Regions Bank v. Kaplan et al

Filing 703

ORDER granting in part and denying in part 628 Motion in Limine; see Order for details; granting 653 Motion in Limine, except for Michael Gallatin; denying as moot 664 Motion in Limine. Signed by Judge Elizabeth A. Kovachevich on 4/29/2016. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REGIONS BANK, etc.,
Plaintiff,
v.

CASE NO. 8:12-CV-1837-T-17MAP

MARVIN I. KAPLAN, etc.,
et al.,
Defendants.
/

ORDER

This cause is before the Court on:
Dkt.
Dkt.
Dkt.
Dkt.
Dkt.

628
660
653
665
664

Omnibus Motion in Limine
Response
Motion in Limine For Untimely Disclosed Witnesses
Response
Motion in Limine as to Newly Disclosed Witnesses

Plaintiff Regions Bank has moved for relief excluding witnesses and limiting the
presentation of evidence on various issues specifically addressed below.

Defendants have responded to Plaintiff’s Motions.

I. Standard of Review
Trial judges are authorized to rule on motions in limine pursuant to the authority
to manage trials, Luce v. U.S.. 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443
(1984), and judges have broad discretion when ruling on such motions. See Jenkins v.
Chrysler Motors Corp.. 316 F.3d 663, 664 (7th Cir.2002). Limine rulings are provisional
rulings and the trial judge may reverse the decision during the course of a trial. Ohler v.

Case No. 8:12-CV-1837-T-17MAP
U.S.. 529 U.S. 753, 758 n. 3, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000). The real
purpose of a motion In limine is to give the trial judge notice of the movant's position so
as to avoid the introduction of damaging evidence, which may irretrievably affect the
fairness of the trial. Stewart v. Hooter’s of America. Inc.. 2007 WL 1752873 *1 (M.D.
Fla. June 18, 2007). A court has the power to exclude evidence in limine only when
evidence is clearly inadmissible on all potential grounds. ]d. (citing Luce. 469 U.S. at 41
(holding federal district courts have authority to make in limine rulings pursuant to their
authority to manage trials)).
The Court excludes evidence on a motion in limine only if the evidence is clearly
inadmissible for any purpose. Stewart. 2007 WL 1752873 at *1 (citing Hawthorne
Partners v. AT & T Technologies. Inc.. 831 F.Supp. 1398,1400 (N.D. 111.1993)).
Motions in limine are disfavored; admissibility questions should be ruled upon as they
arise at trial. ]d. Accordingly, if evidence is not clearly inadmissible, evidentiary rulings
must be deferred until trial to allow questions of foundation, relevancy, and prejudice to
be resolved in context ]d. at 1401. Denial of a motion In limine does not insure
evidence contemplated by the motion will be admitted at trial. Instead, denial of the
motion means the court cannot determine whether the evidence in question should be
excluded outside the trial context. United States v. Connellv. 874 F.2d 412, 416 (7th
Cir.1989). The court will entertain objections on individual proffers as they arise at trial,
even though the proffer falls within the scope of a denied motion In limine. ]d. “Indeed,
even if nothing unexpected happens at trial, the district judge is free, in the exercise of
sound judicial discretion, to alter a previous in limine ruling”. Hawthorne Partners v. AT
& T Technologies. Inc.. 831 F.Supp. 1398, 1400-1401 (N.D. 111.1993).
II. Discussion
A. Omnibus Motion in Limine

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Case No. 8:12-CV-1837-T-17MAP
1.

SAR Reports or related documents/communications

Defendants agree that the Motion in Limine should be granted as to SAR
reports, but argue the Motion in Limine should be denied as to the underlying
documents/communications.

After consideration, the Court grants the Motion in Limine in part as to any SAR
report, any document that refers to a SAR having been filed, or refers to information as
being part of a SAR, or otherwise reveals the preparation or filing of a SAR.

2.

Affidavit of U.S. Special Agent and Criminal Complaint against SAA’s Principals

Defendants argue that the Motion in Limine should be denied, as Plaintiff
Regions has not established that the Affidavit is clearly inadmissible for any purpose. It
is not clear to the Court in what context Defendants will offer the Criminal Complaint;
the Court therefore denies the Motion in Limine without prejudice. As to the Affidavit,
the Court denies the Motion in Limine without prejudice, and will take a proffer at trial.

3.

Evidence that Regions was negligent in providing availability on SAA Checks
before clearance, that employees were terminated, or Regions breached an oral
agreement to wire out only cleared funds
Defendants do not object to the Motion in Limine as to evidence of the alleged

negligence of Plaintiff Regions, with the reservation that provisional credit and
Defendant Kaplan’s lack of understanding of Regions’ policies on extending credit are
directly relevant to his conversations with Regions’ employees and Defendant Kaplan’s
lack of knowledge as to check kiting or the funds available in the SAA Account.

3

Case No. 8:12-CV-1837-T-17MAP
The Court granted Regions’ Motion for Summary Judgment on the
Negligence/Negligent Misrepresentation claim in the Amended
Counterclaims/Crossclaims. The Court grants the Motion in Limine as to evidence of
alleged negligence of Plaintiff Regions Bank.

