           Case: 16-11622   Date Filed: 03/05/2018   Page: 1 of 21


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11622
                       ________________________

                D.C. Docket No. 6:14-cv-00307-PGB-GJK



BLITZ TELECOM CONSULTING, LLC,
a Florida Limited Liability Company,

                                      Plaintiff - Counter Defendant - Appellee,

versus

PEERLESS NETWORK, INC.,
an Illinois Corporation,

                                    Defendant - Counter Claimant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 5, 2018)
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Before ROSENBAUM, JILL PRYOR, and RIPPLE, ∗ Circuit Judges.

PER CURIAM:

      This appeal marks the latest chapter in a tumultuous business relationship

between Defendant-Appellant Peerless Network, Inc. (“Peerless”), and Plaintiff-

Appellee Blitz Telecom Consulting, LLC (“Blitz”). For the better part of four

years, Blitz and Peerless have litigated claims related to the non-payment of “co-

marketing” fees owed under a contract between the parties.

      In this latest installment, after a trial in the district court, a federal jury found

in favor of Blitz on a claim that Peerless breached the contract by failing to remit

the co-marketing fee, and awarded Blitz over $2 million in compensatory damages.

Peerless now appeals that judgment, contending the district court committed legal

error on three separate occasions before and during the trial.               After careful

consideration, we affirm the district court’s judgment in full.



                                            I.

                                            A.

       Appellant Peerless is a telecommunications company whose subsidiaries

operate as “local exchange carriers.”            Through its subsidiaries (collectively



       ∗
          Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.

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“Peerless”),       Peerless     provides      traditional   land-line     telephone      service.1

Specifically, Peerless operates transmission networks that facilitate telephone calls

between end-users, or, in other words, a caller and a receiver.

       Appellee Blitz is a buyer and seller of telephone numbers. Its business

involves purchasing telephone numbers from telecommunications carriers, like

Peerless, and reselling those numbers in bulk to companies who, in turn, provide

discount telephone service to end-use consumers.                  Some, but not all, of the

companies to which Blitz resells telephone numbers are prepaid calling-card

service providers.

       On November 9, 2010, Blitz and Peerless entered into an “IP Control

Agreement” (the “Contract”). The Contract contemplated that Blitz would “place”

telecommunication traffic on Peerless’s networks, for which Peerless would be

compensated by other carriers. See Contract §§ 3.5, 7.4. In exchange, Peerless

agreed to pay Blitz a 30% commission each month.2 See Contract App. A § 1.1.

This commission, known as a “co-marketing fee,” is the basis for the parties’

present dispute.



       1
           Peerless also offers some wireless services.
       2
          The Contract states that co-marketing fees are “based on collected revenues on
InterLata CABS (carrier access billing) charges for Interstate and Intrastate traffic terminating to
or associated with the local telephone numbers” assigned to Blitz. Contract App. A § 1.1.
“InterLATA” is a statutory term defined as “telecommunications between a point located in a
local access and transport area and a point located outside such area.” 47 U.S.C. § 153 (26).

                                                  3
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      By all accounts, both parties performed under the Contract throughout 2011

and early 2012.      Blitz directed traffic onto Peerless networks, and Peerless

accounted for and paid Blitz the monthly co-marketing fee.

      Then, in April 2012, Peerless notified Blitz by letter that it was invoking the

Contract’s “Change in Law” provision and would no longer remit the co-marketing

fee. In relevant part, the Change in Law provision provides that, in the event of

“any legislative, regulatory, judical [sic] or other legal action that materially affects

the ability of a Party to perform any material obligation,” Blitz or Peerless can, on

30 days’ written notice, “require that the affected provision(s) be renegotiated, or

that new terms and conditions be added to this Agreement.” Contract § 23.

