United States District Court, D. Nebraska
BUCK'S, INC., A NEBRASKA CORPORATION, Plaintiff and Counterclaim Defendant,
QUIKTRIP CORPORATION, AN OKLAHOMA CORPORATION, Defendant and Counterclaimant.
M. Gerrard United States District Judge.
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.
MOTION IN LIMINE
first motion in limine (filing 38) raises several issues. The
Court will address them separately.
Communications between Trial Counsel and QuikTrip
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.
Communications Between Counsel for QuikTrip and for Seller
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.
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.
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.
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
(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 ...