Catipovic v. Turley (68 F. Supp. 3d 983, 2014)

MEMORANDUM OPINION AND ORDER REGARDING MOTIONS IN LIMINE

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION.989

II. LEGAL ANALYSIS.989

A. Overlapping Challenges.989

1. Opinions of the plaintiff’s expert.989

a. Arguments of the parties.989

b. Analysis.991

2. Evidence concerning the Dunafoldvar Ethanol Facility.993

a. Turley’s challenge.994

b. The Fagen Defendants ’ challenge.995

c. Catipovic’s challenge.997

3. Unpleaded claims.998

a. Arguments of the parties.998

b. Analysis.998

4. Undisclosed damages.999

a. Arguments of the parties.999

b. Analysis.1000

5. Relative wealth.1000

a. Arguments of the parties...1000

b. Analysis.1001

6. Settlement negotiations .1002

7. Turley’s October 2012 letter to Wendland.1003

a. Arguments of the parties...1003

b. Analysis.1004

B. Defendant Turley’s Remaining Evidentiary Challenge.1008

1. Mr. Murphy’s travel restrictions.1008

2. Arguments of the parties .1008

3. Analysis . 1009

C. Catipovic’s Remaining Evidentiary Challenges.1009

1. Categories of evidence already addressed or not disputed.1010

2. Expert testimony as to facts and inferences.1010

a. Arguments of the parties.1010

b. Analysis.1011

3. Expert or lay opinions on credibility of others.1011

a. Arguments of the parties.1011

b. Analysis.■..1012

4. Statements or reports of persons not present to testify or be cross-examined.1013

a. Arguments of the parties.1013

b. Analysis.1013

5. Demands for items that have not been the subject of discovery... .1014

a. Arguments of the parties.1014

b. Analysis.1014

D. The Fagen Defendants’ Remaining Evidentiary Challenges.1014

1. Roland Fagen’s alleged offer of money to Wendland.1014

a. Arguments of the parties.1015

b. Analysis. 1016

2. The exclusivity agreement between Turley and the Fagen Defendants.1017

a. Arguments of the parties.1017

b. Analysis.1018

3. References to filing of or rulings on pretrial motions.1019

III.CONCLUSION 1019

I. INTRODUCTION

Plaintiff Branimir Catipovic, a Massachusetts citizen who is once again an Iowa resident, asserts claims in this ease arising from the failure of an alleged partnership to develop ethanol production facilities in Eastern Europe. Catipovic seeks to recover damages for breach of contract and unjust enrichment from defendant Mark Turley, an Irish investor now living in Hungary, and damages for unjust enrichment from defendant Roland Fagen, a Minnesota citizen, and his Minnesota company, defendant Fagen, Inc., which is engaged in commercial and industrial contracting and engineering services, focusing primarily on the ethanol plant industry. Although the parties — along with non-party Walt Wendland — originally discussed building an ethanol plant in Osijek, Croatia, such a plant was never built. Rather, Turley and the Fagen Defendants eventually collaborated in the building of an ethanol facility, now in operation, in Dunafold-var, Hungary, (the Dunafoldvar Ethanol Facility) without Catipovic’s (or Wend-land’s) involvement.

This case was set for a jury trial to begin on April 14, 2014, but the trial was recently continued to begin on November 12, 2014. It is now before me on three evidentiary motions, filed in anticipation of the April 14, 2014, trial date: (1) defendant Turley’s February 28, 2014, Motion In Li-mine (docket no. 131), seeking to exclude eight categories of evidence; (2) plaintiff Catipovic’s February 28, 2014, Motion In Limine (docket no. 132), seeking to exclude thirteen categories of evidence; and (3) the Fagen Defendants’ February 28, 2014, Motion In Limine (docket no. 133), seeking to exclude eleven categories of evidence, some of which overlap categories of evidence that defendant Turley also seeks .to exclude. I believe that resolving the evi-dentiary motions now may facilitate trial preparations, notwithstanding that the trial has been continued for several months. Moreover, further evidentiary motions are unlikely, because, in the April .2, 2014, Trial Management Order, resetting the jury trial to begin on November 12, 2014,1 expressly stated, “No further motions in limine shall be filed without permission of the court.” Trial Management Order (docket no. 163), § V.

I find the parties’ written submissions sufficient to address the evidentiary issues presented, without oral arguments. Therefore, I will resolve these motions on the parties’ written submissions.

II. LEGAL ANALYSIS

The various motions now before me include challenges to several overlapping categories of evidence. Thus, rather than consider the evidentiary issues motion-by-motion, I will first consider the overlapping categories of challenged evidence, then turn to each party’s remaining evi-dentiary challenges.

A. Overlapping Challenges

1. Opinions of the plaintiff’s expert

The first category of evidence that both defendant Turley and the Fagen Defendants seek to exclude is any testimony or opinions from Catipovic’s expert, Michael Ott, pursuant to Rule 702 of the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). To the extent that Mr. Ott may attempt to expand his opinions beyond those presented in his February 19, 2013,. written report, Turley also seeks to exclude such expanded opinions as untimely.

a. Arguments of the parties

Turley argues that, although Mr. Ott intends to offer opinions regarding the value of Catipovic’s damages, his education was not in finance, business valuation, or economics, but in biochemistry. Turley argues that Mr. Ott’s generalized experience in biotechnology does not qualify him as an expert on the relevant issues here. Turley also argues that Mr. Ott’s opinions in his February 19, 2013, written report are not supported by sufficient facts or data to be admissible, because they are based on data from the Center for Agricultural and Rural Development (CARD) at Iowa State University, concerning ethanol production in Iowa, not data from Hungary or even Europe. Turley argues that Mr. Ott’s reliance on irrelevant data also demonstrates that his opinions are entirely speculative. Turley contends that the speculative nature of Mr. Ott’s opinions is also apparent from his reliance on what Turley describes as “fictitious” numbers for production at the Dunafoldvar Ethanol Facility, before it became operational; his calculations of profits with no adequate explanation for how the factors used were derived; and his failure to consider the divergent cost structures between Iowa and Hungary. Turley points out that, at the time of his Motion In Limine, Mr. Ott had made no attempt to supplement his opinions with additional information about the actual performance of the Dunafoldvar Ethanol Facility, even though the defendants had provided some of that information to him. The Fagen Defendants essentially echo Turley’s criticisms of Mr. Ott’s opinions. They add that Mr. Ott has failed to itemize or explain any damages that can be claimed from the Fagen Defendants or any basis for his opinion that the value of the work that Catipovic provided to the defendants is $2 million.

