Michiana Dairy Processors Llc v. All Star Beverage Inc., Cause No. 2:09–CV–39–PRC.

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: OPINION AND ORDER
• Citation: Michiana Dairy Processors Llc v. All Star Beverage Inc., 744 F.Supp.2d 790 (N.D. Ind. 2010)
• Decision Date: 12 October 2010
• Docket Number: Cause No. 2:09–CV–39–PRC.
• Parties: MICHIANA DAIRY PROCESSORS, LLC, Plaintiff,v.ALL STAR BEVERAGE, INC., Roger Mohlman, Prime Star Group, Inc. f/k/a American Water Star, Inc., all Star Beverage of Arizona, Inc., Geyser Beverages, Inc., Hawaiian Tropicals, Inc., and Donna Mohlman, Defendants.All Star Beverage, Inc., Counter–Claimant,v.Michiana Dairy Processors, LLC, Counter–Defendant.American Water Star, Inc., All Star Beverage of Arizona, Inc., Geyser Beverages, Inc., and Hawaiian Tropicals, Inc., Counter–Claimants,v.Michiana Dairy Processors, LLC, Counter–Defendant.Donna Mohlman, Counter–Claimant,v.Michiana Dairy Processors, LLC, Counter–Defendant.

744 F.Supp.2d 790

MICHIANA DAIRY PROCESSORS, LLC, Plaintiff,

v.ALL STAR BEVERAGE, INC., Roger Mohlman, Prime Star Group, Inc. f/k/a American Water Star, Inc., all Star Beverage of Arizona, Inc., Geyser Beverages, Inc., Hawaiian Tropicals, Inc., and Donna Mohlman, Defendants.All Star Beverage, Inc., Counter–Claimant,

v.Michiana Dairy Processors, LLC, Counter–Defendant.American Water Star, Inc., All Star Beverage of Arizona, Inc., Geyser Beverages, Inc., and Hawaiian Tropicals, Inc., Counter–Claimants,

v.Michiana Dairy Processors, LLC, Counter–Defendant.Donna Mohlman, Counter–Claimant,

v.Michiana Dairy Processors, LLC, Counter–Defendant.

Cause No. 2:09–CV–39–PRC.

United States District Court, N.D. Indiana, Hammond Division.

Oct. 12, 2010.

Aaron Christopher Giorgi, Timothy F. Kelly, Kelly Law Offices, Michael W. Back, Michael W. Back PC, Crown Point, IN, for Plaintiff.James B. Meyer, Rebecca L. Wyatt, Meyer & Wyatt PC, Gary, IN, Jennifer Lynn Worth, Lyle R. Hardman, Thomas R. Hamilton, Hunt Suedhoff Kalamaros LLP, South Bend, IN, for Defendants.

OPINION AND ORDER

PAUL R. CHERRY, United States Magistrate Judge.

This matter is before the Court on (1) a Motion for Summary Judgment [DE 171], filed by Defendants All Star Beverage, Inc., Prime Star Group, Inc. f/k/a American Water Star, Inc., All Star Beverage of Arizona, Inc., Geyser Beverage, Inc., Hawaiian Tropicals, Inc., Roger Mohlman, and Donna Mohlman (collectively “Defendants”) on July 15, 2010; and (2) an Objection to and Motion to Strike Certain Designated Evidence [DE 184], filed by Plaintiff Michiana Dairy Processors, LLC (“Michiana”). For the reasons set forth in this order, the Court grants in part and denies in part the Motion to Strike and grants the Motion for Summary Judgment.

PROCEDURAL BACKGROUND

In the Lake Circuit Court, Michiana filed a Complaint against Star Beverage, Inc. and Roger Mohlman on April 14, 2004, a First Amended Complaint against All Star Beverage, Inc., American Water Star, Inc., All Star Beverage of Arizona, Inc., Geyser Beverages, Inc., Hawaiian Tropicals, Inc., John Doe, Jane Doe, and Roger Mohlman on March 17, 2008, and a Second Amended Complaint, adding Donna Mohlman as a defendant, on February 2, 2009.

Count I of the Second Amended Complaint for “Individual Liability” alleges the individual liability of Roger Mohlman. Count II for “Illegal Transfer of Assets” alleges that the corporate Defendants and Roger Mohlman violated Indiana and federal law, including the Indiana Fraudulent Transfer Act, by concealing, hiding, and secreting corporate assets and removing the assets in order to delay and/or prevent the attachment thereof by creditors and claimants. Count III for “Breach of Contract” alleges that the corporate Defendants' conduct constitutes breach of contract and that as a direct and proximate result thereof, Michiana suffered damages. Count IV is for “Intentional Breach of Contract.” Count V for “Fradulent [sic] Inducement,” despite its subtitle, makes the same claims as Count IV for Intentional Breach of Contract. Against Donna Mohlman, in a section entitled “Third Party Claims Against Donna Mohlman,” Michiana alleges “Constructive Fraud,” a “Claim for Money Had and Received,” and “Fraudulent Concealment.”

On March 2, 2009, Donna Mohlman filed a Notice of Removal and an Answer and Counterclaim, alleging defamation. On April 1, 2009, Michiana filed a waiver of possible defects in the notice of removal.

