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 JUDGE.
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.
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.
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 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.
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.
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).]
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.
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