      The action Peerless relied on to invoke this provision was a March 9, 2012,

unpublished partial summary-judgment order issued by the United States District

Court for the Northern District of Texas.          Peerless asserted that this order

constituted a change in telecommunications law that “materially affect[ed] the

ability of Peerless to perform in paying [the co-marketing fee] to [Blitz] for prepaid

calling card traffic.” The order, issued in a case captioned Southwestern Bell

Telephone Co. v. IDT Telecom, Inc., No. 3:09-cv-01268-P (N.D. Tex. Mar. 9,

2012), 2012 U.S. Dist. LEXIS 190775 (the “IDT Decision”), involved a dispute

between several local exchange carriers (not including Peerless) and a number of

prepaid calling-card providers. The carriers brought suit on claims that they were


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owed certain “access charge fees” by the prepaid calling-card companies who used

the carrier networks to transmit calls. Id., 2012 U.S. Dist. LEXIS 190775, at *2-

*7. The district court granted partial summary-judgment in favor of the carriers on

the issue of liability, ruling that the prepaid calling-card “traffic [was] subject to

access charges.”3 Id. at *18. According to Peerless, the IDT Decision changed

how much Peerless was compensated by third-party carriers on prepaid calling-

card traffic, thereby lowering Peerless’s collections from these carriers, and so

constituted a change in law entitling Peerless to cease paying Blitz co-marketing

fees. Blitz disagreed that the IDT Decision amounted to a change in law under the

Contract, and the instant litigation ensued.

       Meanwhile, as these events were unfolding in late 2011 and early 2012,

Blitz was also exploring the possibility of selling its business. Though Peerless

initially expressed interest in acquiring Blitz, the parties never reached an

agreement for Peerless to do so. Blitz entertained other offers and eventually

entered a tentative purchase agreement with a third party.               As it turned out,

Peerless and the third-party buyer were direct competitors.

       Upon learning about the potential sale and eager to retain Blitz’s business,

Peerless approached Blitz with an alternative solution. Under the proposal, Blitz

would establish and obtain licensing for a separate entity that would operate as a

       3
         The case subsequently settled on the issue of damages. See Dollar Phone Access, Inc.
v. AT & T Inc., No. 14-CV-3240-SLT-LB, 2015 WL 430286 at *3 (E.D.N.Y. Feb. 2, 2015).
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local exchange carrier like Peerless. Peerless and the new entity would then enter a

contractual relationship for certain telecommunication services, ostensibly to the

financial benefit of both.

      Blitz alleges that it was in the midst of finalizing a purchase agreement with

the third party but was swayed by Peerless’s proposal and backed out. Blitz

created the new entity—Local Access, LLC (“Local Access”)—and Local Access

and Peerless entered into a contractual agreement known as a “Homing Tandem

Service Agreement” (the “Homing Agreement”). Under the terms of the Homing

Agreement, Local Access agreed to pay Peerless for the right to “sublet” a portion

of Peerless’s transmission network, and Peerless agreed to divert a portion of call

traffic to Local Access. Blitz was not a party to the Homing Agreement.

      Local Access contends that while it performed under the Homing

Agreement, Peerless breached the contract from the outset. In Local Access’s

view, Peerless never intended to perform and instead merely proposed the Homing

Agreement in order to prevent the sale of Blitz to a competitor. Eventually, Local

Access and Blitz filed a separate action against Peerless on claims related to the

Homing Agreement.




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                                          B.

      Blitz initiated the instant dispute in the U.S. District Court for the Middle

District of Florida in February 2014. Blitz Telecom Consulting, LLC v. Peerless

Network, Inc., No. 6:14-cv-00307-Orl-PGB-GJK (M.D. Fla. filed Feb. 24, 2014)

(“Case 307”). In its Complaint, Blitz alleged four claims for relief, including

breach of contract, quantum meruit, declaratory judgment, and equitable

accounting.

      Less than a month later, Local Access and Blitz filed a separate suit against

Peerless in the same district court, relating to the circumstances surrounding the

Homing Agreement. Local Access, LLC & Blitz Telecom Consulting, LLC v.

Peerless Network, Inc., No. 6:14-cv-00399-Orl-PGB-TBS (M.D. Fla. filed

Mar. 12, 2014) (“Case 399”). In that dispute, Local Access and Blitz raised tort

claims of fraudulent inducement, and Blitz raised a claim for interference with a

business relationship. Local Access, but not Blitz, raised one claim for breach of

contract. As it so happened, both suits came before the same district court judge.

