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LNC INVESTMENTS, INC. v. FIRST FIDELITY BANK

January 25, 2001

LNC INVESTMENTS, INC. AND CHAPTER NATIONAL LIFE INSURANCE CO., INSURANCE CO., PLAINTIFFS,
v.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION, NEW JERSEY, UNITED JERSEY BANK AND NATIONAL WESTMINSTER BANK, N.J., DEFENDANTS.



The opinion of the court was delivered by: Haight, Senior District Judge.

  MEMORANDUM OPINION AND ORDER

Following a jury verdict in defendants' favor on the issue of liability, plaintiffs move for judgment as a matter of law ("JMOL") under Rule 50(b), Fed.R.Civ.P., or in the alternative for a new trial under Rule 59.

I. PROCEDURAL HISTORY

Plaintiffs-movants LNC Investments, Inc. ("LNC") and Charter National Life Insurance Company (collectively "the Bondholders") brought this action for breach of fiduciary duty, breach of contract, and violation of § 315(c) of the Trust Indenture Act of 1939 ("TIA"), 15 U.S.C. § 77ooo(c), against defendants First Fidelity Bank, N.A. New Jersey ("First Fidelity"), United Jersey Bank, and National Westminster Bank (collectively "the Trustees."). The Bondholders own bonds that were issued by a trust administered by the Trustees. The bonds were secured by aircraft that the trust purchased from Eastern Air Lines, Inc. ("Eastern") and leased back to Eastern pursuant to a sale/lease-back transaction. In March 1989, Eastern filed for bankruptcy, while still in possession of the aircraft. The Bondholders alleged that as a result of the Trustees' actions and lack of action throughout Eastern's bankruptcy, they will not receive all the principal and interest to which they are entitled under the bonds. The Bondholders sued to hold the Trustees liable for any shortfall.

After extensive motion practice, the case was tried for the first time before Judge Mukasey and a jury. Judge Mukasey bifurcated the trial between liability and damages issues. The jury returned a verdict in the Trustees' favor on liability. Judge Mukasey entered judgment dismissing the complaint. The Bondholders appealed. The Second Circuit reversed and remanded for a new trial, in an opinion reported at 173 F.3d 454 (2d Cir. 1999), familiarity with which is assumed. The case was reassigned to this Court. The second trial, also to a jury, took place last September.

In its opinion reversing the original judgment, the court of appeals held that the district court had erred in its charge to the jury by posing as a factual issue a question of bankruptcy law that the district court should have decided as a matter of law. That question turned upon the proper interpretation of § 507(b) of the Bankruptcy Code, 11 U.S.C. § 507(b). Specifically, the question was whether the bankruptcy court's denial of a lift stay/adequate protection motion by the Trustees on behalf of the Bondholders would have conferred superpriority status upon the Bondholders' claims. The court of appeals said on that point: "Because the superpriority instruction required the jury to decide this legal question in order to resolve the causation issue, it failed adequately to inform the jury on the law. On remand, the district court should therefore decide the issue and determine what type of charge on superpriority and causation is appropriate in light of any factual disputes remaining in the new trial." 173 F.3d at 468 (citation, internal quotation marks and footnote omitted).

The second trial, like the first, was preceded by a plethora of motions. I will list the citations to this Court's opinions resolving those motions in the chronological order in which they were rendered: 247 B.R. 38, dated March 31, 2000, as amended April 11, 2000 ("LNC I"); 2000 WL 375236, dated April 11, 2000 ("LNC II"); unreported opinion dated April 12, 2000 ("LNC III"); 2000 WL 422399, dated April 12, 2000 ("LNC IV"); 2000 WL 381425, dated April 14, 2000 ("LNC V"); 2000 WL 461612, dated April 18, 2000 ("LNC VI"); 2000 WL 1024717, dated July 25, 2000 ("LNC VII"); 2000 WL 1072460, dated August 3, 2000 ("LNC VIII"); 2000 WL 1093012, dated August 4, 2000 ("LNC IX"); 2000 WL 1118898, dated August 8, 2000 ("LNC X"); 2000 WL 1182772, dated August 21, 2000 ("LNC XI"); 2000 WL 1211584, dated August 24, 2000 ("LNC XII"); unreported opinion dated September 7, 2000 ("LNC XIII"); 2000 WL 1290746, dated September 11, 2000 ("LNC XIV"); and 2000 WL 1290615, dated September 12, 2000 ("LNC XV"). Familiarity with all these opinions is assumed. I will have occasion to refer to some of them in this Opinion.

