United States District Court, D. Connecticut
RICHARD M. COAN, Plaintiff-Trustee,
SEAN DUNNE et al., Defendants.
OMNIBUS RULING ON DEFENDANTS' MOTIONS IN
Jeffrey Alker Meyer United States District Judge.
a financial fraud case that is related to bankruptcy
proceedings involving real estate developer Sean Dunne.
See Coan v. Dunne, 2019 WL 302674, at *1-*2 (D.
Conn. 2019) (generally describing the history of this case).
Defendants have filed numerous motions in limine
with respect to the claims and evidence plaintiffs may
introduce at trial. At a pretrial conference on April 26,
2019, I heard extensive oral argument from the parties on,
inter alia, defendants' motions. As noted in the
Court's memorandum of hearing and order (Doc. #426), I
ruled on many of these motions at the hearing. I took under
advisement defendants' motions in limine to
preclude evidence as to Amrakbo (Doc. #368); Newinvest, the
Bloem Settlement, and Yesreb (Doc. #370); 151 Milbank (Doc.
#371); the Lagoon Beach Hotel and Belgravia House (Doc.
#372); defendant Gayle Killilea's deposition testimony
from the 151 Milbank bankruptcy proceeding (Doc. #373); the
IGB Lands and Beara properties (Doc. #375); and evidence of
subsequent financial transfers (Doc. #382). I also took under
advisement defendant John Dunne's motion for judgment on
the pleadings (Doc. #374). Having further considered the
parties' arguments, I decide these motions now in this
to limit evidence to claims in the complaints (Doc.
I ruled on this motion at the pretrial conference, I will
discuss it briefly to help clarify my ruling as to the
remaining motions in limine. Defendants filed this
motion in limine to limit the evidence the Trustee
presents at trial to the claims asserted in the claims in the
removed state court proceeding, see Doc. #1-1, and
bankruptcy adversary proceeding, see Doc. #189 to
Coan v. Killilea, No. 15-05019 (Bankr. D. Conn.
2016), that have been consolidated before me, see
Doc. #52. Courts routinely bar parties from raising new
claims on the eve of trial, see, e.g., Rao v.
Rodriguez, 2017 WL 1403214, at *6 n.4 (E.D.N.Y. 2017);
Missigman v. USI Northeast, Inc., 131 F.Supp.2d 495,
517-18 (S.D.N.Y. 2001), and the Trustee may not use the joint
trial memorandum as a backdoor way of doing so. And for
substantially the reasons stated by defendants, I rejected
the Trustee's suggestion that I allow the Trustee to file
a second amended complaint: allowing new claims after the
close of discovery and less than a week before jury selection
would cause defendants substantial prejudice. See Tiffany
(NJ) Inc. v. eBay, Inc., 576 F.Supp.2d 460, 462-63
(S.D.N.Y. 2007) (Sullivan, J.).
I granted defendants' motion in part, insofar as to rule
that the Trustee may not pursue any claims that he has not
alleged in the operative complaints in this case. I also
denied defendants' motion in part, insofar as my ruling
on that motion does not necessarily preclude the Trustee from
introducing any of the evidence discussed in that motion-or
any other evidence-solely to prove up the claims that the
Trustee has alleged. It is in light of this determination
that I address the bulk of defendants' remaining motions
in limine, which are-in large part-more specific
instances of the same issues.
to preclude evidence as to Amrakbo (Doc. #368)
first motion in limine asks me to preclude as
irrelevant and prejudicial evidence regarding the Irish
corporate entity Amrakbo. Doc. #368 at 1. Amrakbo is not a
party to this case, nor does the Trustee allege that Amrakbo
was, itself, fraudulently transferred. See Doc. #1-1
at 1; Doc. #189 at 1 to Coan v. Killilea, No.
15-05019 (Bankr. D. Conn. 2016). Because I have limited the
Trustee's claims to those alleged in the complaints, he
may not add new claims against Amrakbo now. Still, Amrakbo is
the subject of several factual allegations in the adversary
complaint, such as the alleged funneling through Amrakbo of
one of Sean Dunne's properties to Killilea. See
Doc. #189 at 34 (¶ 63) to Coan v. Killilea, No.
15-05019 (Bankr. D. Conn. 2016). Because evidence should only
be excluded on a motion in limine if it is
inadmissible on all potential grounds, see Hart v. RCI
Hospitality Holdings, Inc., 90 F.Supp.3d 250, 257
(S.D.N.Y. 2015), I will grant defendants' motion only in
part-as to evidence that is solely relevant to support claims
against Amrakbo not alleged in the complaints-but will deny
defendants' motion as to any evidence that involves
Amrakbo that is used to prove claims as to different
properties and entities that the Trustee has alleged.
to preclude as to Newinvest, the Bloem Settlement, and Yesreb
third motion in limine asks me to preclude as
irrelevant and prejudicial evidence about three more
companies: Newinvest, the Bloem Settlement, and Yesreb. Doc.
