United States District Court, D. Nebraska
MCDONALD APIARY, LLC, a Nebraska Limited Liability Company, Plaintiff,
STARRH BEES, INC., a California Corporation, et al., Defendants.
M. Gerrard United States District Judge.
matter is before the Court on the defendants' motion in
limine (filing 199), the plaintiff's motion in limine
regarding exhibits (filing 204), the plaintiff's motion
in limine regarding Starrh Bees' tort claims (filing
206); and the plaintiff's motion in limine regarding
Starrh's affirmative defenses (filing 209). As set forth
below, and as more fully explained on the record in the
courtroom, the Court will grant the defendants' motion in
part and deny it in part, and will deny the plaintiff's
defendants move to exclude evidence relating to Starrh's
operations in South Dakota and alleged noncompliance with
South Dakota law. The Court will permit evidence of the
locations at which Starrh placed hives in South Dakota, and
will deny the defendant's motion on that point. However,
the Court finds that evidence regarding Starrh's
compliance with South Dakota law is irrelevant and would be
unfairly prejudicial, and will grant the
defendant's motion in limine with respect to whether
Starrh's hives in South Dakota were placed or registered
in compliance with the requirements of South Dakota law.
defendants object to evidence or argument that their
discovery or other litigation conduct gives rise to
liability. The defendants' objection is premised on the
Noerr-Pennington doctrine, which is a defense to
liability premised on a defendant's actions of exercising
its own private rights to free speech and to petition the
government. Hinshaw v. Smith, 436 F.3d 997, 1003
(8th Cir. 2006). The plaintiff contends that the
Noerr-Pennington doctrine does not apply.
Court acknowledges that Noerr-Pennington is
applicable to civil tort claims, and that it encompasses
activities reasonably and normally attendant to effective
petitioning. See Select Comfort Corp. v. Sleep Better
Store, 838 F.Supp.2d 889, 896 (D. Minn. 2012). But the
Noerr-Pennington doctrine does not bar claims in
which the filing of the lawsuit, or other action in
petitioning the government, is not identified as the
inequitable or wrongful conduct. Int'l Motor Contest
Ass'n, Inc. v. Staley, 434 F.Supp.2d 650, 662 (N.D.
Court is skeptical that Noerr-Pennington is
applicable to the theory advanced by the plaintiff, which is
represented by the plaintiff as being that knowledge obtained
through litigation may have assisted the defendants when
engaged in other, separate wrongful acts. And
Noerr-Pennington immunity protects a defendant from
liability, not from suit. Hinshaw, 436 F.3d at 1003.
Whether the plaintiff can establish foundation for
its theory- that is, that the alleged wrongdoers were made
aware of the information that the plaintiff believes assisted
the wrongdoing-is a matter that can be addressed through
objection at trial. So, the Court will deny the
defendants' motion in limine on this point.
defendants seek to preclude evidence of the plaintiff's
banking information beyond that which has been produced. The
motion is denied to the extent that the plaintiff's
witnesses will not be precluded from testifying about its
financial condition. However, should a witness reference
evidence that was asked for by the defendants but not
produced, the Court will hear any objections at trial.
defendants move to exclude evidence of damages sustained by
third parties. The Court will deny the motion in limine on
this point, but will hear any relevance objections made at
defendants ask to preclude evidence or argument that Starrh
has allegedly acted "immorally, " or evidence
regarding any person or party's religious beliefs. Both
sides deny an intent to adduce evidence relating to religious
beliefs, and both sides agree that such evidence would be
irrelevant. So, the Court will deny the motion in limine on
this point, as the parties do not appear to disagree. The
Court will, however, grant the motion in limine with
respect to evidence regarding "immoral" or
"unethical" business practices, as opposed to
relevant evidence regarding industry practices or the
standard of care in the beekeeping industry.
defendants object to evidence or argument insinuating or
suggesting a witness is not credible because the witness
resides outside of Nebraska. The plaintiff is obviously
permitted to refer to the fact that Starrh Bees is from
California; that fact is an intrinsic part of the events
underlying this case. The Court will deny the defendants'
motion in limine, but will be prepared to draw the line at
trial should any witnesses make credibility insinuations that
are supported by prejudice rather than the evidence.
defendants move to exclude evidence or argument suggesting
the Garden County Sheriff or any other law enforcement agency
is conducting an ongoing investigation of the alleged
incident at the plaintiff's Lisco facility. The
plaintiff's witnesses may testify to their account of the
incident, and that it was reported to law enforcement, but
the defendants' motion in limine will be granted
as to evidence beyond that-specifically, as to evidence or
argument regarding an ongoing investigation.
defendants object to evidence or argument relating to the
date that Starrh hired its attorneys, the circumstances
surrounding the hiring of its attorneys, or instructions,
suggestions, or recommendations which it received from its
attorneys. This apparently refers to the August 10 meeting
between the parties involving Susan Mulligan: the plaintiff
[d]irectly relevant in this case are misrepresentations
Starrh made about its relationship with a California licensed
attorney, Susan Mulligan. Ms. Mulligan made a recording of a
meeting between all parties, which was produced in discovery.
At that meeting, Ms. Mulligan misrepresented herself to be
Starrh's attorney, and stated that all subsequent
communications between the parties had to go through her.
Starrh has now admitted this falsehood. It is directly
relevant to the heart of this case. Starrh was interfering
with the contract between the parties and was using a
California attorney to assist them in their acts of fraud,
tortious interference, and other violations of law. That
meeting and ...