On May 8, 2009, Defendants American Water Star, Inc., All Star Beverage of Arizona, Inc., Geyser Beverages, Inc., and Hawaiian Tropicals, Inc. (“American Water Star Defendants”) filed an Answer and a Counterclaim for abuse of process.

The same date, Defendant All Star Beverage, Inc. filed an Answer and a Counterclaim for breach of warranty of merchantability and fitness for a particular purpose.

On May 18, 2009, Michiana filed a Rule 12(f) Motion to Strike the Answer and Counterclaim of the American Water Star Defendants, which the Court denied on September 16, 2009, 263 F.R.D. 514 (N.D.Ind.2009). Michiana has not filed an Answer to the Counterclaim brought by the American Water Star Defendants.

On May 20, 2009, Michiana filed an Answer and Affirmative Defenses to Donna Mohlman's Counterclaim.

On May 27, 2009, Michiana filed an Answer to the Counterclaim brought by All Star Beverage.

On December 4, 2009, Defendant All Star Beverage filed a Motion to Dismiss Pursuant to Rule 41(b), which the Court denied on February 11, 2010.

On July 15, 2010, Defendants filed the instant Motion for Summary Judgment and a memorandum in support. Having been granted an extension of time, Michiana filed a response in opposition to summary judgment on September 10, 2010, as well as the instant Motion to Strike. Defendants filed a reply in support of summary judgment on September 23, 2010, and a response in opposition to the Motion to Strike on September 28, 2010. Michiana did not file a reply in support of the Motion to Strike, and the time to do so has passed.

The parties orally agreed on the record to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

MOTION TO STRIKE

In the motion, Michiana objects to and asks the Court to strike numerous exhibits submitted by Defendants in support of the Motion for Summary Judgment, citing generally and without argument Federal Rules of Evidence 104(a), 802, and 901.

1. Exhibit 2

Michiana argues that the letter that purports to be from the Indiana State Department of Health to Donna Mohlman, dated June 1, 2009, is hearsay and is not properly authenticated. This document is authenticated pursuant to Federal Rule of Evidence 901(b)(7), which provides for authentication based on evidence that a “purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.” Fed. R. Ev. 901(b)(7). However, the contents of the letter are hearsay, as the contents are being offered to prove the truth of the matter asserted, namely that the author was unable to locate any records of registration by Michiana Dairy Processors, LLC with the Food Protection Program. Although the contents of the letter being offered to show the absence of a public record qualifies as an exception to the hearsay rule under Rule 803(10), that rule in turn requires self-authentication under Federal Rule of Evidence 902, which is not met. See Fed. R. Ev. 803(10), 902(2). Accordingly, the hearsay objection is sustained, and the Court strikes Exhibit 2.

2. Exhibits 3, 4, and 5

Michiana argues, without discussion, that the Heartland bankruptcy documents are irrelevant. Federal Rule of Evidence 401 provides that, in order to be admissible, evidence must be relevant, meaning that it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Ev. 401. Defendants offer these documents in support of background information concerning Dixie Dairy and Michiana Dairy; accordingly, the Court finds they are relevant.

Michiana also argues that the documents are not properly authenticated because they are not certified copies as required by Rule 902. Federal Rule of Evidence 902 provides that “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required” for certified copies of public records. Fed. R. Ev. 902(4). However, Rule 901(b)(7) provides that evidence can be authenticated by showing that the document is “authorized by law to be recorded or filed and in fact was recorded or filed in a public office, or a purported public record, report, statement, or data compilation in any form is from the public office where items of this nature are kept.” Fed. R. Ev. 901(b)(7). These documents were filed in a United States Bankruptcy Court proceeding, as confirmed by the file stamp that is printed across the top of the documents. Thus, the Court finds that they are properly authenticated.

3. Exhibit 12

Michiana argues that the email which purports to be from a person designated as Harford is hearsay and is not properly authenticated. Because the Court does not rely on this email in its analysis, the motion is denied as moot.

4. Exhibit 16

Michiana contends that the NIPSCO bills and unsigned agreement submitted together are hearsay, are not properly authenticated, and do not have a proper foundation. These documents were produced by Michiana in response to discovery requests. Therefore, the objection as to authentication is overruled. See Vulcan Golf v. Google Inc., 726 F.Supp.2d 911, 914–15, 2010 WL 2363620, at *2 (N.D.Ill.2010). As to the hearsay objection, the NIPSCO bills are being offered to show Michiana's usage history in the months before and after the execution of the Packaging Agreement. The NIPSCO bills fall within the business records exception of Federal Rule of Evidence 803(6). Although Defendants have not offered any accompanying testimony or certification under Rule 803(6), the Court finds that the NIPSCO bills are inherently trustworthy as the documents are the printed bills as would be produced from NIPSCO, Michiana produced the document in the course of discovery, the bills were used during the deposition of Neil Fribley without objection, and Michiana has not offered any argument, either in support of the Motion to Strike or in opposition to the Motion for Summary Judgment, that the NIPSCO bills offered by Defendants are not the same bills Michiana produced in discovery or that the bills have been modified or tampered with. The objection is overruled.

5. Exhibit 17

Michiana argues that what appears to be pages from a July 15, 2010 fax contains only pages 13, 16, 17, 19, 20, and 21 and that the documents are hearsay, are not...