1Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-60612

Summary Calendar

CARLOS FIELDS,

Plaintiff,

VERSUS

WILLIAM M. QUINN,

Defendant.

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L.D. WILLIS, JR., Administrator of the Estate of Leonard D.

Haggan, Deceased, individually and on behalf of the wrongful

death beneficiaries of Leonard D. Haggan, Deceased,

Plaintiff - Appellant,

VERSUS

WILLIAM M. QUINN,

Defendant - Appellee.

Appeals from the United States District Court

for the Northern District of Mississippi

(2:98-CV-11)

April 20, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

Per Curiam:1

Plaintiffs appeal the district court’s judgment on the jury

verdict and its denial of their motion for a new trial. For the

following reasons, we affirm.
2

BACKGROUND

Carlos Fields (“Fields”) was injured and Leonard Haggan

(“Haggan”) was killed in an automobile accident in Mississippi.

Fields and L.D. Willis, the administrator of Haggan’s estate

(“Plaintiffs”), sued William Quinn (“Quinn”) in Mississippi state

court. Quinn removed the suit to federal court. The Plaintiffs

filed several motions in limine, including a motion to exclude any

references to or evidence of alcohol use by any party involved in

the accident.

Because the district court had not ruled on the motions in

limine when the jury selection process began, it directed the

parties not to discuss during voir dire matters that were the

subject of the motions. Neither before nor during jury selection,

did any party request permission or otherwise express the need to

question prospective jurors about matters which were the subject of

motions in limine. After the jury was empaneled, the court denied

the Plaintiff’s motion to exclude evidence of alcohol use. 

The following day, the Plaintiffs moved to strike the jury

panel. They argued that they were unable to properly voir dire the

jury panel because the court did not rule on their motion to

exclude evidence of alcohol use until after voir dire. The

district court denied the motion. Subsequently, the jury returned

a unanimous verdict for the Defendant, and the Plaintiffs

unsuccessfully moved for a new trial. The Plaintiffs appeal. 

DISCUSSION

I. Directing Counsel not to Address the Subject of Alcohol During

Voir Dire.
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“[R]ulings on the scope of voir dire are committed to the

discretion of the trial court and the failure to permit certain

questions is not grounds for reversal absent a showing of error and

prejudice.” Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252,

257 (5th Cir. 1985). Absent an objection, we review such rulings

for plain error. See id. The Plaintiffs contend that the district

court abused its discretion by prohibiting questions addressing the

subject of alcohol during voir dire. They maintain that the

district court prevented them from discovering juror bias on the

issue of alcohol. We disagree. 

Under Fed. R. Civ. P. 46 a party must “make[] known to the

court the action which the party desires the court to take or the

party’s objection to the action of the court.” In Ford v. United

Gas Corp., 254 F.2d 817, 818 (5th Cir. 1958), we stated that “[a]

litigant may not, speculating on a verdict without making

objection, keep silent while matters are transpiring in the trial

court and then put the trial judge in error by assigning error in

the appellate court . . . except in a case . . . of plainly

prejudicial error.” Here, the Plaintiffs did not did not attempt

to conduct voir dire on the subject of alcohol or otherwise express

the need to question potential jurors on that subject. In fact,

the Plaintiffs’ motion in limine requested that the district court

order the Defendant “not to mention, divulge, introduce or attempt

to introduce into evidence . . . [a]ny reference or evidence of any

use of alcohol.”

In King v. Jones, 824 F.2d 324, 326 (4th Cir. 1987), the
 

2See 3 Moore’s Federal Practice § 1677[4][d][I] (1998) (noting

that motions in limine should be resolved before trial). 

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plaintiff submitted a long list of argumentative questions for the

judge to ask the jury venire. When the district court refused to

ask the questions, the plaintiff did not object. Holding that the

plaintiff did not preserve the issue for appeal, the Fourth Circuit

stated:

Under Fed. R. Civ. P. 46, a party must make known to the

court the action which he desires to take or his

objection to the action of the court and his grounds

therefore. If there are particular voir dire questions

which counsel deems essential, and that refusal to ask

them may be reversible error, counsel must so advise the

court, and state his reasons before the court’s voir dire

of the prospective jurors is completed.

Id. Because the Plaintiffs did not object to the scope of voir

dire and we find no plain error, we affirm on this issue.

II. The District Court’s Failure to Rule on the Motion in Limine

Prior to Jury Selection

The Plaintiffs contend that the district erred by failing to

rule on the motion in limine prior to voir dire. Although it is

clearly a preferable practice to rule on motions in limine before

jury selection, the failure to do so in this case is not reversible

error.2 The Plaintiffs did not object to the court’s failure to

rule on the motion prior to voir dire and, therefore, have no

complaint on appeal.

In United States v. Wagoner, 713 F.2d 1371, 1374 (8th Cir.

1983), the defendant brought a motion in limine to exclude evidence

of his other wrongful acts. The district court did not rule on the

motion before trial and the defendant did not renew the motion. The
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defendant maintained that the court’s failure to rule on the motion

before trial was error. See id. The Eighth Circuit rejected the

defendant’s argument, reasoning that “[i]t was incumbent on [the

defendant] to obtain a ruling on his motion and [his failure] to do

so leaves nothing for review.” Id.; see also Fed. R. Civ. P. 46.

III. The District Court’s Refusal to Strike the Jury Panel

The Plaintiffs maintain that the district court erred by

refusing to strike the jury panel. We disagree. Because the

Plaintiffs did not object to the jury until it was empaneled, the

motion to strike the jury panel was untimely. 

In Donaldson v. O’Connor, 493 F.2d 507, 528 (5th Cir. 1974),

vacated and remanded on other grounds, 95 S.Ct. 2486 (1975), the

defendants contended that physicians had been systematically

excluded from the jury rolls. They objected to the jury on the

first day of trial, after the jury had been empaneled and sworn.

See id. The district court ruled that the defendants’ objection

was untimely. Affirming the district court, we stated that “the

trial court correctly held that the objection was not timely

raised, since the defendants had not raised the objection until

after the jury was empaneled.” Id. See also Joynor v. Berman

Leasing Company, 398 F.2d 875, 878 (5th Cir. 1968) (stating that

“[a] challenge to the entire jury panel, even if otherwise properly

presented, is untimely and impermissible if it is brought on after

commencement of the trial.”).

CONCLUSION

We affirm the district court’s judgment on the jury verdict
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and its denial of the Plaintiffs’ motion for a new trial.

AFFIRMED.