United States District Court, S.D. Indiana, Indianapolis Division
ERIC S. TESLER, Plaintiff,
MILLER/HOWARD INVESTMENTS, INC., a Delaware Corporation, Defendant.
ENTRY ON PENDING MOTIONS IN LIMINE
WALTON PRATT, JUDGE
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.
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.
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.
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.
First Motion in Limine
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
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).
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.)
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.
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
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