AECOM Technical Services, Inc. v. Flatiron AECOM, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 19-cv-2811-WJM-KAS
AECOM TECHNICAL SERVICES, INC.,
Plaintiff-Counterclaim Defendant,
v.
FLATIRON | AECOM, LLC,
Defendant-Counterclaim Plaintiff.
ORDER DENYING IN PART AND DEFERRING RULING IN PART
AECOM’S MOTION IN LIMINE
Before the Court is AECOM Technical Services’ (“AECOM”) Motion in Limine
(“AECOM’s MIL”) (ECF No. 300) and Defendant Flatiron AECOM, LLC’s (“Flatiron”)
response (ECF No. 311). For the following reasons, the Court denies in part and defers
ruling in part AECOM’s MIL.
I. LEGAL STANDARD
“The admission or exclusion of evidence lies within the sound discretion of the
trial court . . . .” Robinson v. Mo. Pac. R.R. Co., 16 F.3d 1083, 1086 (10th Cir. 1994);
see also United States v. Golden, 671 F.2d 369, 371 (10th Cir. 1982) (“Trial judges
have discretion to decide whether an adequate foundation has been laid for the
admission of evidence.”).
Under Federal Rule of Evidence 401, “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would without the evidence; and
(b) the fact is of consequence in determining the action.” Relevant evidence is
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generally admissible and should only be excluded “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R.
Evid. 403. “Irrelevant evidence is not admissible.” Fed. R. Evid. 402.
II. ANALYSIS
A. 	Damages Recoverable by Flatiron
AECOM requests that the Court exclude all evidence, testimony, argument, and
references by Flatiron that Flatiron is entitled to damages in excess of the Subcontract’s
liability cap. (ECF No. 300 at 3.) AECOM argues that excluding such evidence will
“streamline the case and ensure Flatiron does not confuse the jury, waste this Court’s
and the jury’s time, or prejudice [AECOM] with irrelevant evidence about damages the
Court has determined are not available to Flatiron.” (Id. at 3–4.)
Alternatively, if the Court allows Flatiron to present damages in excess of the
Subcontract’s liability cap, AECOM contends that “the Court should instruct the jury as
to (i) the existence of the limitation of liability provision in the Subcontract, and (ii) the
Court’s ruling that Flatiron’s recovery is capped per the Subcontract’s enforceable
liability limitation.” (Id. at 5.) AECOM also requests that the Court limit Flatiron’s
evidence of damages in the following ways: (1) prohibit Flatiron from presenting “any
schedule-related or delay damages in excess of the liability cap because of the
Subcontract’s express provision that [AECOM’s] ‘liability for delay (including but not
limited to LDs) shall be limited to 20% of the Total Design Fee in the aggregate which
shall be included as part of the overall limitation of liability’” (ECF No. 1-1 at 6, ¶ 2), and
(2) “Flatiron’s evidence of damages should include a limitation that Flatiron is
contractually precluded from recovering consequential damages.” (ECF No. 300 at 5.)
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Flatiron responds that the Court should deny this portion of AECOM’s MIL
because “the proper procedure is for the jury to decide Flatiron’s entitlement to
damages and the quantum thereof; and for the Court to subsequently decide the extent
to which the jury’s verdict must be reduced in accordance with the liability cap (or as a
result of set-off).” (ECF No. 311 at 2.) Critically, Flatiron points out that it cannot be
expected to recognize the precise moment during the trial when it has proven damages
equal to the liability cap and can proceed no further. (Id. at 3.)
The Court finds that AECOM’s request is overbroad and overreaching. Further,
as Flatiron points out, it would be unreasonable and unworkable for Flatiron to
determine the precise moment at which it has presented damages evidence up to but
not exceeding the liability cap during this 18-day trial. The Court agrees with Flatiron
that the proper approach it should take on this matter, in the event the jury returns a
verdict in Flatiron’s favor in excess of the liability cap, is to allow the parties to brief the
issue of a possible damages award reduction by way of an appropriate post-trial motion.
