Lundstrom, Jr. v. Homolka, P.A. et. al.

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILED
NOV 04 2021
LOWELL LUNDSTROM,JR., 1;19-CV-0I006-CBK
Plaintiff,
vs.
OPINION AND ORDER ON
MOTIONS IN LIMINE
DANIEL M.HOMOLKA P.A., DANIEL M.
HOMOLKA, WATTS GUERRA LLP,
AND MIKAL C. WATTS,
Defendants.
The parties have filed motions in limine, docs. 123, 128, 136, 145, 154. I have
reviewed the motions, briefs, affidavits, and responses. I have been the district court
judge assigned to this case from the time the complaint was filed. I have ruled on two
motions to dismiss and two motions for summary judgment. There is no need to restate
the facts of this case, except as relevant to a particular motion in limine.
A. The Watts Defendants' Motions in Limine^ Doc. 123.
1. Admission of Expert Testimony.
Defendants have moved to prohibit plaintifffrom proffering any expert testimony
based upon the failure to disclose any expert's identity or opinions. Expert testimony is
generally admissible pursuant to Federal Rules of Evidence 702-06. However, pursuant
to Federal Rule of Civil Procedure 26(a)(2), a party must disclose the identity of and a
written report from any expert the party intends to call at trial 90 days prior to trial unless
otherwise ordered. I ordered the plaintiff to disclose the identity of and any reports from
retained experts prior to December 31, 2020.
Defendants' motion in limine seeking to prohibit plaintiff from offering expert
testimony not previously disclosed should be granted.
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2. Plaintifrs Statements to Others.
Defendants have moved to prohibit plaintiff from offering any evidence or
argument that plaintiff made statements to others that he was going to be receiving a
bonus from the Syngenta litigation. In other words, defendants seek to prohibit plaintiff
from establishing through plaintiffs own prior statements that payment of a bonus at the
conclusion ofthe Syngenta litigation was part of the compensation orally agreed to by the
defendants.
Statements made outside of court offered to prove the truth ofthe matter asserted
are hearsay and are not ordinarily admissible. Fed. R. Evid. 801(c), 802. Plaintiffs prior
consistent statement made out of court is admissible if, inter alia, it
(B)is consistent with the declarant's testimony and is offered:
(i)to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on
another ground.
Fed. R. Evid. 801(d)(1)(B).
Defendants argued in their briefs in support of summary judgment that plaintiff
did not ask defendants for his claimed bonus until well after the Syngenta litigation
settled, thus implying plaintiff did not have an expectation of a bonus but contrived the
expectation of a bonus once the Syngenta settlement's attorneys' fee award was
announced. Defendants pointed to evidence that a bonus was not part of any invoice
submitted by plaintiffto defendants nor was a bonus mentioned in any budgets submitted
to defendants. If defendants intend to offer evidence consistent with the foregoing,
plaintiff should be allowed to offer evidence showing that receipt of a bonus was not a
contrived contractual term but was in fact part ofthe compensation promised to plaintiff
near the beginning of plaintiffs contract negotiations.
Defendants' motion in limine seeking to prohibit plaintiff from offering testimony
or argument about plaintiffs prior consistent statements that plaintiff was owed a bonus
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at the conclusion of the Syngenta litigation should be granted. However, defendants are
precluded from offering evidence or argument that payment of a bonus was not part of
the contract based upon the fact that plaintiff did not request payment ofthe bonus until
after the Syngenta settlement. If defendants seek to defend against payment of a bonus
on the basis set forth in the previous paragraph, defendants must notify the Court and the
plaintiff prior to the beginning of trial so that plaintiff can be prepared to seek admission
of the evidence of prior consistent statements.
3. Settlement Discussions.
Defendants have moved to exclude any argument or discussion relating to
settlement or mediation of plaintiffs claims. Compromise offers and negotiations are
generally inadmissible. Fed. R. Evid. 408. Defendants' motion in limine seeking to
prohibit plaintiff from offering any evidence or agreement relating to settlement or
mediation of plaintiffs claims should be granted. No party or witness should even
mention such settlement attempts.
4. Relationship Between Defendants.
Defendants have moved to exclude any testimony from plaintiff regarding the
specifics of the relationship between the Watts defendants and the Homolka defendants.
