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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-81254-MATTHEWMAN

JAY MOLBOGOT,

Plaintiff,

v.

MARINEMAX EAST, INC.,

Defendant.

______________________________________/

ORDER DENYING PLAINTIFF’S MOTION IN LIMINE [DE 110]

THIS CAUSE is before the Court upon Plaintiff, Jay Molbogot’s (“Plaintiff”) Motion in 

Limine (“Motion”) [DE 110]. Defendant, MarineMax East, Inc. (“Defendant”) has filed a response 

to the Motion [DE 130], and Plaintiff has filed a reply [DE 144]. The Court held a hearing on the 

Motion via Zoom video teleconference on July 7, 2022. The Motion is now ripe for the Court’s 

review. 

Plaintiff is moving to prevent Defendant from offering argument, testimony, reference 

and/or evidence pertaining to the post-purchase survey and pertaining to Defendant not being the 

manufacturer of the vessel. [DE 110 at 1]. 

I. Relevant Law

The Court has the power to exclude evidence in limine only when evidence is clearly 

inadmissible on all potential grounds. Luce v. United States, 469 U.S. 38, 41 (1984). Motions in

limine are generally disfavored as admissibility questions should be ruled upon as they arise at 

trial. Begualg Inv. Mgmt., Inc. v. Four Seasons Hotel Ltd., 10-22153-CIV, 2013 WL 750309, at

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*1 (S.D. Fla. Feb. 27, 2013). As a result, if evidence is not clearly inadmissible, “evidentiary 

rulings must be deferred until trial to allow questions regarding foundation, relevancy, and 

prejudice.” Lordeus v. Torres, 1:17-CV-20726-UU, 2018 WL 1364641, at *1 (S.D. Fla. Mar. 1,

2018) (quoting Kobie v. Fifthian, 2014 WL 1652421, at *1 (M.D. Fla. 2014)). Motions in limine

are “best limited to those issues that the mere mention of which would deprive a party of a fair 

trial. The Court does not issue advisory opinions, and it is difficult to rule in a vacuum without 

having the opportunity to see the proffered testimony in perspective with other evidence in the 

trial.” United States v. Everglades Coll., Inc., No. 12-60185-CIV, 2014 WL 11578214, at *1 (S.D. 

Fla. May 28, 2014); see also Contreras v. Aventura Limousine & Transp. Serv., Inc., No. 13-

22425-CIV, 2014 WL 11880996, at *2 (S.D. Fla. July 29, 2014) (“It is always difficult to rule in 

a vacuum, so the Court’s ruling is without prejudice to Defendants’ objecting when the evidence 

is sought to be introduced.”); accord Apple, Inc. v. Corellium, LLC, 19-cv-81160-

Smith/Matthewman, 2021 WL 2712131 (S.D. Fla. July 1, 2021).

II. Analysis

a. The Post-Purchase Survey

According to Plaintiff, the “post-purchase survey is irrelevant to any claims or defenses 

because Defendant testified that Plaintiff would not have received his money back after the date 

of purchase—October 31, 2018. Thus, this late disclosure of the issues is irrelevant and would 

only serve to confuse the jury.” [DE 110 at 2]. 

In response, Defendant argues that the post-purchase survey, conducted at Plaintiff’s 

direction, is relevant evidence that may not be excluded. [DE 130 at 3]. Defendant contends that 

the “post-purchase survey is direct evidence [as to] whether the Vessel was delivered in a defective 

condition. With respect to each alleged defect, if each defect did not exist, Defendant could not 

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have made a false statement about it and could not have knowingly made a false representation 

about it.” Id. at 4. Defendant maintains that the survey is relevant evidence “bearing on essential 

elements of Plaintiff’s fraud claim.” Id. Defendant further argues that the survey is relevant to 

Plaintiff’s FDUTPA claim and negligence claim. Id. at 5. 

