FA ND Chev, LLC et al v. Kupper et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
FA ND Chev, LLC, and
FA ND Sub, LLC,
Plaintiffs,
vs.
Robert Kupper; Bismarck Motor Company;
and BMC Marine LLC, d/b/a Moritz Sport &
Marine,
Defendants.
Case No. 1:20-cv-00138
ORDER DENYING WITHOUT PREJUDICE MOTION IN LIMINE
[¶1] 	THIS MATTER comes before the Court on a Motion in Limine filed by Defendant Robert
Kupper (“Kupper”) and Plaintiff/Counter-Defendant BAPTKO, Inc. (“BAPTKO”) (collectively,
“Kupper Parties”) on July 15, 2024. Doc. No. 370. Plaintiffs FA ND Chev, LLC, FA ND SUB,
LLC, and Defendant/Counter-Plaintiff Foundation Automotive Corp. (collectively, “Foundation
Parties”) filed a Response on August 19, 2024. Doc. No. 374. The Kupper Parties filed a Reply on
August 26, 2024. Doc. No. 376. For the reasons set forth below, the Motion in Limine is DENIED
without prejudice.
[¶2] 	The Kupper Parties ask the Court to exclude certain documents sent to Kupper by David
Sikkenga (“Sikkenga”) between September 19 and 20, 2022 (Doc. Nos. 306-3, 306-4) (“Sikkenga
Documents”). As grounds, the Kupper Parties assert the documents are unreliable, lack foundation,
are incomplete, not probative of any claim or defense, and would unfairly prejudice the Kupper
Parties, confuse the issues, mislead the jury, cause undue delay, and waste trial time. The
documents relate to the Foundation Parties’ claim that Kupper allegedly failed to keep the proper
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rolling inventory during the timeframe set forth in the Asset Purchase Agreement. The Foundation
Parties argue the Sikkenga Documents are admissible and exclusion at this time would be
premature and improper.
[¶3] 	“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.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R.
Evid. 401. District courts have “broad discretion” in deciding motions in limine. Kozlov v.
Associated Wholesale Grocers, Inc., 818 F.3d 380, 396 (8th Cir. 2016); see also United States v.
Duggar, 76 F.4th 788, 794-96 (8th Cir. 2023) (applying abuse of discretion standard of review of
trial evidentiary issues).
[¶4] 	At this point in the litigation, it would be improper to exclude the Sikkenga Documents.
The grounds asserted by the Kupper Parties implicate the factual context of trial. Without that
necessary framework, it would be imprudent for the Court to determine the Sikkenga Documents’
reliability, foundation, whether they are complete, probative, or prejudicial, confusing, misleading,
causing delay, or wasting time. After a careful review of the record, it is clear the Kupper Parties’
arguments at this time do not go to the admissibility of the Sikkenga Documents. Rather, the argues
are best reserved for the jury to decide the weight and credibility of the Sikkenga Documents.
However, it would be premature to rule one way or the other on the admissibility of the Sikkenga
Documents because trial may show they ought to be excluded from or included in the record.
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[¶5] 	Accordingly, for the reasons set forth above, the Kupper Parties’ Motion in Limine is
DENIED without prejudice. The Kupper Parties may reraise the objections during trial at the
time the introduction of the Sikkenga Documents as evidence is sought.
[¶6] 	IT IS SO ORDERED.
DATED August 27, 2024.
Daniel M. Traynor, District Judge
United States District Court
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