Disa v. Ashley Furniture Industries, Inc.

Filing 95

ORDER granting 61 Motion in Limine; denying 62 Motion in Limine; denying 63 Motion in Limine; denying as moot 64 Motion in Limine; granting in part and provisionally granting 65 Motion in Limine; provisionally granting 66 Motion in Limine; granting in part and denying in part 67 Motion in Limine; denying 68 Motion in Limine. Signed by Judge James D. Whittemore on 1/6/2016. (KE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHNDISA,
Plaintiff,
Case No. 8:14-cv-01915-T-27AEP

vs.
ASHLEY FURNITURE INDUSTRIES,
INC.,
Defendant.
ORDER

BEFORE THE COURT are motions in limine filed by the parties. The issue in this case
is whether Plaintiff was entitled to a pro-rated bonus for 2013 after he was terminated (see Dkt. 43).
The dispute focuses on an Employment Agreement between the parties, which provided Disa with
a base salary and annual incentive bonus, as well as a severance in the event of his involuntary
separation. The parties modified the Agreement, amending only the bonus provision. When Disa was
terminated, he was paid a severance of $800,000. According to Ashley, since the agreement
contained a severance provision that provided only for the payment of salary, not a bonus, a pro rata
bonus was unambiguously excluded. Disa disagrees.

Dkt. 61: Plaintiff's Motion in Limine to Exclude Certain Testimony, Argument, and
Evidence from Trial Relating to the Settlement Agreement and Release: This motion is
unopposed and therefore GRANTED.

Dkt. 62: Plaintiff's Motion in Limine to Exclude All Testimony, Argument, or Evidence
Regarding the Fact He Received a Severance Payment and/or the Amount of the Payment:

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I find that evidence of the severance provision and Ashley's payment of the $800,000
severance are relevant to the issue before the jury, as well as Ashley's defense, specifically its
interpretation of the ambiguous terms of the Employment Agreement and contention that it fulfilled
its obligation under the Employment Agreement when it paid Disa the severance upon his
termination. The negotiation and inclusion ofthe severance provision in the Employment Agreement
is relevant to understanding how the agreement between the parties was reached. The motion is
therefore DENIED.
Dkt. 63: Plaintiff's Motion in Limine to Exclude All Testimony, Argument, or Evidence
Regarding the Removal of the Change of Control Clause and the Pro Rata Bonus Language
Contained in a Draft of the Amended Compensation Plan:
This motion is DENIED. Reference to a "prorated bonus" within the rejected Change of
Control language is relevant on the issue of the parties' intent to include (or not) a prorated bonus
provision in the Employment Agreement, as amended. That Disa attempted to include the language
is relevant to his understanding of whether he would otherwise be entitled to a prorated bonus on a
mid-year termination. Moreover, the parties' course of conduct in the negotiation ofthe Employment
Agreement, as amended, is relevant to their intent and meaning of the ambiguous terms of the
Employment Agreement. The probative value of this relevant evidence is not substantially
outweighed by a danger of unfair prejudice, confusion, misleading of the jury, undue delay or waste
of time, or needless presentation of cumulative evidence under Rule 403, Fed.R.Evid.
Dkt. 64: Defendant's Motion in Limine to Exclude Jason Michalak as a Witness at
Trial:
This motion is DENIED as moot. The parties have waived records custodians, and the only
reason Plaintiff listed Mr. Michalak was to authenticate an email he sent on behalf of Mr. Wanek.
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Dkt. 65: Defendant's Motion in Limine to Exclude Testimony and Evidence Related to
the Publication "Furniture Today":
Plaintiffs failure to produce the market data compilation during discovery is problematic,
and potentially prejudices Ashley. See Rule 37(c)(l), Fed.R.Civ.P. For those reasons, the motion is
GRANTED in part. No evidence or testimony related to the data compilation in Furniture Today
may be mentioned or introduced unless the evidence is proffered to the court outside the presence
of the jury and the court authorizes its admissibility. Plaintiff shall be prepared to explain why the
evidence was not produced during discovery. The court notes that the data compilation appears to
fall within the commercial publication hearsay exception in Rule 803(17), assuming Plaintiff can lay
a proper foundation under that exception.
With respect to Ashley's financial performance in 2009-2012, the motion is provisionally
GRANTED. No evidence or testimony related to Ashley's financial performance in 2009-2012 may
be mentioned or introduced unless the evidence is proffered to the court outside the presence of the
jury and the court authorizes its admissibility.
Plaintiffs performance other than in 2013 is irrelevant to the his claim of a pro rata incentive
bonus in 2013, as the magistrate judge correctly found. The motion is GRANTED to that extent.

Dkt. 66: Defendant's Motion in Limine to Exclude Evidence Not Produced During
Discovery and Related Testimony:
This motion is provisionally GRANTED. See Rule 37(c)(l), Fed.R.Civ.P. No evidence or
testimony related to proposed Exhibits 8, 15, 17, 29, 39 and 40 may be mentioned or introduced
unless the evidence is proffered to the court outside the presence of the jury and the court authorizes
its admissibility. Plaintiff shall be prepared to explain why the evidence was not produced during
discovery. And Defendant shall be prepared to explain why documents in its possession and control

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were not produced, and how it would be prejudiced by their admission into evidence.
Dkt. 67: Defendant's Motion in Limine to Exclude Testimony and Evidence Related to
Plaintiff's Work Performance With Ashley and Ashley's Financial Performance In Any Year
Other Than 2013:
The motion is GRANTED in part, consistent with this order on Dkts. 66 andefS-: and
otherwise DENIED.
Dkt. 68: Defendant's Motion in Limine to Exclude Testimony and Evidence Related to
Non-Annual Bonuses:
This motion is DENIED. The evidence Plaintiff seeks to introduce is admissible and relevant,
based on Plaintiff's representation that it will be offered "for the sole purpose of establishing that
Ashley did, in fact, track the company financials required to calculate Disa's bonus on a monthly
basis," and therefore Ashley had the ability to calculate Disa's claimed bonus on a monthly
basis.(Dkt. 69; p. 3).
DONE AND ORDERED this ~day of January, 2016.

Copies to: Counsel of Record

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