In response to the defendants’ challenges to his expert, Catipovic argues that Mr. Ott’s CV demonstrates his extensive experience in the financial aspect of the renewable energy business, including ethanol. Catipovic argues that Mr. Ott’s experience includes raising over $150 million for various renewable energy businesses, and that his current employment is with a venture capital group, performing due diligence on new business opportunities in renewable energy and making recommendations based on market strength and business models. Catipovic points out that Mr. Ott also provided an amended and supplemented expert report after the defendants filed their Motions In Limine and after they belatedly produced financial data from the Dunafoldvar Ethanol Facility. Catipovic contends that the defendants’ belated ‘disclosures have allowed Mr. Ott to dispense with the data and market information from the United States market that he was forced to use when actual financial data from Europe was not available. Catipovic contends that the amended and supplemented report moots most of the defendants’ criticisms of Mr. Ott’s original opinions and demonstrates sufficient, not-speculative bases for his opinions. Catipovic also points out that the defendants criticize Mr. Ott’s reliance on the same sort of information about United States ethanol production that the. defendants used to tout their European ethanol project to prospective investors. Catipovic argues that, as to damages from unjust enrichment of the Fagen Defendants and Turley, Mr. Ott’s opinions are adequate, because they are based on valuations of the contributions of sufficiently similar promoters. Finally, Catipovic contends that the weight to be given to his expert’s opinions is for the jury to decide.

Iii reply, Turley argues that Mr. Ott still lacks the necessary qualifications to offer expert opinions in this matter, because of his lack of education or training in the field of business valuations or any specific experience with foreign business valuations. Turley also argues that Catipovic should not be allowed to offer untimely disclosed opinions that Mr. Ott has now concocted, because the defendants are not to,blame for any delays in the disclosure of pertinent financial data, and because Mr. Ott waited too long to supplement his report in March 2014, after receiving some of the “new” information on which that report is based, which was disclosed in 2012 and 2013. The Fagen Defendants add that Mr. Ott has offered no adequate analysis to demonstrate the range of fees to which a promoter such as Catipovic might be entitled, but simply offers a conclusory opinion.

b. Analysis

The defendants assert both “Rule 702” and “Daubert” challenges to Mr. Ott’s opinions. Rule 702 provides that expert testimony should be admitted if (1) it is based on “sufficient facts or data,” (2) it “is the product of reliable principles and methods,” and (3) “the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702; see also General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). As to the first requirement, “[a]n expert opinion cannot sustain a jury’s verdict when it ‘is not supported by sufficient facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise render the opinion unreasonable ....’” Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1057 (8th Cir.2000) (quoting Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 242, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993)) (citing Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1108 (8th Cir.1996) (a motion for judgment should have been granted because the expert opinion on causation was speculative)). To put it another way, “[ejxpert testimony that is speculative is not competent proof and contributes ‘nothing to a legally sufficient evidentiary basis.’ ” Id. Thus, in Concord Boat, the Eighth Circuit Court of Appeals reasoned that, “[bjecause of the deficiencies in the foundation of the opinion, the expert’s resulting conclusions were ‘mere speculation,’ ” and should have been excluded. Id.

First, I find that Mr. Ott’s “credentials” are sufficient for him to offer expert testimony in this case. While it is true that Mr. Ott’s education was in biochemistry, Catipovic has offered sufficient evidence that Mr. Ott has developed the necessary expertise from experience for him to offer helpful and reliable opinions at trial. Rule 702 of the Federal Rules of Civil Procedure expressly provides that an expert may be qualified “by knowledge, skill, experience, training, or education.” Fed.R.Evid. 702 (emphasis added). Moreover, the Eighth Circuit Court of Appeals has recognized that “ ‘Rule 702 does not rank academic training over demonstrated practical experience.’ ” David E. Watson, P.C. v. United States, 668 F.3d 1008, 1014 (8th Cir.2012) (quoting United States v. Roach, 644 F.3d 763, 764 (8th Cir.2011) (per curiam)).

On the other hand, I agree with the defendants that Mr. Ott’s original opinions, in his February 2013 report, based on data related to Iowa ethanol production, were not based on “sufficient facts or data” to be admissible, pursuant to Rule 702, in this case involving the development of an ethanol facility in Eastern Europe. Rather, those opinions were so speculative and so disconnected from issues in this case that they were not competent proof and contributed nothing to a legally sufficient evi-dentiary basis. Concord Boat Corp., 207 F.3d at 1057.

That is not the end of the matter, however, because I conclude that Mr. Ott has now offered sufficient facts or data to support his conclusions in his March 2011 amended and supplemented report. I need not lay blame for the belated appearance of Mr. Ott’s amended and supplemented report nor consider whether the amended and supplemented report is “untimely,” where the trial has now been continued for several months, and the parties will have adequate opportunity to redepose Mr. Ott or otherwise to assess his “new” opinions sufficiently in advance of trial.

I turn, next, to the defendants’ “Daubert ” challenge. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court explained that the district court must perform a “gatekeeper” function, under Rule 702 of the Federal Rules of Evidence, so that only expert testimony that is relevant and reliable is admitted. 509 U.S. at 589, 113 S.Ct. 2786. The Eighth Circuit Court of Appeals has explained how the district court is to perform its “gatekeeper” function under Daubert, as follows:

First, the trial court must make a “preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” [Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469], The Court cautioned that the trial court must focus “on [the] principles and methodology, not on the conclusions that they generate.” Id. at 595, 113 S.Ct. 2786. Second, the court must ensure that the proposed expert testimony is relevant and will serve to aid the trier of fact. Id. at 592, 113 S.Ct. 2786. Expert testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact. Id. at 591, 113 S.Ct. 2786. The Court, in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), clarified that the district court’s gatekeeper function applies to all expert testimony, not just testimony based in science. Id. at 147, 119 S.Ct. 1167.

Kudabeck v. Kroger Co., 338 F.3d 856, 860 (8th Cir.2003). However, “[a]s the Supreme Court emphasized in Daubert, 509 U.S. at 595-96, 113 S.Ct. 2786, “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’ ” United States v. Vesey, 338 F.3d 913, 917 (8th Cir.2003).

