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NV Petrus SA v. LPG Trading Corp.

United States District Court, E.D. New York

May 8, 2017

NV PETRUS SA and PETROLEUM RESOURCES PETRUS SA, Plaintiffs,
v.
LPG TRADING CORP., VIKTORIA KRAKOVSKAYA, and EDUARD K. KRAKOVSKY, Defendants.

          MEMORANDUM & ORDER

          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiffs 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.[1] (First Am. Compl. ("FAC") (Dkt. 33).) Defendants have asserted four counterclaims.[2] (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.

         The 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.

         I. LEGAL STANDARD

         "The 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.

         II. PLAINTIFFS' MOTIONS

         A. Plaintiffs' Objections to Russian Language Documents

         1. Defendants' Exhibits 5, 8, and 9

         Plaintiffs 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.)

         The 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.

         B. Plaintiffs' Objections to Hearsay Evidence

         1. Defendants' Exhibit 2

         Plaintiffs 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]."[3] (Id. ¶ 26.)

         "To 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.

         2. Defendants' Exhibit 8

         Plaintiffs 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.

         C. Plaintiffs' Objections on the Basis of Incompleteness

         Plaintiffs 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 citations omitted).

         1. Defendants' Exhibit 5

         Plaintiffs 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 ¶¶ 28-30.)

         As set 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 trial.

         2. Defendants ...


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