Burke v. Apogee Corporation et al
ORDER denying 82 Motion in Limine; finding as moot 85 Motion in Limine; finding as moot 86 Motion in Limine. Signed by Judge Victor A. Bolden on 2/10/2017. (Williams, C)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
APOGEE CORPORATION, d/b/a IMPACT
PLASTICS, INC. and SUPERIOR PLASTICS
EXTRUSION COMPANY, INC.,
RULING ON MOTIONS IN LIMINE
Defendants, Apogee Corporation d/b/a Impact Plastics, Inc. (“Apogee”) and Superior
Plastics Extrusion Company, Inc. (“Superior Plastics”), have filed a motion in limine [ECF No.
83] seeking to preclude the introduction of documentary evidence under Rule 408 of the Federal
Rules of Civil Procedure. Plaintiff, Jeffrey Burke, has filed two separate motions in limine [ECF
Nos. 85 and 86] seeking to preclude the introduction of certain financial evidence and requesting
that the Court take judicial notice. Mr. Burke opposes Defendants’ motion, and Defendants
oppose Mr. Burke’s motions.
For the reasons outlined below, Defendants’  Motion in Limine is DENIED without
prejudice to renewal; Mr. Burke’s  and  Motions in Limine are DENIED AS MOOT.
Factual and Procedural Background
This case arises out of a contractual dispute between Mr. Burke and his former
employers, Apogee and Superior Plastics.1 Both Apogee and Superior Plastics are owned by the
According to the parties’ Joint Trial Memorandum, ECF No. 69 at 81 at 4-5, Apogee ceased business operations in
2007, but it continues to exist as a legal entity. Superior Plastics continues to operate. Id.
same two individuals, David Kingeter and Steven Ryan. Mr. Burke contends that the two
companies were treated as one company in his employment agreement.2
Mr. Burke alleges that he purchased a five percent (5%) interest in both Apogee and
Superior Plastics as provided for in his employment agreement. He alleges that he paid for this
interest through Defendants’ retention of commission payments and distributions over a multiyear period. Second Am. Compl. ¶¶ 26-36, ECF No. 69. Defendants admit that the employment
agreement gave Mr. Burke the right to purchase five percent (5%) shadow shares in Apogee;
however, they deny that Mr. Burke has actually purchased any ownership interest in either
Apogee or Superior Plastics. Answer ¶ 2, ECF No. 78.
On November 20, 2014, Superior Plastics issued a letter terminating Mr. Burke’s
employment without cause. Second Am. Compl. ¶ 43. According to Mr. Burke, his employment
agreement requires Apogee and Superior Plastics to repurchase Mr. Burke’s five percent (5%)
ownership interest in the event that Mr. Burke is terminated involuntarily. Id. at ¶¶ 44-45
(alleging that, “[p]ursuant to Burke’s employment contract with Apogee and Superior, upon the
involuntary termination of Burke’s employment by one or both companies, the companies were
required to repurchase Mr. Burke’s shadow shares in equity in the companies.”).
In order to enforce these alleged contractual rights, Mr. Burke initiated this lawsuit on
July 1, 2015, claiming breach of contract, breach of the implied covenant of good faith and fair
dealing, and a violation of the Connecticut Shareholders’ Act, Conn. Gen. Stat. §§ 33-946(a).
Compl., ECF No. 1. In addition to a declaratory judgment confirming his alleged five percent
(5%) ownership interest, Mr. Burke seeks an order compelling Defendants to “comply with the
According to the text of the employment agreement, the agreement was between “Apogee Corporation” and
“Superior Plastics Extrusion, Inc.” Am. Compl. Ex. A. Mr. Burke describes this as a “typographical error” intended
to read “Superior Plastics Extrusion Company, Inc.” Am. Compl. ¶ 32.
valuation and repurchase procedures set forth in paragraph 3(b)(iv) of Burke’s employment
contract.” Second Am. Compl. at 9.
