DOCS_NY:46257.6 36027/003

DOCS_LA:351754.10 36027/003

PACHULSKI STANG ZIEHL & JONES LLP

Jeffrey N. Pomerantz (CA Bar No.143717) (admitted pro hac vice)

John A. Morris (NY Bar No. 2405397) (admitted pro hac vice)

Gregory V. Demo (NY Bar No. 5371992) (admitted pro hac vice)

Hayley R. Winograd (NY Bar No. 5612569) (admitted pro hac vice)

10100 Santa Monica Blvd., 13th Floor

Los Angeles, CA 90067

Telephone: (310) 277-6910/Facsimile: (310) 201-0760

HAYWARD PLLC

Melissa S. Hayward

Texas Bar No. 24044908

MHayward@HaywardFirm.com

Zachery Z. Annable

Texas Bar No. 24053075

ZAnnable@HaywardFirm.com

10501 N. Central Expy, Ste. 106

Dallas, Texas 75231

Tel: (972) 755-7100/Fax: (972) 755-7110

Counsel for Highland Capital Management, L.P.

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

In re:

HIGHLAND SELECT EQUITY MASTER FUND, 

L.P.,1

Debtor.

)

)

)

)

)

)

)

Chapter 7

Case No. 23-31037-swe7

In re:

HIGHLAND SELECT EQUITY FUND GP, L.P.,2

Debtor.

)

)

)

)

)

)

)

Chapter 7

Case No. 23-31039-mv17

1

 The Debtor’s last four digits of its taxpayer identification number are (0466). The headquarters and service address 

for the Debtor is 100 Crescent Court, Suite 1850, Dallas, TX 75201.

2

 The Debtor’s last four digits of its taxpayer identification number are (9917). The headquarters and service address 

for the Debtor is 100 Crescent Court, Suite 1850, Dallas, TX 75201.

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EMERGENCY MOTION IN LIMINE OF HIGHLAND CAPITAL MANAGEMENT, L.P. 

TO (I) EXCLUDE RECUSAL EVIDENCE AND ARGUMENT IN CONNECTION WITH 

DEBTORS’ MOTION TO TRANSFER CASE TO DALLAS DIVISIONAL OFFICE, OR

(II) IN THE ALTERNATIVE, ADJOURN HEARING

Highland Capital Management, L.P. (“Highland”), a party-in-interest in these cases, 

pursuant to Rules 401, 402, and 403 of the Federal Rules of Evidence, made applicable to his 

proceeding through Rule 9017 of the Federal Rules of Bankruptcy Procedure, hereby files this 

emergency motion in limine (the “Motion In Limine”) to exclude evidence offered by The 

Dugaboy Investment Trust (“Dugaboy”) in opposition to the motions of Debtors Highland Select 

Equity Master Fund, L.P. (“Select Master”) and Highland Select Equity Fund GP, L.P. (“Select 

GP” and together with Select Master, the Select Debtors”) to transfer or reassign their respective, 

above-captioned cases (the “Select Cases”) to Judge Jernigan [Docket No. 9/9]3 (the “Motion to 

Transfer”) as it relates to the alleged bias and/or recusal of Judge Jernigan, (a) which is contained 

in the following pleadings: (1) Creditor The Dugaboy Investment Trust’s Objection to Debtor’s 

Motion to Transfer/Reassign Case [Docket No. 17/20] (the “Objection”); (2) Appendix in Support 

of Creditor The Dugaboy Investment Trust’s Objection to Debtor’s Motion to Transfer/Reassign 

Case [Docket No. 20/22] (the “Appendix”); and (3) Witness and Exhibit List filed by Creditor The 

Dugaboy Investment Trust [Docket No. 32/32] (the “W&E List”, and collectively, the 

“Pleadings”), and (b) for which Dugaboy seeks to call Professor Steve Leben as a purported expert 

witness at the hearing on the Motion to Transfer (the “Hearing”). 

Alternatively, if the Motion In Limine is denied, Highland respectfully requests for the 

reasons set forth below that the Hearing be continued to October 30, 2023, or such later date as 

3 References to “Docket No. __/__” refer first to the docket maintained in the Select Master bankruptcy case and then 

to the docket maintained in the Select GP bankruptcy case.

