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Ceres Protein, LLC v. Thompson Mechanical & Design

United States District Court, W.D. Kentucky, Louisville Division

May 11, 2017

CERES PROTEIN, LLC, et al., Plaintiffs/Counterclaim Defendants,
v.
THOMPSON MECHANICAL & DESIGN, et al., Defendants/Counterclaimants.

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL JUDGE.

         In 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.

         I.

         A.

         The 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 resulted.

         Following 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.

         Over 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.”

         B.

         Ceres 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.

         Following 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.

         The 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).]

         C.

         Before 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.

         The 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 ...


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