United States District Court, N.D. Illinois, Eastern Division
SELLERS CAPITAL, LLC, and SELLERS CAPITAL MASTER FUND, LTD., Plaintiffs,
GEORGE WIGHT, ARMADA GROUP, GP, INC., AND ARMADA ENTERPRISES, INC., Defendants.
MEMORANDUM OPINION AND ORDER
JEFFREY T. GILBERT UNITED STATES MAGISTRATE JUDGE.
advance of trial, which currently is set to begin on August
7, 2017, Plaintiffs Sellers Capital, LLC and Sellers Capital
Master Fund, Ltd. (collectively, "Plaintiffs")
filed three motions: Plaintiffs' Motion in
Limine No. 1: To Exclude Parol Evidence from Trial
("Plaintiffs' MiL No. 1"), [ECF No. 89];
Plaintiffs' Motion in Limine No. 2: To Exclude
Evidence That All Contract Conditions Were Not Met
("Plaintiffs' MiL No. 2"), [ECF No. 91];
Plaintiffs' Motion in Limine No. 3: To Bar
Evidence Offered in Support of Affirmative Defenses Not
Pleaded ("Plaintiffs' MiL No. 3"), [ECF No.
92]. Defendants George Wight ("Wight"); Armada
Group, GP, Inc. ("Group"); and Armada Enterprises,
Inc. ("Enterprises") (collectively,
"Defendants") did not file any motions in
limine and they oppose Plaintiffs' motions. For the
reasons stated below, Plaintiffs' Motion in
Limine No. 1 [ECF No. 89] is granted in part and denied
in part, their Motion in Limine No. 2 [ECF No. 91]
is denied, and their Motion in Limine No. 3 [ECF No.
92] is granted in part and denied in part.
following summary of this case comes from the parties'
proposed final pretrial order, Final Pretrial Order, [ECF No.
90], at 4-5:
allege they contracted to sell shares of stock in a company
called Premier Exhibitions, Inc. ('Premier') to Group
for $16, 201, 688. To this end, Plaintiffs executed a Stock
Purchase Agreement ('Agreement') with Group on
October 15, 2014. The Agreement required Group to pay the
$16, 201, 688 million cash purchase price to Plaintiffs no
later than November 20, 2014, provided all of the
Agreement's conditions precedent were met. Group did not
pay the purchase price by November 20, 2014, and the sale
contemplated by the Agreement did not close. Plaintiffs have
sued Group for breach of the Agreement, and seek damages of
not less than $14, 998, 134 .... Plaintiffs have also brought
breach of contract claims against Wight personally and
Enterprises on a veil-piercing/alter-ego theory, alleging
that Group was a sham corporation that Wight used for an
improper purpose in a manner that harmed Plaintiffs. In the
alternative, if the Court finds that Group's corporate
veil cannot be pierced, Plaintiffs allege that Wight and
Enterprises tortiously interfered with the Agreement,
primarily by failing to provide Group with the cash required
to close the deal.
deny all of the allegations made by Plaintiffs. Specifically,
Defendants allege that the Agreement is not valid and
enforceable and, in the alternative, was violated by
Plaintiffs. Defendants Wight and Enterprises further allege
that they did not act in an improper manner that harmed
Plaintiffs or otherwise tortiously interfered with the
Agreement. Additionally, Defendants argue that Plaintiffs
failed to mitigate and cannot prove damages."
district court has the inherent authority to manage the
course of a trial. Luce v. United States, 469 U.S.
38, 41 n.4 (1984). The court may exercise this power by
issuing an evidentiary ruling in advance of trial.
Id. A party may seek such a ruling by filing a
motion in limine, which requests the court's
guidance on what evidence will (or will not) be admitted at
trial. Perry v. City of Chicago, 733 F.3d 248, 252
(7th Cir. 2013). Prudent motions in limine serve a
gatekeeping function by allowing the judge "to eliminate
from further consideration evidentiary submissions that
clearly ought not be presented to the jury."
Jonasson v. Lutheran Child & Family Servs., 115
F.3d 436, 440 (7th Cir. 1997). By defining the evidentiary
boundaries, motions in limine both permit "the
parties to focus their preparation on those matters that will
be considered by the jury, "id.., and help
ensure "that trials are not interrupted mid-course for
the consideration of lengthy and complex evidentiary
issues." United States v. Tokash, 282 F.3d 962,
968 (7th Cir. 2002).
all evidentiary matters, the court has broad discretion when
ruling on motions in limine. United States v. Ajayi,
808 F.3d 1113, 1121 (7th Cir. 2015); Jenkins v. Chrysler
Motors Corp., 316 F.3d 663, 664 (7th Cir, 2002).
Moreover, the court can change its ruling at trial,
"even if nothing unexpected happens[.]"