The relationship between the Watts defendants and the Homolka defendants is the basis
of plaintiffs claim that Daniel Homolka was an agent ofthe Watts defendants when he
sought plaintiffs services to market the Syngenta litigation, thus binding the Watts
defendants to any contractual terms negotiated between plaintiff and Homolka. Such
evidence is further relevant to whether a joint venture existed between the defendants,
supporting plaintiffs contract claims against the Watts defendants. The fact that the
Watts defendants entered into very specific written contracts with many attorneys,
including the Homolka defendants, raises issues as to why the defendants refused to enter
into a written agreement with plaintiff, thus supporting plaintiffs fraud claim. There is
no basis for contending such evidence is inadmissible.
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Defendants' motion in limine to exclude testimony regarding the specifics of the
relationship between the Watts defendants and the Homolka defendants should be
denied.
5. Evidence of Bonuses paid in Mass Tort Litigation.
Defendants have moved to exclude any testimony about any other person
receiving a bonus from mass tort litigation. The evidence submitted to the Court in the
summary judgment stage showed that plaintiff asked for a written contract, but
defendants refused to enter into a written contract with plaintiff. Defendants claimed that
they could not have agreed to pay plaintiff a bonus because payment of a bonus would
violate the Model Rules ofProfessional Conduct(MRPC). Evidence that defendants
paid bonuses in connection with other mass tort litigation would be relevant to disprove
defendants' defense in this regard. Further, Federal Rule of Evidence 403 does not
prevent the admission of this testimony. Defendants' motion in limine to exclude
evidence that any other person received a bonus from mass tort litigation should be
denied.
6. Plaintiffs Testimony About Model Rules of Professional Conduct.
Defendants have moved to prohibit plaintiff from testifying about what conduct is
authorized or prohibited under Model Rule of Professional Conduct 5.4. The evidence
submitted to the Court in the summary judgment stage showed that plaintiff asked for a
written contract, but defendants refused to enter into a written contract with plaintiff.
Plaintiff contended that defendants refused to enter into a written contract with plaintiff
based upon their claim that MRPC 5.4 prohibited such a contract with a non-attorney.
Further, defendants have claimed that they could not have agreed to pay plaintiff a bonus
because payment of a bonus would violate the Model Rules ofProfessional Conduct.
Defendants contend that Federal Rule of Evidence 701 prohibits plaintiff, a non-lawyer,
from testifying as to his opinion regarding the reach of MRPC 5.4. He will not be
allowed to testify about his research or his opinion.
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Defendants' motion in limine to prohibit plaintiff from opining on the meaning of
MRPC 5.4 is granted. This does not preclude plaintiff from testifying what defendants
allegedly told him about MRPC 5.4.
7. Evidence of Defendants' Net Worth.
Defendants have moved to exclude any evidence or argument relating to
defendants' net worth. In this ease, evidence of defendants' net worth would be relevant
to the issue of punitive damages. This will provide notice that I intend to bifurcate the
liability and damages portions ofthe trial. The parties will submit evidence and
argument as to liability only and the jury will be instructed as to liability only. Following
receipt of a verdict as to liability issues, and only ifthe jury returns a verdict favorable to
plaintiff as to liability, the Court will allow the parties to submit evidence and argument
regarding damages and the jury will be instructed as to damages only. I will make a
determination whether the evidence as to liability supports the submission of evidence
and argument on the issue of punitive damages. Accordingly, ruling on defendants'
motion in limine to exclude evidence of defendants' net worth is reserved.
8. Evidence or Argument Regarding Statements Made at Open Houses.
Defendants have moved to exclude any evidence or argument regarding statements
made at open houses provided for farmers regarding Syngenta litigation, claiming such
evidence is not relevant. Further, defendants also argue that any statements made at open
houses are not admissible pursuant to Federal Rule of Evidence 403, because of possible
"mini-trials" which could confuse the jury.
In turn, plaintiff contends such evidence is relevant to what defendants told
himselfto expect because of the Syngenta litigation, as well as going towards credibility.
Plaintiff contends defendants repeatedly made promises at town hall meetings to induce
farmers to sign fee agreements with defendants, promises defendants did not or could not
keep.
