Coan et al v. Dunne et al
Filing
484
ORDER DENYING TRUSTEE'S MOTIONS RE FOREIGN JUDGMENTS. For the reasons stated in the accompanying ruling, the Trustee's motions to introduce the High Court's judgment as evidence (Doc. # 461 ) and for collateral estoppel as to the High Court's judgment (Doc. # 471 ) are DENIED. The Trustee may, however, engage in a limited cross-examination of Dunne as to the High Court's findings as described in this ruling. It is so ordered.Signed by Judge Jeffrey A. Meyer on 5/15/2019. (Rubin, N.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD M. COAN,
Plaintiff-Trustee,
No. 3:15-cv-00050 (JAM)
Adv. Proc. No. 15-5019 (JAM) (consol.)
v.
SEAN DUNNE et al.,
Defendants.
ORDER DENYING TRUSTEE’S MOTIONS RE FOREIGN JUDGMENTS
This is an action by Bankruptcy Trustee Richard M. Coan principally alleging fraudulent
transfers of money and property by Sean Dunne to his wife Gayle Killilea and others. See Coan
v. Dunne, 2019 WL 302674, at *1-*2 (D. Conn. 2019) (generally describing the history of this
case). The Trustee has now moved to give preclusive effect as to certain findings made by an
Irish court in parallel Irish bankruptcy proceedings (Doc. #471), and in the alternative to
introduce the Irish court’s ruling into evidence (Doc. #461). For the reasons stated herein, I will
deny both of the Trustee’s motions but allow for limited cross-examination of Dunne about the
Irish court’s finding that he failed to cooperate with the Official Assignee in the realization of
assets and hid from or failed to disclose assets of which could be realized for the benefit of his
creditors.
BACKGROUND
This case arises from the parallel bankruptcies of Sean Dunne in the United States and in
the Republic of Ireland. See In re Dunne, 13-50484 (Bankr. D. Conn. filed Mar. 29, 2013); In re
Dunne (A Bankrupt) 2013 Bankr. No. 2478 (H. Ct.) (Ir.). For the past several years the cases
have progressed in tandem both here and in Ireland. On October 2, 2018, the High Court of
Ireland issued a 97-page ruling that postponed Dunne’s automatic discharge from bankruptcy
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and ordered certain bankruptcy payments. See Doc. #471-1 at 1 (¶ 1). In doing so, the High
Court (Costello, J.) concluded in relevant part that Dunne had failed to cooperate with and
hidden from or failed to disclose to the Irish Official Assignee income or assets which could be
realized for the benefit of his creditors. Id. at 79 (¶ 188).
The Trustee initially moved to introduce the whole judgment of the High Court into
evidence. Doc. #461 at 1. After further briefing and discussion with the Court and opposing
counsel at trial, the Trustee has since moved to give preclusive effect to certain of the High
Court’s findings, Doc. #471 at 6-8, while maintaining that this Court may still admit the
judgment into evidence, Doc. #480 at 4 n.1. In particular, the Trustee requests that the Court
instruct the jury as to the High Court’s findings regarding various factual particulars of Dunne’s
noncooperation with the Official Assignee. These include the High Court’s conclusions (relying
on those made by the U.S. Bankruptcy Court for the District of Connecticut) that Dunne had
withheld his residential address, Doc. #471 at 7 (citing Doc. #471-1 at 84 (¶ 192(3))), been
uncooperative with the Trustee in the United States and provided inaccurate statements at
creditor meetings, ibid. (citing Doc. #471-1 at 84-86 (¶ 192(4))), made dishonest statements to
the Official Assignee, id. at 8 (citing Doc. #471-1 at 87-88 (¶ 192(6))), and that Dunne had only
selectively chosen to comply with the law, ibid. (citing Doc. #471-1 at 88 (¶ 192(7))).
Defendants have objected to both motions.