In reply, Plaintiff contends that the post-purchase survey, which was conducted 13 days 

after the sale of the vessel, is irrelevant because it occurred outside of the time of the sale of the 

boat. [DE 144 at 1]. Plaintiff argues that its fraud claims “are based upon work orders in the 

possession of MarineMax . . . that pre-dated the sale of the boat in question.” Id. at 1–2. Plaintiff 

also argues that the survey would “unfairly prejudice Plaintiff and confuse the jury because the 

surveyor still was not in possession of knowledge of MarineMax’s work orders at the time the 

post-purchase survey was authored.” Id. at 2. According to Plaintiff, it would prejudice him for 

Defendant “to argue to the jury that Plaintiff should have obtained this survey prior to purchase 

when: (i) the law doesn’t require it, and (ii) such a survey is not standard practice as it relates to a 

boat being sole as ‘brand new.’” Id.

Upon careful review of the relevant case law, the Motion, the response and reply, the 

parties’ counsel’s argument at the hearing, and the entire record in this case, the Court finds it 

appropriate to deny the Motion as to the post-purchase survey. This denial is without prejudice to 

Plaintiff’s ability to timely assert any proper objections at the time of trial to any post-purchase 

survey testimony, evidence, argument, or reference. If any such objection is made at trial, the Court 

will rule on the issue at that time. The Court cannot rule on this issue in a vacuum prior to trial and 

can only determine this issue in the crucible of trial since the evidence is not clearly inadmissible. 

b. The Fact that Defendant is not the Manufacturer of the Vessel

Plaintiff argues that he sued Defendant for “selling a vessel that Defendant knew was 

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defective and omitting this information from the Plaintiff” and not for actually manufacturing the 

vessel. [DE 110 at 4]. Therefore, “any defects in design or manufacturing by a third party are 

irrelevant to the claims and defenses at issue. It is not relevant and is therefore inadmissible under 

Rule 402.” Id.

Defendant argues that its “role as retailer as opposed to manufacturer of the Vessel bears 

on its knowledge of alleged defects of the Vessel.” [DE 130 at 7]. Defendant also asserts that it 

not being the manufacturer is relevant to the intent element of Plaintiff’s fraud claim and to 

Plaintiff’s negligence claim. Id.

In reply, Plaintiff first argues that, even though Defendant has “alluded to its lack of 

manufacturing in an affirmative defense, MarineMax has not produced a single piece of evidence 

or witness to testify that MarineMax’s failure to repair or disclose was the fault of the 

manufacturer.” [DE 114 at 3]. Plaintiff also contends that the fact that Defendant was not the 

manufacturer is irrelevant to the negligence count because he is suing Defendant for failures to 

timely repair certain components, which led to damage to the vessel and to Plaintiff. Id. at 5. 

Finally, Plaintiff asserts that “any defects in design or manufacturing by a third party (that 

possessed inferior information as compared to MarineMax) are irrelevant to the claims and 

defenses at issue.” Id.

Upon careful review of the relevant case law, the Motion, response and reply, the parties’ 

counsel’s argument at the hearing, and the entire record in this case, the Court finds it appropriate 

to deny the Motion as to Defendant not being the manufacturer. Defendant’s Sixth Affirmative 

Defense states, “MARINEMAX is not responsible for any alleged defects in design or 

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manufacturing.” [DE 11 at 9].1 Plaintiff argues that “MarineMax has not produced a single piece 

of evidence or witness to testify that MarineMax’s failure to repair or disclose was the fault of the 

manufacturer.” [DE 114 at 3]. However, this is not what the Six Affirmative Defense actually 

states. The affirmative defense simply asserts that Defendant is not responsible for defects in 

design or manufacturing; it does not assert that Defendant’s failure to repair or disclose was Sea 

Ray’s fault. Thus, evidence and testimony regarding Defendant not being the manufacturer of the 

vessel is arguably relevant. However, if during the crucible of trial, Plaintiff has a good-faith basis 

to raise this issue again by proper and timely objection, the Court will address the issue at that 

time. 

Based on the foregoing, it is hereby ORDERED and ADJUDGED that Plaintiff’s Motion 

in Limine [DE 110] is DENIED. 

DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, 

this 11th day of July, 2022.

__________________________

WILLIAM MATTHEWMAN

United States Magistrate Judge

1 The Court previously denied Plaintiff’s motion to strike the Sixth Affirmative Defense. [DE 25].

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