1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 V5 TECHNOLOGIES, LLC d/b/a COBALT Case No. 2:17-cv-02349-KJD-VCF DATA CENTERS, 8 ORDER DENYING PLAINTIFF’S Plaintiff, MOTION IN LIMINE 9 v. 10 SWITCH, LTD. 11 Defendant. 12 Before the Court is Plaintiff’s Motion in Limine No. 3 to Exclude Character Evidence 13 Concerning John Ritter (ECF #447). Defendant responded in opposition (ECF #478). 14 I. Factual and Procedural Background 15 Plaintiff V5 Technologies, LLC d/b/a Cobalt Data Centers (“Cobalt”) seeks to exclude 16 evidence regarding John Ritter’s (“Ritter”) personal bankruptcy, other lawsuits Ritter is involved 17 with, Ritter’s previous business ventures, Ritter’s involvement in the legal marijuana industry, 18 and Ritter’s alleged unethical conduct at Cobalt. Ritter is the representative of the main investor 19 in Cobalt and was a Cobalt board member. Cobalt argues that this evidence is substantially more 20 prejudicial than probative, irrelevant, inadmissible character evidence under Rule 404(b), and 21 that Defendant Switch, Ltd.’s, (“Switch”) witnesses lack personal knowledge of Ritter’s alleged 22 unethical behavior as required under Rule 602. Switch argues that the evidence is highly relevant 23 because it shows that Cobalt’s failure is attributable to its poor management, not anticompetitive 24 conduct. Switch also argues that the evidence of Ritter’s business track record is not character 25 evidence subject to Rule 404(b) and that evidence of Ritter’s unethical and untruthful behavior is 26 relevant. Switch also argues that its witnesses who knew Ritter and traveled in the same circles 27 as him have sufficient knowledge to testify about his character for untruthfulness. 28 1 II. Legal Standard 2 “A motion in limine is a procedural mechanism made in advance to limit testimony or 3 evidence in a particular area” and is “entirely within the discretion of the Court.” Diamond X 4 Ranch, LLC v. Atlantic Richfield Co., No. 3:13-cv-00570-MMD-WGC,

, at 5 *1 (D. Nev. May 8, 2018). A “motion in limine should not be used to resolve factual disputes or 6 weigh evidence.” IGT v. Alliance Gaming Corp., No. 2:04-cv-1676-RCJ-RJJ,

7084605, at *2 (D. Nev. Oct. 21, 2008). “To exclude evidence on a motion in limine, ‘the 8 evidence must be inadmissible on all potential grounds.’” Diamond X Ranch,

2127734, at *1 (quoting Indiana Ins. Co. v. General Elec. Co.,

(N.D.

)). 11 III. Analysis 12 The Court does not see how the proposed evidence constitutes impermissible character 13 evidence. Rule 404(b) states that “[e]vidence of a person’s character or character trait is not 14 admissible to prove that on a particular occasion the person acted in accordance with the 15 character or trait.” FED. R. EVID. 404(b)(1). Cobalt has not indicated what character trait Switch 16 has asserted or how the evidence will be used to show that Ritter acted in accordance with that 17 trait. Therefore, the evidence is not excluded under Rule 404(b). 18 Additionally, the bankruptcies and civil suits are relevant to the issue of why Cobalt 19 failed. The evidence tends to show the possibility that management decisions contributed to 20 Cobalt’s dissolution, not simply anticompetitive conduct. The evidence is also relevant to 21 determine if Cobalt would have secured the required investments it needed to grow. A business 22 executive’s track record is relevant when the business seeks funding, investments, or loans and 23 Ritter’s history is relevant to the question of whether Cobalt would have secured the necessary 24 investments to fit Cobalt’s going-concern value calculation. The potential prejudice does not 25 outweigh the probative value and the evidence is admissible. 26 Ritter’s involvement with the legal marijuana industry may be relevant, depending on its 27 use. If used solely to inform the jury that Ritter is involved in what some might consider an 28 unsavory business, it would not be relevant. However, it could be relevant to Ritter’s business history and his ability to assist in Cobalt’s growth. Its admissibility will be determined at trial. 2 Finally, Cobalt’s argument that Switch’s witnesses do not have the personal knowledge 3 | necessary to testify regarding Ritter’s alleged unethical behavior at Cobalt, and Switch’s 4| argument that during cross-examination evidence of the witness’s character for untruthfulness is 5 | admissible, will be handled at trial. Their admissibility will depend upon the foundation laid and 6 | the circumstances regarding the testimony. 7 TV. Conclusion 8 Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Exclude Character 9 | Evidence (ECF #447) is DENIED. 10 | Dated this 12th day of November, 2021. 11 Li Kent J. Dawson 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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