Accurso v. Infra-Red Servs., Inc.
| Decision Date | 11 March 2016 |
| Docket Number | CIVIL ACTION NO. 13-7509 |
| Citation | 169 F.Supp.3d 612 |
| Parties | Peter Accurso, Plaintiff, v. Infra-Red Services, Inc., et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Eric Gavin Marttila, McNamara Bolla & Panzer, Doylestown, PA, for Plaintiff.
Julie B. Negovan, Andrew N. Howe, Spruce Law Group LLC, Philadelphia, PA, for Defendants.
breach of contract, intentional interference with contract, violation of the Pennsylvania Wage Payment and Collection Law, 43 Pa. Stat. Ann § 260.1 et seq ., and civil conspiracy. The Defendants have responded with counter claims against Mr. Accurso, alleging breach of contract, breach of fiduciary duty, usurpation of corporate opportunity, fraud, intentional interference with prospective contractual relationships, and misappropriation of trade secrets.
In August, the Court granted in part and denied in part the Defendants' motion for summary judgment. See Accurso v. Infra-Red Servs., Inc. , 119 F.Supp.3d 316 (E.D.Pa.2015)
.2 Trial in this matter is currently scheduled to commence on April 1, 2016. Pending before the Court are motions in limine filed by Mr. Land, Ms. Strein and the corporate defendants (Doc. No. 91) as well as Mr. Accurso (Doc. No. 92). For the reasons outlined below, the Court will grant the Defendants' in limine motions in part and deny them in part. The Court will also grant Mr. Accurso's in limine motions in part and deny them in part.
The Defendants' briefing raises six separate in limine motions challenging evidence relevant to both the claims brought by Mr. Accurso as well as the Defendants' own counterclaims against Mr. Accurso.
The Defendants first assert that Mr. Accurso should be prevented from presenting any evidence of his damages because he “has not responded to interrogatories or deposition questions or any disclosure requirement of this court as to his claimed damages.” See Doc. No. 91 at 1. This motion is made without reference to any legal authority or factual support in the record.
Federal Rule of Civil Procedure 37(c)
provides that a party who has failed to disclose information required under Rule 26(a) will not be allowed to rely upon that information at trial unless the failure is substantially justified or harmless. The burden, however, falls on the moving party to establish that exclusion is the most appropriate remedy. Dychalo v. Copperloy Corp. , 78 F.R.D. 146, 148 (E.D.Pa.) aff'd sub nom. Copperloy Corp. v. Congoleum Indus., Inc. , 588 F.2d 819 (3d Cir.1978) and aff'd sub nom. Dychala v. Copperloy Corp. , 588 F.2d 820 (3d Cir.1978) (citing Dudley v. South Jersey Metal, Inc. , 555 F.2d 96 (3d Cir.1977) ). Exclusion is an extreme sanction and a district court's discretion to exclude evidence is not unlimited. The Third Circuit Court of Appeals has articulated a set of five factors that should be considered when evaluating the exclusion of evidence.
ZF Meritor, LLC v. Ea ton Corp. , 696 F.3d 254, 298 (3d Cir.2012)
(citing Meyers v. Pennypack Woods Home Ownership Ass'n , 559 F.2d 894, 905 (3d Cir.1977) ). Those factors are (1) “the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified” or the excluded evidence would have been offered; (2) “the ability of that party to cure the prejudice”; (3) the extent to which allowing such witnesses or evidence would “disrupt the orderly and efficient trial of the case or of other cases in the court”; (4) any “bad faith or willfulness in failing to comply with the court's order”; and (5) the importance of the excluded evidence. ZF Meritor , 696 F.3d at 298 (citing Pennypack , 559 F.2d at 904–05 ).