A bench trial in this matter is currently scheduled to begin on Monday, February 13,
2017. See Scheduling Order, ECF No. 73. In advance of trial, both parties have filed motions in
limine seeking to limit the scope of evidence to be introduced at trial.
Standard of Review
“A district court's inherent authority to manage the course of its trials encompasses the
right to rule on motions in limine.” Highland Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d
173, 176 (S.D.N.Y. 2008). The purpose of a motion in limine is to allow the trial court to rule in
advance of trial on the admissibility and relevance of certain forecasted evidence. See Luce v.
United States, 469 U.S. 38, 40 n.2 (1984); Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996).
Evidence should be excluded on a motion in limine only when the evidence is clearly
inadmissible on all potential grounds. Levinson v. Westport Nat’l Bank, No. 3:09-CV-1955
VLB, 2013 WL 3280013, at *3 (D. Conn. June 27, 2013). Courts considering a motion in limine
may reserve judgment until trial, so that the motion is placed in the appropriate factual context.
See Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Grp., 937 F. Supp. 276, 287
Defendants seek to preclude documentation related to settlement negotiations between
the parties, arguing that such documentation is properly excluded under Fed. R. Evid. 408. ECF
No. 83. Mr. Burke seeks to preclude “undisclosed” financial information pertaining to
Defendants’ business operations, and he also requests that the Court take judicial notice that
documents prepared with Microsoft Office contain “metadata.” ECF Nos. 85, 86.
is discussed in further detail below.
A. Motion in Limine re: Settlement Communications [ECF No. 82]
Defendants seek to preclude the introduction of documented negotiations over disputed
funds in connection with Mr. Burke’s employment with Apogee and Superior Plastics.
According to Defendants, Mr. Burke began to express concerns in 2006 regarding the amounts
allegedly owed to him under his employment agreement. Defs. Mem. in Supp. at 4-5, ECF No.
83. Specifically, Mr. Burke challenged the amounts of his commission payments as well as the
amounts of periodic distributions of company profits during the course of his employment. Id.
Beginning in 2006 and leading up to Mr. Burke’s termination in 2014, Mr. Burke engaged in
several negotiations with Mr. Kingeter and Mr. Ryan, co-owners of Apogee and Superior
Plastics, to attempt to resolve those concerns. See 2008 Letter, Def Ex. E, ECF No. 83-1; Feb.
2011 E-mail, Def. Ex. F, ECF No. 83-1; Apr. 2011 Letter, Def. Ex. G; Jan. 2013 Meeting Tr.,
Def. Ex. B, ECF No. 88-1.
Defendants specifically challenge the admissibility of two documents from these
negotiations: (1) a series of spreadsheets created by Defendants outlining various alternative
scenarios for the resolution of Mr. Burke’s disagreements (Spreadsheets, Def. Ex. A, ECF No.
83-1); and (2) an audio recording of a meeting in January, 2013 in which Mr. Burke and
Defendants discussed those alternatives as well as various other aspects of Mr. Burke’s
compensation (Jan. 2013 Meeting Tr., Def. Ex. B, ECF No. 88-1).
Defendants argue that both of these documents constitute “settlement negotiations”
prohibited by Fed. R. Evid. 408, as they were designed to resolve Mr. Burke’s potential legal
claims against Defendants. Defendants claim that the January 2013 meeting and the related
spreadsheets are directly related to the dispute that is currently at issue in this litigation, arguing
that the current disagreement over Mr. Burke’s five percent (5%) ownership share in the
companies is intimately connected to Mr. Burke’s earlier complaints about his commission
payments and distributions. According to Mr. Burke, however, his alleged five percent (5%)
ownership share was not in dispute at the time of those conversations. Mr. Burke insists that the
conversations were business discussions, not settlement negotiations, and that the subject matter
of the conversations was unrelated to the dispute currently before the Court.