      Peerless filed an Amended Answer and Affirmative Defenses in Case 307,

raising two counterclaims against Blitz for breach of contract and quantum meruit

under the Contract. Shortly thereafter, Peerless filed a motion to consolidate Cases

307 and 399. The district court denied the motion, citing the presence of different

contractual relationships, different claims, and different parties in the two actions.


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       The parties conducted discovery in Case 307, and Blitz moved for partial

summary judgment on the declaratory-judgment and equitable-accounting claims.

The district court granted partial summary judgment in favor of Blitz on the

declaratory-judgment claim, issuing a judicial declaration that the IDT Decision

was insufficient to invoke the Change in Law provision.4

       The district court scheduled trial in Case 307 on the remaining breach-of-

contract and quantum-meruit claims. Some months before trial, Peerless filed a

motion in limine requesting exclusion of all evidence, testimony, exhibits, and

arguments related to “non-InterLATA” telephone traffic. The district court denied

the motion. Peerless moved for consolidation of Cases 307 and 399 a second

time, which the district court again denied.

       Case 307 proceeded to trial, and a jury found in favor of Blitz on its breach-

of-contract claim, awarding Blitz $2,347,704.43 in damages. The jury also found

in favor of Blitz on Peerless’s counterclaims. The district court entered a judgment

in accordance with the jury’s verdict. 5 Peerless filed a notice of appeal, which


       4
         While not directly at issue on appeal, the district court also granted summary judgment
in favor of Peerless on Blitz’s claim for an accounting, and it dismissed Count IV of Blitz’s
complaint. The district court reasoned that an accounting constituted a remedy for a successful
cause of action, rather than a stand-alone claim for relief. So although the district court
dismissed Count IV, it noted that an accounting might nevertheless be appropriate if Blitz
prevailed on either its breach-of-contract or quantum-meruit claim.
       5
         On March 31, 2017, the parties to Case 399 filed a joint Notice of Settlement, and the
same day, the district court administratively closed the case subject to final notification of
settlement. See Local Access, LLC & Blitz Telecom Consulting, LLC v. Peerless Network, Inc.,
No. 6:14-cv-00399-Orl-PGB-TBS (M.D. Fla. filed Mar. 31, 2017), ECF Nos. 334, 335.
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became effective to confer appellate jurisdiction following the district court’s

judgment on a post-trial Rule 59 motion.



                                            II.

       In a diversity case like this one, we ordinarily apply federal law to procedure

and state law to substantive matters. See Horowitch v. Diamond Aircraft Indus.,

Inc., 645 F.3d 1254, 1257 (11th Cir. 2011) (citing Erie R.R. Co. v. Tompkins, 304

U.S. 64 (1938)). However, pursuant to a choice-of-law provision contained in the

parties’ Contract, we will apply Illinois law to the substantive claims. See

Contract § 12. On appeal the parties do not dispute that Illinois law governs.

       Appellant challenges the grant of partial summary judgment, the denial of its

motions to consolidate, and the admission of certain evidence at trial. We review

the grant of summary judgment de novo, construing the facts in the light most

favorable to the non-moving party and applying the same legal standards as the

district court. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293-94

(11th Cir. 2013). We review the remaining claims for abuse of discretion. Wright

v. Dougherty Cty., 358 F.3d 1352, 1354 (11th Cir. 2004) (consolidation); City of




Subsequently, the district court reopened the case, ultimately ordering that the settlement
agreement be enforced and the case closed again. See ECF No. 363 at 6.

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Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 556 (11th Cir. 1998)

(admissibility of evidence).



                                        III.

      Peerless raises three distinct arguments. First, Peerless contends the district

court erred by granting Blitz partial summary judgment on the issue of whether the

IDT Decision was sufficient to invoke the Contract’s Change in Law provision.