Because these statements were made at open houses pertaining to the Syngenta
litigation, which ultimately is at the crux of this litigation as well, any potential attacks on
the credibility of defendants stemming from these open houses would be relevant to
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plaintiffs claims on what he was promised. If defendants made unkept promises to
others within the confines ofthe Syngenta litigation, such as potential farmer plaintiffs,
then Lundstrom may use these alleged prior statements to question the defendants'
credibility in the promises that they have made. Further, as an attendee at some ofthese
open houses, Lundstrom is within his rights to argue that he relied on promises made by
Mr. Homolka during these meetings, reliance that continued throughout the time of their
alleged partnership. While the Court does not want trials within trials, plaintiff is allowed
to bring up alleged statements at prior open houses, which defendants may then rebut.
Defendants' motion in limine to exclude any evidence or argument regarding
statements made at open houses provided for farmers regarding Syngenta litigation
should be denied.
9. Evidence or Argument Regarding Plaintiffs Lost Income.
Defendants have moved to exclude any evidence or argument regarding plaintiffs
alleged lost income associated with missed opportunities to work with other lawyers on
the Syngenta Litigation. Plaintiff abandoned any claim for lost profit damages in his trial
brief. Defendants' motion in limine to exclude any evidence or argument regarding
plaintiffs lost profits should be granted.
10. Evidence or Argument Regarding Syngenta Settlement.
Defendants have moved to exclude any evidence or argument regarding what
farmers received as a result of the settlement in the Syngenta litigation because it is
purportedly irrelevant to this matter. In addition to being irrelevant, defendants assert
this evidence should be excluded pursuant to Federal Rule of Evidence 403 due to the
mini-trial that would likely ensue, as well as concerns it would "suggest that the
[Syngenta plaintiff] farmers did not receive a fair settlement." Brief Supporting
Watts'Defendants' Motions In Limine, doc. 124 at 12.
Defendant's motion in limine to exclude evidence or argument regarding what
farmers received as a result of the settlement in the Syngenta litigation should be denied.
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B. The Homolka Defendants' Motions in Llmine, Doc. 128.
1. Evidence of Other Lawsuits Against the Homolka Defendants.
Defendants have moved to exclude any evidence or argument regarding other
lawsuits in which the Homolka Defendants were a named party.
Plaintiff has moved for an order permitting plaintiffto question defendants
regarding four lawsuits against the Homolka Defendants filed in Hennepin County,
Minnesota, filed in 2001, 2002, 2005, and 2013.
The Homolka defendants contend that such evidence is inadmissible because the
evidence is not relevant, three of the four lawsuits were resolved by a settlement without
an admission of liability, the fourth involved a fee dispute among attorneys, the lawsuits
were not similar in kind and close in time to plaintiffs claims in this case, and the
evidence should be excluded under Rule 403.
I agree with defendants. Absent an admission of wrongdoing or a finding by a
jury of wrongdoing, evidence that the Homolka defendants were sued for breach of
contract or fraud would not be admissible under Federal Rule of Evidence 608(b)to
prove character. Nor would such lawsuits be admissible to prove intent to defraud. In
any event, the evidence should be excluded under Rule 403. Defendants' motion in
limine for an order permitting plaintiffto question Homolka about prior lawsuits should
be granted.
2. Evidence or Argument Regarding Statements Made at Open Houses or
Regarding Expected Attorney Fees.
Defendants have moved to exclude evidence or argument regarding information
provided to potential plaintiffs in the Syngenta litigation or information regarding the
attomey's fees that might be recovered in that litigation. This opinion has held above
those statements made at open houses are admissible to assess the credibility of the
defendants in purported unkept promises they may have made.
Defendants' motion in limine for an order prohibiting plaintiff from offering any
evidence or argument regarding information provided to potential plaintiffs in the
Syngenta litigation is denied.
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Defendants' motion in limine for an order prohibiting plaintiff from offering any
information regarding the attorney's fees that might be recovered in that litigation is
denied.
3. Evidence or Argument Regarding Defendants' Joint Prosecution
Agreements.
Defendants have moved to exclude evidence or argument regarding joint
prosecution agreements between lawyers representing plaintiffs in the Syngenta
litigation. There is no basis for excluding such evidence. The relationship between and
among defendants is central to plaintiffs claims against the Watts defendants.
