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Hopkins AG Supply LLC v. First Mountain Bancorp

United States District Court, W.D. Oklahoma

July 11, 2017

HOPKINS AG SUPPLY LLC, Plaintiff,
v.
FIRST MOUNTAIN BANCORP, a Nevada Corporation,, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBIN J. CAUTHRON United States District Judge

         Now before the Court are the following motions in limine: Plaintiff's Motion in Limine Regarding Non-Party Jarrod Stewart's Irrelevant Activities and Communications (Dkt. No. 223); Plaintiff's Motion in Limine Regarding Criminal Restitution Payments (Dkt. No. 224); Plaintiff's Motion in Limine Regarding Evidence of Settlement with Former Defendants (Dkt. No. 225); Defendants', Larry Wright, Phenix Services and Brunswick Companies, Motion in Limine (Dkt. No. 219); Defendants' . . . Second Motion in Limine (Dkt. No. 220); Defendants' . . . Third Motion in Limine (Dkt. No. 230); Defendants' . . . Fourth Motion in Limine (Dkt. No. 244); and Defendants' . . . Motion in Limine Regarding Evidence of Bank Loans (Dkt. No. 247). The parties have responded and each Motion is now at issue.

         I. Plaintiff's Motion Regarding Jarrod Stewart's Activities and Communications

          Plaintiff requests the exclusion of any evidence related to Jarrod Stewart's insurance business or operations as an insurance agent and any mention of an email sent from Mr. Stewart to Turhan and Sapho Erel on January 2, 2013. Stewart is the owner and designated corporate representative of Hopkins and he also owns a separate insurance business called AIM Agency. Turhan Erel owns Turhan's Bay Export & Import Co., a former defendant entity in this case, and Sapho Erel is his spouse.

         Plaintiff argues evidence of Stewart's insurance business is irrelevant, prejudicial, and misleading to the jury. Plaintiff argues because Stewart is a non-party, his testimony should be limited to his actions as an agent of Hopkins and the fact that Stewart possesses insurance knowledge should not be used to imply that Hopkins had superior knowledge and is not relevant to whether Defendants conspired to defraud Hopkins. Defendants argue Stewart's testimony will be useful to show the actions of Brunswick and Phenix were consistent with lawful purposes.

         Stewart's experience is relevant in relation to his general knowledge of the insurance industry and the context of the transaction in question. Accordingly, the Motion is DENIED on this issue. However, to the extent that counsel seeks to elicit expert testimony from Stewart, or if the testimony becomes too time-consuming or prejudicial, it will be stopped.

         Plaintiff argues for the exclusion of an email entitled “Turhan Situation” because it is not relevant to the claims and is more prejudicial than probative. Defendants argue the email will be used as impeachment evidence to show bias, prejudice, interest, and motive. The Court finds the email is totally irrelevant and the Motion is GRANTED on this issue. The Court will reconsider this decision if the circumstances indicate the document may be impeaching.

         II. Plaintiff's Motion Regarding Criminal Restitution Payments

         Plaintiff requests the exclusion of evidence related to restitution payments Erel has paid or was ordered to pay Plaintiff in relation to a criminal prosecution. Plaintiff argues the fact that Erel was ordered to pay restitution for a fraudulent check has no bearing on the issue of whether Defendants conspired to commit fraud on Plaintiff. Mention of the restitution would lead the jury to believe Plaintiff has been compensated for its loss. Additionally, Plaintiff states Erel filed for bankruptcy and is behind on payments, so any mention of the debt to the jury would lead to a mini trial on Erel's ability to pay.

         Defendants argue because the liability under the guarantee is conditioned upon payment, all payments received are relevant and admissible, including restitution payments. Defendants also state the evidence should be admissible as impeachment evidence to show Erel has a financial interest in the outcome of this case.

         The Court finds the initial $25, 000 payment is admissible but the criminal restitution payments are inadmissible because they are materially different from the voluntary payment received under the guarantee. The parties are free to discuss the fact that Erel/Turhan's Bay failed to pay the balance and make arguments as to whether that tends to show Plaintiff's loss was due to Erel's actions and not a conspiracy. The issues of setoff and duplicative recovery will be addressed after the jury renders its verdict. While Erel may have a financial interest in this case, the interest is unknown until the jury renders its verdict, and the probative value of such evidence is far outweighed by unfair prejudice, confusion to the jury, and undue delay. The Court finds the Motion is GRANTED on this issue; evidence of Erel's criminal restitution payments and duplicative recovery is excluded.

         III. Plaintiff's Motion Regarding Evidence of Settlement with Former Defendants

         Plaintiff requests the exclusion of all evidence related to claims brought against or settlements with former Defendants Advance Trading, Inc., and Troy Rigel. Plaintiff brought a negligence claim against Advance Trading and Rigel, which they subsequently settled. Plaintiff argues this evidence is inadmissible pursuant to Fed.R.Evid. 408 and the duplicative recovery issue should be addressed after trial is complete.

         Defendants argue evidence of Advance Trading/Rigel's negligence is admissible to show it was the proximate cause of Plaintiff's harm rather than Defendants' actions, and the Court agrees. Defendants will be permitted to argue alternate theories of harm. Additionally, a complete bar of all discussion of Advance Trading and Rigel would confuse the jury by not providing complete information about the transaction in question. However, Defendants may not discuss the settlement, settlement offer, the amount of settlement, or make any setoff or double recovery arguments to the jury. Arguments related to recovery will be addressed after the jury reaches its verdict. Defendants may discuss the actions of Advance Trading and Rigel and the ...


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