United States District Court, W.D. Washington, Seattle
JAMES F. RIGBY, Trustee of Michael R. Mastro, Plaintiff,
MICHAEL J. CORLISS, et al., Defendants.
ORDER REGARDING MICHAEL CORLISS' MOTIONS IN
S. Lasnik United States District Judge
matter comes before the Court on the “Defendant's
Motions in Limine.” Dkt. # 18. Plaintiff is the trustee
in an involuntary bankruptcy proceeding involving Michael R.
Mastro. The trustee accuses defendant Michael J. Corliss of
assisting Mastro in secreting assets and leaving the
district, causing the trustee to incur additional expenses to
locate both the debtor and the assets. This matter will be
decided in a bench trial scheduled to begin on July 9, 2018.
Corliss seeks to exclude from trial seven categories of
Mastros' Invocation of the Fifth Amendment
Court takes this matter under advisement. The parties agree
that the imputation of a non-party's invocation of the
Fifth Amendment to a party requires an evaluation of the
relationship between the two people (including its nature,
the degree of control the party has over the non-party, the
compatibility of their interests in the litigation, and the
role the non-party played in the events giving rise to the
litigation) in order to determine whether the Mastros acted
out of loyalty to Corliss. The Court will be in a better
position to judge whether the Mastros' invocation of the
Fifth Amendment in response to the trustee's questions
gives rise to an adverse inference against Corliss after the
record is more fully developed at trial.
Gloria Plischke Letters to Mastro
seeks to exclude from evidence two handwritten letters
written by Mastro to his sister, Gloria Plischke, regarding
his wishes for disbursement of a portion of the inheritance
Mastro received from another sister. The trustee argues that
the letters are not being offered for the truth of the
matters asserted therein, but rather to show the effect the
letters had on Plischke, particularly why she sent two checks
to a corporation owned by Corliss on April 11, 2011. The
trustee also identifies three potentially applicable
exceptions to the hearsay rule: the state of mind exception,
the business records exception, and the statement against
interest exception. While the Court has doubts regarding the
applicability of the business records and statement against
interest exceptions, the letters appear to be admissible for
non-hearsay purposes and/or as a statement of Mastro's
state of mind at the time the letters were written. When the
letters were written is a contested issue of fact, however.
To the extent Mastro intended to make an assertion of fact
when he dated the letters and/or referenced the date of the
first letter in the second, those statements are hearsay, and
the trustee has not identified an applicable exception. Fed.
R. Ev. 801(a). The Court will not, therefore, rely on those
“statements” for the truth of the date on which
the letters were written.
Documents Filed in Bankruptcy Court
objects to the admission of certain documents filed in the
bankruptcy court, including United States Bankruptcy Judge
Mark Barreca's orders, on hearsay grounds. While the
Court may take judicial notice that a document was filed and
the contents of that record, unless the doctrines of claim or
issue preclusion applies, the statements contained therein
are not proof of the matters asserted. U.S. v.
Stinson, 647 F.3d 1196, 1210-11 (9th Cir. 2011). The
trustee offers no theory under which Judge Barreca's
finding that certain gold bars, jewelry, and other property
were assets of the bankruptcy estate is legally operative in
its own right. Rather, the trustee wants to use Judge
Barreca's statements as proof of ownership. The orders
are not admissible for that purpose.
Documents Disclosed After the Discovery Deadline
trustee produced two documents that he intends to use as
trial exhibits nine months after the discovery deadline set
by the bankruptcy court. The trustee asserts that the
documents were previously disclosed, but the evidence he
cites has nothing to do with the two documents to which
Corliss objects. The trustee also suggests, without actually
stating, that the failure to disclose was substantially
justified because there was a colorable claim of privilege
and the documents were the subject of a then-pending motion
to compel. If the Court understands the trustee's
argument correctly, it is unpersuasive. The trustee produced
the two documents before the Court ruled on the motion to
compel. Any claim of privilege was seemingly too
insubstantial to wait for the Court's decision, and the
trustee has not otherwise shown that the failure to disclose
was substantially justified. Unless the trustee can show,
prior to offering these documents at trial, that the failure
to disclose during discovery was substantially justified
and/or harmless, the documents are inadmissible.
Witnesses Disclosed After the Discovery Deadline
Rule of Civil Procedure 26(a)(1)(A)(i) requires litigants to
disclose the name, address, and telephone number “of
each individual likely to have discoverable information-along
with the subjects of that information-that the disclosing
party may use to support its claims or defenses, unless the
use would be solely for impeachment.” The fact that the
trustee identified pages of names in response to a discovery
request seeking the identity of persons with knowledge of
particular investigative activities did not alter the fact
that Corliss had no idea whose testimony the trustee intended
to rely upon at trial until long after discovery had closed.
The trustee was required to identify each person he intended
to use to support his claims at the beginning of the
litigation and to supplement that list as discovery revealed
additional witnesses he may call as witnesses. He did not,
and has not shown that the failure was substantially
justified or harmless. The trustee will not be permitted to
call Kara King, David Gebben, or Eugene Becker as witnesses
in his case in chief at trial.
trustee may call Michael and Lauri Corliss as witnesses. The
harms at which Rule 26(a) is aimed, namely an inability to
inquire as to a witnesses knowledge and test the veracity of
their statements through discovery, do not apply when the
undisclosed witness is the defendant and spouse with whom he
shares a community of interests.
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