In this case, my “preliminary assessment,” from my review of the submissions in support of and resistance to the defendants’ motions to exclude Mr. Ott’s opinions, is that the reasoning and methodology underlying the opinions in Mr. Ott’s March 2011 amended and supplemented report are valid and that Mr. Ott’s reasoning and methodology in that report can be applied to the facts at issue — even if I still find his factual basis somewhat “thin.” See Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786 (first step in the court’s “gatekeeper” function under Rule 702); Kudabeck, 338 F.3d at 860 (same). Although the defendants were justifiably unhappy with Mr. Ott’s opinions in his original February 2013 report, their challenges to “factual basis” and “reasoning and methodology” are considerably less convincing as to Mr. Ott’s March 2011 amended and supple mented report. Indeed, I find that, as to the amended and supplemented report, Catipovic has shown that Mr. Ott’s reasoning and methodology are appropriate and that he has applied proper economic principles. Moreover, I find that his amended and supplemented opinions have an adequate factual basis — if just barely — including the sources of data that Catipovic has identified as belatedly disclosed by the defendants, such that submission of his opinions to a jury is warranted. I am also convinced that the proposed expert testimony, to the extent that it is based on the amended and supplemented report, is relevant and will aid the trier of fact. Daubert, 509 U.S. at 592, 113 S.Ct. 2786 (second step in the analysis); Kudabeek, 338 F.3d at 860 (same). Plainly, Mr. Ott’s testimony regarding valuations of ethanol plants (in Europe or the United States) and the value of a “promoter’s” services in the development of an ethanol project will provide information beyond the common knowledge of the trier of fact, even in Iowa where ethanol production is common. See id. at 591, 113 S.Ct. 2786 (explaining that expert .testimony assists the trier of fact when it provides information beyond the common knowledge of the trier of fact).

On the present record, I believe that excluding Mr. Ott’s challenged opinions from this case, at least those opinions in his amended and supplemented report, would “invade the province of the jury, whose job it is to decide issues of credibility and to determine the weight that should be accorded evidence.” Vesey, 338 F.3d at 916-17. This is a case in which vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are not only traditional, but appropriate means of attacking what the defendants contend are shaky opinions from Mr. Ott. Daubert, 509 U.S. at 595-96, 113 S.Ct. 2786; Vesey, 338 F.3d at 917. Indeed, for many of the reasons that the defendants contend that Mr. Ott’s testimony should be excluded, a reasonable juror could determine that his opinions are entitled to little weight.

The parts of the defendants’ Motions In Limine seeking exclusion of Mr. Ott’s opinions are denied, and Mr. Ott’s opinions and testimony consistent with his amended and supplemented expert report are admissible.

2. Evidence concerning the Duna-foldvar Ethanol Facility

The second category of evidence that defendant Turley seeks to exclude is any testimony regarding future lost profits for the Dunafoldvar Ethanol Facility in Hungary, under Iowa’s “new business rule.” Defendant Turley argues that the “new business rule” bars such evidence, because future lost profits are unduly speculative and not determinable with reasonable certainty. The third category of evidence that the Fagen Defendants seek to exclude is also related to the Dunafoldvar Ethanol Facility, that is, any reference to the profit or net income that Fagen, Inc., or any Fagen-related entity received or earned on the construction of the Dunafoldvar Ethanol Facility. The Fagen Defendants argue that exclusion of this evidence is appropriate, because it is irrelevant and unduly prejudicial under Rules 402 and 403. Cati-povic also seeks to exclude certain evidence related to the Dunafoldvar Ethanol Facility as his thirteenth category of challenged evidence. Catipovic seeks to exclude testimony by any expert or fact witness on behalf of the defendants regarding the financial performance of the Dunafold-var Ethanol Facility, to the extent that the information is based on financial information or documents not disclosed in the course of discovery. I will consider these challenges to evidence relating to the Du-nafoldvar Ethanol Facility separately.

a. Turley’s challenge

Turley argues that evidence or opinions by Mr. Ott regarding the supposed profitability of the Dunafoldvar Ethanol Facility should be excluded under Iowa’s “new business rule.” Turley contends that I should also exclude any testimony by others related to the Dunafoldvar Ethanol Facility’s future profits, or about how profitable the facility in Osijek, Croatia, would have been, if it had been built. Turley argues that, in this case, neither Catipovic nor his expert can offer any testimony regarding the profits from a predecessor or analogous business, because no such business exists. He argues that the Dunafoldvar Ethanol Facility is the first of its kind in Eastern Europe. Turley also argues that the Osijek facility was never built, and, in any event, was intended to be fundamentally different from the Dunafoldvar Ethanol Facility. Furthermore, Turley argues, Catipovic is seeking lost profits for an ethanol facility where he has no experience operating such a business.

Catipovic counters that the “new business rule” is not applicable here, because Turley does not and cannot argue that anyone anticipated that the Dunafoldvar Ethanol Facility would not be profitable. Indeed, Catipovic points out that the belatedly produced financial information demonstrates that the Dunafoldvar Ethanol Facility is very profitable, exceeding the conservative profits projected by his expert. Catipovic also argues that the ethanol industry is not new, but has an established track record, albeit in a different geographical market. In short, Catipovic argues that this case involves neither a “new” business nor circumstances in which the “new business rule” should apply.

In reply, Turley reiterates that neither Catipovic nor his expert can offer any testimony regarding profits from a predecessor business, because no such business exists. While Turley concedes that the ethanol industry is not new to the United States, he argues that the Dunafoldvar Ethanol Facility is not in the United States, and that its future profitability is controlled by different commodity, supply, and distribution markets, different labor laws, different government subsidies, taxes, fees, and laws, and different financing and banking covenants.

