller/Howard Investments, Inc.'s (“Miller/Howard”) First Motion in Limine (Filing No. 130) and Second Motion in Limine (Filing No. 131). Plaintiff Eric Tesler (“Tesler”) has responded to both motions (Filing No. 142; Filing No. 143). For the following reasons, Miller/Howard's First Motion in Limine is DENIED. Miller/Howard's Second Motion in Limine is GRANTED.

         I. LEGAL STANDARD

         The Court excludes evidence on a motion in limine only if the evidence clearly is not admissible for any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings must be deferred until trial, so questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400-01. Moreover, denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion is admissible; rather, it only means that, at the pretrial stage, the court is unable to determine whether the evidence should be excluded. Id. at 1401.

         II. DISCUSSION

         The Court's Entry on Defendant's Motion for Summary Judgment recites the facts of this case in detail. (Filing No. 111.) In short, Tesler was employed by Miller/Howard, a financial management corporation that sells securities, between October 2010 and March 2014. Tesler contends that, despite leaving the company, he is entitled to continued commission payments on accounts he generated during his employment there. He brought this suit seeking to recover those payments from Miller/Howard.

         While Miller/Howard was recruiting Tesler, Tesler spoke to Tracee Cannon-Gordon, a recruiter employed by a recruiting firm that Miller/Howard had hired to assist in filling the position Tesler applied for. Tesler testified in his deposition that Ms. Cannon-Gordon told him “the way the contract was written [he] would receive those commissions regardless if [he] was employed with Miller/Howard.” (Filing No. 85-2 at 14.) Tesler also claimed Ms. Cannon-Gordon told him that “she worked on behalf of Miller/Howard as their agent and brought that to their attention, that they would have to continue to pay commissions whether [Tesler] left the firm or they let [him] go, and they chose not to do anything in regard to the contract.” Id.

         A. First Motion in Limine

         In its First Motion in Limine, Miller/Howard seeks to prevent Tesler from introducing Ms. Cannon-Gordon's pre-employment representations, arguing they are inadmissible hearsay. Miller/Howard contends that Ms. Cannon-Gordon's statements are not statements of a party-opponent, which are excluded from the definition of hearsay by Federal Rule of Evidence 801(d)(2), because Ms. Cannon-Gordon did not have the authority to negotiate the terms and conditions of Tesler's employment.

         Under Rule 801(d)(2)(D), “[a] statement that meets the following conditions is not hearsay: The statement is offered against an opposing party and … was made by the party's agent or employee on a matter within the scope of that relationship while it existed.” The rule “simply requires that the statement be made by an individual who is an agent, that the statement be made during the period of the agency, and that the matter be within the subject matter of the agency.” Young v. James Green Mgmt., Inc., 327 F.3d 616, 622 (7th Cir. 2003).

         Miller/Howard argues that the conversation Tesler seeks to introduce was made “outside the scope of [Ms. Cannon-Gordon's] agency, ” and thus is hearsay. (Filing No. 130 at 3.) Tesler responds that “Ms. Cannon-Gordon was retained to recruit Tesler to Miller Howard. She was aware of the terms of the offer and stated that she had discussed the terms with Miller Howard. She then discussed the terms with Tesler. The terms of employment were part and parcel of her role as an Executive Recruiter and her role on behalf of Miller Howard to recruit Tesler for employment.” (Filing No. 142 at 2.)

         The Court is persuaded by Tesler's argument. Ms. Cannon-Gordon was an agent of Miller/Howard tasked with recruiting someone to fill its open Regional Sales Director position. The terms of any offer of employment Miller/Howard made to Tesler to fill that role are within the scope of Ms. Cannon-Gordon's relationship to Miller/Howard, and therefore qualify as statements of a party-opponent. It does not matter whether Miller/Howard actually authorized Ms. Cannon-Gordon to discuss or negotiate terms with Tesler because Miller/Howard held her out to be its agent on the matter of the open Regional Sales Director position.

         Miller/Howard argues “apparent authority” is insufficient to buttress a statement of a party-opponent, citing Estate of Gee ex rel. Beeman v. Bloomington Hosp. and Health Care Sys., Inc., 2012 WL 729269 at *5 (S.D. Ind. March 6, 2012). In that case, the Court determined that a statement made by a doctor who was not an employee of the defendant hospital was not a statement of a party-opponent just because the decedent mistakenly thought the doctor was an employee of the hospital. Id. Estate of Gee is not analogous to this situation because in Estate of Gee the doctor who made the statement had no agency relationship with the defendant at all. Here, both parties agree that Ms. Cannon-Gordon was engaged by Miller/Howard to help fill the open Regional Sales Director position, and that Miller/Howard compensated her for that work. Because an agency relationship existed between Miller/Howard and Ms. Cannon-Gordon, Mrs. Cannon-Gordon's statements were textbook admissions of a party-opponent's agent.

         Having found that Ms. Cannon-Gordon's statements are not hearsay under Rule 801(d)(2)(D), the Court need not determine whether Tesler intends to offer them for the truth of the matter ...


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