In LNC I, following further briefing and oral argument, I answered in the negative the bankruptcy law question identified by the court of appeals in its opinion remanding the case for a new trial. Specifically, I held that where a bankruptcy court denied a secured creditor's lift stay/adequate protection motion and the existing security subsequently proved inadequate, that denial did not ipso facto confer superpriority status upon the secured creditor's claim. In LNC VI I denied the Bondholders' motion for reconsideration of that holding and adhered to it. Because I regarded my holding in LNC I as a controlling question of law for the second trial, as to which there was a substantial ground for difference of opinion (there is no Second Circuit authority on the point), in LNC VI I also certified the question for interlocutory appeal under 28 U.S.C. § 1292(b). But the court of appeals declined to accept the certification, and so the second trial proceeded.

II. THE TRIAL

As did Judge Mukasey at the first trial, I bifurcated the second trial between issues of liability and damages, giving my reasons in LNC IV.

On liability the Bondholders principally contended that the Trustees acted imprudently by not making a lift stay/adequate protection motion in the Eastern bankruptcy case before November 14, 1990, the date on which such motion was made. The Trustees denied any imprudent conduct.

Following the completion of the evidence, the closing arguments of counsel, and the Court's charge, a special verdict form was utilized to submit the case to the jury. Counsel were given an opportunity to consider the special verdict form. No objection was made to it.

Question I on the form asked if the plaintiffs had proved "that a defendant or defendants acted imprudently by not making a lift stay/adequate protection motion before November 14, 1990." The jury was directed to answer that question "Yes" or "No" separately with respect to each of the three defendant Trustees. The special verdict form contained an instruction that if the jurors answered "No" with respect to each of the three defendants, they were to answer no further questions and sign their names to the form.

If the jury in answering Question 1 had found that any defendant had acted imprudently, Question 2 directed the jury to specify by month and year the date by which "the prudent man standard required that a lift stay/adequate protection motion be made."

Question 3 asked the jury whether plaintiffs "proved by a preponderance of the evidence that the imprudent conduct of a defendant or defendants proximately caused an economic loss to plaintiffs," and directed the jury to answer "Yes" or "No." The special verdict form did not ask this jury to calculate a specific amount of damages, because as noted the trial had been bifurcated. Question 3 focused upon the more general issue of a proximate causal connection between the Trustees' conduct and any economic loss suffered by the Bondholders.

Questions 4 and 5 asked the jury whether the defendants had proved by a preponderance of the evidence that the plaintiffs had waived their claim against the defendants or ratified any imprudence of the defendants. The Trustees had pleaded, among others, the affirmative defenses of waiver and ratification, and submitted some evidence in support of those defenses, as to which they bore the burden of proof.

The jury answered "No" to Question 1 with respect to each of the three defendant Trustees. In compliance with the special verdict form's instruction, the jurors answered no further questions. Because the jury held against the Bondholders and in favor of the Trustees on the issue of liability, the Court entered judgment dismissing the complaint with prejudice. The Bondholders timely filed the present motions, which the Trustees oppose.

III. THE MOTION FOR A JMOL

The Bondholders move for judgment as a matter of law, contending that "the only conclusion a reasonable juror could reach on the evidence is that the defendants were imprudent in waiting until November 14, 1990 to make a lift stay/adequate protection motion." Main Brief at 1. They argue that notwithstanding the Trustees' assertions of prudence, "there really was no genuine dispute that, given the undisputed relevant and credible evidence as to the likely outcome of a motion and the risk involved in waiting to move, it was imprudent to wait until November 14, 1990 to make the motion." Id.

This motion for a JMOL is made under Rule 50. Rule 50(a)(2) provides:

Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.

Those provisions are immediately followed by Rule 50(b), upon which the Bondholders particularly rely. Rule 50(b) provides in pertinent part:

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59.