DISCUSSION
The doctrine of offensive collateral estoppel allows a plaintiff to preclude a defendant
from relitigating an issue that has been previously decided against the same defendant. See
Parklane v. Hosiery Co. v. Shore, 439 U.S. 322, 329 (1979). For a plaintiff like the Trustee to
apply collateral estoppel offensively against a defendant, “(1) the issues in both proceedings
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must be identical, (2) the issue in the prior proceeding must have been actually litigated and
actually decided, (3) there must have been a full and fair opportunity for litigation in the prior
proceeding, and (4) the issue previously litigated must have been necessary to support a valid
and final judgment on the merits.” Flood v. Just Energy Marketing Grp., 904 F.3d 219, 236 (2d
Cir. 2018). In addition to these four factors, “a court must also satisfy itself that application of
offensive collateral estoppel is fair.” Ibid. The trial court “is generally accorded broad discretion
in determining whether or not collateral estoppel should apply in a given case.” Ibid. 1
I decline to apply collateral estoppel to give preclusive effect to the High Court’s
findings. As an initial matter, I am not convinced that the issues in both proceedings are
identical. The facts found by the High Court relating to Dunne’s post-petition failure to
cooperate and failure to be truthful are relevant to the trial in this action, but they are not factual
determinations that the jury will be required to determine as a part of this trial. The factual
findings made by the High Court do not establish any element of the alleged fraudulent transfers
at issue in this case or elements of any other cause of action now before this Court for trial.
Nor am I convinced that it would be fair for me to instruct the jury that the High Court’s
factual findings are conclusive in this case. First, Dunne has appealed the High Court’s
judgment, and the appeal remains pending. 2 Although a judgment is typically final for purposes
of preclusion notwithstanding appeal, see Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015),
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Although the parties have cited to cases decided under the standards of each jurisdiction, the parties have not
discussed whether the preclusive effect of the High Court’s judgment should be evaluated under Irish, federal, or
Connecticut law. In the absence of instruction on foreign law, I will assume that U.S. law applies here. See In re
Parmalat, 383 F. Supp. 2d 587, 595 (S.D.N.Y. 2005) (“Where, as here, there is a failure of proof of foreign law, the
court may presume that it is the same as local law.”). Inasmuch as the parties have briefed the issues under federal
law and suggested that “[t]he doctrine of collateral estoppel is virtually identical under federal law and Connecticut
law,” Doc. #471 at 4, I will apply the federal standard here as the Second Circuit did in Flood.
2
See Doc. #474 at 3; Court of Appeal: 14th May 2019 Civil, COURTS SERV. IR.,
http://www.courts.ie/legaldiary.nsf/0/CC733DD602EC99D3802583F900536CDC (listing hearing for In re Dunne
(A Bankrupt), 2018 442 (CA) (Ir.) on December 18, 2019).
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the pendency of an appeal may nonetheless make it unfair to apply collateral estoppel offensively
against a party. See Flood, 904 F.3d at 237.
In addition, because of the categorically preclusive nature of a collateral estoppel finding,
a finding of collateral estoppel would apply not only to Dunne but also to all other defendants in
this action and who were not themselves parties to the Irish bankruptcy proceedings. This raises
additional fairness concerns. See In re Vivendi Universal, S.A. Secs. Litig., 910 F. Supp. 2d 500,
506 (S.D.N.Y. 2012) (noting unfair prejudice to co-defendants at joint trial if jury is instructed
by means of collateral estoppel finding that another defendant engaged in dozens of prior false
statements); cf. Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het
Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 327 F.3d 173, 184-85 (2d Cir. 2003) (“a
determination in a prior judicial proceeding collaterally estops a claim by a nonparty only if that
nonparty was represented by a party to the prior proceeding, or exercised some degree of actual
control over the presentation on behalf of a party to that proceeding”).