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this Court is available (the “Alternative Motion” and together with the Motion In Limine, the 

“Motions”). 

In support of these Motions, Highland states as follows: 

I. PRELIMINARY STATEMENT4

1. There is no dispute that (a) Highland was the manager of each of the Select Debtors 

before the Select Cases were commenced; (b) Judge Jernigan has presided over Highland’s own 

bankruptcy case since December 2019; (c) Highland’s Bankruptcy Case and the Select Cases are 

related; (d) Highland and Dugaboy (Mr. Dondero’s “family trust”) are the Select Debtors’ only

material creditors; (e) in Highland’s Bankruptcy Case, Dugaboy waived, with prejudice, all claims 

against Highland concerning the Select Debtors; (f) the Select Trustee would be required to seek 

Judge Jernigan’s approval under the Gatekeeper Provision adopted in Highland’s confirmed Plan

before pursuing or commencing an action against Highland; (g) the Select Debtors’ estates have 

an aggregate value of less than $700,000; and (h) Mr. Dondero (and/or entities he controls) has 

previously filed four (4) recusal motions, all of which have been denied, although one remains 

subject to a Mandamus Petition pending in the District Court.

2. Ignoring these indisputable facts, Dugaboy seeks to turn these Cases into additional 

fora to launch further attacks on Judge Jernigan. Specifically, under the guise of opposing the 

Motion to Transfer, Dugaboy asks these Courts to find that Judge Jernigan is “biased” against it 

(and Mr. Dondero) and (effectively) recuse her from hearing the Select Cases on that basis. In 

support of its Objection, Dugaboy seeks to introduce hundreds of pages of Proposed Recusal 

Evidence, including the briefs supporting the prior Recusal Motions and a purported expert report. 

4 All capitalized terms used but not defined in this Preliminary Statement have the meanings given to them below.

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3. Dugaboy’s attempt to introduce the Proposed Recusal Evidence and obtain orders 

from these Courts that Judge Jernigan is “biased” is improper for the following independent 

reasons:

• Issues of alleged “bias” are not among the factors courts consider in determining motions 

to transfer or reassign and therefore the Proposed Recusal Evidence is irrelevant and 

inadmissible;

• Under Bankruptcy Rule 5004, only Judge Jernigan can disqualify herself in a “proceeding 

in which [her] impartiality might reasonably be questioned” and therefore the Proposed 

Recusal Evidence is irrelevant and inadmissible;

• Dugaboy’s Objection is a procedurally improper collateral attack on numerous court 

orders, one of which is currently the subject of the Mandamus Petition; and

• Even if the Proposed Recusal Evidence were relevant (and it is not), it should be excluded 

on the ground that it would be a waste of estate, judicial, and party resources to conduct a

fact-intensive, in-person evidentiary hearing concerning matters that have already been 

litigated, particularly with estates of such relatively modest value.

4. For these reasons, Dugaboy’s request to have these Courts find that Judge Jernigan 

is “biased” and effectively recuse her from hearing the Select Cases is legally and procedurally 

improper and the Motion In Limine should be granted. 

5. Alternatively, if the Motion In Limine is denied, Highland respectfully requests that 

the Hearing be adjourned to October 30, 2023, or such day thereafter as counsel may be heard 

because (a) Highland’s litigation counsel is unavailable to conduct an in-person evidentiary 

hearing on October 20, and (b) no one will be prejudiced since there is no motion or other matter 

pending in either of the Select Cases that needs to be decided during the proposed adjournment 

period.

II. JURISDICTION AND VENUE

6. The Courts have jurisdiction over the Motions pursuant to 28 U.S.C. §§ 157 and 

1334(b). The Motions are core proceedings pursuant to 28 U.S.C. § 157(b)(2). 

7. Venue is proper in this district pursuant to 28 U.S.C. §§ 1408 and 1409. 

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8. The predicates for the relief requested in the Motions are sections 105(a) of title 11 

of the United States Code (the “Bankruptcy Code”), Rules 401, 402, and 403 of the Federal Rules 

of Evidence (the “Evidence Rules”), and Rule 9017 of the Federal Rules of Bankruptcy Procedure 

(the “Bankruptcy Rules”).