Second, Peerless argues the district court erred by denying Peerless’s motion to

consolidate this case (Case 307) with the dispute involving Local Access (Case

399). Third, Peerless challenges the district court’s admission of evidence at trial

over Peerless’s “motion in limine objections.” We address each argument in turn.

                                         A.

      We begin with Appellant’s challenge to the district court’s grant of partial

summary judgment in favor of Blitz on the declaratory-judgment claim. As we

have noted, the district court ruled with respect to this claim that the IDT Decision

was insufficient to invoke the Change in Law provision.

      The Declaratory Judgment Act grants federal courts discretion to “declare

the rights and other legal relations of any interested party seeking such

declaration.” 28 U.S.C. § 2201(a). A court’s primary objective when construing a

contract is to give effect to the parties’ intentions as expressed in the language of


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the contract. Cent. Ill. Light Co. v. Home Ins. Co., 821 N.E.2d 206, 213 (Ill. 2004).

For that reason, our first inquiry is whether the contract is clear and unambiguous.

Id.

      If the terms used in a contract are clear and unambiguous, then a court may

interpret the contract by giving the words their “plain, ordinary, and popular

meaning.” Id. In such circumstances, a court may declare each party’s rights and

obligations under the contract.     Id.   But if the terms used in a contract are

reasonably susceptible of more than one meaning, or are “obscure in meaning

through indefiniteness of expression,” the contract is deemed ambiguous and

interpretation is a question of fact reserved for the jury. Shields Pork Plus, Inc. v.

Swiss Valley Ag. Serv., 767 N.E.2d 945, 949 (Ill. App. Ct. 2002) (internal quotation

marks omitted).     Nevertheless, a contract is not rendered ambiguous simply

because the parties disagree on the meaning of one word or another. A court may

decide the issue of whether a contract is ambiguous as a question of law. Cent. Ill.

Light Co., 821 N.E.2d at 214.

      Peerless asserts that two provisions in the Contract contain ambiguous terms

requiring jury interpretation. First, Peerless argues that the “Change in Law”

provision is ambiguous because the terms “materially affects” and “perform” are

not defined.    Second, Peerless contends that the “Compensation” provision is

ambiguous. The Compensation provision states that “Peerless will pay a co-


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marketing fee at the stated commission structure of 30% to [Blitz] based on

collected revenues on InterLata CABS (carrier access billing) charges for Interstate

and Intrastate traffic.” Contract App. A § 1.1. Peerless insists that provision is

ambiguous because it does not define what type of “carrier access billing” is

subject to the 30% co-marketing fee. On de novo review, we conclude neither

provision of the Contract is ambiguous.

       To begin, Peerless does not disclose what various interpretations reasonably

and fairly apply to the words “material” and “perform.” 6 Citing Oxford’s English

Dictionary, Peerless submits that the plain and ordinary meaning of the word

“material” is “significant.”         This is nearly identical to the district court’s

interpretation.     The district court, which relied on Black’s Law Dictionary,

concluded the plain and ordinary meaning of “material” was “significant or

essential.” We do not read a meaningful difference between “significant” and

“significant or essential.” Bald declarations of ambiguity, without more, are not

enough to create a genuine dispute of fact. Cent. Ill. Light Co., 821 N.E.2d at 214.

       Nor is the Contract ambiguous because of the Compensation provision. The

partial summary-judgment order addressed only the narrow issue of whether the


       6
         Peerless contends that Blitz defined “material” “to mean a complete frustration or
impossibility of performance.” Appellant-Def.’s Reply Br. at 11 (emphasis added). That is
inaccurate. Blitz raised the “complete frustration” issue in responding to Peerless’s affirmative
defense that the IDT Decision established a frustration of purpose, not in the context of defining
“material.” See infra at 15–17.

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IDT Decision was a qualifying event for purposes of the Change in Law provision.

That declaration did not preclude Peerless from litigating, at trial, what specific

billing practices were to be included in the 30% co-marketing fee-compensation

structure.7

       Accordingly, we find the Change in Law provision clear and unambiguous.

