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.
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.
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 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. [R. 156-5 at 1 (Second Motion
in Limine).] Ceres Protein, LLC and Roger Shannon oppose that
motion. [R. 168 at 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 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. [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.]
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, [s ...