III. RELEVANT BACKGROUND

A. The Highland Bankruptcy Case

9. On October 16, 2019, Highland filed a voluntary petition for relief under chapter 

11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of 

Delaware (the “Highland Bankruptcy Case”). Case No. 19-34054-sgj11 (Bankr. N.D. Tex.). 

10. In December 2019, a motion to transfer venue was granted and the Highland 

Bankruptcy Case was transferred from Delaware to this district and assigned to Judge Jernigan. 

Judge Jernigan has presided over the Highland Bankruptcy Case since December 2019. 

11. In February 2021, Judge Jernigan entered that certain Order (i) Confirming the Fifth 

Amended Plan of Reorganization of Highland Capital Management, L.P. (as Modified) and (ii) 

Granting Related Relief [Highland Bankr. Docket No. 1943], which confirmed the Fifth Amended 

Plan of Reorganization of Highland Capital Management, L.P. (as Modified) [Highland Bankr. 

Docket No. 1808] (the “Plan”).

12. Between March 2021 and February 2023, Dugaboy and other Dondero-controlled

entities5 (collectively, the “Recusal Movants”) filed four (4) recusal motions (collectively, the 

“Recusal Motions”)6 seeking to disqualify Judge Jernigan from the Highland Bankruptcy Case on 

5 The parties seeking recusal included Mr. Dondero, Highland Capital Management Fund Advisors, L.P., NexPoint 

Advisors, L.P., The Dugaboy Investment Trust, The Get Good Trust, and NexPoint Real Estate Partners, LLC, f/k/a 

HCRE Partners, LLC, all of which are directly or indirectly owned and/or controlled by Mr. Dondero.

6 See Highland Bankr. Docket Nos. 2060, 2061, 2062 (the “First Recusal Motion); 3406, 3470 (the “Second Recusal 

Motion”); and 3541, 3542, 3570, 3571 (the “Third Recusal Motion”); Adv. Proc. No. 21-03076-sgj, Docket Nos. 309, 

315, 318 (the “Fourth Recusal Motion”). 

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the purported ground that she was “biased” against them. Three of the Recusal Motions were 

denied (collectively, the “Recusal Orders”),7 and the Fourth Recusal Motion has been stayed.8

13. On April 4, 2023, the Recusal Movants filed a petition for a writ of mandamus (the 

“Initial Mandamus Petition”) in the U.S. District Court for the Northern District of Texas (the 

“District Court”) with respect to the Third Recusal Order, but Judge Kinkeade (a) took the 

extraordinary step of “unfiling” the Initial Mandamus Petition as procedurally improper, and (b)

directing the Recusal Movants to “initiate a new action” if they wanted to seek a writ from the 

District Court.

9

14. The next day, the Recusal Movants initiated a new action and filed another petition 

for writ of mandamus in the District Court [Case No. 3:23-cv-00726-S, Docket No. 1] (the 

“Mandamus Petition”), this one spanning 3,625 pages, again seeking an order directing Judge 

Jernigan to recuse herself from presiding over the Highland Bankruptcy Case. The Mandamus

Petition remains pending before Judge Scholer. 

B. The Select Chapter 7 Cases

15. On May 25, 2023, each of the Select Debtors commenced a case under chapter 7 of 

the Bankruptcy Court in the United States Bankruptcy Court for the Northern District of Texas. 

Select Master’s case was assigned to Judge Scott W. Everett, and Select GP’s case was assigned 

to Judge Michelle V. Larson. Scott Seidel was appointed the chapter 7 trustee (the “Select 

Trustee”) in each of the Select Cases.

7 See Highland Bankr. Docket Nos. 2083 (the “First Recusal Order”); 3479 (the “Second Recusal Order”); and 3676 

(the “Third Recusal Order,” and together with the First Recusal Order and Second Recusal Order, the “Recusal 

Orders”); see also In re Highland Cap. Mgmt., L.P., Case No. 19-30454-sgj11, Docket No. 2803 (Bankr. N.D. Tex. 

