Sauer v. Publisher Services, Inc.
Filing
78
OPINION AND ORDER deferring ruling on Defendant Publisher Services, Inc.s Motion in Limine to Exclude Evidence of Purported Aiding and Abetting of a Fraudulent Transfer 56 and denying Defendants Motion in Limine Regarding Fraud 57 . Plaintiff Phi lip B. Sauers Motions in Limine 56 are granted in part and denied in part. Plaintiffs Motion is GRANTED, and Defendant is precluded from (i) offering argument that Plaintiff should have obtained a judgment or garnishment against Radiant Darkstar; a nd (ii) offering the Texas Settlement Agreement, except that Defendant may present argument to the Court that the affidavits in the agreement are admissible under an exception to hearsay or are non-hearsay, for the limited purpose of showing that D-Day Dice was owned by Valley Games and transferred to Radiant Darkstar. Plaintiffs Motion is DENIED, in accordance with this Opinion and Order, on the other grounds asserted in his Motion. Signed by Judge William S. Duffey, Jr on 8/19/16. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PHILIP B. SAUER,
Plaintiff,
v.
1:14-cv-698-WSD
PUBLISHER SERVICES, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff Philip B. Sauer’s (“Plaintiff”)
Motions in Limine [56] (“Plaintiff’s Motion”) and Defendant Publisher Services,
Inc.’s (“Defendant”) (together with Plaintiff, the “Parties”) Motion in Limine to
Exclude Evidence of Purported Aiding and Abetting of a Fraudulent Transfer [56]
and Motion in Limine Regarding Fraud [57] (together, “Defendant’s Motion”).
I.
BACKGROUND1
On February 14, 2014, Plaintiff filed, in the Superior Court of Gwinnett
County, Georgia, a three-count (3) Complaint against Defendant for fraud,
1
The factual background of this case is described in detail in the Court’s
Order on Defendant’s Motion for Summary Judgment, (March 9, 2016, Order
[48]). The Court here discusses only the background relevant to the pending
motions.
conspiracy to defraud, and fraudulent conveyance of property under Georgia’s
Uniform Fraudulent Transfer Act (“UFTA”), O.C.G.A. § 18-2-70, et seq. On
March 10, 2014, Defendant removed the action to the Court on the basis of
diversity jurisdiction.
On March 9, 2016, the Court entered an Order [48] granting in part and
denying in part Defendant’s Motion for Summary Judgment [36]. The Court
denied Defendant’s Motion for Summary Judgment on Plaintiff’s UFTA claim,
finding a disputed issue of fact whether a consignment relationship existed
between Valley Games, Inc. (“Valley Games”) and Defendant regarding the
D-Day Dice inventory. The Court determined that, if at trial a jury determines
there was a consignment to Defendant by Valley Games, through Radiant Darkstar
Enterprises, LLC (“Radiant Darkstar”), Defendant may then move the Court to
consider if the consignment constituted a transfer prohibited under the UFTA. The
Court denied Defendant’s Motion for Summary Judgment on Plaintiff’s conspiracy
to defraud claim, finding the record evidence sufficient to raise the issue whether
Defendant and Valley Games acted in concert to fraudulently transfer D-Day Dice
to Radiant Darkstar. The Court granted summary judgment to Defendant on
Plaintiff’s fraud claim, finding Plaintiff did not offer any evidence that purportedly
2
false representations made by Paul Chapman, Director of Hobby Sales and
Marketing for Defendant, were directed at or received by Plaintiff, that Plaintiff
was misled by the false representations, or that he suffered damages as a result of
being misled.
On July 6, 2016, Defendant filed its Motions. Defendant seeks to exclude
certain deposition testimony by Dean Burnham, Defendant’s CEO, which Mr.
Burnham provided in 2013 in connection with an action in Pennsylvania state court
(the “Pennsylvania Action”). During the deposition, Mr. Burnham was questioned
regarding an email exchange between Frederick Yelk Woodruff, an employee of
Defendant, and Torben Sherwood, a principal of Valley Games and Radiant
Darkstar. The relevant testimony is as follows:
1 Q. And when you saw the e-mail, what was your
2 thoughts?
3 A. It is—it’s apparently more shifty, I
4 guess is a word I would use, that—I mean, when I
5 read this, that Torben obviously had some awareness
6 of potential of seizure of inventory for some reason.
7 Q. And so did your company; correct?
8 A. Fred—yes, apparently Fred responded to
9 this.
10 Q. Fred’s a senior buyer of your company;
11 correct?
12 A. Yes, correct.
13 Q. I mean—
14 A. And I’m not—you know, again I—yeah.
3
15
16
17
18
19
20
21
22
23
24
25
1
2
3
4
5
6
7
8
I mean, I—
Q. So—
A. I agree with what you’re—what you’re—
Q. Fred—
A. —suggesting.
Q. Fred on behalf of your company is aiding
and abetting what Sherwood’s trying to do; correct?