The “new business rule” is an uncomfortable fit here, as to evidence related to the Dunafoldvar Ethanol Facility. The rule is generally asserted to bar recovery of lost profits by a failed new business, alleging that the failure was the result of the tortious conduct of another. See, e.g., McNeal v. SDG Macerich Properties, L.P., No. C 07-4015-MWB, 2008 WL 2691047, *14 — *16 (N.D.Iowa July 1, 2008) (explaining the “new business rule” under Iowa law, citing cases); accord Independent Business Forms, Inc. v. A-M Graphics, Inc., 127 F.3d 698, 704 (8th Cir.1997) (explaining that “[T]he general rule” under Iowa law is that “a new business cannot recover lost profits”). No one is arguing in this case that the Dunafoldvar Ethanol Facility in Hungary has failed, nor is any party seeking to recover lost profits because the alleged tortious conduct of the defendants caused the failure of the Duna-foldvar Ethanol Facility. Rather, Catipo-vic is basing his damages, for alleged breach of contract by Turley and for alleged unjust enrichment of the defendants, at least to some extent, on the profits that he would have reaped if the defendants had not kicked him out of the project, usurped his ideas and the value of his services, and built a different ethanol plant in Dunafoldvar, Hungary, without him, instead of building the plant in Osijek, Croatia, with him.

Moreover, even if the “new business rule” were a proper fit for the circumstances presented here relating to the Du-nafoldvar Ethanol Facility, the Iowa rule that lost profits of a new business are generally too speculative to be recoverable “is not absolute.” See McNeal, 2008 WL 2691047 at *15 (internal quotation marks and citations omitted). Rather, “[i]f factual data furnishing a basis for probable loss of profits is presented, evidence of future profits may be admitted and its weight should be left to the fact-finder [and] the question is whether a prospective loss of net profits has been shown with reasonable certainty.” Id. (internal quotation marks and citations omitted). Here, factual data concerning the actual performance of the Dunafoldvar Ethanol Facility over the last few years provides a basis, with reasonable certainty, for determining probable profits in the future. Thus, assuming that Catipo-vic can prove that he was entitled to some share of the profits of the Dunafoldvar Ethanol Facility, evidence demonstrating that he lost some share of the future profits of that facility is admissible, and its weight should be left to the fact-finder. Id.

The “new business rule” is a much better fit as to evidence relating to the future profitability of the Osijek, Croatia, ethanol plant that the parties purportedly agreed to build with Catipovic, but the defendants then failed to pursue. Catipovic does not respond to Turley’s attempts to exclude evidence about how profitable the facility in Osijek, Croatia, would have been, if it had been built. To the extent that Catipovic bases any claim for damages on lost profits of that failed project, profits from that “new business” are, indeed, too speculative to be recoverable. See id. at *14. There is simply no available data of past ethanol business in Croatia from which anticipated profits could be established. Id. at *15. Catipovic has not shown or even attempted to show that the Dunafoldvar Ethanol Facility is sufficiently similar to the planned one in Osijek, Croatia, that it would be the least bit predictive of future profits from an ethanol facility in Osijek. Thus, the “new business rule” is applicable to bar evidence of future profits of the Osijek, Croatia, ethanol project. Cf. id.

The second part of Turley’s Motion In Limine, is denied to the extent that it seeks exclusion of testimony regarding future lost profits for the Dunafoldvar Ethanol Facility, but granted to the extent that it seeks exclusion of testimony regarding future lost profits of the Osijek, Croatia, ethanol project.

b. The Fagen Defendants’ challenge

The Fagen Defendants note that Catipo-vic has made clear that his claim against them is for allegedly receiving the value of his development or “promoter” activities without compensating him and for allegedly “usurping” his promoter interest in any ethanol project with Turley when Fagen invested in the Dunafoldvar Ethanol Facility. The Fagen Defendants argue that the separate profits or earnings that any of the Fagen entities received for constructing the Dunafoldvar Ethanol Facility are irrelevant to any of the elements of Catipo-vic’s unjust enrichment claim against them, because such profits shed no light on the value of any information or services that Catipovic allegedly provided to the Fagen Defendants. The Fagen Defendants argue that, if somehow relevant, evidence of profits from the construction of the Dunafoldvar Ethanol Facility is unduly prejudicial, because it would mislead or confuse the jury, where the focus should be on the value of what Catipovic allegedly provided (and whether it would be unjust for the defendants to keep it without compensating Catipovic), not on the Fagen Defendants’ separate profits from constructing the Dunafoldvar Ethanol Facility.

Catipovic argues that the Fagen Defendants received a benefit from his services, in that they were awarded the contract to build the Dunafoldvar Ethanol Facility at a “handsome” profit, and he contends that Fagen later acquired an equity ownership in that facility in exchange for Fagen’s profit on the construction of the facility. Thus, Catipovic contends that evidence of the Fagen Defendants’ enrichment by receipt of the construction contract and profits from it, and the resulting equity stake,. is relevant to demonstrate the extent to which the Fagen Defendants were unjustly enriched.

In reply, the Fagen Defendants dispute that Fagen acquired an equity ownership in the Dunafoldvar Ethanol Facility in exchange for his profit on the construction of that facility, because they assert that he used his own money to acquire the equity share. They argue that Catipovic has never claimed that Fagen, Inc., received the construction contract at Catipovic’s expense, so evidence of the profits of Fagen, Inc., from that contract are irrelevant. They contend that the question is whether Fagen’s equity interest in the Dunafoldvar Ethanol Facility was somehow enhanced by Catipovic’s development efforts, which has nothing to do with the Fagen Defendants’ .profit from construction of the Du-nafoldvar Ethanol Facility.

