Johnson v. Sullivan

Vermont Superior Court
Filed 11/06/25
Rutland Unit

CIVIL DIVISION
Case No. 24-CV-00146

VERMONT SUPERIOR COURT
Rutland Unit

83 Center St

Rutland VT 05701

802-775-4394
www.vermontjudiciary.org

Timothy Johnson et al v. Jeremy Sullivan

RULING ON PLAINTIFFS’ SECOND MOTION IN LIMINE

On October 14, 2025, Plaintiffs filed a motion styled as a “motion in limine” regarding certain
counterclaims. For reasons that follow, the motion is denied.

First, the motion is not proper as a motion in limine, which motions are to obtain the exclusion
of anticipated prejudicial evidence before the evidence is offered at trial. See Johnson y. Sullivan, No.
24-CV-146, “Ruling On Plaintiffs’ Motion In Limine,” at 1 (Vt. Super Ct. Oct. 14, 2025). Here,
Plaintiffs fail to make any request for the exclusion of any particular evidence that is expected or
reasonably forecasted to be presented by Defendant at trial. Their motion is made “regarding
Counterclaims II and IT” filed by Defendant—rather than in regard to any particular evidence that
might be prejudicial or harmful if heard by the jury. Indeed, Plaintiffs
present their motion as a preferable and more convenient alternative to a motion for judgment as a
matter of law on those counterclaims. Plaintiffs assert that the Court can either grant Plaintiffs such
dispositive relief during trial, by ruling in Plaintiffs’ favor on their expected Rule 50 motion for
judgment at the close of Defendant’s case, or grant Plaintiffs the very same dispositive relief now, by
granting the instant motion:

Plaintiffs could wait until trial is over and file a motion for judgment as a matter of law
under V.R.C.P. 50... . [G]iven that this issue could be decided later via a Rule 50
motion or a jury instruction, the question becomes whether it should be. Plaintiffs
respectfully suggest that the Court is well within its authority to decide the issue now in
this posture, and it would be much more efficient for all involved for the Court to
exercise that authority.

Pls.’ Reply In Supp. of Mot. /n Limine Regarding Counterclaims II and III (filed Oct. 31, 2025), at 2.

The problem, however, is that the Court lacks sufficient authority or discretion to grant such
dispositive relief pursuant to a motion in limine. Such a motion does not serve as a sort of intermediate
mechanism for obtaining final, dispositive relief on claims or defenses as a matter of law—.e.,
somewhere between a Rule 56 motion for judgment, which was never sought by Plaintiffs in this case
and for which the deadline has passed, and a Rule 50 motion for judgment, which is yet to be sought,
and would pertain to evidence that has yet to be offered by Defendant during trial.! Plaintiffs’ motion

' Plaintiffs argue they did not learn of the evidentiary bases for Defendant’s counterclaims until
Defendant moved for summary judgment, and therefore, Plaintiffs could not have timely sought

summary judgment themselves, pursuant to the Noerr Pennington doctrine. That may well be true, but
Order Page 1 of 3
24-CV-00146 Timothy Johnson et al v. Jeremy Sullivan
plainly goes to the sufficiency of evidence, which might be a proper argument under Rule 56 or Rule
50, but is not a proper basis for a motion to exclude evidence prior to trial. See Meyer Intellectual
Props. Ltd. v. Bodum, 690 F.3d 1354, 1378 (Fed. Cir. 2012) (citing Mid-America Tablewares, Inc. v.
Mogi Trading Co., 100 F.3d 1353, 1362-63 (7th Cir. 1996)).

Second, insofar as the motion identifies no particular, anticipated evidence for which exclusion
is sought, and seeks to defeat claims as a matter of law, the motion is akin to a “shotgun,” not a “rifle,”
and is therefore disfavored. State v. Dubois, 150 Vt. 600, 602 (1988). Additionally, without having
identified any specific, anticipated evidence, Plaintiffs have not demonstrated its inadmissibility, or the
prejudice that they will likely suffer if their motion is not granted. Nor is a motion in limine to be
utilized “as a sweeping means of testing issues of law.” Jd. Yet that is what Plaintiffs are doing
here—asking an evidentiary motion to bear the full weight of a First Amendment doctrine that appears
unsettled and still developing in other jurisdictions, and which has never been considered by our
Supreme Court.

Furthermore, Plaintiffs’ motion requests that the Court to look backwards, at submissions and
contentions already made by Defendant when seeking summary judgment on his counterclaims, and
conclude or presume that Defendant is somehow bound to merely renew or reiterate those earlier
submissions and contentions for purposes of a trial that is yet to occur. Specifically, Plaintiffs claim
that Defendant may seek to prove his counterclaims at trial only by offering evidence of Plaintiffs’
prior litigation conduct, on the observation that Defendant’s submissions when seeking summary
judgment were so limited or circumscribed.” But a litigant at trial is certainly not limited in that
manner or for that reason. The unsuccessful summary judgment movant is not estopped by his motion
to present the same scope of evidence at trial. Rather, the litigant at trial has a full and free choice as to
what evidence to put before the factfinder (subject to the usual evidentiary limitations), just as he had a
full and free choice as to what admissible evidence to put before the judge for purposes of Rule 56.
See Conway Corp. v. Ahlemeyer, 754 F. Supp. 604, 605 (N.D. Ill. 1991). Parties are certainly not
compelled to seek summary judgment, and if they chose to do so, they do not do so at risk of being
limited at trial to the submissions and contentions made when seeking Rule 56 relief.

After all, the jury trial is de novo, and summary judgment procedure is merely a time-saving
device, granted only where there is no genuine evidentiary dispute on a material issue sufficient to
warrant a trial. Where the motion is denied, the claim for which judgment was sought still remains
pending for trial, and the case proceeds to trial on that claim anew, not according to a testimonial
reprise of the underlying summary judgment record. Cf U.S. E. Telecomms., Inc. v. US W. Comm’ns
Servs., Inc., 38 F.3d 1289, 1301 (2d Cir. 1994) (when grant of summary judgment is followed by trial
of different claims, neither evidence adduced at trial nor the verdict may be used to bolster position of
party who appeals the summary judgment ruling) (citing United States v. Hardage, 982 F.2d 1436,

Plaintiffs did not have to wait for Defendant’s motion to be filed, to find out the bases for Defendant’s
counterclaims.

? This assertion, that Defendant’s available evidence for purposes of trial is limited and circumscribed,
is further confirmation that Plaintiffs’ motion fundamentally advances a sufficiency of evidence

theory, rather than any evidentiary argument.
Order Page 2 of 3
24-CV-00146 Timothy Johnson et al v. Jeremy Sullivan
1444 (10th Cir. 1992)).3 Plaintiffs’ motion, therefore, falters on this fundamental misconception as to
the permissible scope of Defendant’s potential submissions at trial.

Wherefore, Plaintiffs’ motion in limine regarding Defendant’s counterclaims is denied.

Electronically Signed on: Thursday, November 6, 2025 pursuant to V.R.E.F. 9(d).

Susan A. McManus
Superior Court Judge

3 To be clear, there was no Rule 56(g) order entered in this case that would serve to limit a party’s right
to present evidence at trial in dispute of a fact that the Court had deemed already established and not
genuinely in dispute.

Order Page 3 of 3
24-CV-00146 Timothy Johnson et al v. Jeremy Sullivan