Such briefing should, of course, keep in mind the Court’s finding in its Order Granting
AECOM’s Amended Motion for Partial Summary Judgment (ECF No. 252) that the
Subcontract’s liability cap applies. Accordingly, the Court denies this portion of
AECOM’s MIL.
B. 	Flatiron’s Dismissed and Disallowed Claims
AECOM asks the Court to exclude all evidence, testimony, argument, and
references by Flatiron regarding the claims and theories that this Court has already
dismissed and/or disallowed, including: (i) negligent misrepresentation claim (dismissed
in ECF No. 97), (ii) willful and wanton breach theory (rejected in ECF No. 169), (iii)
breach of the Teaming Agreement (dismissed in ECF No. 252), and (iv) fraudulent
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inducement and fraudulent concealment theories (rejected in ECF No. 275). (ECF No.
300 at 5–6.) Because these claims and theories have been either dismissed or
disallowed, AECOM argues that they are irrelevant under Rule 401; inadmissible under
Rule 402; and prejudicial to AECOM, wasteful of the Court’s and the jury’s time, and
potentially confusing to the jury under Rule 403. (Id. at 6.) Further, AECOM requests
that the Court preclude Flatiron from introducing evidence and questioning witnesses
about AECOM’s intent and mental state during its performance under the Teaming
Agreement and the Subcontract because AECOM argues that, at bottom, Flatiron is
trying a breach of contract and not a fraud case. (Id.)
Flatiron responds that much of this evidence is “highly relevant to Flatiron’s
breach of contract claim and is therefore admissible at trial.” (ECF No. 311 at 4.)
Moreover, “evidence relevant to show [AECOM] breached the Teaming Agreement—
e.g., evidence of negligence, bad faith negotiation of the Subcontract, concealment,
misrepresentations, and willful or wanton breach—is also relevant to show [AECOM]
breached the Subcontract.” (Id. at 4 n.3.)
The Court concludes that this portion of AECOM’s MIL is entirely too broad and
unworkable, and for these reasons it will be denied. In the Court’s view, it would be
nearly impossible to separate the facts exclusively related to the dismissed or
disallowed claims from the claims remaining in this case. Moreover, the “relief” AECOM
truly seeks here—to limit the case to a pure breach of contract action—it will receive in
the form of the Court’s Final Jury Instructions and Verdict Form, which will reflect only
those claims remaining in the case. Thus, the Court denies this portion of AECOM’s
MIL.
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C. 	CDOT Communications to Flatiron
AECOM requests this Court to rule in advance of trial that three categories of
formal notice letters written by CDOT to Flatiron under their prime contract (the
“Contract”), (ECF No. 300-1), have legal effect independent of the truth of any
statements contained in them and are therefore not hearsay and are admissible. (ECF
No. 300 at 7 (citing Cagle v. James St. Grp., 400 F. App’x 348, 356 (10th Cir. 2010)
(“First, the contract was not excludable as hearsay. It constituted an act of legal
significance between Norris and her attorneys, not a ‘statement’ offered for its truth.”);
see also Echo Acceptance Corp. v. Household Retail Servs., 267 F.3d 1068, 1087 (10th
Cir. 2001) (“[I]f the significance of an offered statement lies solely in the fact that it was
made, no issue is raised as to the truth of anything asserted, and the statement is not
hearsay.”)).)
The three categories are: (1) Directive Letters; (2) Notice Letters; and (3)
Default Letters. (Id.) According to AECOM, “the letters at issue are not only admissible
evidence of non-hearsay legal acts, but they are relevant evidence of Project design
changes directed by CDOT (not caused by [AECOM]), Project schedule content
changes directed by CDOT, and contract breach notices and pending disputes between
CDOT and Flatiron over the same delay days and costs at issue in this case.” (Id.)
