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Bucks Inc. v. Quiktrip Corp.

United States District Court, D. Nebraska

January 19, 2017

BUCK'S, INC., A NEBRASKA CORPORATION, Plaintiff and Counterclaim Defendant,


          John M. Gerrard United States District Judge.

         This matter is before the Court on QuikTrip's Motion in Limine (filing 38), QuikTrip's Second Motion in Limine (filing 57), and Buck's Motion in Limine (filing 60). QuikTrip's first motion and Buck's motion will be granted in part and denied in part, and QuikTrip's second motion will be denied.


         QuikTrip's first motion in limine (filing 38) raises several issues. The Court will address them separately.

         1. Communications between Trial Counsel and QuikTrip

         QuikTrip's first argument is that communications between itself and its trial counsel should be excluded. Filing 39 at 2. QuikTrip concedes that in proffering an advice of counsel defense, it has waived attorney-client privilege with respect to communications between itself and the outside counsel from whom it sought an opinion regarding sale of the property and the filing of its notice of equitable interest. See filing 38 at 2. The Court understands Buck's to agree that communications with respect to this lawsuit between QuikTrip and its trial counsel, Kutak Rock, are privileged. Filing 50 at 1. Accordingly, the Court will sustain QuikTrip's motion in limine with respect to communication between QuikTrip and Kutak Rock.[1]

         2. Communications Between Counsel for QuikTrip and for Seller

         Next, QuikTrip asserts that any communications between Kutak Rock and counsel for the seller sent after the filing of QuikTrip's notice of equitable interest should be excluded. Filing 39 at 4-6. QuikTrip argues that the evidence is irrelevant, unduly prejudicial, and an offer of compromise that should be excluded under Fed.R.Evid. 408.

         The evidence at issue is a sequence of emails between QuikTrip's counsel at Kutak Rock and counsel representing the seller. Filing 40-5; filing 40-6. Counsel for the seller represented the seller's position that the parties did not, at that time, have a contract for sale of the property, and that the seller would file suit based on slander of title if QuikTrip did not withdraw its notice of equitable interest. Filing 40-5 at 1. The next day, counsel for QuikTrip emailed counsel for the seller providing counsel for the seller with contact information if counsel for the seller was "able to give [counsel for QuikTrip] the number today[.]" Filing 40-6 at 2. The Court infers that this email was a follow-up to some other communication, and that "the number" would be the price at which the seller was willing to sell the property to QuikTrip. Counsel for the seller replied with a price of $2.6 million for the entire 4-acre property. Filing 40-6 at 1-2. Counsel for QuikTrip replied back with QuikTrip's acceptance, adding, "[o]f course this makes the suit for slander of title moot, but we will need to formalize the release of that claim and dismissal if suit was indeed filed." Filing 40-6 at 1. Counsel for the seller replied and, in part, agreed that the slander of title suit was moot and that its "release/dismissal" could be handled as part of the deal. Filing 40-6 at 1.

         QuikTrip's first argument is that the communications are irrelevant, because they took place well after QuikTrip filed its notice of equitable interest. "Buck's has based its entire claim around QuikTrip filing a Notice of Equitable Interest on December 30, 2014[, ]" QuikTrip contends, "and this date should accordingly serve as a clear line for excluding irrelevant evidence." Filing 39 at 4. The Court disagrees. While the notice of equitable interest is certainly a linchpin of Buck's theory of the case, it was QuikTrip's eventual purchase of the property that served to finally frustrate Buck's ambition to acquire the property for itself. The negotiations leading to that purchase are clearly relevant to Buck's case.

         Next, QuikTrip argues that even if relevant, the evidence should be excluded pursuant to Fed.R.Evid. 403. But before discussing Rule 403, the Court will turn to Rule 408, because the arguments are related. Rule 408 provides that

Evidence of the following is not admissible-on behalf of any party-either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering-or accepting, promising to accept, or offering to accept-a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim-except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its ...

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