A. The Standards of Review

In the recent case of Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000), the Second Circuit summarized the standards applying to a motion for judgment as a matter of law:

"We review de novo a district court's resolution of a motion for judgment as a matter of law, and we apply the same standard as the district court itself was required to apply. In ruling on a motion for judgment as a matter of law, we must therefore consider the evidence in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences from the evidence that the jury might have drawn in that party's favor. We cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute our judgment for that of the jury. The motion may be granted only if there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against the moving party." (citations and internal quotation marks omitted).

Diesel is only the latest decision in an unbroken line of Second Circuit authority. "The same standard that applies to a pretrial motion for summary judgment pursuant to Fed.R.Civ.P. 56 also applies to motions for judgment as a matter of law during or after trial pursuant to Rule 50." Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir. 2000) (citation and internal quotation marks omitted). That exacting standard for a JMOL requires the moving party to show that "viewing the evidence in the light most favorable" to the nonmoving party, and giving that party "the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence," the moving party "is nevertheless entitled to judgment as a matter of law." Id. In This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998), the Second Circuit cautioned that

[a] district court may not grant a motion for a judgment as a matter of law unless the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. Weakness of the evidence does not justify judgment as a matter of law; as in the case of a grant of summary judgment, the evidence must be such that a reasonable juror would have been compelled to accept the view of the moving party.

(citations and internal quotation marks omitted). A JMOL cannot be granted "[i]f, drawing all reasonable inferences in favor of the nonmoving party and making all credibility assessments in his favor, there is sufficient evidence to permit a rational juror to find in his favor." Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir. 1992).

B. Preliminary Points for Consideration

Before considering the merits of the Bondholders' Rule 50(b) motion, two preliminary points must be addressed.

The first point is a possible procedural impediment to the Bondholders' motion. After all parties rested, I read into the record the texts of Rules 50(a)(2) and 50(b) and said that "I will entertain any motions that may arise now at the close of all the evidence," Tr. 2048. Counsel for the Bondholders limited his Rule 50(a)(2) motions to the Trustees' affirmative defenses of champerty, estoppel, waiver, and ratification. Tr. 2050-2053. Counsel for the Trustees withdrew the defense of champerty. Tr. 2050. After further argument, I granted the Bondholders' motion for a JMOL on the affirmative defense of estoppel, but declined to grant their motion "at this time on the affirmative defenses of waiver and ratification," Tr. 2063, thereafter submitting those defenses to the jury as Questions 4 and 5 on the special verdict form.

The procedural point arises from the fact that counsel for the Bondholders made no reference in his Rule 50(a)(2) motion at the close of the evidence to the issue upon which they now seek a JMOL under Rule 50(b), namely, the imprudence of the Trustees' conduct. The Second Circuit has said that "judgment as a matter of law is limited to those issues specifically raised in a prior motion for a directed verdict," and that "a motion for directed verdict at the close of all the evidence is a prerequisite for judgment as a matter of law." Cruz v. Local Union Number 3, 34 F.3d 1148, 1155 (2d Cir. 1994) (citations and internal quotation marks omitted).*fn1 The Cruz court added that "this procedural requirement may not be waived as a mere technicality," so that "if an issue is not raised in a previous motion for a directed verdict, a Rule 50(b) motion should not be granted unless it is required to prevent manifest injustice." Id. (citation and internal quotation marks omitted). According to a leading treatise, "[t]he requirement in Rule 50(a)(2) that grounds be stated on a motion for judgment as a matter of law before submission is mandatory. . . . The statement of one ground precludes a party from claiming later that the motion should have been granted on a different ground." 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 2533 (West 2d ed. 1995).

Therefore it is at least arguable that the Bondholders, having failed to move under Rule 50(a)(2) at the close of the evidence for a JMOL on the issue of the Trustees' prudence, cannot do so now under Rule 50(b). However, the Trustees have not urged that procedural objection in their papers, opting instead to oppose the Bondholders' motion on the merits; and, notwithstanding the strictures in the authorities just quoted, other Second Circuit cases appear to stand for the proposition that the non-moving party's failure to object constitutes a waiver. See Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 87 (2d Cir. 1998) ("when the party moving for JMOL fails to articulate its motion with sufficient specificity, the non-moving party must object in order to preserve the issue for appeal."); Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir. 1994) (noting that appellants failed to properly renew their motion for JMOL at the close of all the evidence, but holding that "because appellees failed to raise this procedural defense in the district court, they are the ones who have waived the issue" on appeal).

