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

Filing 193

MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 5/11/17 re 168 Objection, filed by Roger D. Shannon, Ceres Protein, LLC : Ceres Protein, LLC and Roger Shannon'sSecond Motion in Limine, [R. 168], is GRANTED IN PART, DENIED IN PART, andDENIED IN PART AS MOOT.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, Ceres Protein, LLC and
Roger Shannon have filed certain objections which the Court liberally construes as an
omnibus motion in limine.

Barry and Robert Thompson, along with their Ohio

partnership Thompson Mechanical & Design, appear to oppose at least certain portions of
that motion. For the following reasons, Ceres Protein, LLC and Roger Shannon’s Second
Motion in Limine, [R. 168], is GRANTED IN PART, DENIED IN PART, and
DENIED IN PART AS MOOT.
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

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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. The history
of that litigation is long and storied. In its current posture, Ceres Protein, LLC and Roger
Shannon have a claim against the Thompsons for defamation and for intentional
interference with a prospective business relationship.

The Thompsons attempted to

defeat those claims with several affirmative defenses at the summary judgment stage, but

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the Court denied their motion. Ceres Protein, LLC and Roger Shannon elected not to file
a motion for summary judgment of their own as to those defenses.

Though the

Thompsons once had counterclaims for unjust enrichment and quantum meruit against
Ceres Protein, LLC, Roger Shannon, and Michael Tarullo, Jr., the Court granted
summary judgment and dismissed them. Nevertheless, the Thompsons seem to want to
continue to argue and present evidence as to those counterclaims—despite the Court’s
ruling to the contrary.
Following that series of opinions, the Court had the parties meet with a magistrate
judge to attempt to settle this matter. The magistrate judge suggested a reasonable
resolution, but it was rejected. The Court then had conversations with counsel too.
While Ceres Protein, LLC and Roger Shannon had some flexibility regarding settlement,
the Thompsons had none and did not negotiate in any meaningful manner.
The trial of this action is less than a week away. Accordingly, Ceres Protein, LLC
and Roger Shannon have filed certain objections which the Court liberally construes as
an omnibus motion in limine. [R. 168 (Second Motion in Limine).] The Thompsons
appear to oppose at least certain portions of that motion. [R. 179 (Response).]
C.
Before turning to the merits of that motion, the Court pauses to make a few
observations. Over the course of this litigation, the Thompsons had numerous issues with
their lawyers.

Without going into detail, these issues caused several attorneys to

withdraw as counsel of record. The Court allowed the Thompsons considerable time to
secure new counsel, sometimes taking months at a time.

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The parties elected to conduct only written discovery. There were no depositions
taken. Neither side has a very good idea of what the other side will say at trial. The
Court does not necessarily fault counsel for the lack of discovery: Numerous depositions
would have been taken, and additional discovery could have been expensive.
Yet, the parties have flooded the Court with motions relating to evidentiary
matters, including this one. These motions largely rest on speculation. Needless to say,
the current posture of this case before the Court presents a nightmare in attempting to rule
on the various motions. In addition, it is difficult to see how a trial can proceed in an
orderly fashion since no one really knows what the evidence is except for what the parties
have told their attorneys.
The Court is not critical of counsel.

Discovery is not mandatory and it is

expensive. However, because there was no discovery, the Court believes there will be
numerous objections at trial. The Court is attempting to rule on the evidentiary motions
before it. Its task is complicated, however, by the lack of an evidentiary record.
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

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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.
Ceres Protein, LLC and Roger Shannon take issue with a number of things
included in the Thompsons’ assortment of pretrial compliance filings. [R. 168 at 1–10.]
But for the most part, their papers devote little more than a single sentence or two to
explain each objection.

[Id.]

Perhaps understandably then, the Thompsons do not

respond to every point raised in Ceres Protein, LLC and Roger Shannon’s briefing. [R.
179 at 1–12.] Instead, the Thompsons focus on and oppose at least eight of Ceres
Protein, LLC and Roger Shannon’s objections. [Id.] The Court will address each of
those issues in turn. To the extent the Thompsons did not respond, the Court assumes
there is no opposition to Ceres Protein, LLC and Roger Shannon’s objections.
A.
First, Ceres Protein, LLC and Roger Shannon object to the introduction of an
exhibit titled “MSD Schedule of Rates, Rentals & Charges,” along with associated
testimony from a “representative of Louisville-Jefferson Co. MSD,” as untimely
disclosed and irrelevant. [R. 168 at 4, 10; see also R. 181 at 10–11 (Reply).] Although

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seemingly conceding the timeliness issue, the Thompsons anticipate that those things will
become relevant to rebut Roger Shannon’s anticipated testimony on Ceres Protein, LLC’s
alleged damages. [R. 179 at 1–2.] Be that as it may, the Court has already determined
that Ceres Protein, LLC must lay a foundation outside the presence of the jury before
admitting Roger Shannon’s testimony. [See R. 177 (Order of May 3, 2017); R. ___
(Memorandum Opinion).] Accordingly, the Court defers ruling on this objection until the
conclusion of that hearing. The parties should be prepared to address the timeliness and
relevance of this proposed evidence.
B.
Second, Ceres Protein, LLC and Roger Shannon object to the introduction of
numerous documents from Vincent Corporation on relevance grounds. [R. 168 at 4; see
also R. 181 at 10–11.] The Thompsons seem to conflate that objection with Ceres
Protein, LLC and Roger Shannon’s more general objection to the propriety of various
third-party subpoenas. [R. 179 at 2–4.] On account of that, the Thompsons do not
address the relevance issue. Therefore, the Court defers deciding that question until
presented with more developed arguments before trial.
C.
Third, the Thompsons construe Ceres Protein, LLC and Roger Shannon’s papers
as objecting to the introduction of documents from Purina Land ‘o Lakes. [Id. at 4.] In
their reply, Ceres Protein, LLC and Roger Shannon clarify that neither asks for such an
order. [R. 181 at 11.] Therefore, the Court considers this point moot.