And under that provision, as we have noted, to constitute a change in law, an event

must be (1) a legislative, regulatory, judicial, or other legal action (2) that

materially affects (3) a material obligation or the ability to perform under the

Contract. Applying the plain, ordinary and, popular meaning of “material,” we

conclude that the effect of a judicial or legal action, as well as the obligation

affected by that action, must be “significant.” Cent. Ill. Light Co., 821 N.E.2d at

213.

       Having resolved the threshold inquiry of whether the Contract is ambiguous,

we now consider whether the IDT Decision was a change in law sufficient to allow

renegotiation of the contract. We conclude it was not.

       Peerless has not raised any genuine dispute that the IDT Decision did not

interfere with its material obligation to pay Blitz the 30% co-marketing fee on the

revenues Peerless actually collected from Blitz traffic. Rather, the most Peerless

argues is that the IDT Decision hindered Peerless’s ability to collect revenues on
       7
          Incidentally, the alleged ambiguity in the Compensation provision did not ultimately
present an obstacle during the two years Peerless timely paid Blitz the co-marketing fee.

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Blitz traffic in the first place. Specifically, Peerless’s President and CEO averred

that Peerless collected only 16% of the access-charge and reciprocal compensation

revenue after the IDT Decision that it collected before the IDT Decision.

According to Peerless, because its revenues were affected, it must therefore be

excused from its obligation to pay the co-marketing fee.

      But Peerless has its wires crossed. The relevant obligation is the payment of

co-marketing fees on the amounts actually collected, not the collection of revenue.

The value of collected revenue is merely a yardstick by which Peerless measures

the 30% co-marketing fee. As the value of that collection declines or increases, so

too does the value of the co-marketing fee Peerless owes Blitz.

      Any other conception of the parties’ intent runs smack into to the express

terms of the Contract. The Compensation provision states “[t]he intention of this

section is that Peerless pays [Blitz] only on collected revenues.” Contract App. A

§ 1.3 (emphasis added). We read this provision as a clear expression of the parties’

intent that Peerless would pay co-marketing fees in proportion to the value of

revenues collected. No more; no less. That Peerless has grown disenchanted with

the value of its collected revenue does not mean it can short-circuit its obligation to

pay Blitz the 30% co-marketing fee.

      Peerless also challenges the summary-judgment order by attempting to raise

a factual dispute over whether the IDT Decision frustrated the Contract’s purpose.


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Peerless submits that because it collects less revenue than it anticipated when

entering the Contract, it must be excused from paying the co-marketing fee. Here

again, we find this argument does not stand up to scrutiny.

      Under Illinois law, the doctrine of commercial frustration is an extension of

the defense of impossibility and excuses nonperformance of a contractual

obligation where an unforeseeable event renders the value of a party’s performance

“totally or almost totally destroyed.”     Illinois-American Water Co. v. City of

Peoria, 774 N.E.2d 383, 390–91 (Ill. App. Ct. 2002).           To survive summary

judgment, a non-moving party must demonstrate “specific facts showing that there

is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)

(internal quotation marks omitted).

      In this case, therefore, Peerless can survive summary judgment by

presenting “specific facts” showing a triable dispute on both of the following

issues: whether the IDT Decision was “not reasonably foreseeable,” and whether

the IDT Decision “totally or almost totally destroyed” the value of the Contract.

Illinois-American Water Co., 774 N.E.2d at 390–91.

      The parties dispute whether Peerless properly pled frustration of purpose as

an affirmative defense. But we need not determine that issue on appeal because we

conclude that, even if Peerless properly pled frustration of purpose in its Amended

Answer, Peerless has nonetheless failed to show specific facts that a triable issue of


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fact remains on whether the IDT Decision “totally or almost totally destroyed” the

value of the Contract. Id.

