Stifel, Nicolaus & Company, Inc. et al v. Lac du Flambeau Band of Lake Superior Chippewa Indians et al

Filing 127

ORDER on Motions in Limine: Granting in part and denying in part 102 Motion to Strike ; granting in part and denying in part 105 Motion to Strike ; denying as moot 108 Motion in Limine ; granting in part and denying in part 109 Motion in Li mine ; denying 110 Motion in Limine ; denying 111 Motion in Limine ; denying 112 Motion in Limine ; denying 113 Motion in Limine. The Preliminary Injunction hearing will take place on 3/14/2014 at 8:30 am. Signed by District Judge William M. Conley on 3/4/2014. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

STIFEL, NICOLAUS & COMPANY, INC.,
STIFEL FINANCIAL CORP., SAYBROOK
FUND INVESTORS, LLC, LDF
ACQUISITION, LLC, WELLS FARGO
BANK, N.A., and GODFREY & KAHN, S.C.,
Plaintiffs,

OPINION & ORDER

v.
13-cv-372-wmc
LAC DU FLAMBEAU BAND OF LAKE
SUPERIOR CHIPPEWA INDIANS and
LAKE OF THE TORCHES ECONOMIC
DEVELOPMENT CORPORATION,
Defendants.

On February 28, 2014, the court held a telephonic status conference at the request of
the parties to discuss matters related to the upcoming preliminary injunction hearing and to
address the parties’ recently-filed motions in limine. Consistent with that discussion, the
court rules as follows.1
The Stifel plaintiffs moved to strike the affidavits of Perry Israel, Penny J. Coleman,
Elaine Trimble Saiz and Kevin Washburn as inadmissible legal analysis and legal
conclusions. (Dkt. #102.) To the extent that those affidavits contain legal analysis or legal
opinions, that motion is well founded and will be granted.
The Saybrook plaintiffs also moved to strike the Washburn and Trimble Saiz
affidavits (dkt. #105), on the grounds that neither is available for a deposition, nor will
they be available for cross-examination at the preliminary injunction hearing. That motion
The court is also in receipt of plaintiff Godfrey & Kahn’s motion in limine (dkt. #108). That
motion is essentially a status report and was neither granted nor denied, because it does not request
any relief.
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is granted in part and denied in part. These witnesses’ affidavits may stand (to the extent
they are do not include impermissible legal analysis or conclusions) if the affiants are
available either: (1) for deposition; or (2) for cross-examination at the hearing.

If the

witnesses are entirely unavailable, however, the court will grant the motion and exclude
their affidavits. For those affiants who have had their depositions taken, the party taking
the deposition must file a full deposition transcript four days before the preliminary
injunction hearing, along with designated pages and lines upon which they rely. Counter
designations will be due one day before the hearing. If transcripts are unavailable due to
this short time frame, the parties should attempt to obtain a “dirty copy” and order
expedited transcripts, as well as reach an agreement among counsel with regard to the
testimony of the witnesses in question, and the court will do its best to accommodate the
parties and consider that testimony.
Finally, the Saybrook plaintiffs have moved to prohibit defendants from presenting
evidence and argument regarding fraud in the inducement at the preliminary injunction
hearing. (Dkt. #109.) That motion is also granted in part and denied in part: defendants
may raise fraud at the hearing, but only to the extent they have proposed facts in response
to plaintiffs’ proposed findings of fact that support this claim. Of course, this ruling is
limited to the merits of the pending motion for preliminary injunction and does not
preclude defendants from pleading fraud in the inducement as a defense in the case.
With respect to defendants’ motions in limine, they would bar evidence and
argument by all plaintiffs with respect to various bond documents unless a named party to
the document. (See dkt. ## 110, 111, 112, 113.) Those motions are denied. All of the
plaintiffs have a substantial interest in the outcome of this matter, and the court declines to
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prohibit them from participating in arguments on the merits of the pending preliminary
injunction motion.

While finding that plaintiffs all have standing, the court has not

resolved the underlying question as to the extent plaintiffs may benefit from any rights
granted in the documents at issue.
Finally, the court set the following deadlines for the parties in the time leading up to
the preliminary injunction hearing:


Plaintiffs are to submit exhibit lists by 5:00 p.m. on Thursday, March 6, 2014.



Defendants are to provide a list of any additional exhibits by 5:00 p.m. on
Wednesday, March 12, 2014.



The court will hear all objections with regard to deposition designations and exhibits
at the preliminary injunction hearing itself.



The preliminary injunction hearing will take place on Friday, March 14, 2014
beginning at 8:30 a.m.

ORDER
IT IS ORDERED that:
1) Plaintiff Stifel Financial Corp. and Stifel, Nicolaus & Company’s motion to strike
and bar testimony from defendants’ experts (dkt. #102) is GRANTED IN PART
and DENIED IN PART consistent with the opinion above.
2) Plaintiff LDF Acquisition, LLC and Saybrook Fund Investors, LLC’s motion to
strike the affidavits of Kevin Washburn and Elaine Trimble Saiz (dkt. #105) is
GRANTED IN PART and DENIED IN PART consistent with the opinion above.
3) Plaintiff LDF Acquisition, LLC and Saybrook Fund Investors, LLC’s motion to
exclude evidence and argument regarding alleged fraud as a defense to entry of a
preliminary injunction (dkt. #109) is GRANTED IN PART and DENIED IN
PART, consistent with the opinion above.

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4) Defendants Lac du Flambeau Band of Lake Superior Chippewa Indians and Lake
of the Torches Economic Development Corporation’s motions to bar evidence
and argument regarding irrelevant contracts (dkt. ##110, 111, 112, 113) are
DENIED.
5) Plaintiff Godfrey & Kahn, S.C.’s motion in limine (dkt. #108) is DISMISSED as
moot.
Entered this 4th day of March, 2014.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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