Nagaraj v. Rickerby

Informative decision only: persuasive authority, not binding precedent. When a party asks to file a motion in limine under § 51 of the Standing Order (Paper 2) well into the preliminary motions phase of an interference, rather than before that "trial" begins, § 51 does not apply and the Board should not authorize it. Such a motion is in substance a premature motion to strike and is dismissed, without prejudice to a timely motion to suppress under the schedule. No prior precedent directly addressed this issue in the text. The opposing party in an interference who wants an advance ruling on admissibility must raise it before the preliminary motions phase begins, or else use the objection and motion to suppress sequence. The party that offered the evidence gains protection from mid-phase motions to strike, and keeps its chance to correct purported defects after an objection. The decision cites no Federal Circuit, CCPA or Supreme Court authority; it relies on Standing Order § 51 and the Federal Rules of Evidence, which govern admissibility. LEGAL TEST OR STANDARD: Section 51 of the Standing Order allows a Rule 635 miscellaneous motion (in limine) for a ruling on admissibility "at any appropriate time," but the Board read it to contemplate "a pretrial motion for a ruling on admissibility." The preliminary motions "trial" begins on the date preliminary motions are filed, so an in limine motion must come before then. After that, evidentiary disputes go through objection, the proponent's chance to cure, and a motion to suppress. TRIGGERING FACTS: Rickerby asked, during a November 22, 2002 conference call, to file a motion in limine to strike Nagaraj Exhibit 2054 under § 51 and Federal Rule of Evidence 802. The request came well into the preliminary motions phase, not during pretrial. No opposition or reply was authorized. KEY QUOTE: "Rickerby's motion is actually a premature motion to strike." (Paper 51, p. 3) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. PRACTICE TIP: If you want an advance admissibility ruling in an interference, file the in limine motion before preliminary motions are filed. Once that phase has begun, timely object to the evidence and then move to suppress on the scheduled date. Do not seek a mid-phase motion to strike.