As the Iowa Supreme Court has explained, “The doctrine of unjust enrichment is based on the principle that a party should not be permitted to be unjustly enriched at the expense of another or receive property or benefits without paying just compensation.” State ex rel. Palmer v. Unisys Corp., 687 N.W.2d 142, 154 (Iowa 2001) (citing Credit Bureau Enters., Inc. v. Pelo, 608 N.W.2d 20, 25 (Iowa 2000)) (emphasis added). To put it a slightly different way, “The theory of unjust enrichment ‘is premised on the idea that it is unfair to allow a person to benefit from another’s services when the other expected compensation.’ ” Waldner v. Carr, 618 F.3d 838, 848 (8th Cir.2010) (quoting State Pub. Defender v. Iowa Dist. Court for Woodbury County, 731 N.W.2d 680, 684 (Iowa 2007)) (emphasis added). To recover for unjust enrichment under Iowa law, the plaintiff must show the following: “(1) the defendant was enriched by the receipt of a benefit; (2) the enrichment was at the expense of the plaintiff; and (3) it is unjust to allow .the defendant to retain the benefit under the circumstances.” State ex rel. Palmer, 637 N.W.2d at 154-55; see also Lakeside Feeders, Inc. v. Producers Livestock Mktg. Ass’n, 666 F.3d 1099, 1112 (8th Cir.2012) (quoting these elements from State ex rel. Palmer, 637 N.W.2d at 154-55). The benefit in question need not “be conferred directly by the plaintiff,” because “[t]he critical inquiry is that the benefit received be at the expense of the plaintiff.” Id. at 155. Nevertheless, the Iowa Court of Appeals has explained that “[d]amages under a claim of unjust enrichment are limited to the value of what was inequitably retained.” Iowa Waste Sys., Inc. v. Buchanan County, 617 N.W.2d 23, 30 (Iowa Ct.App.2000). Consequently, Chief United States Magistrate Judge Jon S. Scoles concluded, in this case, that “damages [for unjust enrichment] depend on the value of services provided, not the defendant’s profitability.” Catipovic v. Turley, 2013 WL 1718061, *6 (N.D.Iowa April 19, 2013) (unpubl.op.) (citing Iowa Waste Sys., Inc., 617 N.W.2d at 30, and holding that records of accounts for Fagen, Inc., into which and out of which money flowed in connection with the construction of the Dunafoldvar Ethanol Facility, were irrelevant to any unjust enrichment claim against the Fagen Defendants).

Under no cognizable theory advanced by Catipovic is evidence of the profits that the Fagen Defendants realized from the construction of the Dunafoldvar Ethanol Facility evidence of “the value of what was inequitably retained” by the Fa-gen Defendants, see Iowa Waste Sys., Inc., 617 N.W.2d at 30, or “the value of services provided” by Catipovic, Catipovic, 2013 WL 1718061 at *6, assuming that the Fa-gen Defendants benefitted from Catipo-vic’s services, but did not compensate him for those services. Waldner, 618 F.3d at 848. Catipovic has not alleged that he provided services related to the actual construction of any ethanol facility; rather, he has alleged that he provided services in the promotion of an ethanol project or projects in Eastern Europe. Like the Fa-gen Defendants, I conclude that, in determining Catipovic’s damages, if any, on his unjust enrichment claim against the Fagen Defendants, the question is the value of what Catipovic allegedly provided (and whether it would be unjust for the defendants to keep it without compensating Ca-tipovie); the Fagen Defendants’ separate profits from constructing the Dunafoldvar Ethanol Facility are simply irrelevant to that question. See Fed.R.Evid. 401 (relevant evidence is evidence that has any tendency to make any fact of consequence more or less probable); Fed.R.Evid. 402 (relevant evidence is generally admissible, but irrelevant evidence is not).

Moreover, even if somehow relevant, I agree with the Fagen Defendants that such evidence is, at the very least, likely to confuse or mislead the jurors, such that it is inadmissible pursuant to Rule 403 of the Federal Rules of Evidence. See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”). Introduction of the evidence of the profits that the Fagen Defendants realized from constructing the Dunafoldvar Ethanol Facility might mislead or confuse the jurors about the nature or the value of the services or benefits that Catipovic provided to the Fagen Defendants, which were not related to the construction of that facility.

The third part of the Fagen Defendants’ Motion In Limine, seeking exclusion of evidence relating to the profits or earnings that any of the Fagen entities received for constructing the Dunafoldvar Ethanol Facility, is granted.

c. Catipovic’s challenge

Catipovic’s challenge to evidence of the profits or financial performance of the Du-nafoldvar Ethanol Facility is based on the alleged failure of the defendants to make proper and timely disclosures. Catipovic argues, in his Reply in support of his Motion In Limine, that the defendants’ belated disclosure of additional information about the Dunafoldvar Ethanol Facility, after the motions in limine deadline, demonstrates the defendants’ “willfulness.” I conclude, however, that those disclosures, and Mr. Ott’s opportunity to provide an amended and supplemented report based upon those additional disclosures, renders this part of Catipovic’s Motion In Limine moot. If the defendants do, indeed, rely at trial on evidence of the profits or financial performance of the Dunafoldvar Ethanol Facility that has never been produced to Catipovic, Catipovic may reassert his motion to exclude such evidence at that time.

Thus, the thirteenth part of Catipovic’s Motion In Limine, seeking exclusion of testimony by any expert or fact witness on behalf of the defendants regarding the financial performance of the Dunafoldvar Ethanol Facility, to the extent that the information is based on financial information or documents not disclosed in the course of discovery, is denied without prejudice to reassertion if such evidence is presented at trial.

3. Unpleaded claims

The fourth category of evidence that defendant Turley seeks to exclude is any reference to unpleaded claims involving alleged fraud or alleged conspiracy of defendant Turley with the Fagen Defendants. Similarly, the ninth category of evidence that the Fagen Defendants seek to exclude is unpleaded claims, including references to a conspiracy or any references to Roland Fagen or any Fagen entity breaching any agreement with Catipovic or Walt Wendland or otherwise circumventing Ca-tipovic.

a. Arguments of the parties

Turley argues that the court has twice denied Catipovic’s requests for leave to amend his Complaint to assert a fraud claim against him. Turley contends that Catipovic has also made allegations that Turley conspired with the Fagen Defendants to defraud Catipovic, but has not pleaded such a claim. Thus, Turley contends that any references to fraud or alle- . gations of conspiracy should be excluded at trial pursuant to Rules 402 and 403, as irrelevant and unfairly prejudicial. Similarly, the Fagen Defendants argue that Catipovic’s “unjust enrichment” claim should not be used to allow evidence of unpleaded claims of fraud and conspiracy, because references to such claims are irrelevant and prejudicially insinuate wrongful conduct not at issue. The Fagen Defendants add that references to any “breach” by them would be irrelevant and prejudicial, where there is no “breach of contract” claim against them.

Catipovic argues that evidence of un-pleaded fraud and conspiracy is relevant to other issues in the case and, therefore, admissible. He contends that “collusion” of the defendants is directly relevant to whether and how the defendants used his services without compensating him, the “course of dealing” among the parties, and how and why he provided his services to the defendants, which is, in turn, relevant to his “unjust enrichment” claim. He contends that, despite denial of his motions to amend, the defendants are on notice of his allegations of fraud and conspiracy. Cati-povic also contends that he will seek, and will be entitled to, amendment of his Complaint to add fraud and conspiracy claims, during or after trial, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. Catipovic argues that he must be allowed to present evidence of fraud and collusion to present a full and complete version of the facts related to the transactions at issue.