Additionally, AECOM argues that the letters meet the business records exception under
Rule 803(6) because they were prepared in the normal course of CDOT’s business to
ensure the Project was completed on schedule and on budget. (Id. at 9.) Therefore,
AECOM also contends the Court could admit the letters as admissible hearsay under
the business records exception.
As an initial matter, Flatiron explains that AECOM failed to meaningfully confer
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with Flatiron with respect to this portion of AECOM’s MIL and asks the Court to deny it
out of hand pursuant to WJM Revised Practice Standard (“RPS”) III(G)(1) (requiring
motions in limine to “attach[] the relevant portions of any exhibit” upon which a party
seeks a ruling) and WJM RPS III(G)(3) (requiring “good-faith efforts to confer”).1 (ECF
No. 311 at 5.)
Even if the Court addresses the merits of this portion of AECOM’s MIL, Flatiron
argues the Court should deny it for three reasons. (ECF No. 311 at 5.) First, Flatiron
points out that assuming arguendo that parts of the letters at issue have independent
legal significance, AECOM did not redact the remainder of the letters that contain pure
hearsay. (Id. (citing Amos v. W.L. Plastics, Inc., 2010 U.S. Dist. LEXIS 3572, at *6 (D.
Utah Jan. 19, 2010) (parties must redact hearsay statements from proposed exhibits)).)
Second, Flatiron disputes that the business records exception to the hearsay rule
applies because the letters were sent in anticipation of litigation and therefore fall
outside this exception. (Id. (citing Timberlake Constr. Co. v. U.S. Fidelity & Guar. Co.,
71 F.3d 335, 342 (10th Cir. 1995) (“[O]ne who prepares a document in anticipation of
litigation is not acting in the regular course of business.”)).) Flatiron points to litigation
hold notices scattered throughout the letters. Finally, Flatiron argues that several of the
letters are irrelevant. (Id. at 5–6.)
Having thoroughly considered the parties’ arguments, the Court reserves ruling
on this portion of AECOM’s MIL until it can address these evidentiary issues in the
1 The Court’s patience with the parties’ failure to properly confer under the District of
Colorado Local Rules grows exceedingly thin. As the Court has admonished the parties
previously, given their history of failing to meaningfully confer with each other prior to filing
motions, the Court will not hereafter hesitate to impose sanctions sua sponte if it deems such
action necessary.
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context of the other evidence (both testimonial and documentary) that has been
received at trial. AECOM would be well-served, and the likelihood that the CDOT
communications would be allowed into evidence would be significantly increased, were
it to include in its final set of exhibits substantially redacted versions of the subject
letters, versions which meaningfully address the evidentiary concerns raised by Flatiron.
D. 	Flatiron’s Damages Evidence
AECOM requests that the Court prevent Flatiron from attempting to present
damages evidence through any source other than its designated damages expert,
James Melvin Torres. (ECF No. 300 at 9.) Flatiron responds that this portion of
AECOM’s MIL “has no basis in fact or law.” (ECF No. 311 at 6.) Specifically, Flatiron
states that it provided AECOM with a comprehensive list of documents to support its
initial damages estimate and then provided Torres’s damages analysis. (Id.)
The Court has considered this portion of AECOM’s MIL and considers it, once
again, overly broad and overreaching. This is so particularly given that the Court cannot
possibly anticipate all of the ways in which appropriate and relevant damages evidence
may come in at trial. Moreover, the Court agrees with Flatiron that it is aware of no
authority in this Circuit which exclusively limits evidence of a party’s damages to the
evidence of such damages introduced through its damages expert. Therefore, the
Court denies this portion of AECOM’s Motion without prejudice to AECOM raising an
appropriate objection(s) at trial.
III. CONCLUSION
For the reasons explained above, the Court ORDERS that AECOM’s MIL (ECF
No. 300) is denied in part and deferred in part, as set forth above.
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Dated this 8th day of January, 2024.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
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