As to employees that were terminated, Defendants do not object to the Motion in
Limine, with the reservation that Defendants intend to call Regions’ employees who
were terminated to testify regarding their interactions with Defendant Kaplan while
working for Plaintiff Regions.

After consideration, the Court grants the Motion in Limine in part; the Motion in
Limine is denied as to testimony of former employees of Regions Bank as to their
testimony regarding their interactions with Defendant Kaplan while they worked for
Regions.

As to the alleged oral agreement to wire out only cleared funds, Defendants
argue that Defendants intend to elicit testimony regarding Defendant Kaplan’s
instructions and the understandings of Regions’ employees, to wire only cleared funds
from Defendants’ Accounts. Defendants argue that this is material and directly
relevant to Defendant Kaplan’s knowledge and state of mind while participating in what
Defendant Kaplan allegedly thought were honest investment deals.

The applicable Wire Transfer Agreement requires a written instruction to be
effective. It is undisputed that Defendant Kaplan did not include any written special
instructions, and did not inquire at the time of the wire transfers whether the payment
orders were only on cleared funds.
The Deposit Agreement for Defendants’ Accounts required special instructions in
writing to accompany items that Regions processed.
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Case No. 8:12-CV-1837-T-17MAP
After consideration, the Court denies the Motion in Limine without prejudice as
to this issue; objections may be raised at trial, and the Court will hear argument when
an objection is raised.

4.

Evidence of Proposed Rule Changes on use of RTM

Defendants agree that this issue is moot.

After consideration, the Court denies the Motion in limine as moot as to this
issue.

5.

Evidence of what BBG “should have known.”

Defendants agree that this issue is moot.

After consideration, the Court denies the Motion in Limine as moot as to this
issue.

6.

Evidence of BBG’s internal deadlines for pay/return decisions on
SAA Checks
Defendants agree that this issue is moot.

After consideration, the Court denies the Motion in Limine as moot as to this
issue.
7.

Evidence of Kaplan Entities’ alleged damages
Defendants argue that the Motion in Limine should be denied as to this issue.

5

Case No. 8:12-CV-1837-T-17MAP
It is unclear to the Court in what context Defendants will raise the issue of
Defendants’ alleged losses.

After consideration, the Court denies the Motion in Limine as to this issue.

8.

Evidence or argument relating to unpled legal theories

Defendants agree that the Motion in Limine should be granted as to this issue.

The Court has determined that the aiding and abetting claims are based on
fraudulent concealment as well as conversion.

After consideration, the Court grants the Motion in Limine as to this issue.

II.

Dkt. 653
Dkt. 664

Motion in Limine for Untimely Disclosed Witnesses
Motion in Limine As To Newly Disclosed Witnesses

Plaintiff Regions moves to exclude the following witnesses:
Michael Gallatin
Matthew Schulz
Walter Schulz
Chandler Sweetser
Ricardo Ruiz Del Vizo
Charles Palmer
Stanley Browne
M. Anthony Magos
Thomas Baugher
Plaintiff Regions argues that the above witnesses were not listed in Defendants’
Rule 26 disclosures, and, aside from Michael Gallatin, were not disclosed as trial
witnesses at least 30 days before trial as required by Fed. R. Civ. P. 26(a)(3)(B).
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Case No. 8:12-CV-1837-T-17MAP
Plaintiff Regions argues that there was no disclosure, there is no substantial justification
for late disclosure, and there is harm to Regions. Plaintiff Regions argues that none of
the witnesses have been deposed, and Regions cannot effectively cross-examine the
witnesses to determine the extent of their involvement with Defendants, and how their
involvement relates to or does not relate to the transactions at issue.

Plaintiff Regions seeks disclosure of all witnesses except Michael Gallatin.

In the additional Motion in Limine, Plaintiff Regions argues that the testimony of
the above witnesses is not relevant to the issues between Regions and Defendants,
which are limited to a check-kiting scheme. Regions argues that Regions does not
contend that Defendants knew they were involved in a Ponzi scheme, and the Ponzi
scheme is not relevant to Regions’ tort claims; the other victims’ stories about how they
were defrauded by SAA are not germane to the issues before the Court.

Defendants respond that the failure to include the witnesses by name on
Defendants’ disclosures was a harmless inadvertence, and striking the witnesses will
not serve the ends of justice. Defendants argue that the witnesses will substantially
assist the Court in determining the remaining issues of fact, which are almost
exclusively Defendant Kaplan’s knowledge and intent at the time of the First and
Second Deals. Defendants argue that the testimony of these witnesses substantially
outweighs the prejudice to Plaintiff Regions.
After consideration, the Court grants the Motions to Exclude as to all the
witnesses listed, aside from Michael Gallatin, based on the prejudice to Regions due to
no opportunity to depose these witnesses in advance. Accordingly, it is
ORDERED that the Omnibus Motion in Limine is granted in part and denied in
part, as stated above. The Motion in Limine for Untimely Disclosed Witnesses is

Case No. 8:12-CV-1837-T-17MAP
granted as to all witnesses except for Michael Gallatin. The Motion in Limine as to
Newly Disclosed Witnesses is denied as moot.

DONE and ORDERED in Chambers in Tampa, Florida on this^ - y
2016.

8

day of April,