There would appear to be some tension between these two lines of Second Circuit authority. On an eventual appeal in this case, the Trustees may be moved to assert in the court of appeals this procedural defense against any renewed effort by the Bondholders to obtain a JMOL on the issue of prudence. But I think the better course for me to follow is to consider the motion on its merits.

The second preliminary point arises from the Bondholders' inclusion in the brief supporting their Rule 50(b) JMOL motion a litany of separate complaints concerning the Court's evidentiary rulings, in limine or at trial. The Bondholders assert that I erroneously excluded some of their proffered evidence and erroneously admitted some of the Trustees' evidence.

A disappointed litigant may raise such evidentiary issues in support of a motion for a new trial under Rule 59 (and indeed, the Bondholders include each separate assertion in the portions of their brief supporting their alternative Rule 59 motion), or on direct appeal, in which event the court of appeals will consider whether the trial court's evidentiary rulings constituted reversible error. But it is inherent in the standards which govern the granting or denial of a Rule 50(b) JMOL motion that the motion must be determined on the basis of the evidence the trial judge admitted and the jury considered. It is the record made at trial, consistent with the trial judge's evidentiary rulings, to which one must look in evaluating whether a rational jury could have arrived at the verdict reached. Conceptually, one may allow the possibility that the jury was deprived of evidence it should have heard or seen, or that it heard or saw evidence that it should not have. As noted, these perceived wrongs may be complained of by means of other procedural vehicles, but they can play no part in determining whether, on the record actually made, the Bondholders are entitled to judgment as a matter of law. Accordingly I say nothing further about these evidentiary issues in this Part of the Opinion. I will consider them seriatim in subsequent Parts.

C. The Merits of the Bondholders' JMOL Motion

Having dealt with these preliminary considerations, I turn to the merits of the Bondholders' motion for a JMOL. The discussion need not be extended. The motion has no merit.

I have quoted the assertion in the Bondholders' brief that "there really was no genuine dispute" that the Trustees acted imprudently in their timing of a lift stay/adequate protection motion. I prefer not to characterize that astonishing claim as disingenuous; let it be ascribed instead to a determined and able advocate's ability to persuade himself of the rectitude of his cause. But the fact of the matter is that the Trustees strenuously disputed the Bondholders' charge of imprudent conduct, and summoned a host of witnesses in their defense.

Thus the officers in charge of the matter at the three defendant banks explained why they had not made a motion at an earlier time. The bankruptcy attorneys who advised the Trustees explained why they had not recommended that their clients make an earlier motion. A principal concern expressed by these witnesses arose from the fact that as certain of the Eastern fleet of aircraft were sold with bankruptcy court approval, millions of dollars in cash replaced the sold aircraft as collateral for the Bondholders. This seemingly neutral economic development generated concern because the Trustees and their legal advisers perceived Bankruptcy Judge Lifland, who was presiding over the Eastern bankruptcy, to be a jurist determined to keep Eastern in business if at all possible (it eventually proved impossible). Those circumstances gave rise to the perceived risk that an earlier lift stay/adequate protection motion by the Trustees, at a time when there were many collateralized aircraft still being operated by Eastern and also large sums in the cash collateral pool, might have prompted Eastern to cross-move — and Judge Lifland to direct — that a part of that cash be released to Eastern for operating expenses.

Given this state of the record, counsel for two of the Trustees was in a position to argue to the jury at the end of the case:

The trustees, as the evidence showed repetitively, were concerned that, since they were so heavily collateralized and had this big equity cushion, that Judge Lifland would say: Wait a minute, Eastern Air Lines is in need of cash, they are burning cash at a very rapid rate, you are overcollateralized. I am giving back some of that collateral for operating purposes. It may have been right, it may have been wrong, but it was an intelligent, legitimate concern by people conservatively watching the money of other people. They would have been foolish to do what Mr. Fleming [an expert witness called by plaintiffs] said: Make the motion, if you lose, make it again.

Tr. 2154.

