United States District Court, D. New Jersey
A. Vort, Esq., Joseph A. Molinaro, Esq., Attorneys for
Dimitri Luke Karapelou, Esq. Law Offices of Dimitri l.
Karapelou, LLC Attorney for Defendants
B. SIMANDLE Chief U.S. District Judge.
case comes before the Court on motions in limine filed by
both parties [Docket Items 232 & 233] in advance of a
nonjury trial scheduled for May 15, 2017. The Court finds as
purposes of the instant motion, it suffices to recount the
following. In this action, Plaintiff MSKP Oak Grove, LLC
(“MSKP”) asserts claims under the New Jersey
Uniform Fraudulent Transfer Act, N.J.S.A. § 25:2-20
et seq. (“NJUFTA”), arising from an
allegedly fraudulent transfer of assets through which
Defendants intended to avoid payment to certain creditors,
including Plaintiff. Plaintiff is a commercial landlord to
which Hollywood Tanning Systems, Inc. (“HTS”) is
indebted by a 2009 judgment in the amount of $411, 573.45.
Plaintiff alleges that following an asset purchase agreement
with another corporation, Tan Holdings, LLC, in 2007, HTS
fraudulently distributed $23.9 million to its shareholders,
Defendants Carol and Ralph A. Venuto, Sr., Ralph A. Venuto, Jr.,
Carol Rebbecchi, and Richard P. Venuto (“the
Shareholders”) on June 22, 2007, and rendered HTS
without sufficient assets to satisfy future obligations to
creditors, including HTS's obligation to Plaintiff
relating to a defaulted lease agreement.
parties now move for orders excluding, or striking their
opponents' objections to, certain of the trial exhibits
and witnesses identified in the Joint Final Pretrial Order,
signed by Magistrate Judge Joel Schneider on January 12,
2017. [Docket Item 226.] These motions are now fully briefed,
and supplemented by a joint stipulation of certain facts
filed on April 19, 2017. [Docket Item 248.]
STANDARD OF REVIEW
Court may hear the present motions in limine because it has
the inherent authority to manage cases brought before it.
Luce v. United States, 469 U.S. 38, 40 n. 2 (1984).
An “in limine ruling on evidence issues is a procedure
which should, in the trial court's discretion, be used in
appropriate cases.” In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983),
rev'd on other grounds sub nom., Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
One such appropriate case is where the court can shield the
jury from unfairly prejudicial or irrelevant evidence.
See United States v. Romano, 849 F.2d 812, 815 (3d
Cir. 1988). The in limine motion then fosters efficiency for
the court and for counsel by preventing needless argument at
trial. New Jersey Civil Procedure § 16-2:2
(citing Bradley v. Pittsburgh Bd. of Educ, 913 F.2d
1064, 1069 (3d Cir. 1990)). Although pretrial motions in
limine are also permissible in a non-jury case, their utility
is diminished because the judge determining the admissibility
of evidence is also the fact finder, and thus many such
objections can be deferred until trial.
trial, Plaintiff will be required to prove by clear and
convincing evidence the various essential elements of its
NJUFTA claims,  including that the Shareholders
intended to hinder, delay, or defraud MSKP through the
Shareholders' distribution of most proceeds from the
June, 2007 Tan Holdings transaction to themselves. Plaintiff
seeks to do this, in part, by introducing testimony and
documentary evidence of Defendants' behavior towards
other creditors and in other lawsuits, specifically in
connection with suits against HTS by Hadis Nafar, GS
Partners, HT of Highlands, and Rowan Petroleum Properties,
LLC; and against Hollywood Hands by Warminster Group, L.P.;
and against Ralph Venuto, Sr., and other companies he owned.
Plaintiff also seeks to use much of this evidence to prove
that HTS was insolvent and/or maintained inadequate cash
reserves in relation to its business between 2006 and 2010.
Also contested in the instant motions are documents relating
to the Estate of Ralph Venuto, Sr.; the assets of HTS;
Defendants' rebuttal expert report by William Pederson
and other documentary evidence from the Orchard Mall case;
the admissibility of case law and filings from this case; and
a few miscellaneous documents.The parties have supplemented
their briefing record with a stipulation of facts [Docket
Item 248] by which the parties agree, inter alia, that all of
the documents which Plaintiff intends to introduce are
authentic and that Defendants reserve their right to
challenge their relevance at trial.
Other lawsuits against HTS
seeks to introduce testimony and documentary evidence
regarding a number of other lawsuits by creditors against
HTS, including those involving Hadis Nafar, GS Partners, HT
of Highlands Ranch, and Rowen Petroleum in the state and
federal courts of New Jersey. Plaintiff argues that this
evidence will be relevant to prove (i) that HTS was insolvent
and maintained inadequate cash reserves, and (ii) that HTS
intended to hinder, delay, or defraud creditors by
“employing a scorched earth litigation strategy”
against all its creditors. Defendants object to this evidence
on the grounds that it is irrelevant and that much of it is
hearsay. Defendants seek to exclude Plaintiff's Exhibits
16-19, 37-58 & 71.
outset, the Court notes that it appears that the parties have
resolved their dispute over whether Plaintiff can call Mr.
Federman or a representative from Travelers Insurance. The
new stipulations of fact include agreements that the
documents which each would be called to authenticate - a
lease signed by Ralph Venuto, Sr. and an insurance policy
issued to HTS, respectively - are authentic, obviating the
need for their testimony at trial. Accordingly, the Court
will deny Plaintiff's motion as moot to the extent that
it seeks an order overruling Defendants' objections to
Mr. Federman and the Travelers Insurance representative.
the parties have framed their arguments about other case
evidence in broad terms, the Court too will address the
issues ranging from the general to the specific. Under the
Federal Rules of Evidence, evidence is only admissible to the
extent that it is relevant. Fed.R.Evid. 402. The Rules define
relevant evidence as “evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed.R.Evid.
401. This sets a low bar for admissibility, subject to the
other Rules of Evidence. United States v. Starnes,
583 F.3d 196, 214 (3d Cir. 2009). However, even where
evidence is relevant, it may be excluded where “its
probative value is substantially outweighed by a danger of .
. . unfair prejudice, confusing the issues, . . . undue
delay, wasting time, or needlessly presenting cumulative
evidence.” Fed.R.Evid. 403.
Court has already determined that evidence of Defendants'
conduct in this and other litigations is not probative of
their “intent to hinder or delay” creditors
within the meaning of the NJUFTA; all parties are bound by
the law of the case holding that “what is relevant to
Plaintiff's success . . . is only proof of
Defendants' intent to defraud or delay creditors by
means of a fraudulent conveyance, in this case the
shareholder distribution, and not any other conduct.”
Opinion dated June 29, 2016 [Docket Item 215] at 31 n. 7.
Nevertheless, some items of evidence of these other suits may
be probative of HTS's financial condition and whether HTS
retained assets after the shareholder distribution that were
“unreasonably small in ...