I am also persuaded that Rule 403 warrants precluding the Trustee from introducing the
entire 97-page ruling of the High Court into evidence. I share the concerns of the district court in
Moore v. Hartman, 102 F. Supp. 3d 35, 143-44 (D.D.C. 2015), about the possibility for unfair
prejudice whenever a jury is apprised of adverse findings against a party by a judge in another
related case, especially where—as here—the judge’s findings are expressed at times by way of
highly caustic commentary. My concerns are heightened as well by the sheer length of the High
Court’s ruling and the burden it would place on the jury to review it in its entirety.
The next consideration is whether the Trustee may refer at all to the High Court’s
findings in the course of his cross-examination of Dunne. I conclude that he may do so but
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subject to the limitations I will describe that are intended to prevent undue prejudice. 3
It is well-established that “a witness can be cross-examined based on prior occasions
when his testimony in other cases had been criticized by a court as unworthy of belief.” United
States v. White, 692 F.3d 235, 248 (2d Cir. 2012) (cleaned up). When a court is deciding whether
to permit such cross-examination, a court should consider the following factors: “(1) whether the
prior judicial finding addressed the witness’s veracity in that specific case or generally; (2)
whether the two sets of testimony involved similar subject matter; (3) whether the lie was under
oath in a judicial proceeding or was made in a less formal context; (4) whether the lie was about
a matter that was significant; (5) how much time had elapsed since the lie was told and whether
there had been any intervening credibility determination regarding the witness; (6) the apparent
motive for the lie and whether a similar motive existed in the current proceeding; and (7)
whether the witness offered an explanation for the lie and, if so, whether the explanation was
plausible.” Id. at 249 (internal quotation marks omitted).
In light of my consideration of these several factors, I conclude it is appropriate for the
Trustee to cross-examine Dunne as to limited aspects of the High Court’s specific findings that
he was untruthful and uncooperative. First, the Trustee’s cross-examination may reference the
fact that there was a ruling by a justice of the High Court of Ireland in Dunne’s Irish bankruptcy
proceeding on October 2, 2018. Second, the Trustee may ask Dunne if it is true that the High
Court made a factual finding that during the course of the Irish bankruptcy proceedings Dunne
“failed to cooperate with the Official Assignee in the realization of assets of [his] and has hidden
from or failed to disclose assets of [his] which could be realised for the benefit of his creditors.”
3
As Dunne’s briefing concedes, it is permissible for the Trustee to cross-examine Dunne on the basis of his own
prior statements during the course of the bankruptcy proceedings. This ruling address solely whether part of the
Trustee’s cross-examination may also reference the High Court’s ruling and specific factual findings.
5
Doc. #471-1 at 60 (¶ 134); id. at 79 (¶ 188) (same).
In order to minimize the possibility of mischaracterization of the High Court’s findings,
the Trustee’s questions that relate to the High Court’s ruling must substantially track the words
of the limited portions of the ruling that I have specifically quoted above. The Trustee may not
introduce any portion of the High Court’s ruling as a separate document into evidence. If Dunne
professes lack of knowledge of the High Court’s ruling or this specific finding, then the Trustee
may confront Dunne with the specific document to refresh his recollection. Absent further leave
of Court, the Trustee may not otherwise refer to other adverse findings or passages from the
High Court’s ruling.
If the Trustee decides to impeach Dunne with the High Court’s finding, I will upon
request issue a cautionary instruction to the jury that any finding by the High Court in Ireland is
not binding on the jury and that any such finding by the High Court should be considered solely
for the limited purpose of evaluating Dunne’s credibility as a witness in this case. Because I have
declined to give collateral estoppel effect to the High Court’s findings, Dunne is free (if he has a
good faith basis to do so) to disagree with or dispute the basis for the High Court’s findings.
CONCLUSION
For the reasons stated above, the Trustee’s motions to introduce the High Court’s
judgment as evidence (Doc. #461) and for collateral estoppel as to the High Court’s judgment
(Doc. #471) are DENIED. The Trustee may, however, engage in a limited cross-examination of
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Dunne as to the High Court’s findings as described in this ruling.
It is so ordered.
Dated at New Haven this 15th day of May 2019.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
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