United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, United States District Judge.
NV Petrus SA ("Petrus") and Petroleum Resources
Petrus SA ("PRP") assert breach of contract claims
and claims for violations of the New York Debtor and Creditor
Law ("DCL") against Defendants LPG Trading Corp.
("LPG"), Viktoria Krakovskaya, and Eduard K.
Krakovsky. (First Am. Compl. ("FAC") (Dkt.
33).) Defendants have asserted four
counterclaims. (See Answer to FAC (Dkt. 38) at
ECF pp.5-6.) The court assumes the parties' familiarity
with the factual and procedural background of this action.
parties have each submitted motions in limine
seeking to preclude the admission of certain evidence at
trial and to remedy certain alleged violations of discovery
procedures. (Pls. Mots, in Lim. ("Pls. Mots.")
(Dkt. 91); Defs. Mots, in Lim. ("Defs. Mots.")
(Dkt. 89); see also Pls. Mem. in Supp. of Pls. Mots.
("Pls. Mem.") (Dkt. 93); Defs. Mem. in Supp. of
Defs. Mots. ("Defs. Mem.") (Dkt. 89-1).) For the
reasons set forth below, Plaintiffs' motions in
limine and Defendants' motions in limine
are GRANTED IN PART and DENIED IN PART, with ruling on
certain questions RESERVED until trial.
purpose of a motion in limine is to allow the trial
court to rule in advance of trial on the admissibility and
relevance of certain forecasted evidence." Gorbea v.
Verizon N.Y., Inc., No. 1 l-CV-3758 (KAM), 2014 WL
2916964, at * 1 (E.D.N.Y. June 25, 2014) (citing Luce v.
United States. 469 U.S. 38, 40 n.2 (1984); Palmieri
v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996);
Nat'l Union Fire Ins. Co. of Pittsburgh v. L.E. Myers
Co.. 937 F.Supp. 276, 283 (S.D.N.Y. 1996)).
"Evidence should be excluded on a motion in
limine only when the evidence is clearly inadmissible on
all potential grounds." United States v.
Paredes, 176 F.Supp.2d 179, 181 (S.D.N.Y. 2001).
"[C]ourts considering a motion in limine may
reserve decision until trial, so that the motion is placed in
the appropriate factual context." Jean-Laurent v.
Hennessy, 840 F.Supp.2d 529, 536 (E.D.N.Y. 2011) (citing
Nat'l Union Fire Ins. Co.. 937 F.Supp. at 287).
Further, a district court's ruling on a motion in limine
is preliminary and "subject to change when the case
unfolds." Luce, 469 U.S. at 41.
Plaintiffs' Objections to Russian Language
Defendants' Exhibits 5, 8, and 9
assert that "portions of Defendants' Exhibit 5, and
the entirety of Defendants' Exhibits 8 and 9, have not
been translated from Russian into English, " despite
repeated warnings from Magistrate Judge Peggy Kuo and the
undersigned that such exhibits cannot be used at trial absent
such translation. (Pls. Mem. at 1-2; see, e.g., July
6, 2016, Min. Entry of Judge Kuo ("Counsel were reminded
that all exhibits need to be translated into English.");
Jan. 18, 2017, Min. Entry of Judge Kuo ("With respect to
Defendants' trial exhibit numbers 5, 8 and 9 ... the
Court reminded Defendants' counsel that in order to be
used as trial exhibits, all documents that are in Russian
must be translated into English by a certified
translator.").) Plaintiffs argue that Defendants should
not be permitted to introduce Exhibits 5, 8, and 9, at trial.
(Id. at 3.) Defendants maintain that they are
"aware of the warnings ... and will provide such
translations in [a] short period of time." (Defs. Mem.
in Opp'n to Pls. Mots. ("Defs. Opp'n")
(Dkt. 97) ¶ 17.)
court holds that Exhibits 5, 8 and 9 are inadmissible at
trial unless Defendants, by no later than May 9, 2017, at
5:00 p.m., provide Plaintiffs with complete, certified
translations of these documents. See Fed.R.Civ.P. 16(f)(1)(C)
(court may issue "any just orders ... if a party or its
attorney ... fails to obey a scheduling or other pretrial
order); see, e.g.. Chevron Corp. v.
Donziger, 974 F.Supp.2d 362, 704 (S.D.N.Y. 2014)
(striking Defendants' exhibits that were entirely or
partly in Spanish and noting that defendants "had five
months after the filing of their proposed pretrial order in
which to provide translations for those documents and ...
declined [to provide such translations]"). Plaintiffs
are also reminded that they must provide certified
translations of any foreign language documents that they seek
to introduce at trial.