Luce, 469 U.S. at 41. Rulings in limine are
speculative in effect; essentially, they are advisory
opinions. Wilson, 182 F.3d 562, 570 (7th Cir. 1999)
(Coffey, J., concurring in part and dissenting in part).
court will grant a motion in limine to bar evidence
only where that evidence is clearly inadmissible for any
purpose. Taylor v. Union Pac. R. Co., 2010 WL
5421298, at *1 (S.D. Ill.Dec. 27, 2010). This is a high
standard. Thomas v. Sheahan, 514 F.Supp.2d 1083,
1087 (N.D. Ill. 2007). The moving party bears the burden of
establishing clear inadmissibility. Euroholdings Capital
& Inv. Corp. v. Harris Trust & Sav. Bank, 602
F.Supp.2d 928, 934 (N.D. Ill. 2009). If the moving party
cannot satisfy her burden, the evidentiary ruling should be
deferred until trial. Green v. Goodyear Dunlop Tires N.
Am., Ltd., 2010 WL 747501, at *1 (S.D.. Ill. Mar. 2,
2010). That is because, at trial, the court will have the
benefit of understanding "the context, foundation, and
relevance of the contested evidence within the framework of
the trial as' a whole." Casares v. Bernal,
790 F.Supp.2d 769, 775 (N.D. Ill. 2011).
Court will address each of Plaintiffs' motions in
limine in turn.
Parol Evidence (Motion in Limine No. 1)
Motion in Limine No. 1 is focused on what Plaintiffs
characterize as inadmissible parol evidence. Plaintiffs'
MiL No. 1, [ECF No. 89], at 1. Plaintiffs argue the Agreement
contains an integration clause and the meaning of that
Agreement is unambiguous. Id. ¶¶ 1-13.
Thus, Plaintiffs say, Illinois law precludes the use of parol
evidence to alter the meaning of the Agreement. In response,
Defendants say they are not planning to introduce evidence in
an attempt to alter or vary the plain meaning of the
Agreement. Defendant Armada Group, GP, Inc.'s, Armada
Enterprises, Inc.'s, and George Wight's Response to
Plaintiffs' Motion in Limine No. 1: To Exclude
Parol Evidence from Trial ("Defendants' MiL No. 1
Response"), [ECF No. 93], ¶ 1; see also
Id. ¶ 7 ("Defendants, as noted above, will not
be seeking to alter or vary the meaning of the terms of the
Agreement.")- So, the parties do not disagree that parol
evidence should not be admitted in this case. The parties
disagree, however, whether '. certain evidence that
Defendants want to introduce constitutes parol evidence.
instance, Defendants intend to introduce evidence that, in
their view, will show Mark Sellers, a member of Plaintiff
Sellers Capital, LLC, and/or Samuel Weiser, Premier's CEO
and a member of Plaintiff Sellers Capital, LLC, breached a
fiduciary duty by executing and performing the obligations
imposed by the Agreement. Defendants claim this evidence is
relevant to the representation in Article 3.3 of the
Agreement, in which Plaintiffs and Mark Sellers ("the
Sellers") state that the "execution, delivery and
performance" of the Agreement and "the consummation
.. . of the transactions contemplated hereby does not and
will not, with or without . the giving of notice or the lapse
of time, or both, (a) violate any provision of any Law to
which any Seller is subject, or (b) violate or breach any
provision of the articles of organization, operating
agreement or other organizational or governance documents of
any Seller, as applicable." Agreement, [ECF No. 89-2],
at 4. The term "Law" is defined in the Agreement to
include the common law. Id. at 12. In other words,
Defendants argue Mark Sellers and Samuel Weiser breached
their fiduciary duties in violation of the common law in
connection with the execution, delivery, and performance of
the Agreement and, by doing so, they breached Article 3.3 of
affirmatively state they accept the representation in Article
3.3 of the Agreement and are not seeking to alter its
meaning. Defendants' MiL No. 1 Response, [ECF No. 93],
¶ 5. Rather, they want to introduce evidence they
contend will show the Sellers breached that unambiguous
representation. Plaintiffs contend the evidence Defendants
want to introduce amounts to parol evidence intended to
"turn Article 3.3 into something different than the
admittedly plain wording provides." Plaintiffs'
Reply Memorandum in Support of Their Motion in Limine No. 1:
To Exclude Parol Evidence from Trial ("Plaintiffs'
MiL No. 1 Reply"), [ECF No. 94], at 3. But that is just
another way of saying Plaintiffs disagree with Defendants
that the Sellers breached their covenant in Article 3.3 of
Court is not convinced by Plaintiffs' parol evidence
argument. If, as Plaintiffs seem to assert, Article 3.3 does
not encompass the duties Defendants say it does, or a breach
of any such duty, then irrelevance may be a proper objection
to the evidence Defendants want to introduce. The Court can
interpret and apply Article 3.3 of the Agreement and
determine what it does and does not encompass. But the
parties do not address the issue in this way, focusing
instead on whether Defendants' theories and proposed
arguments are barred by the parol evidence rule. The Court
does not see the issue that way. The Court will, however,
reserve ruling on the relevance of the evidence Defendants
apparently will seek to introduce and discuss this matter
further with the parties at the pretrial conference. ...