Defendants' motion in limine to exclude evidence or argument regarding joint
prosecution agreements between and among the defendants or others should be denied.
4. Plaintiffs Testimony About Model Rules of Professional Conduct.
Defendants have moved to exclude any evidence or argument regarding plaintiffs
interpretation of Rule 5.4 of the Model Rules ofProfessional Conduct("MRPC").
Defendants contend that Federal Rule of Evidence 701 prohibits plaintiff, a non-lawyer,
from testifying as to his opinion regarding the reach of MRPC 5.4. This motion should
be granted. This does not preclude plaintiff from testifying what defendants allegedly
told him about MRPC 5.4.
5. Evidence or Argument Regarding a Loan Made to Defendants to Settle
Litigation.
Defendants have moved to exclude any evidence or argument regarding a loan
made to Daniel M. Homolka,P.A. from Armadillo Financial Fund, L.P., or with regard to
the confidential settlement of Armadillo's lawsuit against Daniel M.Homolka,P.A.
Plaintiff contends the evidence will show that the loan proceeds were used to pay
Syngenta litigation costs, thus bolstering plaintiffs claim that the Syngenta litigation was
a joint venture between and among defendants (because they shared in both profits and
losses).
To counter defendants' assertions that there was no joint venture, plaintiff must be
allowed to present evidence to the contrary, such as the Armadillo loan. One of the
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elements '"necessary to establish a join venture [is]..."a right to share in the profits and
a duty to share in any losses. Van Dusseldorp v. Cont'l Casualv Co.. 2017 WL
4004421 at *4(D.S.D. Sept. 11, 2017){unpublished)(quoting Harriman v. United
Dominion Indus.. Inc.. 693 NW2d 44, 50(S.D. 2005))(emphasis added). Because
"[ujltimately some" ofthe Armadillo funds were used for "debts related to the Syngenta
litigation," the evidence is probative of a possible joint venture between the Watts and
Homolka defendants because of a sharing in potential losses from the Syngenta litigation.
Excerpts of Deposition Transcript of Daniel Homolka Taken 1-7-21, doc. 151-3
at 204:2-3. Ifthe Syngenta litigation was to fail and no attorney's fees were to be paid,
then the Homolka defendants would not only have lost out on any potential proceeds, but
because ofthe Armadillo funds that went towards Syngenta-related litigation debts it
would also be sharing in a loss alongside the Watts defendants.
Defendants' motion in limine to exclude any evidence or argument regarding a
loan made to Daniel M.Homolka, P.A. from Armadillo Financial Fund, L.P., should be
denied. As to the settlement ofthe suit against Homolka defendants, that is addressed
elsewhere in this opinion.
6. Evidence of Tape Recordings Made by Plaintiff.
Defendants have moved to exclude evidence of selected portions of conversations
secretly tape recorded by plaintiff and Eloy Guerra.
Defendants admit in their trial briefs that plaintiffs secret recordings of
conversations plaintiff participated in with others in not illegal. However,they object to
the manner in which they were used in the depositions, namely that plaintiff would play a
recording "for a witness and then ask the witness if they made the statement in question
and what it meant." HOMOLKA DEFENDANTS'Pretrial Brief, doc. 130 at 5. Instead,
defendants argue "[i]f a witness does not deny making a statement, the witness can
simply be asked about the particular subject." Id.
I have not yet received the transcripts ofthe recordings and it would be premature
to rule on the admissibility of all the audio recordings. Accordingly, ruling on plaintiffs
motion in limine for an order admitting the audio recordings is reserved.
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7. Plaintiffs Statements to Others.
Defendants have moved to exclude any evidence or argument concerning
statements plaintiff made to third parties regarding the bonus to which he claims
entitlement. As set forth above in Part A.2., defendants' motion in limine seeking to
prohibit plaintiff from offering testimony or argument about plaintiffs prior consistent
statements that plaintiff was owed a bonus at the conclusion ofthe Syngenta litigation
should be granted. However, defendants are precluded from offering evidence or
argument that payment of a bonus was not part of the contract based upon the fact that
plaintiff did not request payment ofthe bonus until after the Syngenta settlement. If
defendants seek to defend against payment of a bonus on that basis, defendants must
notify the Court and the plaintiff prior to the beginning oftrial so that plaintiff can be
prepared to seek admission ofthe evidence of prior consistent statements.
