You know the feeling. Like clockwork a favorite relative sends you a birthday card year after year, often days if not weeks before your actual birthday. Then one year your birthday comes and goes and no card was received from that relative. You are filled with feelings of surprise and disappointment. What happened? Did the relative forget? Is the relative upset with me? For whatever the reason, you feel a sense of loss. For those of you who are regular readers of my blog posts, you know that in the Fall of each year, like clockwork, I write a series of posts summarizing recently promulgated amendments to the New Jersey Court Rules that would directly or indirectly impact Family Court matters. Like the expected birthday card that was not received, I am sure you are surprised and disappointed that I have yet to do so. However, like the belated birthday card that arrives weeks later, this blog post is just what you are waiting for. Candidly, however, it is more like getting a card without the expected check inside. Why? Whether due to the COVID pandemic or other reasons, there were an unusually small number of changes or amendments made to the Court Rules for this year, none relating to the Part V Family Part Rules, and few even indirectly impacting Family Court practice. However, there was one new Rule which was adopted, which although procedural in nature, could directly impact how Family Court matters are handled, particularly those unresolved matters for which a trial may be necessary. What you may ask? We finally have a Rule dealing with in limine motions.
I know. I know. You are asking what in the world is an in limine motion, and why does it deserve its own Rule? Over the years, in limine motions have come to resemble the “Wild Wild West” of motion practice. Generally speaking such in limine motions were made on the eve of and/or at the outset of a trial. Often they sought to address various evidence-related issues, such as whether certain evidence should be allowed and/or excluded from consideration during the trial. However, motions labeled as “in limine” were also being filed for the purpose of having a court make a determination on certain substantive matters such as whether a certain claim or issue would be granted or excluded from a case. For example in the Family Court context, a party may make a motion in limine as to whether or not a certain asset should be deemed exempt from equitable distribution in the hopes of “limiting” the issues to be addressed at trial. Often such in limine motions were made within days of, if not on the day of trial itself, leaving the opposing party with nominal opportunity to prepare and respond to same. How such motions were handled were largely left to the discretion of the trial court. While less so in the Family Court context, such in limine motions were being filed, the disposition of which could actually result in the dismissal of a complaint or claim, or of a defense thereto. Ultimately, several court decisions were rendered making clear that one should not be able to disguise what was in effect a “summary judgment” motion as a motion in limine, and that such motions must utilize the timing and notice requirements for summary judgment motions under R.4:46. Unfortunately, notwithstanding these admonitions against the misuse of the in limine motion practice, these abuses continued.
In the case of Seoung Ouk Cho v. Trinitas Regional Medical Center, 443 NJ Super 461 (App. Div. 2015); cert. denied, 224 NJ 529 (2016) the Appellate Division appeared to reach a breaking point when it came to this use and abuse of in limine motion practice and the lack of any rules or guidelines respecting same. In this medical malpractice case, the defendant doctor made a motion “in limine” on the day before jury selection was to begin to dismiss the claims against him. Although initially questioning whether this was a proper “in limine” motion, the trial court ultimately granted that motion. The Appellate Division reversed. In so doing it noted:
“The term “in limine” is taken from the Latin phrase, “at the outset”. Black’s Law Dictionary, 791 (9th ed. 2009). The absence of any rule addressing what may properly be considered as a preliminary matter before trial commences has permitted the timing of the motion, rather than its subject matter, to pass for a definition. However, whether a motion is correctly termed a motion in limine is not dictated by the fact that it is brought literally on the threshold of trial. Black’s defines a motion in limine as “[a] pre-trial request that certain inadmissible evidence not be referred to or offered at trial.” Id. at 1109. Thus, it is anticipated that, as a general rule, a motion in limine will not have a dispositive impact on a litigant’s entire case. Seoung, supra. at 470.
The Appellate Division went on to note that there were no rules that explicitly addressed motions in limine. Further, its analysis of the case law suggested that the courts generally disfavor such in limine rulings, and that same should be granted only sparingly. The court went on to state:
“The fact that this misuse of the motion in limine occurs sufficiently often to win our notice, despite our repeated cautions against such practice, leads us to conclude it necessary to state clearly what a motion in limine is not. It is not a summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in the dismissal of a plaintiff’s case or the suppression of defendant’s defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions. Seoung at 471.