#370 at 1. As with Amrakbo, none of these entities is a party
to this case. But also as with Amrakbo, the Trustee has shown
that evidence about each of them will be relevant to the
claims the Trustee alleges. The Trustee alleges that
defendants fraudulently transferred the property at 22
Stillman Lane in Greenwich, Connecticut, see Doc.
#1-1 at 17-18 (¶¶ 68-74), and in factual
allegations about that transfer, states that Newinvest was
used to encumber the property as a mortgagee, see
Doc. #189 at 29 (¶ 124) to Coan v. Killilea,
No. 15-05019 (Bankr. D. Conn. 2016). Although neither
complaint mentions the Bloem Settlement by name, the Trustee
argues that defendants used the Bloem Settlement as a vehicle
to fund the purchase of properties in Connecticut that are
discussed in the complaints, see Doc. #1-1 at 8-11
(¶¶ 28-36), and that evidence of defendants'
use and control of the Bloem Settlement is relevant to the
Trustee's fraudulent transfer claims. Doc. #408 at 8.
Similarly, while neither complaint uses the name
“Yesreb, ” the adversary complaint alleges that
Sean Dunne fraudulently transferred the Walford property in
Ireland “to an offshore entity, ” Doc. #189 at
32-33 (¶¶ 147, 153) to Coan v. Killilea,
No. 15-05019 (Bankr. D. Conn. 2016), and seeks to recover
from John Dunne as transferee, id. at 50
(¶¶ 308-10). The Trustee contends that discovery
has revealed that Yesreb is a Cypriot entity to which Walford
was transferred, and that John Dunne is the beneficiary of
Yesreb. Doc. #408 at 9-10. Accordingly, I am persuaded that
evidence involving each of Newinvest, the Bloem Settlement,
and Yesreb may be relevant to proving the Trustee's
existing claims. As with Amrakbo, I will therefore grant
defendants' motion in part and deny it in part. The
Trustee may present evidence about each of these entities
that goes to prove the elements of the claims he alleges in
the operative complaints. But he may not present any evidence
that exceeds these bounds and goes to prove unalleged claims
against or involving these entities.
to preclude as to 151 Milbank (Doc. #371)
fourth motion in limine asks me to preclude evidence
related to 151 Milbank, LLC on the ground that 151 Milbank is
currently in bankruptcy and subject to an automatic
bankruptcy stay. Doc. #371 at 1; see 11 U.S.C.
§ 362(a); In re 151 Milbank, LLC, No. 15-51485
(Bankr. D. Conn. 2015). But automatic stays generally apply
only to claims involving the debtor, see Queenie, Ltd. v.
Nygard Int'l, 321 F.3d 282, 287 (2d Cir. 2003), and
the Trustee maintains that the claims he intends to pursue at
trial are not subject to the stay because they are only
against other parties, and not 151 Milbank itself. Doc. #400
at 2-4. This action is, of course, stayed insofar as any
claim might be asserted against 151 Milbank. But inasmuch as
the adversary complaint includes, inter alia,
factual discussions of 151 Milbank, see Doc. #189 at
32 (¶¶ 141-144) to Coan v. Killilea, No.
15-05019 (Bankr. D. Conn. 2016), I am persuaded that there
may be evidence concerning 151 Milbank that is relevant to
claims the Trustee is pursuing that are against other
entities. Accordingly, I will grant defendants' motion to
the extent that the Trustee may not introduce evidence that
is only relevant to stayed claims against 151 Milbank (or any
other claims not alleged in the complaint), but deny the
motion insofar as the Trustee may introduce relevant evidence
regarding 151 Milbank that goes to prove any non-stayed
claims that the Trustee asserts in the two operative
to preclude evidence as to IGB Lands and Beara properties
eighth motion in limine asks me to preclude the
Trustee from introducing evidence about the IGB Lands and
Beara properties on the ground that any claim as to these two
properties is moot. Doc. #375 at 1. The Trustee has contested
defendants' assertions of mootness, claiming in part that
Killilea maintains an interest. Doc. #408 at 14-15. The
Trustee's adversary complaint unambiguously asserts
claims to both sets of properties. Doc. #189 at 47-49
(¶¶ 276-97) to Coan v. Killilea, No.
15-05019 (Bankr. D. Conn. 2016). Accordingly, should the
validity of these claims be an issue at trial, evidence about
the properties will be relevant. See Fed. R. Evid.
401. By asking me to rule that evidence of these alleged
transfers is irrelevant because the Trustee's claims are
moot, defendants have attempted to package a motion for
summary judgment in the form of a motion in limine.
But “an in limine motion is generally not the
appropriate vehicle for effecting the dismissal of entire
claims, ” MF Global Holdings Ltd. v.
PricewaterhouseCoopers LLP, 232 F.Supp.3d 558, 578
(S.D.N.Y. 2017), and dismissal of a claim on an in
limine motion lacks the procedural safeguards of Rule
56. See C & E Servs., Inc. v. Ashland Inc., 539
F.Supp.2d 316, 323 (D.D.C. 2008). I will therefore deny
defendants' motion, and allow the Trustee to present
evidence as to the IGB Lands and Beara properties relevant to
the claims for the fraudulent transfer of those properties he
to preclude evidence as to Lagoon Beach and ...