Mar. 22, 2021); In re Highland Cap. Mgmt., L.P., 2023 Bankr. LEXIS 579 (Bankr. N.D. Tex. Mar. 5, 2023). 

8 See Order entered in Adv. Proc. No. 21-03076-sgj at Docket No. 338 ¶2.

9 Civ. Action No. 3:21-cv-00879-K, Docket Nos. 41, 42 (N.D. Tex. Apr. 5, 2023). 

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C. The Transfer Motion and Dugaboy’s Objection

16. On June 12, 2023, the Select Debtors filed the Motion to Transfer seeking to 

transfer the Select Cases to Judge Jernigan. 

17. On July 10, 2023, Dugaboy filed its Objection contending, among other things, the

Select Debtors filed the Motion to Transfer to “take advantage” of Judge Jernigan’s alleged 

“animus towards Dugaboy and Mr. Dondero.” Objection at 1.

18. In support of its Objection, Dugaboy attached hundreds of pages of documents 

alleging Judge Jernigan’s “bias,” including (a) the Recusal Movants’ briefs filed in support of their 

Recusal Motions, and (b) a purported expert report in which Dugaboy’s proposed witness

(Professor Leben) opines that Judge Jernigan should be recused (see Appendix at Docket No. 

20/22) (collectively, the “Proposed Recusal Evidence”). Dugaboy seeks to introduce into the 

record all of the Proposed Recusal Evidence and call Professor Leben to testify, at the Hearing on 

the Motion to Transfer (see W&E List at Docket No. 32/32).

19. On July 10, 2023, the Select Trustee filed his response to the Transfer Motion and 

took no position on the outcome. [Docket No. 21/19].

20. On July 14, 2023, Highland filed joinders to the Motion to Transfer [Docket No. 

26/27] (collectively, the “Highland Joinders”).

21. Dugaboy is the only party-in-interest opposing the Transfer Motion.

IV. ARGUMENT

A. Legal Standard

22. Motions in limine allow a trial court to make pretrial rulings on the admissibility 

and relevance of evidence. Wechsler v. Hunt Health Sys., Ltd., 381 F. Supp. 2d 135, 140 (S.D.N.Y. 

2003) (citing Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (“Although the Federal Rules of 

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Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the 

district court’s inherent authority to manage the course of trials”) (citing FED. R. EVID. 103(c)). 

23. Rule 103(c) of the Federal Rules of Evidence states as follows:

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may 

make any statement about the character or form of the evidence, the objection made, 

and the ruling. The court may direct that an offer of proof be made in question-andanswer form. 

FED. R. EVID. 103(c). 

24. Evidence Rule 401 provides that evidence is “relevant” only if it, among other 

things, concerns an alleged fact that “is of consequence in determining the action.” Evidence Rule 

402 provides that irrelevant evidence is not admissible. And Evidence Rule 403 provides that 

courts 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.” Fed. R. Evid. 403.

25. Here, the Proposed Recusal Evidence is irrelevant to the Transfer Motion. Even if 

the Proposed Recusal Evidence was relevant (which it is not), the Court should exclude it.

B. The Proposed Recusal Evidence Is Irrelevant; “Bias” Is Not a Factor Considered on 

a Motion to Transfer

26. Under applicable case law, courts “have the inherent power to transfer cases from 

one to another for the expeditious administration of justice.” U.S. v. Stones, 411 F.3d 597, 598-99 

(5th Cir. 1969); see also Cook v. City of Dallas, 683 F. App’x 315, 322-23 (5th Cir. 2017).

27. In deciding whether to transfer or re-assign cases, courts in this circuit have 

considered factors such efficiency and the need for consistent results. See Save Power Ltd. v Syntek

Fin. Corp., 121 F.3d 947, 950 (5th Cir 1997) (“The federal courts long have recognized that the 

principle of comity requires federal district courts—courts of coordinate jurisdiction and equal 

rank—to exercise care to avoid interference with each other's affairs,” noting “[t]he concern 

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manifestly is to avoid the waste of duplication, to avoid rulings which may trench upon the 

authority of sister courts, and to avoid piecemeal resolution of issues that call for a uniform result.”)