C, Plaintiffs Motions in limine^ Doc. 136.
1. Plaintiffs Criminal History.
Plaintiff has moved to exclude evidence of his criminal record and/or criminal
history. Defendants do not object to plaintiffs motion. Plaintiffs motion in limine to
exclude evidence of plaintiffs criminal history and/or criminal records should be
granted.
2. Evidence of Plaintiffs Parents' Estate or Claims or Allegations Made in
Estate Litigation.
Plaintiff has moved to exclude evidence of the Estate of Lowell Lundstrom, Sr.,
the Estate of Connie Lundstrom, and the Living Trust of Lowell and Connie Lundstrom,
or claims or allegations made within that litigation. Defendants contend such evidence is
admissible under Federal Rule ofEvidence 404(b)(1) as other acts admissible for another
purpose - motive. Defendants claim that plaintiffs motive to "make up" the promise that
plaintiff was entitled to a $3.4 million bonus is an issue in the breach of contract case.
Defendants claim that plaintiff needed money to pay for attorney fees in other litigation
and to pay child support. Further, defendants eontend that plaintiffs witness, attorney
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Dan Rasmus,represented plaintiff in this proceeding and defendants should be allowed to
attack Rasmus' credibility on that basis.
Any attenuated argument about a supposed motive on the part of plaintiff for costs
incurred in resolving the estate of Lowell Lundstrom, Sr., Connie Lundstrom, and the
Living Trust of Lowell and Connie Lundstrom does not reach the threshold for relevance
in this matter. Fed. R. Evid. 401. Further, it cannot be plausibly argued that it may be
admitted for motive evidence, and thus admissible pursuant to Federal Rule of Evidence
404(b), with such a weakened causal chain where no substantive evidence has been
brought to this Court on existing debts from the estate affairs that would motivate
Lundstrom to "make up" the $3.4 million bonus. Finally, even if there was more
concrete evidence that the litigation from these estates generated large costs for
Lundstrom, any proposed evidence would be impermissible pursuant to Federal Rule of
Evidence 403.
Plaintiffs motion in limine to exclude evidence of litigation regarding his parents'
estates should be granted.
3. Evidence of the Civil Action involving Lowell Lundstrom Ministries.
Plaintiff has moved to exclude evidence ofthe civil action involving Lowell
Lundstrom Ministries, Inc. initiated in 2016, or claims or allegations made within that
litigation. Defendants contend such evidence is admissible under Federal Rule of
Evidence 404(b)(1) as other acts admissible for another purpose - motive. Defendants
claim that plaintiffs motive to "make up" the promise that plaintiff was entitled to a $3.4
million bonus is an issue in the breach of contract case. Defendants claim that plaintiff
needed money to pay for attorney fees in other litigation and to pay child support.
Further, defendants contend that plaintiffs witness, attorney Dan Rasmus, represented
plaintiff in this proceeding and defendants should be allowed to attack Rasmus'
credibility on that basis.
This is similar to the Court's analysis for why evidence of any litigation
surrounding the settling of estates should be barred from admission,supra. Because this
information cannot pass muster under Federal Rule ofEvidence 403, in addition to not
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supplying adequate motive under Rule 404(b) or even a baseline of relevance pursuant to
Rule 401, evidence ofthe civil action involving Lowell Lundstrom Ministries should not
be presented to the jury.
Plaintiffs motion in limine to exclude evidence ofthe civil action involving
Lowell Lundstrom Ministries should be granted.
4. Evidence of Plaintifrs Divorce.
Defendant has moved to exclude evidence ofthe divorce action between plaintiff
and Kimberly Anderson. Defendants contend such evidence is admissible under Federal
Rule of Evidence 404(b)(1) as other acts admissible for another purpose - motive.
Defendants claim that plaintiffs motive to "make up" the promise that plaintiff was
entitled to a $3.4 million bonus is an issue in the breach of contract case. Defendants
claim that plaintiff needed money to pay for attomey fees in other litigation and to pay
child support. Further, defendants contend that plaintiffs witness, attomey Dan Rasmus,
represented plaintiff in this proceeding and defendants should be allowed to attack
Rasmus' credibility on that basis.