The Defendants here have not come close to meeting their burden. They have not identified which interrogatories or deposition questions Mr. Accurso has failed to answer. They have failed to provide any argument or explanation as to the nature and extent of the prejudice they would suffer should the Court admit the evidence. They have not articulated any potential for disruption of the case or made any allegations of bad faith on Mr. Accurso's part. Moreover, based upon the record citations provided by Mr. Accurso in response to the defense motion, it appears that many of the Defendants' general characterizations of the factual record are incorrect. See Doc. No. 102 at 2. In his briefing, Mr. Accurso identifies an interrogatory response which explains his alleged damages. He also identifies to two exhibits from the deposition of Defendant Brian Land which detail certain deposits to Roofing Dynamics Inc. and Roofing Dynamics Group's bank accounts, which Mr. Accurso contends encompass his damages. See Doc. No. 102 at 3. Consequently, the record indicates that the Defendants are aware of the substance of Mr. Accurso's alleged damages.
On the record before the Court, there is no basis to conclude that the Defendants would suffer any prejudice should the Court allow Plaintiff to present evidence of his alleged damages at trial. Therefore, the Defendants' motion to exclude damages evidence will be denied.
The Defendants' second motion in limine seeks to exclude any evidence which goes to establish Mr. Land or Ms. Strein's personal liability on any of the remaining counts. Again, the Defendants' motion fails to provide any authority or factual support for their position. The only articulated basis for the exclusion of the challenged evidence is the naked assertion that Mr. Accurso failed to identify any evidence in discovery which justifies piercing the corporate veil of Infra-Red Services, Inc., Roofing Dynamics Group, LLC or Roofing Dynamics, Inc.
There are several weaknesses with the Defendants' argument. First and foremost, while the Defendants have characterized this as a motion in limine , in actuality it appears to be a motion for summary judgment. The Defendants do not argue that any specific evidence is inadmissible for any articulable reason, but rather that no relevant evidence on this point has been uncovered. If this were the case, the logical remedy would be summary judgment on the unsupported and/or unsupportable claims, not a motion in limine to exclude evidence the Defendants assert does not exist. To the extent that the Defendants are substantially seeking summary judgment, however, that effort is not only untimely 3 but grossly deficient in meeting the movant's burden of showing that no genuine issue of material fact exists as to the Plaintiff's ability to pierce the veil of the corporate defendants.
The second problem with this motion is that the ability of Mr. Accurso to establish that Mr. Land and Ms. Strein are personally liable for the counts alleged in the complaint is not premised exclusively on establishing that the corporate defendants acted as Mr. Land or Ms. Strein's alter egos. The Employee Polygraph Protection Act (“EPPA”), which is the statute that forms the basis of much of the remaining claims at issue, defines an employer as including “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” 29 U.S.C. § 2001 (West)
. Likewise, “employer” as defined under the Pennsylvania Wage Payment and Collection Law—the other pertinent statute—“[i]ncludes every person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth.” 43 Pa. Stat. Ann. § 260.2a (West). As it is undisputed that both Mr. Land and Ms. Strein were working on behalf of, or as agents of, the corporate defendants, they would be included within these definitions and subject to personal liability for violations of either statute.4
Finally, despite the Defendants' assertions to the contrary, the record does appear to include evidence that can support veil-piercing. The courts in Pennsylvania look at the following factors to determine whether a corporation is being operated as an alter ego of an individual defendant: “(1) undercapitalization; (2) failure to adhere to corporate formalities; (3) substantial intermingling of corporate and personal affairs, and (4) use of the corporate form to perpetrate a fraud.” Lomas v. Kravitz , 130 A.3d 107, 126, 2015 PA Super 267 (Pa.Super. Dec. 21, 2015).
While Defendants do not address these factors in their motion, in his response Mr. Accurso points to evidence in the record indicating that the corporate defendants were controlled entirely by Mr. Land and Ms. Strein, corporate formalities of these entities were not observed, corporate meetings were not held, minutes were not kept, capital contributions were not made, dividends were not paid, and bylaws were not generated. See Doc. No. 102 at 6-7. All of this evidence would indicate veil-piercing could be justified. The Defendants have not provided any basis for concluding that this evidence is inadmissible to show Mr. Land or Ms. Strein operated the corporate defendants as mere “alter egos” and would therefore be personally liable for the actions of the corporations. The Defendants' characterization of the record appears inaccurate.5
Therefore, for all these reasons, the defense motion in limine to exclude evidence as to Mr. Land and Ms. Strein's personal liability is denied.
The third defense motion in limine relates to Defendants' counterclaims. They argue that the Court should draw a...
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