      Peerless states that the IDT Decision produced “a shift in the intercarrier

compensation structure after the parties entered into the Contract, which frustrated

the purpose of the Contract and denied Peerless the benefit of the bargain.” But

Peerless was not “denied” the benefit of the bargain. Under the bargained-for

terms of the Contract, Peerless received an incremental growth in telecom traffic

and the right to keep 70% of the revenue it collected thereon. In exchange,

Peerless agreed to pay Blitz a 30% co-marketing fee. The record indicates, and

Peerless does not dispute, that Peerless continued to receive Blitz traffic and

continued to collect revenue on that traffic after the IDT Decision. Though we

recognize the amount of collected revenue declined, the parties’ arrangement was

not “totally or almost totally destroyed” by the IDT Decision. Id.

      Since Peerless fails to genuinely dispute that the IDT Decision did not

interfere with its obligation to pay co-marketing fees to Blitz, Peerless cannot rely

on the IDT Decision to invoke the Change in Law provision. We therefore affirm

the district court’s grant of summary judgment on Count III, the declaratory-

judgment claim.




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                                            B.

       Peerless also argues the district court erred in denying Peerless’s motion to

consolidate this action, Case 307, with the separate Local Access lawsuit, Case

399. We review a district court’s decision whether to consolidate multiple actions

for a “clear abuse of discretion.” Eghnayem v. Boston Sci. Corp., 873 F.3d 1304,

1313 (11th Cir. 2017) (internal quotation marks omitted). On that standard, “we

must affirm unless we find that the district court has made a clear error of

judgment, or has applied the wrong legal standard.” Id. (citing United States v.

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009)).

       Federal Rule of Civil Procedure 42(a) provides that, “[i]f actions before the

court involve a common question of law or fact, the court may . . . join for hearing

or trial any or all the matters at issue in the actions; . . . consolidate the actions; or .

. . issue any other order to avoid unnecessary cost or delay.” Fed. R. Civ. P.

42(a)(1)–(3). Rule 42(a) codifies the district court’s “inherent managerial power to

control the disposition of the causes on its docket with economy of time and effort

for itself, for counsel, and for litigants.” Young v. City of Augusta, 59 F.3d 1160,

1168 (11th Cir. 1995) (internal citations omitted). A trial court’s decision to

consolidate suits is discretionary. Id.

       When deciding if separate lawsuits should be consolidated into a single

action, a trial court weighs several factors, including (1) the risk of prejudice in


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allowing the matters to proceed separately, (2) the potential for confusion of facts

or legal issues, (3) the risk of inconsistent verdicts, (4) the burden on parties,

witnesses, and the court, and (5) the length of time and relative expense involved

in conducting a single trial or multiple trials.        See Hendrix v. Raybestos-

Manhattan, Inc., 776 F.2d 1492, 1495 (11th Cir. 1985).

      In this case, Peerless moved to consolidate Cases 307 and 399 on two

separate occasions. Both times, Peerless argued consolidation was appropriate in

light of “overlapping questions of law and fact.”        When Peerless moved for

consolidation the second time, it also asserted that the “motivation, purpose, and

intent” in entering the Homing Agreement was to “modify[] the Blitz Contract by

creating a new arrangement between the parties.”

      The district court denied both motions. In its first denial, the district court

found that although “both actions share a common, albeit limited, factual

background, consolidation of these disparate actions is likely to result in confusion

and will not significantly promote judicial economy.” The court explained that

while Case 307 “involve[d] a fairly straightforward breach of contract wherein

Blitz contends Peerless had a duty to remit certain payments and failed to do so,”

Case 399 entailed “a completely separate business relationship entered into

between Local Access and Peerless, the alleged fraud which induced that

relationship, and allegations of tortious interference with a competing bidder for


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that business.” Given the disparate claims and “completely separate business

relationship[s],” the district court determined that any measure of judicial economy

achieved by consolidation was “substantially outweighed” by the risk of confusing

a jury and prejudicing the parties. 8

       When the district court denied consolidation for the second time, it reiterated

that although “both cases involve[d] Blitz and Peerless and the evolution of their

relationship over the course of several years, the similarities end there. Neither

case involves the same facts, the same contracts, or the same claims for relief.” As

before, the district court also determined that “prejudice would more likely result

from consolidation than be avoided.”               And to the extent Peerless argued the

