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.
1
Pursuant 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this opinion should not be published and is not precedent except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.
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
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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
2
See 3 Moore’s Federal Practice § 1677[4][d][I] (1998) (noting
that motions in limine should be resolved before trial).
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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.
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