Rule 408 prohibits the introduction of “conduct or a statement made during compromise
negotiations about the claim” in the context of trial where such evidence is used “either to prove
or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent
statement or a contradiction.” Fed. R. Evid. 408(a). When considering whether discussions
constitute “settlement negotiations” for purposes of exclusion under Rule 408, “[b]oth the timing
of the offer and the existence of a disputed claim are relevant to the determination.” Pierce v.
F.R. Tripler & Co., 955 F.2d 820, 827 (2d Cir. 1992).
The timing and character of the contested discussions suggest that they were not
“compromise negotiations about the claim” as contemplated by Rule 408. Fed. R. Evid.
408(a)(2); see also Alpex Computer Corp. v. Nintendo Co., 770 F. Supp. 161, 163 (S.D.N.Y.
1991), on reconsideration, No. 86 CIV. 1749 (KMW), 1994 WL 139423 (S.D.N.Y. Mar. 18,
1994), vacated in part, No. 86 CIV. 1749 (KMW), 1994 WL 381659 (S.D.N.Y. July 21, 1994)
(“All that is needed for Rule 408 to apply is an actual dispute, or at least an apparent difference
of opinion between the parties as to the validity of a claim.”). This litigation is fundamentally a
dispute about Mr. Burke’s claimed five percent (5%) interest in Apogee and Superior Plastics
and Defendants’ alleged contractual obligation to repurchase that ownership interest in the wake
of Mr. Burke’s involuntary termination in November 2014. Am. Compl. ¶¶ 38-51. The
termination of Mr. Burke’s employment, then, was the central event giving rise to Mr. Burke’s
The January 2013 conversation, however, predates Mr. Burke’s termination by well over
one year and predates the initiation of this lawsuit by well over two years. During the January
2013 conversation, the parties focused exclusively on the amount of compensation owed to Mr.
Burke during the course his employment with Apogee and Superior Plastics, not on any postemployment stock repurchase obligations. Defs. Ex. D, ECF No. 83-1. Furthermore, the bulk of
the conversation focused specifically on the proper amount of Mr. Burke’s commission
payments, a debate that has since been fully resolved by mediation and is not at issue in this case.
Defs. Ex. B; Burke Tr. at 182-183.
Defendants nonetheless argue that the January 2013 conversation and related
spreadsheets are connected to the claims now at issue in this lawsuit. In support of their
argument, they cite to a portion of Mr. Burke’s deposition transcript in which Defendants,
referring to the January 2013 meeting, stated: “that meeting was in furtherance of efforts to try to
settle and resolve… your request for profit distributions, et cetera” and Mr. Burke responded:
“Yes.” Burke Dep. at 204, ECF No. 83-1. While the topic of “profit distributions” allegedly
owed to Mr. Burke during his employment is certainly conceptually related to the claims at issue
in this lawsuit, the amount of any such distribution payments is a separate question than the
question at issue in this lawsuit, which focuses instead on whether Defendants had a contractual
obligation to purchase shadow stock from Mr. Burke after his termination. See Second Am.
Compl. ¶¶ 45-46.3 Thus, a negotiation about profit distributions is still not a conversation “about
the claim” as required under Rule 408. Accordingly, exclusion of the meeting transcript and
spreadsheets is not proper on this ground.4
Defendants’ motion in limine is denied. To the extent that Defendants object to the
relevance of all of the offered evidence, however, they may raise such objections in the context
B. Motion in Limine re: Defendants’ Undisclosed Financial Dealings or
Condition [ECF No. 85]
Mr. Burke seeks the exclusion of “any evidence or testimony concerning the financial
dealings or condition of the defendant-companies to the extent that information was requested by
the plaintiff during discovery and not produced by defendants.” Pl. Mot., ECF No. 85.