(internal quotations omitted). “This concern applies where related cases are pending before two 

judges in the same district, as is the case here, as well as where related cases have been filed in 

different districts.” Id.; see also Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 

1148, 1161 n. 28 (5th Cir.1992) (“The same concern with avoiding duplicative litigation is present 

where similar suits have been filed in two courts within the same district.”), cert. denied, 506 U.S. 

1079, 113 S.Ct. 1046, 122 L.Ed.2d 355 (1993).

10 

28. While the most important factors applicable here are efficiency and consistent 

results, Highland is unaware of any case where the purportedly perceived “bias” or “prejudice” of 

the judge is a factor to be considered. And that makes sense. Except for appeals, judges don’t 

generally judge other judges, but that does not leave Dugaboy without a remedy. If the Transfer 

Motion is granted (as it should be), Dugaboy can move to recuse Judge Jernigan in accordance 

with applicable rules (see below).

29. Because Judge Jernigan’s alleged “bias” is not a fact “of consequence in 

determining the” Transfer Motion, the Proposed Recusal Evidence is irrelevant under Evidence 

Rule 401(b)) and inadmissible under Evidence Rule 402. 

10 Dugaboy’s current suggestion that cases cannot be re-assigned among judges within the same district is contradicted 

by its own conduct; Dugaboy previously sought and obtained similar relief. See, e.g., Defendants’ Memorandum of 

Law In Support of Their Motion to Consolidate the Notes Cases, Case No. 3:21-cv-01010-E, Docket No. 14 (motion 

to have four related actions re-assigned and consolidated before Judge Starr on the ground that two of the cases were 

already pending before Judge Starr such that consolidation would promote “judicial economy”); Order Granting 

Defendant’s Motion to Consolidate The Notes Cases, Case No. 3:21-cv-01010-X, Docket No. 27 (overriding “typical 

procedure” and reassigning and consolidating various related cases on the ground of “judicial efficiency”).

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C. The Proposed Recusal Evidence Is Irrelevant Because These Courts Have No 

Authority to Disqualify Judge Jernigan

30. Dugaboy’s attempt to have these Courts admit and consider the Proposed Recusal 

Evidence and adjudicate whether Judge Jernigan is “biased” is prohibited as a matter of law. 

Matters of recusal are governed by 28 U.S.C. § 455 (“Section 455”), made applicable by 

Bankruptcy Rule 5004. Section 455 provides that only the judge whose “impartiality might 

reasonable be questioned” can initially determine whether disqualification is required. See U.S. v. 

Studley, 783 F.2d 934, 940 (9th Cir. 1986) (only “the challenged judge [themselves] should rule 

on the legal sufficiency of a recusal motion in the first instance”); In re Bernard, 31 F.3d 842, 843 

(9th Cir. 1994) (“Section 455 clearly contemplates that decisions with respect to disqualification 

should be made by the judge sitting in the case, and not by another judge”) (internal quotations 

omitted); see also United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999) (same).

31. Dugaboy cannot evade Section 455 while seeking the same substantive relief (i.e., 

Judge Jernigan’s “recusal”) under the guise of an objection to the Transfer Motion. Section 455 

provides that only Judge Jernigan can determine in the first instance (as opposed to appeals) 

whether disqualification is required. Since these Courts lack the statutory authority to determine 

Judge Jernigan’s alleged “bias,” Dugaboy’s Proposed Recusal Evidence (including the purported 

expert evidence) is irrelevant and inadmissible for any purpose.

D. Dugaboy’s Attempt to Relitigate the Recusal Motions in this Court Is an Improper 

Collateral Attack

32. As set forth above, the Recusal Movants, including Dugaboy, have filed four (4) 

Recusal Motions alleging that Judge Jernigan is “biased” against them. Three of the Recusal 

Motions have been denied and one has been stayed. Notably, the District Court has jurisdiction 

over the Third Recusal Order because it is the subject of the pending Mandamus Petition.

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33. Although the Recusal Orders are non-final, interlocutory orders, they still bind the

Recusal Movants. If Dugaboy wishes to overturn the Third Recusal Order, it should focus on its 

own pending Mandamus Petition. Alternatively, Dugaboy could file a new motion under Section 

455 after the Select Cases are reassigned and transferred to Judge Jernigan.

