United States District Court, W.D. Kentucky, Louisville Division
CERES PROTEIN, LLC, et al., Plaintiffs/Counterclaim Defendants,
THOMPSON MECHANICAL & DESIGN, et al., Defendants/Counterclaimants.
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States.
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.
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 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
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.
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.”
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 at 1-2 (First Motion in
Limine).] Ceres Protein, LLC and Roger Shannon oppose that
motion. [R. 168 at 10-11 (Response).]
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).
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), 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
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, ...