At trial the Bondholders challenged this defense and the other reasons given by the Trustees for the timing of their eventual motion. The Bondholders relied upon the perceived admissions that their counsel claimed to have extracted from the bank officers called as adverse witnesses, and from the bankruptcy attorneys who advised the Trustees. The Bondholders also called expert witnesses who supported the charge that the Trustees had delayed imprudently. All these efforts of advocacy were legitimate. The jurors, who received the routine instructions that they were to consider the entire testimony of any witness, on direct and on cross-examination, and were free to accept or reject the opinions of expert witnesses, were entitled in law to be persuaded by the Bondholders' evidence and arguments. But the jurors were equally entitled in law to reject the Bondholders' evidence and arguments; and the Bondholders' failure to persuade the jury is manifested by the jurors' answering the first question in the special verdict form in the negative. The issue of the Trustees' prudence vel non was for the jury, which on conflicting evidence resolved the issue against the Bondholders. In the light of the Second Circuit authority discussed supra, it is quite impossible to say on this record that no rational jury could have reached that result. Accordingly the Bondholders' motion for a JMOL fails.

It is necessary only to add two brief points. Ostensibly in support of their Rule 50(b) motion, the Bondholders contend in their Main Brief at 7 that this Court's "ruling in its March 31, 2000 Decision and Order elevates form over substance." That is a reference to my decision in LNC I on the Bankruptcy Code § 507(b) superpriority issue, adverse to the Bondholders' interests, which as noted the Second Circuit declined to consider on interlocutory appeal. The Bondholders may of course raise the point on direct appeal, but it is not relevant to an evaluation of their Rule 50(b) motion for a JMOL. The same lack of relevance to that motion applies to the Bondholders' reiterated objection to the Court's charge on the superpriority question. The record reflects my reasons for the charge given and the Bondholders' objection to it, see Tr. 2072-2073, so the point is preserved for appeal; but the correctness vel non of that instruction has nothing to do with Rule 50(b) analysis.

For the foregoing reasons, the plaintiffs' motion for judgment as a matter of law is denied.

IV. THE MOTION FOR A NEW TRIAL

Alternatively, the Bondholders move for a new trial pursuant to Rule 59. Rule 59(a) provides:

A new trial may be granted . . . for any of the reasons for which new trials have been granted in actions at law in the courts of the United States.

Each of the Bondholders' four asserted reasons for a new trial arise out of the Court's evidentiary rulings, either in limine or during the trial. Specifically, the Bondholders argue that they are entitled to a new trial

*"in which they are permitted to introduce evidence of First Fidelity's own lift stay/adequate protection motion" (Main Brief, Point II);

* "because evidence should not have been permitted on the untenable defenses of waiver and ratification" (id., Point III);

* "in which defendants are not permitted to introduce evidence of oral advice of counsel and the jury is instructed that defendants were only entitled to rely on written advice of counsel" (id., Point IV); and

* "in which defendants are not permitted to offer evidence of appraisal values of which they never became aware" (id., Point V).

A. Standard of Review

A trial judge's erroneous evidentiary rulings may furnish a basis for granting a post-verdict motion for a new trial under Rule 59. In its discussion of Rule 59, 12 Moore's Federal Practice (Matthew Bender 3d ed.) says at § 59.13[2][b][E] at pp. 59-46-47:

The improper admission of evidence at trial may warrant the grant of a motion for new trial, particularly when the evidence improperly admitted is found to be prejudicial. Further, a court's failure to admit highly probative evidence that is likely to have a profound impact on the outcome of the trial may also be grounds for a new trial.

(footnotes omitted). Moore's Treatise then adds at p. 59-47: "For a thorough discussion about the standards for reviewing erroneous rulings that admit or exclude evidence, see Weinstein's Federal Evidence, Ch. 103, Rulings on Evidence (Matthew Bender 2d ed.)."

The Weinstein Treatise discusses in Chapter 103 the workings of Rule 103 of the Federal Rules of Evidence. Thus it is the view of the Moore Treatise (which I share) that Rule 103, F.R.Evid., sets the standard for evaluating whether a trial court's evidentiary errors are sufficient to justify a new trial under Rule 59, F.R.Civ.P. And in that regard, Rule 103(a) provides:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected . . .

The Weinstein Treatise expands upon that concept:

Thus, no evidentiary ruling constitutes reversible error unless it affects a substantial right of a party. A ruling that affects a substantial right is not a basis for reversal, however, unless the ruling is erroneous.

