United States District Court, S.D. Mississippi, Northern Division
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
THIS COURT are the following motions: defendant's Motion
in Limine [Docket no. 78]; defendant's
Motion to Continue [Docket no. 80];
defendant's Motion for Extension of Time to File Motion
[Docket no. 81]; and plaintiff's Motion
to Strike  Response in Support of Motion and/or Motion
for Leave to File Sur-Reply [Docket no.
84]. This court has reviewed all the filings of the
parties and is persuaded to rule as follows.
MOTION IN LIMINE [Docket no. 78]
lawsuit had been set for a jury trial to start on November 6,
2017. [Docket no. 79]. Defendant filed its Motion in Limine
[Docket no. 78] on October 3, 2017, asking
this court to exclude the introduction of several categories
of evidence from consideration by the jury: namely,
defendant's policies and procedures, including those
related to the handling of cease and desist requests;
defendant's automated dial announcing device (hereinafter
referred to as “ADAD”) registration; other
litigation or claims against defendant; findings from other
cases regarding whether software manufactured by Noble
Systems, Inc. is an automatic telephone dialing system
(hereinafter referred to as “ATDS”);
defendant's business dealings with individuals other than
plaintiff and her son, Iassac Barnes; plaintiff's
emotional reaction to calls; comments that defendant is
subject to strict liability; arguments or statements that
defendant used an “autodialer” or placed
“robocalls;” and evidence of defendant's
financial condition. Defendant relies on Rules 401, 402, and
403 of the Federal Rules of Evidence for support.
thus recognizes that when analyzing evidence under the
Federal Rules of Evidence on relevance, this court must
observe some basic inquiries: whether the evidence
(a) […] has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) [whether that] fact is of consequence in determining the
Fed. R. Evid. 401.
relevant evidence is admissible unless any of the following
• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible
Fed. R. Evid. 402.
The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.
Fed. R. Evid. 403.
utilizing these “relevancy” guideposts, this
court needs to place the background facts of this dispute in
perspective. Plaintiff herein alleges that defendant violated
the Telephone Consumer Protection Act, codified at Title 47
U.S.C. § 227 et seq. (hereinafter referred to
as the “TCPA”). Plaintiff here is Lawanda Barnes
(hereinafter referred to as “Barnes”). Her son is
Isaac Barnes (hereinafter referred to as “Isaac”,
so as not to confuse his identity with that of his mother).
Supposedly, on August 9, 2014, the pair went to the Conn
Appliance Store (hereinafter referred to as
“Conn”), the defendant herein, located in
Ridgeland, Mississippi. Barnes and Issac live in the same
in the defendant's store, Isaac applied for credit to
purchase a bedroom suite. A credit application was provided.
Someone put Barnes' cellular telephone number on that
credit application, as Isaac's point of contact. The
parties herein sharply dispute who actually wrote that
information on the application. Barnes never signed the
credit application, which contained the following waiver
under the TCPA:
For each telephone number you provide to seller (either
directly or by placing a call directly to us), you consent
and authorize us to place telephone calls to you at that
number. Such consent expressly includes authorization for
seller (and/or seller's affiliates and/or agents) to send
text messages and/or place telephone calls to cellular or
landline telephone numbers using pre-recorded or artificial
voice messages, as well as calls made by an automatic dialing
[Docket no. 69-1].
approved Isaac's credit application and, subsequently,
delivered the bedroom suite to him.
never made any payments on the credit account. An aggrieved
Conn thereafter began placing telephone calls to Barnes'
cellular telephone. Barnes answered the phone calls on
multiple occasions. During the course of those telephone
calls, Barnes informed Conn that the phone number was hers
and not Issac's. She also attempted on multiple occasions
to make payment arrangements on the account along with
attempting to make payments over the phone. After some
months, Barnes alleges that she told Conn not to call her
telephone number anymore.
persisted. Conn admits to calling Barnes' cellular
telephone over six hundred (600) times, a number of times
after Barnes ordered Conn to stop calling. Isaac's bill
of $4, 138.56 owed to Conn is still outstanding. Barnes,
however, by virtue of this lawsuit, contends that Conn is
liable to her for an unspecified amount; however, she claims
she can at least recover $500 per phone call - an amount that
presumably would be approximately $300, 000.
Cease and Desist Requests Procedures and Policy
asks this court to exclude its policies and procedures,
specifically those related to cease and desist requests. The
targeted policies and procedures speak to how Conn's
employees should handle cease and desist requests from its
customers, namely what to do when customers tell Conn
employees not to call anymore.
trumpets two reasons why these matters should be excluded:
(1) they are irrelevant; and (2) their production would
occasion a danger of unfair prejudice and confusion of the
issues. The defendant adds that should this court admit these
policies and procedures, the court should limit the
introduction of such to those policies and procedures that
were in effect between August 9, 2014, and April 27, 2016.
says, on the other hand, that defendant's policies and
procedures are relevant. They are relevant, explains
plaintiff, as to defendant's conduct in general, whether
that conduct was prudent and lawful and, in addition, whether
defendant acted knowingly, willfully, or negligently - a
determination that could subject defendant to treble damages
under the statute.
court is persuaded that Conn's policies and procedures
that were in effect during the time frame encompassed by this
lawsuit are relevant and not unduly prejudicial. Accordingly,
this court DENIES defendant's motion in limine on this
ground, but limits plaintiff's presentation to the jury
to defendant's policies and procedures that ...