In his reply, Turley argues that he does not intend to bar evidence related to claims properly before the jury, but does seek to prohibit Catipovic from directly referencing unpleaded claims of fraud or conspiracy. Turley concedes that eviden-tiary objections regarding relevance of evidence are properly reserved for trial. Similarly, in reply, the Fagen Defendants argue that Catipovic should be barred from stating or implying that they were involved in fraud, a conspiracy, or a breach of agreements.

b. Analysis

In general, I agree with the defendants that allowing evidence of unpleaded claims (or claims that the plaintiff has been denied leave to assert) is unduly prejudicial, because it could allow the jurors to decide the case on the basis of alleged misconduct not properly at issue. See Fed.R.Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”); see, e.g., United States v. Muhlenbruch, 634 F.3d 987, 1001 (8th Cir.2011) (“Whether there was unfair prejudice depends on whether there was an undue tendency to suggest decision on an improper basis.” (internal quotation marks and citations omitted)). Like the defendants, I also recognize that there may be instances in which evidence relevant to pleaded claims might also have supported an unpleaded claim and, in that case, such evidence should generally be admissible. Nevertheless, in this case, I believe that it should be possible for Catipovic to demonstrate fully the actions and interactions of the parties, in support of his pleaded claims, without reference to unpleaded claims of “fraud,” “conspiracy,” “collusion,” or, as to the Fa-gen Defendants, “breach” of any agreement, and that such references would be unduly prejudicial, because they would invite the jurors to decide the case on the basis of alleged misconduct not properly at issue. Id.

Thus, part four of defendant Turley’s Motion In Limine and part nine of the Fagen Defendants’ Motion In Limine are granted to the extent that Catipovic is not allowed to refer to “fraud,” “conspiracy,” “collusion,” or, as to the Fagen Defendants, “breach” of any agreement, or similar characterizations. The relevance and admissibility of any particular evidence of the conduct and relationship of the parties must be determined at trial.

4. Undisclosed damages

The fifth category of evidence that defendant Turley seeks to exclude is any evidence or testimony related to any damages not disclosed by Catipovic in his Answers to Interrogatories or Initial Disclosures, on the ground that such evidence is barred by Rules 26 and 37(c) of the Federal Rules of Civil Procedure. Similarly, the second category of evidence that the Fa-gen Defendants seek to exclude is reference to finder’s fees or other measures of damages not identified by Catipovic in discovery responses or Initial Disclosures.

a. Arguments of the parties

Turley argues that Catipovic has failed to supplement his responses to Turley’s discovery requests or his Initial Disclosures related to damages. Accordingly, Turley argues that Catipovic should be barred from introducing any evidence or testimony related to damages that he has not previously disclosed pursuant to Rules 26(a)(1) and 37(c)(1) of the Federal Rules of Civil Procedure. Similarly, the Fagen Defendants argue that Catipovic has never claimed a finder’s fee as part of his damages or provided evidence to support the valuation of a finder’s fee. The Fagen Defendants point out that Catipovic has provided only Mr. Ott’s conclusory opinion that the value of Catipovic’s services was $2 million. The Fagen Defendants also argue that Catipovic should be barred, pursuant to Rules 26(a)(1) and 37(c)(1), from introducing any evidence or testimony related to calculations or theories of damages that he has not previously disclosed.

In response, Catipovic argues that he was hampered by the defendants’ refusals to respond and undue delays in responding adequately to his own discovery requests concerning, inter alia, the performance and profits of the Dunafoldvar Ethanol Facility. He argues that the defendants cannot refuse to produce financial information until ordered to do so and then be heard to complain when his expert witness lacked the necessary detail until just a few days before his responses to the Motions In Limine were filed to use actual numbers in his damages calculations.

In reply, the Fagen Defendants point out that, even after amending and supplementing his expert report, Mr. Ott still has made no reference to finder’s fees. Thus, they reiterate their contention that any reference to “finder’s fees” or other damages not properly identified must be excluded.

b. Analysis

When a party fails to provide information in compliance with Rule 26(a), the court “may exclude the information or testimony as a self-executing sanction unless the party’s failure to comply is substantially justified or harmless.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir.2008); see also Fed.R.Civ.P. 37(c)(1). In making its determination of whether or not failure to make timely disclosures is justified or harmless, the court should consider, among other things, “the reason for noncompliance, the surprise and prejudice to the opposing party,” the nature of the testimony, and the severity of the sanction. Id. “ ‘[T]he exclusion of evidence is a harsh penalty and should be used sparingly.’ ” Id. (quoting ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc., 53 F.3d 186, 190 (8th Cir.1995)).

Here, Catipovic has made at least a facially persuasive explanation for his alleged non-compliance with his duty to supplement sooner his damages disclosures, as well as a facially persuasive argument that the defendants will not be surprised or prejudiced by such evidence. Specifically, he contends, and the record reasonably supports, that the defendants were dragging their feet in responding to his pertinent discovery requests. See id. Furthermore, much as I explained, above, with regard to challenges to Mr. Ott’s opinions, I need not lay blame for the belated appearance of “new” damages opinions in Mr. Ott’s amended and supplemented report nor consider whether the amended and supplemented report is “untimely,” based on the timeliness or untimeliness of relevant disclosures by the defendants. The trial has now been continued for several months, and the parties will have an adequate opportunity to redepose Mr. Ott or otherwise to assess his “new” damages opinions sufficiently in advance of trial. Also, if Catipovic has not already done so, Catipovic must now promptly supplement his disclosures concerning calculations and theories of damages, so that the parties have time to explore those calculations and theories prior to trial.

Thus, part five of defendant Turley’s Motion In Limine and part two of the Fagen Defendants’ Motion In Limine are denied, without prejudice to reassertion if Catipovic makes no additional disclosures concerning calculations and theories of damages not already disclosed or offers at trial calculations or theories of damages not properly disclosed.