1 Weinstein's Federal Evidence § 103.41[1] pp. 103-47-48.1 (Matthew Bender 2d ed.). Second Circuit case law applies these standards. See, e.g., Monarch Insurance Company of Ohio v. Insurance Corporation of Ireland Ltd., 835 F.2d 32, 35 (2d Cir. 1987) ("In any event, error may be predicated upon a ruling which excludes evidence only where `a substantial right of the party is affected. . . .' In view of the absence of any evidence of damage to ICI, no such showing was made here.") (quoting Rule 103(a); other citations omitted). Another leading treatise is in accord:

Claims of error with regard to the admission or exclusion of evidence are prime candidates for application of the harmless error rule. . . . Whether a `substantial right' has been invaded is dependent on the circumstances of the case, and the proceedings will not be disturbed, on post-trial motion in the district court or on appeal, unless any error of the court was truly harmful.

11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2885 pp. 453-54 (West 2d ed. 1995) (footnotes omitted).

The application of those standards to the case at bar requires the Bondholders to show that this Court's specified evidentiary rulings, viewed separately or together, were (a) erroneous and (b) adversely affected a substantial litigation right of the Bondholders, so that the rulings were "truly harmful" to the Bondholders. I will consider the several asserted evidentiary errors in the order in which the Bondholders advance them.

B. Evidence Concerning First Fidelity's Protective Motion

The Bondholders argue that they are entitled to a new trial in which they would be permitted to introduce evidence of a protective motion that First Fidelity made on March 23, 1989 in the Eastern bankruptcy proceedings. The present argument has two prongs. First, the Bondholders reiterate contentions which the Court twice rejected in in limine rulings. Second, they contend that trial testimony given a First Fidelity officer "opened the door" to that evidence the in limine rulings had excluded, a contention that the Court rejected during the trial.

The Bondholders sought to place before the jury evidence of a protective motion that First Fidelity made on its own behalf in the Eastern bankruptcy proceeding prior to the motion that First Fidelity and the other Trustees eventually made on the Bondholders' behalf. Such evidence, had it been received, would have shown the following: prior to Eastern's bankruptcy filing in March 1989, Eastern maintained funds on deposit in several accounts with First Fidelity and its affiliated banks; in September 1987, on Eastern's instructions, First Fidelity issued an irrevocable standby letter of credit for $7,800,000 in favor of Eastern's insurer as beneficiary; the Eastern accounts with First Fidelity collateralized First Fidelity's obligation to the letter of credit beneficiary; on March 9, 1989, Eastern filed its Chapter 11 bankruptcy petition; in a letter dated March 16, 1989, Eastern demanded that First Fidelity close out the Eastern accounts and return all the monies on deposit to Eastern; with the letter of credit still outstanding, First Fidelity refused to return Eastern's deposits; and on March 23, 1989, First Fidelity filed in the bankruptcy court a motion captioned as one "for relief from stay to allow retention of deposits and setoff."

1. The In Limine Rulings

The Bondholders argue on the present motion that "First Fidelity's own motion is probative of the question of the prudence of waiting to make a lift stay/adequate protection motion on behalf of the Trust because when First Fidelity made its own lift stay/adequate protection motion, First Fidelity was in the same position the Trust was in — it was a secured creditor with collateral that it wanted to adequately protect." Main Brief at 10.

The Bondholders made the same argument in opposing First Fidelity's motion in limine to exclude this evidence. In LNC VIII I granted First Fidelity's motion and excluded the evidence. The Bondholders moved for reconsideration. In LNC XIV I denied the Bondholders' motion and adhered to the initial ruling. The reader's familiarity with those opinions is assumed. I remain of the view that the rulings were correct and see no need to restate their reasoning.

2. Trial Testimony and the "Open Door" Theory

As a second prong on their argument for the admissibility of this evidence, the Bondholders say that "the precluded evidence regarding First Fidelity's own lift stay/adequate protection motion would have impeached testimony of First Fidelity's only witness and would have undermined one of the excuses that First Fidelity raised for not making a motion on behalf of the Trust." Main Brief at 14. The latter of these two assertions is said to support the Bondholders' assertion that the trial testimony of a First Fidelity witness "opened the door" to the previously excluded evidence.


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