Barlovento, LLC v. AUI, Inc. et al

Filing 206

ORDER ON BARLOVENTO'S 130 133 MOTIONS IN LIMINE ## 1 AND 3, DEFENDANTS' 128 MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO DAEWOO CASE, AND DEFENDANTS' 134 MOTION IN LIMINE TO EXCLUDE EVIDENCE OF "BREACH" DURING FORBEARANCE PERIOD by Magistrate Judge Gregory J. Fouratt. (gbg)

Case 1:18-cv-01112-GJF-JHR Document 206 Filed 10/15/20 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
BARLOVENTO, LLC,
Plaintiff/Counter-Defendant,
v.

Civ. No. 18-1112 GJF/JHR

AUI, INC.,
Defendant/Counterclaimant, and
WESTERN SURETY COMPANY,
Defendant.
ORDER ON BARLOVENTO’S MOTIONS IN LIMINE ## 1 AND 3, DEFENDANTS’
MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING TO DAEWOO CASE,
AND DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE OF “BREACH”
DURING FORBEARANCE PERIOD
THIS MATTER is before the Court upon Barlovento’s Motions in Limine ##1 and 3,
Defendants’ Motion in Limine to Exclude Evidence Relating to Daewoo Case, and Defendants’
Motion in Limine to Exclude Evidence of “Breach” During Forbearance Period, each of which is
fully briefed. On October 1, 2020, the Court heard oral argument on all nine pending Motions in
Limine (“MILs”). See ECFs 202 (clerk’s minutes); 205 (transcript). The Court now memorializes
the decisions it announced at the hearing on the four motions that are the subjects of this Order:
A. Plaintiff’s MIL #1 (AUI’s Request for Attorneys’ Fees) [ECF 130]
Plaintiff’s MIL #1 requests that the Court preclude AUI from presenting evidence or
argument “seeking to recover attorneys’ fees as purported damages.” ECF 130 at 1. At oral
argument, AUI’s counsel conceded that the Court’s denial [ECF 194] of Defendants’ Motion for
Leave to File Amended Answer, Affirmative Defenses, and Counterclaims [ECF 190] “eliminates
[AUI’s] claim for attorneys’ fees in this case.” Tr. 21. Therefore, the Court GRANTS Plaintiff’s

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MIL #1 and orders Defendants, their counsel, and their witnesses to refrain from presenting
evidence or referring in any way in the jury’s presence to any entitlement by AUI to payment of
its attorneys’ fees in this case.
The Court will follow “the bedrock principle known as the ‘American Rule:’ Each litigant
pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.” Peter
v. NantKwest, Inc., 140 S. Ct. 365, 370 (2019) (citations and internal quotation marks omitted).
Consistent with this rule, as it forecasted at oral argument, see Tr. 17-19, the Court observes that
the subcontract provides that, if properly terminated for default, AUI may be liable for “any
attorneys’ fees associated with default”—but only to the extent that such fees were “expense[s] of
completing the Subcontract Work,” specifically by qualifying as “administrative and overhead
expenses … incurred by [Plaintiff]” in terminating AUI for default. Subcontract ¶ 8.1.3. Thus,
although the Court expects to address at a later time the scope of any attorneys’ fees that may be
recoverable by Barlovento, the Court emphasizes that the subcontract appears to significantly limit
that scope.
B. Plaintiff’s MIL #3 (Speculation about Unavailable Batch Tickets) [ECF 133]
Plaintiff’s MIL #3 seeks only to exclude evidence or argument by defense counsel or
defense witnesses that would amount to “speculating as to the content of unavailable ‘batch
tickets.’” ECF 133 at 1 (emphasis added). At oral argument, defense counsel affirmed they will
not “ask any witness to speculate, guess, [or] testify about the contents of batch tickets that he or
she has not seen.” Tr. 80. For the reasons stated on the record, the Court GRANTS the motion
and orders defense counsel and defense witnesses from speculating in any fashion, whether in
testimony or argument, about the alleged contents of any concrete batch tickets not offered into
evidence.

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The Court adds, however, that this ruling is narrow and addresses only speculation as to
the supposed content of missing batch tickets. The Court also emphasizes that this ruling does not
affect the Court’s future decision on AUI’s request for an adverse inference instruction associated
with the missing batch tickets. See Tr. 77-82 (the Court noting that it would decide later AUI’s
request for an adverse inference jury instruction).
C. Defendants’ MIL to Exclude Evidence Relating to Daewoo Case [ECF 128]
In this motion, Defendants seek to preclude Plaintiff’s counsel from cross-examining
Defendants’ expert witness Robert Freas about his methodology and testimony in Daewoo
Engineering and Constr. Co., Ltd. v. United States, 73 Fed. Cl. 547 (2006), as well as the Daewoo
trial judge’s criticism of Freas’s testimony. See ECF 128 at 1, 5. For the reasons articulated on
the record, see Tr. 112-15, the Court GRANTS the motion to the extent that it will require
Plaintiff’s counsel at trial to obtain a favorable ruling outside the jury’s presence before referring
to the Daewoo case in any fashion. The Court urges Plaintiff’s counsel, prior to requesting any
such ruling, to refamiliarize themselves with the Court’s profound concerns about the admissibility
of any such testimony, as articulated at oral argument.
D. Defendants’ MIL to Exclude Evidence of “Breach” During Forbearance Period
[ECF 134]
This motion seeks to exclude “references by [Plaintiff] to any AUI alleged ‘breaches of
contract’ between October 31, 2017 and December 5, 2017.” ECF 134 at 1. For the reasons stated
on the record, see Tr. 128-37, the Court DENIES the motion. Because the parties expressly
negotiated that any time Plaintiff considered AUI to be “in default” would simultaneously amount
to a “material breach” by AUI, see subcontract ¶ 8.1.1, the Court cannot find that the probative
value of permitting such references to breaches of this subcontract in this particular case would be

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substantially outweighed by the danger of unfair prejudice that Federal Rule of Evidence 403 was
designed to prevent.
SO ORDERED.

________________________________________
THE HONORABLE GREGORY J. FOURATT
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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