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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Kim Cramton,

Plaintiff,

v. 

Grabbagreen Franchising LLC, et al.,

Defendants.

No. CV-17-04663-PHX-DWL

ORDER 

During the Final Pretrial Conference on May 27, 2020, the Court ruled on several 

motions in limine but declined to issue a merits ruling on Cramton’s motion in limine to 

exclude Defendants’ damages defense. (Doc. 309.) Instead, the Court solicited additional 

briefing from the parties, “permit[ting] each side to file a motion to exclude the other side’s 

theories and/or evidence bearing on damages no later than June 17, 2020.” (Id. at 2.) The 

Court also solicited additional briefing concerning Defendants’ contention that Cramton 

waived her right to a jury trial, set a tentative trial date of October 13, 2020, and referred 

the parties to a magistrate judge for a settlement conference. (Id. at 1-3.)

Much has occurred since the Final Pretrial Conference. On the briefing front, 

Defendants filed their motion to strike Cramton’s jury demand, which is now fully briefed 

(Docs. 322, 324, 331), and each side filed a motion to exclude the other side’s damages

theories and evidence (Docs. 320, 321). Each side also filed a response to the other side’s 

damages-related motion (Docs. 325, 327), but only Defendants filed a reply (Doc. 330). 

This prompted Cramton to move to strike Defendants’ reply (Doc. 333) and Defendants to 

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respond to the motion to strike (Doc. 334). Meanwhile, on the trial front, the parties’ efforts 

to settle the case proved unsuccessful (Doc. 336) and the COVID-19 pandemic has, 

unfortunately, not eased to the point that the current trial date is viable.

The Court is in the process of reviewing the pending motions, but it is necessary to 

address a few preliminary matters before those motions are resolved. First, as noted, the 

current trial date of October 13, 2020 is unrealistic in light of current conditions. 

Accordingly, it will be vacated. (See Doc. 323 at 22 [explanation during Final Pretrial 

Conference that “we should get something on the calendar for this Fall, with the notion that

if the situation has stabilized we’ll proceed” but “if COVID-19 is still interfering with jury 

trial efforts, we can then as the trial date gets closer talk about a further extension”].) After 

the pending motions are resolved, the Court will hold a status conference to solicit the 

parties’ views on rescheduling.

Second, Cramton’s motion to strike (Doc. 333) will be denied. Although Cramton 

is correct that a party ordinarily may not file a reply in support of a motion in limine, the 

Court didn’t intend for the damages-related motions it solicited during the Final Pretrial 

Conference to function as motions in limine—instead, it viewed them as Rule 37 motions 

to exclude. This is why the minute entry from the May 27, 2020 hearing authorized the 

parties “to file a motion to exclude the other side’s theories and/or evidence bearing on 

damages” (Doc. 309 at 2) and why the Court clarified during the hearing that a 17-page 

limit would apply (Doc. 323 at 94)—motions in limine are ordinarily subject to much 

shorter page limits.

In any event, even though Defendants correctly understood these instructions as 

implicitly authorizing a reply, it is understandable that Cramton could have reached a 

different interpretation. Thus, although the Court will not strike Defendants’ reply, it will 

permit Cramton, if she so chooses, to file a reply in support of her damages-related motion. 

That reply must not exceed 11 pages and must be filed by September 10, 2020. No 

extensions will be granted because, as noted, the Court is in the process of reviewing the 

remaining pending motions (Docs. 308, 320, 321, 322) and hopes to rule soon. 

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Accordingly, IT IS ORDERED that:

(1) The current trial date of October 13, 2020 is vacated.

(2) Cramton’s motion to strike (Doc. 333) is denied.

(3) Cramton may file a reply in support of her damages-related motion (Doc. 

320) by September 10, 2020. The reply shall not exceed 11 pages.

Dated this 3rd day of September, 2020.

 

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