Homing Agreement was a “modification” of the Contract with Blitz, the district

court rejected the notion that that theory supported consolidation as “Peerless never

pleaded this defense (or any facts that would place Blitz on notice that such a

defense might exist) in the 307 Case.”9


       8
           The district court explained that a jury in Case 307 “will not need to understand the
creation of Local Access and the dispute arising thereafter in order to duly consider” the “breach
of contract/failure to remit payment action.” Likewise, a jury in Case 399 will not “be required
to know anything about the alleged failure by Peerless to remit money to Blitz pursuant to a
separate contract in order to decide the tortious interference and fraudulent inducement
allegations” at issue there. The court also expressed concern that in “a consolidated trial, the jury
will hear evidence that not only did Peerless allegedly fail to remit money to Blitz in violation of
a contractual obligation,” but also “that Peerless allegedly deceived Blitz into foregoing a
lucrative sale, caused Blitz to create a new entity (Local Access) and then breached the contract
with this newly formed entity.”
       9
          Indeed, in its Amended Answer in Case 307, Peerless states only that it “attempted to
negotiate modifications,” and not that the parties actually reached an agreement. Am. Answer,
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       At two separate phases of the litigation, the district court engaged in a

thorough assessment of the factors delineated in Hendrix. Both times the district

court ruled consolidation was neither appropriate nor beneficial. We find no abuse

of discretion on either occasion, and we affirm the denial of Peerless’s motions to

consolidate.

                                                 C.

       Finally, Peerless argues that the district court erred by denying its motion in

limine to exclude as irrelevant evidence of Blitz’s entitlement to co-marketing fees

based on non-InterLATA traffic. 10 We review the district court’s ruling on the

admissibility of evidence for abuse of discretion, see City of Tuscaloosa v. Harcros

Chems., Inc., 158 F.3d 548, 556 (11th Cir. 1998), and find no such abuse occurred

in the district court. As the district court explained, Blitz’s breach-of-contract and

¶ 20 (emphasis added). Also, we note that Peerless raised the “modification” issue only after the
district court’s summary-judgment order finding the IDT Decision insufficient to trigger the
Change in Law provision. As the district court surmised, it “appears that Peerless now attempts
to use consolidation as a Trojan Horse to insert a defense its [sic] alleges in the 399 Case into the
307 Case.”
       10
           Blitz contends that Peerless waived this argument because it merely sought to have the
evidence excluded in a motion in limine and did not ultimately object when such evidence was
introduced at trial. Quoting this Court’s decision in Hendrix v. Raybestos-Manhattan, Inc., 776
F.2d 1492, 1504 (11th Cir. 1985) (internal quotations omitted), Blitz asserts that “a party whose
motion in limine has been overruled must object when the error he sought to prevent with his
motion is about to occur at trial.” But since Hendrix, the Federal Rules of Evidence have been
amended to provide that a party need not renew an objection previously articulated in a motion in
limine in order to preserve that objection for appeal. See Advisory Committee’s Notes on 2000
Amendment to Fed. Rule Evid. 103, 28 U.S.C.App., p. 1007. And our current precedent
provides that “[a] motion in limine may preserve an objection when the district court has
‘definitively’ ruled on the matter at issue,” which the district court did here. ML Healthcare
Servs., LLC v. Publix Super Markets, Inc., No. 15-13851, 2018 WL 747392, at *7 (11th Cir. Feb.
7, 2018) (citing Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1178 (11th Cir. 2013)).
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            Case: 16-11622   Date Filed: 03/05/2018   Page: 21 of 21


quantum-meruit claims implicate both InterLATA and non-InterLATA traffic. At

least as to the quantum-meruit claim, the Complaint asserts that Blitz sought

recovery of its share of revenues deriving from telecommunications traffic Blitz

placed on Peerless’s networks, which necessarily includes non-InterLATA traffic.

Therefore, we cannot say that the district court abused its discretion when it

admitted evidence of non-InterLATA traffic.



                                      IV.

      For the foregoing reasons we AFFIRM the district court’s judgment.

      AFFIRMED.




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