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

Filing 192

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 5/11/17 re 156 Pretrial Compliance, filed by Barry R. Thompson, Thompson Mechanical & Design, Robert B. Thompson: Second Motion in Limine 156 is DENIED. A hearing on this matter is SET for May 15, 2017 at 5:00 p.m.EST.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 exclude a spreadsheet in which Roger Shannon appears to
calculate Ceres Protein, LLC’s anticipated profit had it secured a three-year deal with
Heaven Hill Distilleries Inc. Ceres Protein, LLC and Roger Shannon oppose that motion.
For the following reasons, the Thompsons’ Second Motion in Limine, [R. 156-5], 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

1

Barry Thompson, along with his son Robert Thompson, approached Roger Shannon and
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 exclude a spreadsheet
in which Roger Shannon appears to calculate Ceres Protein, LLC’s anticipated profit had

2

it secured a three-year deal with Heaven Hill Distilleries Inc. [R. 156-5 at 1 (Second
Motion in Limine).] Ceres Protein, LLC and Roger Shannon oppose that motion. [R.
168 at 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 exclude a spreadsheet in which Roger Shannon appears
to calculate Ceres Protein, LLC’s anticipated profit had it secured a three-year deal with

3

Heaven Hill Distilleries Inc. [R. 156-5 at 1.] In support of that motion, the Thompsons
argue that the spreadsheet paints an inaccurate (and unfairly prejudicial) picture because
the projections include revenue from sources unrelated to Ceres Protein, LLC’s hoped-for
contract with Heaven Hill Distilleries Inc. [Id. at 2.] In the alternative, the Thompsons
object insofar as Roger Shannon based the spreadsheet on facts undisclosed during
discovery and posit that he likely relied on inadmissible hearsay to create it too. [Id. at
4.] Ceres Protein and Roger Shannon take issue with those allegations. [R. 168 at 11.]
From their point of view, the Thompsons’ interpretation of the spreadsheet and
assessment of Roger Shannon’s methodology amounts to nothing more than speculation.
[Id.]
On the record before it, the Court cannot say who has the better argument. To the
detriment of all concerned, there were no depositions taken in this action. So far as the
Court is aware, the exchange of written discovery was sorely lacking as well. Therefore,
the Court finds it prudent to require Ceres Protein, LLC to lay a foundation—outside the
presence of the jury—before admitting any of Roger Shannon’s anticipated testimony on
Ceres Protein, LLC’s damages. In accordance with the Court’s earlier oral ruling to that
effect, [see R. 177 (Order of May 3, 2017)], the Court will defer passing on any
remaining questions raised in this motion until the conclusion of that hearing.
IV.
IT IS HEREBY ORDERED that the Thompsons’ Second Motion in Limine, [R.
156-5], is DENIED. A hearing on this matter is SET for May 15, 2017 at 5:00 p.m.
EST. Counsel ought to be prepared to address, among other things, the following issues:
(1) whether the probative value of spreadsheet is substantially outweighed by the danger

4

of unfair prejudice under Federal Rule of Evidence 403; (2) whether the factual basis of
the spreadsheet was properly disclosed during discovery and, if not, whether exclusion is
appropriate under Federal Rule of Civil Procedure 37(c)(1); and (3) whether the
spreadsheet is inadmissible hearsay under Federal Rule of Evidence 802.
IT IS SO ORDERED.
Date:

May 11, 2017

cc:

Counsel of Record

5