Again, the Court points to its prior analysis, supra, in holding that this evidence
should not be presented to the jury, pursuant to Federal Rules of Evidence 401, 404(b),
and 403.
Plaintiffs motion in limine to exclude evidence of his divorce action should be
granted.
5. Evidence of Payment or Non-Payment of Child Support.
Plaintiff has moved to exclude evidence of his payment or non-payment of child
support. Defendants contend such evidence is admissible under Federal Rule of
Evidence 404(b)(1) as other acts admissible for another purpose - motive. Defendants
claim that plaintiffs motive to "make up" the promise that plaintiff was entitled to a $3.4
million bonus is an issue in the breach of contract case. Defendants claim that plaintiff
needed money to pay for attorney's fees in other litigation and to pay child support.
Further, defendants contend that plaintiffs witness, attorney Dan Rasmus, represented
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plaintiff in this proceeding and defendants should be allowed to attack Rasmus'
credibility on that basis.
This matter has been tackled by other district courts, coming to the same
conclusion that this Court finds, namely that this sort of evidence to show a purported
motive to concoct litigation should not be admitted. See Nibbs v. Goulart. 822 F.Supp.2d
339, 346(S.D.N.Y. 2011)(rejecting defendants' argument plaintiff"had a financial
incentive to bring this lawsuit, namely to satisfy his child support obligation, and that this
incentive amounts to bias," holding such evidence "risks significant prejudice," and
should be precluded). See also United States v. Newell. 584 F.Supp.2d 272, 274(D. Me.
2008)(holding "that overdue child support or child welfare payments may not pass Rule
403 muster.").
Plaintiffs motion in limine to exclude evidence of his payment or non-payment of
child support should be granted.
6. Plaintiffs Tax Filing History.
Plaintiff has moved to exclude evidence of his tax filing history. Defendants
contend that plaintiffs alleged failure to file a tax return in 2015 and evidence of
plaintiffs alleged tax evasion or fraud is evidence of plaintiffs credibility. Defendants
contend that, during discovery, plaintiff falsely testified or submitted false answers to
discovery requests about certain specifics as to the 2015 tax return and that defendants
should be allowed to impeach plaintiff as to these matters. Defendants also contend that
plaintiff was dishonest during his in-court testimony during a hearing in conjunction with
prior motions in this case.
Evidenee that a party filed tax returns, under oath, claiming certain income and
expenses, can be used to impeach a person who testifies at trial contrarily about such
matters. However, evidence that a party failed to file tax returns does not show that trial
testimony regarding income and expenses is false. Federal Rule of Evidence 608(b)
prohibits the admissibility of extrinsic evidence to prove character for truthfulness absent
a criminal conviction. Such matters may be inquired into on cross-examination if
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probative of the witness' character for untruthfiilness. Id. However, a witness does not
waive his Fifth Amendment privilege by testifying. Id.
I do not intend to allow any party to turn this trial into mini-trials on extrinsic
matters. Further, it would be improper to ask plaintiff questions at trial when defendants
know plaintiff is likely to assert a Fifth Amendment privilege as to such questions,
simply to imply to the jury that plaintiff has committed tax fi-aud. I find that any such
evidence, even if admissible, would be excludable under Federal Rule of Evidence 403.
Absent a conviction for tax fraud, defendants are prohibited from inquiring into
plaintiffs failure to file a tax return.
Plaintiff has, in his trial brief, waived any claim for lost profits. Thus, any tax
returns that were filed would not be relevant to plaintiffs damages claims. Plaintiffs
motion in limine to exclude evidence of plaintiffs tax filing history, or lack thereof,
should be granted.
7. Evidence of Plaintiffs alleged Tax Evasion or Fraud.
Plaintiff has moved to exclude any argument or claim that plaintiff attempted,
committed, or will commit tax evasion by fraud or otherwise. For the reasons stated
above, plaintiffs motion in limine to exclude evidence of any attempt, act, or plan to
commit tax evasion by fraud or otherwise should be granted.
8. Evidence of Plaintiffs Alleged Falsification of Invoices or Improper
Receipt of Benefit Related to the Syngenta Litigation.