5. Relative wealth

The sixth category of evidence that defendant Turley seeks to exclude is any evidence or testimony regarding the relative wealth of the parties or defendant Turley’s personal wealth, pursuant to Rules 401, 402, and 403, on the ground that such evidence is irrelevant and unduly prejudicial. Similarly, the fourth category of evidence that the Fagen Defendants seek to exclude is Roland Fagen’s personal financial statements under Rules 402 and 403, and the fifth category of evidence- that they seek to exclude is the relative wealth of the parties or the financial status of Roland Fagen or Fagen, Inc., also pursuant to Rules 402 and 403. In a similar vein, the twelfth category of evidence that plaintiff Catipovic seeks to exclude is evidence of his financial condition, including information and documents relating to his financial statements and income tax returns.

a. Arguments of the parties

Turley argues that injecting a defendant’s wealth into the consideration of liability and the award of compensatory damages violates fundamental fairness, as well as common law safeguards, and invites a windfall to the plaintiff. Furthermore, Turley argues that Catipovic has, in the past, made inaccurate and derogatory references to Turley’s (and Roland Fagen’s) personal wealth. Turley argues that such evidence and derogatory references will distract the jurors from matters properly at issue. Similarly, the Fagen Defendants argue that Roland Fagen’s personal finances are not relevant to the value of Catipovic’s alleged contributions to the ethanol project or any other issue in the case. They argue, further, that any probative value that such evidence may have is outweighed by unfair prejudice, because of the number of other unnamed and unrelated ethanol enterprises in which Roland Fagen has an interest.

In response to these parts of the defendants’ Motions In Limine, Catipovic argues that Turley’s financial condition is relevant to explain the relationship of the parties and the terms of their agreement. Somewhat more specifically, Catipovic argues that any testimony and evidence submitted regarding Turley’s role as an investor will necessarily involve testimony and evidence regarding his financial condition. Catipovic also argues, that Turley’s and Roland Fagen’s financial condition is relevant to show the degree of influence and control that they possessed in negotiating with Catipovic, Wendland, and each other. He also contends that Roland Fagen’s financial statements may be admissible to show the value of Roland Fagen’s stake in the Dunafoldvar Ethanol Facility and that it may be' used to' cross-examine Roland Fagen, if Fagen downplays the profitability of the Dunafoldvar Ethanol Facility. Catipovic also argues that Turley’s financial condition will be relevant, if Catipovic is allowed to amend his Complaint in the course of trial to assert fraud claims on which punitive damages are available. Ca-tipovic contends that any potential prejudice can be addressed by a limiting instruction. In support of the pertinent part .of his own Motion In Limine seeking to exclude evidence of his own financial condition, however, Catipovic contends, baldly, that such evidence has no relevance here and would be potentially confusing and prejudicial.

In reply in further support of the pertinent part of his Motion In Limine, Turley argues that, even if somehow relevant to show bargaining power, evidence of his financial condition is more prejudicial than probative. Turley also points out that no claim supporting punitive damages, to which his'financial condition might be relevant, is currently before the court. The Fagen Defendants essentially echo these arguments in their Reply. In response to the part of Catipovic’s Motion In Limine concerning his own financial condition, the Fagen Defendants agree to exclusion of such evidence, but only if evidence of Roland Fagen’s financial condition is also excluded, and Turley simply joins in the Fa-gen Defendants’ response.

b. Analysis

Although a defendant’s financial condition or wealth is relevant to punitive damages on claims under Iowa law, see, e.g., McClure v. Walgreen Co., 613 N.W.2d 225, 233 (Iowa 2000), there are no claims under Iowa' law currently in this lawsuit on which punitive damages are available. Catipovic’s assertion that he might succeed in getting claims on which punitive damages are available into this lawsuit by amendment during trial is too farfetched a basis for allowing evidence of the defendants’ financial condition or wealth, where his prior attempts to amend his Complaint to assert such claims have been denied.

Similarly, although the parties’ relative bargaining power may be relevant to determination of whether or not a contract’s terms are unconscionable under Iowa law, see, e.g., C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65, 80-81 (Iowa 2011), Catipovic has not asserted that the purported agreement among the parties for development of ethanol plants in Eastern Europe was, in some respect, unconscionable. I am not persuaded that a party’s financial condition, wealth, or bargaining power is somehow relevant more generally to determining the terms of a contract. Rather, such evidence might invite jurors to decide the claims in this ease on the improper basis of the parties’ relative wealth, rather than on the basis of proof of the specific claims. Thus, such evidence appears to me to be more prejudicial than probative and excludable under Rule 403. See, e.g., Muhlenbruch, 634 F.3d at 1001 (“Whether there was unfair prejudice depends on whether there was an undue tendency to suggest decision on an improper basis.” (internal quotation marks and citations omitted)). Certainly, characterizations of any party as a “billionaire,” “Wall Street type,” “flush with cash,” or “the King of Corn” are of little or no probative value whatsoever, and are laden with potential for prejudice or misleading the jurors, such that they will not be admissible. Id. Moreover, such characterizations are opinions masquerading as “reputation” evidence and do not even reach the dignity of evidence of character or character for truthfulness or untruthfulness, which would be of doubtful admissibility, even if it were offered. See Fed.R.Evid. 404(a); Fed.R.Evid. 608.

Furthermore, Catipovic’s arguments notwithstanding, evidence of the parties’ wealth, relative wealth, or financial condition is not necessary to demonstrate the roles and relationships of the parties in the purported scheme to develop ethanol plants in Eastern Europe. Specific evidence about the parties’ roles — what they did to invest in or promote the project or specifics about the amount of their investments in the project in question — is what is probative and not unduly prejudicial. See Fed.R.Evid. 402, 403.

Thus, the parts of the parties’ Motions In Limine seeking to exclude evidence of their wealth, relative wealth, or financial condition are granted. Only if circumstances that are not yet foreseen present themselves to “open the door” to such evidence at trial will such evidence be potentially admissible.