Despite these strong words, the continued misuse of the motion in limine process continued, even in the context of Family Court matters. Specifically, in the case of L.C. v. M.A.J., 451 NJ Super 408 (App. Div. 2017), the defendant in a domestic violence case filed an in limine motion on the day of the final hearing asking the court to dismiss the plaintiff’s domestic violence complaint, essentially asking the court to decide, without hearing any testimony, that the communications which the plaintiff had alleged constituted harassment merely related to parenting time issues, and disregarding the history of domestic violence proffered by the plaintiff in her complaint. After just considering the arguments of counsel, the trial court granted said motion. In reversing the trial court’s decision, the Appellate Division concluded among other things that the making of such a dispositive motion in this fashion deprived the plaintiff of due process, had improperly made credibility determinations in accepting the defendant’s characterization of the disputed communications notwithstanding that in considering such motions to dismiss, the allegations must be interpreted in the light most favorable to the non-moving party, and most importantly, that such motions, made in this fashion, have no place in domestic violence matters where the alleged victim’s safety and well-being should be the prime consideration. Similar concerns, particularly as relates to the depriving of due process had been noted by the court in Seoung Ouk Cho.
The apparent need for a Rule clearly defining the limited scope of in limine motions, and to establish guidelines as to how such motions are to be handled, spurred by these recent decisions, has led to the adoption of R.4:25-8. This is an entirely new rule dedicated exclusively to motions in limine. While contained in the Civil Part IV Rules in regards to pre-trial proceedings, it is submitted that same would also be applicable to Family Court matters by operation of R.5:1-1 which provide that “civil family actions shall also be governed by the rules in Part IV insofar as applicable and except as otherwise provided by the rules in Part V”. As set forth in the comments to this rule, same was adopted for the purpose of defining and setting forth procedures for the submitting, serving and responding to motions in limine, including various deadlines, page limits for briefs, a requirement for timely rulings by the trial court, the consequences of non-compliance, and the preservation of rights. R.4: 25-8(a)(1) defines such motions in limine as follows:
“In general terms and subject to particular circumstances in a given claim or defense, a motion in limine is defined as an application returnable at trial for a ruling regarding the conduct of the trial, including admissibility of evidence, which motion, if granted would not have a dispositive impact on a litigant’s case. A dispositive motion falling outside the purview of this rule would include, but not be limited to, an application to bar an expert’s testimony in a matter in which such testimony is required as a matter of law to sustain a party’s burden of proof. A motion in limine shall be part of the pre-trial exchange under R.4:25-7(b). As a result, the filing of such motion shall not trigger any filing fee.”
This Rule further provides that to the extent practical each motion in limine shall embrace one issue, and briefs be limited to five pages per single issue motion. Furthermore, such appropriate in limine motions are to be filed at least seven days prior to the initial trial date and any responses thereto served no later than two days prior to trial. The Rule further contemplates that rulings thereon should be made prior to any opening statements, and addressing the situation in the event that were not to be the case.
It is clear from this Rule that an effort has been made to limit what would constitute permissible and appropriate in limine motions. It is clearly the intention of the Rule to prohibit litigants from disguising what are truly summary judgment motions by characterizing them as in limine. They are not to be dispositive of a case, but rather, be limited to issues regarding the conducting of the trial and/or the admissibility of evidence. What is not so clear, however, is when referring to whether a motion would be dispositive of a case, whether that means as to an entire case, or as to a specific issue or claim therein. Whether a particular asset should be considered exempt or subject to equitable distribution might be such an example. The object of such a motion is to limit the issues for trial, yet in some respects it is “dispositive”. Would making such a motion as one for summary judgment under R.4:46 as opposed to a motion in limine be more appropriate? Clearly, these are the types of questions that will likely be considered as the courts address issues arising under this newly adopted Rule. At least there is now some clarity. At least there is now some guidelines. At least litigants, attorneys and the courts should no longer be sandbagged by receiving such motions literally on the courthouse steps on the day of trial. Let’s see how this all shakes out in practice.