Plaintiff has moved to exclude evidence that he falsified invoices or otherwise
improperly received a benefit related to the Syngenta Litigation. The defendants did not
plead set-off as a counterclaim in their answers. Nor did they file a counterclaim. The
Homolka defendants did plead a so-called defense of the doctrine of account stated.
Defendants also pleaded a defense of unclean hands. The Watts defendants pleaded a
"defense of payment."
The defendants contends that the evidence will show that plaintiff was paid in
excess of the amount he claims he was owed under the contract because plaintiff billed
defendants and was paid for excess claimed expenses. Such evidence is proper.
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Plaintiffs motion in limine to exclude evidence that plaintiff received payment from the
defendants for more than what was contractually agreed to because plaintiff allegedly
falsified expense invoices should be denied.
9. Evidence that Plaintiff Demanded a Percentage of Fees for any Future
Lawsuit.
Plaintiff has moved to exclude any allegations that plaintiff wanted, requested,
and/or demanded a percentage of attorney's fees for any future lawsuit. Defendants do
not oppose plaintiffs motion. Plaintiffs motion in limine to exclude evidence that
plaintiff allegedly wanted, requested, and/or demanded a percentage of attorney's fees for
any future lawsuit should be granted.
10. Evidence or argument that the Model Rules of Professional Conduct
Prohibit Paying Plaintiff a Bonus.
Plaintiff has moved to exclude any allegation or assertion that it is illegal and/or
unethical under any professional conduct rule to offer, and/or promise, and/or accept to
pay any type of benefit to any person upon the future satisfaction of a goal. Defendants
oppose plaintiffs motion, without comment because defendants "do not understand what
evidence plaintiff seeks to exclude."
The Court has no difficulty discerning what evidence plaintiff seeks to exclude.
The evidence submitted previously in this case showed that, when plaintiff requested a
written contract to memorialize the terms under which he was hired to market the
Syngenta litigation, defendants told plaintiff they could not enter a written contract under
the terms agreed to because paying plaintiff a bonus would violate MRPC 5.4, which
prohibits fee sharing with a non-attomey. Defendants contended that summary judgment
was appropriate on plaintiffs contract claim because payment of a bonus would have
been against public policy.
I previously held that payments to plaintiff of a bonus for marketing efforts was
not in violation of public policy. I further find that payment to a person for marketing
efforts, whether in the form of monthly compensation or a bonus, does not violate MRPC
5.4 unless the bonus is related to the amount ofthe damages award secured for the
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plaintiff. No party contends that the alleged bonus was based upon a percentage ofthe
Syngenta litigation damages award or a percentage of legal fees.
The evidenee at trial may show that plaintiff requested a written contract to
memorialize the parties' agreement to hire plaintiffto market the Syngenta litigation and
to pay him a $3.4 million bonus for his efforts but defendants refused to enter into a
written contract on the claimed basis such a contract would violate MRPC 5.4. If such
evidence is offered, it will be admitted. I intend to instruct the jury that such a contract
would not be a violation of MRPC 5.4. It is up to the jury to determine whether plaintiff
requested a written contract and whether defendants refused to enter into a written
contract on the claimed basis that a written contract would be unethical. Defendants may
not testify or argue that such a contract was in fact unethical unless the evidence shows
the claimed bonus was tied to the damages award received in the Syngenta litigation.
Plaintiffs motion in limine to exclude any allegation or assertion that it is illegal and/or
unethical under any professional conduct rule to offer, and/or promise, and/or accept to
pay any type of benefit to any person upon the future satisfaction of a goal should be
granted. I will rule on the law and defendants will not be allowed to testify or argue to
the contrary.
11. Admission of Audio Recordings.
Plaintiff moves this Court to admit conversations that he recorded relevant to this
litigation.
As the Court has explained above, any ruling on a motion in limine for an order
excluding audio recordings is reserved.
12. Evidence About the Enforceability of Plaintiffs Alleged Contract under
MRPC 5.4.