6. Settlement negotiations

The seventh category of evidence that defendant Turley seeks to exclude is any evidence or testimony related to pre-trial settlement discussions or offers to compromise, on the ground that such evidence is precluded by Rule 408. Similarly, the sixth category of evidence that the Fagen Defendants seek to exclude is settlement discussions between the parties, also pursuant to Rule 408. Joining the consensus, the second category of evidence that plaintiff Catipovic seeks to exclude is any attempts or efforts by him to settle or any settlement discussions or negotiations he entered into, or any conduct by him during such negotiations. The only caveats to the apparent agreement of the parties that no such evidence should be admitted is Cati-povic’s resistance to exclusion of the next category of evidence, Turley’s October 2012 letter to Wendland, and Catipovic’s resistance to exclusion of evidence that Roland Fagen allegedly offered to pay money to Wendland, to the extent that such evidence might fall within the category of “settlement” evidence. Leaving those caveats for separate discussion, I agree with the parties that Rule 408 of the Federal Rules of Evidence generally bars such evidence and that no exception has been asserted here. Indeed, I question the need for any motion to exclude such evidence, unless there are indications that a party does intend to rely on an exception to exclusion in Rule 408(b) and the applicability of the exception is disputed.

These parts of the parties’ Motions In Limine are granted.

7. Turley’s October 2012 letter to Wendland

The eighth category of evidence that defendant Turley seeks to exclude is any evidence regarding correspondence between Walt Wendland and Mark Turley, consisting of a letter attached to an e-mail dated October 24, 2012, which Turley argues is improper character evidence under Rules 404 and 608, and irrelevant and unduly prejudicial under Rules 401, 402, and 403. Similarly, the seventh category of evidence that the Fagen Defendants seek to exclude is the same letter from Mark Turley to Walt Wendland attached to an email dated October 24, 2012, also under Rules 402 and 403.

a. Arguments of the parties

Turley contends that Catipovic has characterized the October 24, 2012, letter from Turley to Wendland as a “threat” to Wendland if he supported Catipovic’s claims. Turley contends that evidence of this letter is not relevant to any material issue and is unfairly prejudicial, confusing, misleading, or time-wasting, although he does not explain how. Turley also contends that such evidence is improper character evidence that should be excluded pursuant to Rules 404 and 608, because that evidence should not be used to attack Turley’s character for truthfulness. The Fagen Defendants also argue that the letter should be excluded, because it is unduly prejudicial and improper as character evidence, especially as to them, because Roland Fagen did not author or authorize the letter.

In response, Catipovic does characterize the letter as a “threat” to Wendland and as an “ultimatum” to Wendland to choose sides. Catipovic argues that the letter is admissible evidence that Turley attempted to influence or suppress a witness, that is, Wendland, or as evidence of Turley’s consciousness of the weakness of his case. Catipovic argues that it is unfair for a defendant to act in this fashion, then attempt to exclude evidence of such “antics” from jurors, who must make credibility determinations. He also contends that the effect of the defendants’ “threats” is apparent from their reliance, at summary judgment, on Wendland’s deposition testimony that Catipovic made only a limited contribution to the ethanol project. Cati-povic contends that it would be extremely prejudicial and fundamentally unfair to him to allow the defendants to rely on Wendland’s favorable testimony without the jury knowing that the defendants threatened Wendland with scorched earth litigation if he did not cooperate to put an end to Catipovic’s litigation. Catipovic also points out that the letter was not produced by the defendants, even though it was clearly responsive to discovery requests, but only came into his possession from Wendland.

In reply, Turley points out that, in the ease on which Catipovic relies, the Eighth Circuit Court of Appeals actually affirmed the district court’s exclusion of evidence of alleged witness tampering. Turley and the Fagen Defendants both argue that, at the time of the letter, Wendland had not been identified as a witness, and, while Turley admits that the letter is “perhaps poorly worded,” it did not rise to the level of a “threat” constituting witness tampering. Turley also contends that the only reason that Catipovic has for offering the letter, is to attempt to poison the jury’s perception of Turley. The Fagen Defendants reiterate that the potential for prejudice to them from admission of the letter is particularly high, because they were not involved in its writing and did not authorize it.

b. Analysis

First, I must put in' context the parties’ arguments about whether or not Turley engaged in “witness tampering,” before deciding whether such evidence should be admissible. On October 24, 2012, well after this lawsuit was filed on December 29, 2011, and long after Wend-land’s knowledge of and involvement — indeed, a central player — in pertinent incidents should have been apparent to the parties, even if Wendland had not been specifically identified as a “witness,” Turley sent Wendland an e-mail with a letter attached. The e-mail asked Wendland to “see [the] enclosed note from [Turley]” and added, “I will be with Ron in the morning and I will give you a call to see which way you want to go.” Turley’s Motion In Limine, Exhibit F, WW007526.

The attached letter, in its entirety, ran as follows: •

Dear Walt,

It was good to catch up with you yesterday and remember the better side of our efforts in Croatia. In fact, we both have enjoyed, over the years, your company and insights, and it is disappointing that Branimir has strained our relationship over the years.

As a result of Branimir’s lawsuit and discovery requests, we have had to spend a not-insignificant sum over the past six months on lawyers and have had to devote lots of time to what we all know is a frivolous lawsuit. We have not yet hit back against Branimir, but our patience is running out.

Your name is all over the lawsuit, as Branimir’s partner. The best way for us to go on the offensive is to sue Brani-mir for fraudulent inducement; at the time the “contract” he claims came into force, Branimir knew that a lot of the things he was saying were not true. There was no contract with Fagen; there wasn’t even any agreement with Fagen. The land had not been secured, etc. etc. When we make that claim against Branimir, we will have to make that claim against you also, and you will thus also be a party to the lawsuit, with all the costs and frustrations that result. We will then launch exactly the same kind of discovery requests and interrogatories against you and Branimir that Branimir has launched against us. As we are answering Branimir’s questions, you and Branimir will have no ability to resist the scope of questions we will ask. Over the course of two months, you will have to work with your lawyers to assemble all the responses, and in those responses will be more than enough evidence to destroy Branimir in court. Perhaps there will be enough evidence to allow us to prevail on our fraudulent inducement claim and collect damages, not just from Branimir, but from you also. And if you or Branimir try to hold back incriminating, documentation, it is not unlikely that we will get that documentation from Croatia, ICM, CHS, etc., and then you may face court sanctions as well.

It is not in our interests to cause you any frustrations, Walt, but we need to protect ourselves, and, naturally, recoup the expenses that Branimir has generated. If that means exposing you to the same kind of pain that Branimir is causing for us, then we will not hesitate. Ron fully endorses the contents of this letter.

Walt, you always could and can end this charade. We will not hide that we are disappointed that you did [not (?) ] come forward to end this right away. So, our question to you now is whether you will assist us to end this farce or whether we will need to drag you forcefully into this la