Defendants state that they have already produced all evidence of financial dealings or condition
that they intend to use at trial, thus there is no “undisclosed” evidence of financial dealings that
Defendants intend to present. Defs. Opp. at 4-5, ECF No. 91. Defendants further state that, to
The Second Amended Complaint frames Mr. Burke’s breach of contract claim as a violation of the section
paragraph 3(b)(iv) of his employment contract, a section labeled “Involuntary Termination.” Second Am. Compl. ¶
46 (“Mr. Burke seeks an order from the Court declaring that he is a 5% owner of Apogee and Superior and
compelling Apogee and Superior to comply with the valuation and repurchase procedures set forth in paragraph
3(b)(iv) of his contract.”).
The Court notes that neither party to the January 2013 conversation was represented by counsel, which, together
with the timing of the conversation, suggests that the January 2013 conversation may not have constituted
“settlement negotiations” at all. See Pierce, 955 F.2d at 827 (“where a party is represented by counsel, threatens
litigation and has initiated the first administrative steps in that litigation, any offer made between attorneys will be
presumed to be an offer within the scope of Rule 408.”); see also Int'l Bus. Machines Corp. v. BGC Partners, Inc.,
No. 10 CIV. 128 PAC, 2013 WL 1775437, at *9 (S.D.N.Y. Apr. 25, 2013) (“It is often difficult to determine
whether an offer is made in compromising or attempting to compromise a claim, though relevant factors exist,
including (1) whether a party is represented by counsel, (2) threatens litigation, (3) has initiated the first
administrative steps in that litigation, (4) the timing of the offer; and (5) the existence of a disputed claim.” (internal
citations and marks omitted)).
the extent that Mr. Burke’s motion seeks the exclusion of Defendants’ “financial dealings or
condition” more broadly, they oppose the motion as unduly broad.5
The language of Mr. Burke’s motion requests only the exclusion of financial
documentation not previously disclosed in discovery. As Defendants do not intend to present
any evidence that has not previously been disclosed in discovery – a point confirmed in oral
argument on this motion – Mr. Burke’s  Motion in Limine is moot.
C. Motion in Limine re: Metadata [ECF No. 86]
Finally, Mr. Burke requests that the Court take judicial notice of “the fact that documents
created pursuant to the computer programs Microsoft Word and Microsoft Excel contain
metadata—that is, properties that are associated with those documents.” Pl. Mem. in Supp. at 1,
ECF No. 86-1. In Defendants’ opposition brief, they state that they “generally do not dispute
what they understand is the basic thrust of Plaintiff’s Motion”; namely, that documents created
with Microsoft Office do contain metadata. Defs. Opp. at 1, ECF No. 92. To the extent that Mr.
Burke’s motion seeks judicial notice of “the accuracy of the metadata… or that such metadata
conclusively establishes the truth of the information contained therein,” Defendants oppose the
motion. Id. at 2.
Under Rule 201, the Court may take judicial notice of any “adjudicative fact” that “(1) is
generally known within the trial court's territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b). Rule 201 also provides that the Court “must take judicial notice if a party requests
it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(2).
Defendants note that Mr. Burke had the opportunity to conduct depositions regarding the disclosed financial
information, but declined to do so. Defendants also note that, if they had provided Mr. Burke with more financial
information than what was provided during discovery, they would essentially be granting him the relief requested in
Count Three of his Second Amended Complaint.
Both Defendants and Mr. Burke agree that documents created with Microsoft Word and
Microsoft Excel do contain metadata, and Mr. Burke has cited to a Microsoft Office user manual
and some case law recognizing this fact. At oral argument on this motion, Defendants expressed
concerns about the accuracy of metadata, and the ability to trace specific metadata to a particular
document. While the Court appreciates Defendants’ concerns, based on the language of Mr.
Burke’s motion, the motion only requests that the Court take judicial notice of the existence of
metadata, a fact that Defendants do not dispute. Accordingly, Mr. Burke’s  Motion in
Limine is moot. To the extent that Defendants wish to contest the accuracy of metadata or
challenge Mr. Burke’s attempts to link metadata to a particular document, they may do so in the
context of trial.
SO ORDERED this 10th day of February, 2017 in Bridgeport, Connecticut.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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