Plaintiff has moved for an order precluding any witness from testifying about the
enforceability of an agreement, hypothetically or otherwise, by and between plaintiff and
defendants under Rule 5.4. Plaintiff is of course referring to the defendants' alleged
refusal to enter into a written contract to memorialize the agreement to pay plaintiff a
bonus. Defendants contend that attorney witnesses should be allowed to testify that they
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could not pay a bonus because of the prohibition of fee sharing in order to rebut a claim
that defendants intended to defraud plaintiff.
As set forth previously, I hold that paying a person a bonus for marketing legal
services, whieh bonus is not tied to the damages award, is not prohibited by MRPC 5.4.
Defendants contend they should be allowed to testify that they believed they were
prohibited from doing so to rebut a claim that they acted with intent to defraud.
Plaintiffs motion in limine to prohibit any witness from testifying about their
belief as to the prohibition of MRPC 5.4 is granted.
13. Admission of Evidence of Lawsuits Against the Homolka Defendants.
Mr. Lundstrom also asks this Court to admit evidence of prior lawsuits involving
the Homolka defendants. The Court has previously addressed this issue, supra B.l.
Plaintiffs motion in limine to admit evidence of other lawsuits against the
Homolka defendants should be denied.
D. The Watts Defendants' Supplemental Motion in Limine, Doc. 145, and the
Homolka Defendants' Supplemental Motion in Limine, Doc. 154, regarding
the admissibility of the testimony of Timothy James.
Defendants have moved to exclude the testimony of Attorney Timothy James as a
rebuttal witness. Defendants contend that plaintiff failed to diselose this witness in the
initial or any supplemental disclosures. In addition, plaintiff set forth in his trial witness
list that he requests to be allowed to present the testimony of Timothy James by Zoom.
Defendants objeet to plaintiffs request and contend Timothy James' testimony should be
excluded if he does not attend trial personally.
Federal Rule of Civil Procedure 26(a)(l)(A)(i) requires the parties to initially
disclose the name of any individual likely to have discoverable information "unless the
use would be solely for impeaehment." Further, Rule 26(a)(3)(A)(i) requires the parties
to disclose the identity ofa witness the party may present at trial, "other than solely for
impeachment."
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Plaintiff contends that he only intends to call witness Timothy James as a rebuttal
witness. Thus, plaintiffs failure to disclose this witness would not preclude admission of
his testimony.
Pursuant to Rule 45(b), a subpoena may be served at any place in the United
States. Compliance, however, with a subpoena to attend trial or deposition is required
only where compliance occurs
(A)within 100 miles of where the person resides, is employed, or regularly
transacts business in person; or)
(B)within the state where the person resides, is employed, or regularly
transacts business in person, ifthe person
(i) is a party or a party's officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.
Fed. R. Civ. P. 45(c)(1). Plaintiffs proposed witness resides and works in Florida. The
witness is apparently not willing to voluntarily appear at trial in South Dakota and there
is no authority for requiring him to do so.
The best way to ensure the testimony of an out-of-state witness is to subpoena the
witness to appear for a deposition for trial, whieh must occur within 100 miles of the
witness' home or work. Doing so would require plaintiff to disclose the witness to
opposing eounsel. Plaintiff made a choice not to earlier disclose the identity of the
witness and now cannot procure the witness' appearance at trial.
Pursuant to Federal Rule of Civil Proeedure 43,
At trial, the witnesses' testimony must be taken in open court unless a
federal statute, the Federal Rules of Evidence, these rules, or other rules
adopted by the Supreme Court provide otherwise. For good eause in
compelling circumstances and with appropriate safeguards, the court may
permit testimony in open court by contemporaneous transmission from a
different location.
At a pre-trial conference on August 27, 2021, the Court advised the parties that this
matter would be set for trial the week of November 8, 2021. Plaintiff had at least two
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months to determine whether plaintiffs witnesses would be available for trial. No
motion to reopen discovery to take a trial deposition was filed by plaintiff.
Defendants' motions in limine to prohibit the testimony of witness Timothy James
by electronic means should be denied in the interest ofjustice. Plaintiff must coordinate
with the Systems Administrator of the Court on how to connect Mr. James to a video feed
inside the courtroom. Rather than plaintiffs request to use Zoom, Mr. James will likely
need to appear via the Court's local video meeting room portal.
IT IS SO ORDERED.
DATED thig'v^'^%ay ofNovember, 2021.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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