34. Dugaboy’s collateral attack on the Recusal Orders is improper—particularly since 

the Third Recusal Order is the subject of the Mandamus Petition pending in the District Court. 

These Courts should decline Dugaboy’s invitation to wade into matters that (a) have already been 

determined, (b) are the subject of litigation currently pending in the District Court, and (c) can be 

raised by Dugaboy in a procedurally proper manner.

E. Excluding the Proposed Recusal Evidence Preserves Estate, Judicial, and Party 

Resources

35. As set forth above, the Proposed Recusal Evidence has already been considered by 

Judge Jernigan. Allowing Dugaboy to introduce the Proposed Recusal Evidence into evidence 

and relitigate fact issues previously decided would be a waste of judicial, estate and party

resources. Dugaboy litigated the Recusal Motions and lost. Dugaboy should not be allowed to 

force the parties to these Select Cases and the Courts to expend their time and resources relitigating such matters, especially where, as here, Dugaboy has waived (with prejudice) all claims 

against Highland concerning the Select Debtors; there is relatively little at stake, and there is no 

dispute that any pursuit or commencement of claims against Highland will require Judge 

Jernigan’s prior approval. 

F. In the Alternative, Highland Requests Adjournment of the Hearing

36. If the Motion In Limine is denied, Highland respectfully requests that the Hearing 

be adjourned to October 30, 2023 or such later date as counsel may be heard, on the ground that

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Highland’s litigation counsel has a time-sensitive, evidentiary hearing in another matter in the 

United States Bankruptcy Court for the District of Delaware on October 20, 2023.

37. Given that the Motion to Transfer has been pending since early July, and that no 

motion or other matter is pending in either of the Select Cases that must or could be decided during 

this brief period of adjournment, no party could credibly claim to be prejudiced by the granting of 

this alternative relief.

V. CONCLUSION

38. For the foregoing reasons, Highland respectfully requests that the Court enter an 

order (a) granting the Motion In Limine and excluding all of the Proposed Recusal Evidence from 

the record, or (b) alternatively, adjourning the Hearing on the Transfer Motion to October 30, 2023 

or such later date as counsel may be heard, and (c) granting such other and further relief as these 

Courts deem just and proper under the circumstances. 

[Remainder of Page Intentionally]

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Dated: October 16, 2023 PACHULSKI STANG ZIEHL & JONES LLP

Jeffrey N. Pomerantz (CA Bar No.143717) (pro hac vice)

John A. Morris (NY Bar No. 2405397) (pro hac vice)

Gregory V. Demo (NY Bar No. 5371992) (pro hac vice)

Hayley R. Winograd (NY Bar No. 5612569) (pro hac vice)

10100 Santa Monica Boulevard, 13th Floor

Los Angeles, CA 90067

Telephone: (310) 277-6910

Facsimile: (310) 201-0760

Email: jpomerantz@pszjlaw.com

jmorris@pszjlaw.com

gdemo@pszjlaw.com

 hwinograd@pszjlaw.com

-andHAYWARD PLLC

/s/ Zachery Z. Annable

Melissa S. Hayward

Texas Bar No. 24044908

MHayward@HaywardFirm.com

Zachery Z. Annable

Texas Bar No. 24053075

ZAnnable@HaywardFirm.com

10501 N. Central Expy, Ste. 106

Dallas, Texas 75231

Tel: (972) 755-7100

Fax: (972) 755-7110

Counsel for Highland Capital Management, L.P.

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CERTIFICATE OF CONFERENCE

The undersigned hereby certifies that, on October 13 and 16, 2023, counsel for Highland

corresponded with counsel for the Select Debtors, the Select Trustee, and Dugaboy regarding the 

relief requested in the foregoing Motion In Limine. Counsel for Dugaboy advised counsel for 

Highland that Dugaboy is OPPOSED to the relief requested in the Motion In Limine. Counsel for 

the Select Debtors and the Select Trustee did not respond. 

 /s/ Zachery Z. Annable

 Zachery Z. Annable

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