United States District Court, W.D. Michigan, Southern Division
HOLMES BELL, UNITED STATES DISTRICT JUDGE
a breach of contract case. Defendant Merchant Solutions
International, Inc. is a merchant service provider, and
Plaintiff Mid America Solutions, LLC, was an independent
contractor working for Defendant. The matter is before the
Court on Defendant's motions in limine. (ECF Nos. 99,
101, 103, 106, 108, 110, 112.) Plaintiff has filed a response
to each. (ECF Nos. 115, 116, 117, 118, 119, 120, 121.)
of evidence admissibility are properly determined before
trial. The Federal Rules of Evidence provide that
“preliminary questions concerning . . . the
admissibility of evidence shall be determined by the
court[.]” Fed.R.Evid. 104(a). Relevant evidence is
“evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence.” Fed.R.Evid. 401. The standard
for relevance is “liberal” under the Rules.
Churchwell v. Bluegrass Marine Inc., 444 F.3d 898,
905 (6th Cir. 2006); United States v. Whittington,
455 F.3d 736, 738 (6th Cir. 2006). A piece of evidence
“does not need to carry a party's evidentiary
burden to be relevant; it simply has to advance the
ball.” Dortch v. Fowler, 588 F.3d 396, 401
(6th Cir. 2009).
all relevant evidence is admissible. Rule 403 permits the
Court to “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;
United States v. Brady, 595 F.2d 359, 361 (6th Cir.
1979). Rule 403 creates a balancing test to help the Court
determine whether evidence, although relevant, should be
excluded. The Court enjoys broad discretion when it decides
questions of relevance and possible prejudice. See
Tompkin v. Phillip Morris USA, Inc., 362 F.3d 882, 897
(6th Cir. 2004).
Rule 403, “[e]vidence is not excluded merely because it
is damaging or prejudicial to a defendant's case; rather,
it must be unfairly prejudicial.” Brooks v.
Caterpillar Global Mining America, LLC, No.
4:14CV-00022-JHM, 2016 WL 3676764, at *2 (W.D. Ky. July 6,
2016) (internal citation omitted). To warrant exclusion,
“any danger of unfair prejudice posed by the evidence
must substantially outweigh its probative
value.” Id. (internal citation omitted)
(emphasis in original). Rule 403 is “not concerned with
the damage to the defendant's case that results from the
legitimate probative force of the evidence[.]”
Id. (internal citation omitted). Rather, it applies
when the evidence has an undue tendency to suggest decision
on an improper basis, like an emotional one. Old Chief v.
United States, 519 U.S. 172, 180 (1997) (citing
Fed.R.Evid. 403 advisory committee's note); see also
Journey Acquisition-II, L.P., v. EQT Prod. Co., 830 F.3d
444, 459 (6th Cir. 2016) (citing United States v.
Poulsen, 655 F.3d 492, 509 (6th Cir. 2011)).
First Motion in Limine (ECF No. 99)
first argues that evidence of an alternate agreement should
be excluded under Rules 401 and 403 because the evidence is
not relevant or probative, and will confuse the jury and
waste time. Defendant explains that both of the agreements
contain the same language with respect to commissions
calculations and Schedule A. Defendant notes the different
language in both agreements, but contends that the difference
is of no consequence here. Defendant also cites to
Plaintiff's admission that Defendant's agreement was
the agreement which governed the parties' relationship.
(ECF No. 99-2, PageID.2269.)
Plaintiff's response, Plaintiff argues that this
difference is “essential relevant evidence vis a vis
the established course of conduct of the parties in executing
their agreement over the course thereof.” (ECF No. 115,
PageID.2683.) Plaintiff argues that which agreement is
controlling is material to both the complaint and
Court has reviewed each agreement to determine whether the
differences are relevant under Rule 401. Each agreement
contains a compensation paragraph, which states:
Commission. MAS will be paid a residual commission
equal to (see schedule A). This is a percentage of
the annual projected Gross Profit attributable to merchant
accounts obtained by MAS that have begun processing through
one of the Company's processing banks. “Gross
Profit” means the dollar value of the basis point
difference between the discount rate and per-item fees
charged to the merchant and the discount rate and per-item
fees charged to the Company and its processing banks.
(ECF Nos. 99-1, 99-3, PageID.2261, PageID.2285.) But the
agreements differ at the end of this paragraph, and
Plaintiff's agreement includes a provision that, in case
of breach, Plaintiff will be considered vested in all
accounts. (ECF No. 99-3, PageID.2285-86.) The agreements also
differ as to the term and termination provisions, including
the duration of the covenant not to compete. (ECF Nos. 99-1,
99-3, PageID.2262, PageID.2286.)
the Schedule A Compensation Agreements differ as to whether
Plaintiff is entitled to 50% residual profit of the
merchant's monthly volume or whether it is entitled to
50% profit of the merchant's monthly processing volume.
(ECF Nos. 81, 99-1, PageID.1779, PageID.2264.) In ...