Plaintiffs' Objections to Hearsay Evidence
Defendants' Exhibit 2
maintain that Defendants' Exhibit 2, a compilation of
invoices issued by LPG to Petrus, should be excluded at trial
because the exhibit constitutes inadmissible hearsay. (Pls.
Mem. at 5.) Specifically, Plaintiffs argue that the documents
are not subject to the "business records" exception
to the prohibition against hearsay, see Fed.R.Evid. 803(6).
(Pls. Mem. at 5-6.) Plaintiffs point to the following facts,
which they claim place Defendants' Exhibit 2 outside the
business records exception: (1) the invoices "must have
been prepared by Mrs. Krakovskaya, " who admits that she
"does not have any [independent] knowledge of LPG
Trading's business"; (2) the invoices were "not
authenticated by someone with knowledge of the business,
" as Mr. Krakovsky did not sign them; and (3) there is
no basis to conclude that the invoices were prepared
"contemporaneously." (Id.) In response,
Defendants argue that "Mr. Krakovsky, who was managing
Defendant LPG['s] daily operations will testify at trial,
making the records admissible under [Federal Rule of Evidence
803]." (Id. ¶ 26.)
lay a proper foundation for a business record, a custodian or
other qualified witness must testify that the document was
kept in the course of a regularly conducted business activity
and also that it was the regular practice of that business
activity to make the [record]." United
States v. Komasa, 767 F.3d 151, 156 (2d Cir. 2014)
(internal quotation marks and citation omitted)). "The
custodian need not have personal knowledge of the actual
creation of the document to lay a proper foundation."
Id. (internal quotation marks and citation omitted).
Accordingly, even if Plaintiffs are correct that Mrs.
Krakovsky prepared the invoices, Mr. Krakovsky may be able to
lay the necessary foundation for admission of the invoices as
business records. The court therefore DENIES Plaintiffs'
motion to exclude Defendants' Exhibit 2 at this time. To
the extent Plaintiffs seek to argue that the invoices were
not kept in the course of LPG's business and that it was
not LPG's regular practice to make such records,
Plaintiffs can make this argument at trial.
Defendants' Exhibit 8
argue that Defendants' Exhibit 8 should be excluded
because it constitutes inadmissible hearsay. (Pls. Mem. at
6.) As stated supra in Section I.A.I.,
Defendants' Exhibit 8 will be excluded at trial unless
Defendants, by no later than May 9, 2017, at 5:00 p.m.,
provide Plaintiffs with a complete, certified translation of
this document. Because the court cannot properly evaluate the
exhibit—as it is currently in Russian—the court
reserves decision as to whether Defendants' Exhibit 8
constitutes inadmissible hearsay.
Plaintiffs' Objections on the Basis of
argue that Defendants' Exhibits 5, 7, 8, and 10 should be
excluded because they are incomplete documents. (Pls. Mem. at
6.) Federal Rule of Evidence 106 provides that "[w]hen a
writing or recorded statement or part thereof is introduced
by a party, an adverse party may require the introduction at
that time of any other part or any other writing or recorded
statement which ought in fairness to be considered
contemporaneously with it." Fed.R.Evid. 106. As further
explained by the Second Circuit, Rule 106 requires that
"a full document... be admitted when it is essential to
explain an already admitted document, to place the admitted
document in context, or to avoid misleading the trier of
fact." Phoenix Assocs. Ill v. Stone,
60 F.3d 95, 102 (2d Cir. 1995) (internal quotation marks and
Defendants' Exhibit 5
contend that Defendants' Exhibit 5 is incomplete because:
(i) portions of the document are in Russian and have not been
translated into English; and (ii) the exhibit includes
"scattered excerpts of LPG Trading's balance sheet
with Petrus." (Pls. Mem. at 7.) Defendants point out
that Plaintiffs produced Defendants' Exhibit 5 in
discovery, seeming to imply that Plaintiffs are at fault for
any omissions in their own documents. (Defs. Opp'n
forth supra in Section LA. 1., Defendants'
Exhibit 5 is excluded unless Defendants provide Plaintiffs a
certified English translation of the document by no later
than May 9, 2017, at 5:00 p.m. In the event that Defendants
meet that deadline and Plaintiffs believe the exhibit is
still incomplete, Plaintiffs may renew their objection at