Ceres Protein, LLC et al v. Thompson Mechanical & Design et al

Filing 173

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 5/2/17: Thompsons' First Motion in Limine, [R. 156 -4], is DENIED. In the event of noncompliance with Federal Rule of Civil Procedure 26(a) or (e), the Court will decide what sanction under Federal Rule of Civil Procedure 37(c)(1) is appropriate, if any, upon proper objection during trial. cc: Counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:14-CV-00491-TBR-LLK
CERES PROTEIN, LLC, et al.,

Plaintiffs/Counterclaim Defendants,

v.
THOMPSON MECHANICAL &
DESIGN, et al.,

Defendants/Counterclaimants.

MEMORANDUM OPINION AND ORDER
In anticipation of the approaching trial in this action, Barry and Robert
Thompson, along with their Ohio partnership Thompson Mechanical & Design, have
filed a motion in limine to limit Michael Tarullo, Jr.’s testimony to the information that
he provided in discovery—and no more. Ceres Protein, LLC and Roger Shannon oppose
that motion. For the reasons that follow, the Thompsons’ First Motion in Limine, [R.
156-4], is DENIED.
I.
A.
The general facts of this case, though nuanced and subject to many genuine
disputes, are described in the Court’s prior opinion, Ceres Protein, LLC v. Thompson
Mechanical & Design, No. 3:14-CV-00491-TBR-LLK, 2017 WL 1015855, at *1–3
(W.D. Ky. Mar. 15, 2017). Briefly, Roger Shannon and Michael Tarullo, Jr. formed
Ceres Protein, LLC in 2013 to pursue business opportunities relating to repurposing
“whole stillage,” or distillery waste, generated by distilleries in Kentucky and Tennessee.
Sometime around mid-2013, Michael Tarullo, Sr. (Michael Tarullo, Jr.’s father) and
Barry Thompson, along with his son Robert Thompson, approached Roger Shannon and

1

Michael Tarullo, Jr. about a possible business arrangement. The trio offered to license
certain intellectual property to Ceres Protein, LLC, to offer engineering support, and to
contribute the capital needed during the start-up phase of the joint-venture in exchange
for a membership interest in Ceres Protein, LLC. Between July and October 2013, the
parties attempted to negotiate such an arrangement. However, no agreement resulted.
Following the breakdown in negotiations, the Thompsons supposedly fabricated
an invoice to Ceres Protein, LLC, demanding $175,000 for work and materials related to
the failed business deal. Ceres Protein, LLC claimed, however, that it never asked the
Thompsons to do any work of the sort. It refused to pay the invoice.
Over next few months, the Thompsons engaged in a pattern of conduct
designed—at least in Ceres Protein, LLC’s estimation—to extort payment on that
invoice. For example, the Thompsons wrote to a potential client of Ceres Protein, LLC,
claiming that Ceres Protein, LLC had infringed on Barry Thompson’s patent.

The

Thompsons also contacted Roger Shannon’s employer, accusing him of having
committed “serious ethical breaches, possible patent infringement, and fraudulent
activity.”
B.
Ceres Protein, LLC and Roger Shannon responded with this lawsuit, bringing
claims for defamation and for intentional interference with a prospective business
relationship. The history of that litigation is long and storied. With the prospect of trial
fast approaching, the Thompsons have filed a motion in limine to limit Michael Tarullo,
Jr.’s testimony to the information that he provided in discovery—and no more. [R. 156-4

2

at 1–2 (First Motion in Limine).] Ceres Protein, LLC and Roger Shannon oppose that
motion. [R. 168 at 10–11 (Response).]
II.
Using the inherent authority to manage the course of trials before it, this Court
may exclude irrelevant, inadmissible, or prejudicial evidence through in limine rulings.
See Dietz v. Bouldin, ––– U.S. ––––, ––––, 136 S. Ct. 1885, 1891 (2016); Luce v. United
States, 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid. 103(c)); Louzon v. Ford Motor
Co., 718 F.3d 556, 561 (6th Cir. 2013); Mahaney ex rel. Estate of Kyle v. Novartis
Pharm. Corp., 835 F. Supp. 2d 299, 303 (W.D. Ky. 2011). Unless such evidence is
patently “inadmissible for any purpose,” Jonasson v. Lutheran Child & Family Servs.,
115 F.3d 436, 440 (7th Cir. 1997), though, the “better practice” is to defer evidentiary
rulings until trial, Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975), so that “questions of foundation, relevancy and potential prejudice may be
resolved in proper context,” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706
(E.D. Ky. 2010).

A ruling in limine is “no more than a preliminary, or advisory,

opinion.” United States v. Yannott, 42 F.3d 999, 1007 (6th Cir. 1994) (citing United
States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff’d, 469 U.S. 38). Consequently,
the Court may revisit its in limine rulings at any time and “for whatever reason it deems
appropriate.” Id. (citing Luce, 713 F.2d at 1239).
III.
The Thompsons move to prohibit Michael Tarullo, Jr. from testifying about any
matter not adequately addressed in his responses to written discovery. [R. 156-4 at 2.] In
support of that motion, the Thompsons point to Federal Rule of Civil Procedure 37(c),

3

which generally bars a party who “fails to provide information . . . as required by Rule
26(a) or (e)” from using “that information . . . to supply evidence . . . at a trial, unless the
failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). True enough,
exclusion of “undisclosed evidence is the usual remedy for noncompliance with Rule
26(a) or (e).” Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015). But that is not
always the case since Rule 37(c)(1) provides the Court “with the option to order
alternative sanctions ‘instead of’ exclusion of the late or undisclosed evidence ‘on motion
and after giving an opportunity to be heard’” as well. Id. (quoting Fed. R. Civ. P.
37(c)(1)). Under the plain language of Rule 37, then, an order of automatic exclusion is
inappropriate. See Roberts ex rel. Johnson v. Galen of Va., Inc., 325 F.3d 776, 784 (6th
Cir. 2003) (“Rule 37(c)(1) does not compel the district judge to exclude testimony in its
entirety.”).
In sum, the motion requests too broad of a remedy at this juncture. If Michael
Tarullo, Jr. failed to answer direct questions posed to him, then that might require some
restriction on what is admissible. However, if he was not asked to answer a particular
question or address a certain point, then that is a different matter. Accordingly, the Court
will defer deciding the consequences, if any, of nondisclosure until presented with that
question during trial—not in the context of an in limine ruling.

4

IV.
IT IS HEREBY ORDERED that the Thompsons’ First Motion in Limine, [R.
156-4], is DENIED. In the event of noncompliance with Federal Rule of Civil Procedure
26(a) or (e), the Court will decide what sanction under Federal Rule of Civil Procedure
37(c)(1) is appropriate, if any, upon proper objection during trial.
IT IS SO ORDERED.
Date:

May 2, 2017

cc:

Counsel of Record

5