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D.
Fourth, the Thompsons take the opportunity to reply to arguments against their
outstanding motion in limine concerning Roger Shannon’s anticipated testimony. [R. 179
at 4–6; see also R. 156-5 (Second Motion in Limine).] As discussed earlier, the Court
has already determined that Ceres Protein, LLC must, among other things, lay a
foundation outside of the presence of the jury before eliciting testimony on Ceres Protein,
LLC’s alleged damages.

Accordingly, the Court defers resolution of all associated

questions until the conclusion of that hearing.
E.
Fifth, Ceres Protein, LLC and Roger Shannon object to the introduction of
testimony from Heather Dalton Tinsley (the wife of Michael Tarullo, Jr. during the
relevant period of time) due to nondisclosure. [R. 168 at 9–10; see also R. 181 at 12.]
Again, the Thompsons appear to concede the timeliness issue. [R. 179 at 6.] It appears
to the Court that Tinsley was never disclosed as a witness until just before trial.
Moreover, the Thompsons do not adequately proffer what her expected testimony would
be and why it would not be duplicative of the testimony from other anticipated witnesses.
Absent some change in circumstances, the Court will preclude the parties from calling
Tinsley as a witness.
F.
Sixth, Ceres Protein, LLC and Roger Shannon object to the following designation
from the Thompsons’ witness list: “Rule 30(b)(6) representatives of the person identified
on the attached.” [R. 168 at 10 (quoting R. 156-3 at 2, ¶ 23 (Thompsons’ Witness List)).]
There is nothing attached to the witness list and, therefore, Ceres Protein, LLC and Roger

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Shannon submit that the designation “makes no sense.” [Id.] Though the Thompsons
attempt to explain to whom that designation refers, [see R. 179 at 7], the Court finds the
whole thing puzzling. The Court is very concerned about any witness not previously
disclosed during discovery. However, the Court defers resolving this issue until trial.
G.
Seventh, Ceres Protein, LLC and Roger Shannon object to the designation of their
attorney, Casey Hinkle, as a witness. [R. 168 at 10; see also R. 181 at 12–13.] The
Thompsons defend that move. [R. 179 at 7.] In principal part, they argue that that
Hinkle (as the registered agent of Ceres Protein, LLC) likely possesses some knowledge
relevant to the factual background of this dispute. [Id.]
Be that as it may, Ceres Protein, LLC and Roger Shannon’s objection is well
taken. The Thompsons have failed to show a compelling justification for Hinkle’s
testimony. There is little to no likelihood that she possesses any relevant, non-privileged
information unattainable from other sources. Cf. United States v. Atman, 145 F.3d 1333,
1998 WL 211767, at *4 (6th Cir. 1998) (unpublished table decision). If the Court were to
permit the Thompsons to call Hinkle as a witness, the prejudice to Ceres Protein, LLC
and Roger Shannon seems all too obvious. See Kittel v. C-Plant Fed. Credit Union, No.
5:08-CV-00114-R, 2010 WL 292689, at *3 (W.D. Ky. Jan. 20, 2010). In sum, the
Thompsons may not call opposing counsel to testify during the trial of this action.
H.
Lastly, Ceres Protein, LLC and Roger Shannon object to opposing counsel
referring to various defenses during his opening statement since, according to them, the
Court rejected those defenses some months ago. [R. 168 at 6–9; see also R. 181 at 1–9.]

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The Thompsons take issue with that reading of the Court’s opinions. [R. 179 at 7–12.]
The Thompsons do so for good reason.
In a nutshell, Ceres Protein, LLC and Roger Shannon attempt to equate denying
summary judgment on basis of an affirmative defense to granting summary judgment
dismissing that defense as a matter of law. But that is not the case. Had Ceres Protein,
LLC and Roger Shannon filed a cross-motion for summary judgment on the pleaded
defenses, then the Court would have had the occasion to pass upon them. However,
Ceres Protein, LLC and Roger Shannon did no such thing. To the detriment of all
concerned, there were no depositions taken in this action, and the exchange of written
discovery was sorely lacking as well. It is impossible to tell what proof might come out
during trial. In these circumstances, the relief Ceres Protein, LLC and Roger Shannon
seek is akin to a directed verdict. Yet, that relief—however appropriate at the end of
trial—is premature before the start of it.
IV.
IT IS HEREBY ORDERED that Ceres Protein, LLC and Roger Shannon’s
Second Motion in Limine, [R. 168], is GRANTED IN PART, DENIED IN PART, and
DENIED IN PART AS MOOT.
IT IS SO ORDERED.
Date:

May 11, 2017

cc:

Counsel of Record

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