Correct?
A. I have to say yes given this—
Q. Okay.
A. —e-mail.
Q. Okay.
A. The context of this email, I think, yeah,
there’s—
Q. No doubt about it?
A. —something that is—is being
avoided—
Q. Right.
A. —here, sure.
([56.2] at 16-17 (“Burnham Testimony”)).
Defendant contends Mr. Burnham was not a party to the email exchange,
had never reviewed the email exchange, and was speculating about its meaning.
([56.1] at 5). It notes that, after having an opportunity to review all relevant email
exchanges and the facts and circumstances surrounding this matter, Mr. Burnham
corrected his testimony. (Id.). Defendant argues that the Burnham Testimony has
no probative value and is unduly prejudicial. It further seeks to exclude “any and
all evidence the Plaintiff might seek to elicit or introduce suggesting that
4
[Defendant] . . . ‘aided and abetted’ the transfers in issue.” (Id. at 5-6).
Defendant also seeks to exclude any reference to “any alleged ‘fraud’
perpetrated by [Defendant,]” arguing that “fraud has nothing to do with the
remaining legal issues in this case,” which it contends are whether Defendant’s
actions fall under the definition of a fraudulent transfer or were in furtherance of a
conspiracy to fraudulently transfer assets. ([57] at 1-2).
On July 6, 2016, Plaintiff field his Motion. He seeks to exclude (i) the
expert testimony of Oliver Holmes, CPA and Chad Sexton, CPA; (ii) lay opinion
testimony regarding consignment inventory; (iii) argument that Plaintiff should
have obtained a judgment or garnishment against Radiant Darkstar; (iv) evidence
that Plaintiff was paid money by Defendant pursuant to a garnishment proceeding;
(v) evidence of a settlement agreement; and (vi) evidence that Plaintiff is entitled
to less than the value of D-Day Dice inventory at the time of transfer.
II.
DISCUSSION
A.
Defendant’s Motion
1.
Burnham Testimony
Defendant seeks to exclude certain deposition testimony of Dean Burnham,
Defendant’s CEO, about an email of which he was not the author or a recipient.
5
The testimony was given by Mr. Burnham in 2013 in connection with the
Pennsylvania Action. Defendant argues the Burnham Testimony should be
excluded because (i) it is more prejudicial than probative; (ii) it is not relevant
because Georgia law does not provide a cause of action for aiding and abetting a
fraudulent transfer; (iii) the Burnham Testimony is an improper and inadmissible
legal opinion by a lay person; and (iv) Federal Rule of Civil Procedure 32(a)(8)
does not allow admission of the testimony. Plaintiff argues the Burnham
Testimony is admissible under Federal Rule of Evidence 801(d)(2) as an admission
of a party opponent. He argues the testimony is relevant because Georgia law
provides a cause of action for conspiracy to aid and abet a fraudulent transfer.
After considering the arguments of the parties and the relevant case law, the
Court determines it needs more context and information to decide whether the
Burnham Testimony about the email is admissible. The Court defers ruling on this
issue until an objection to it is made when it is sought to be offered into evidence at
trial.
2.
Fraud
Defendant next seeks to exclude any reference to “any alleged ‘fraud’
perpetrated by [Defendant,]” arguing that “fraud has nothing to do with the
6
remaining legal issues in this case,” which it contends are whether Defendant’s
actions fall under the definition of a fraudulent transfer or were in furtherance of a
conspiracy to fraudulently transfer assets. ([57] at 1-2). The Court granted
summary judgment on Plaintiff’s fraud claim, finding Plaintiff did not offer any
evidence that purportedly false representations made by Paul Chapman, Director of
Hobby Sales and Marketing for Defendant, were directed at or received by
Plaintiff, that Plaintiff was misled by the false representations, or that he suffered
damages as a result of being misled.
Defendant, however, does not identify any specific evidence or argument
relating to “fraud” it expects Plaintiff may use at trial. As Plaintiff notes,
Plaintiff’s remaining claims—liability under the Uniform Fraudulent Transfer Act
and for conspiracy to defraud—include the term “fraud.” ([66] at 1). Defendant’s
argument is too unspecific and could be used to exclude testimony or argument
pertaining to Plaintiff’s remaining claims. Defendant’s Motion to exclude any
reference to “fraud” is denied. Defendant may object at trial to any use of the word
fraud if the Defendant believes use of the word was improper.
B.
Plaintiff’s Motion
Plaintiff seeks to exclude (i) the expert testimony of Oliver Holmes, CPA
7
and Chad Sexton, CPA; (ii) lay opinion testimony regarding consignment
inventory; (iii) argument that Plaintiff should have obtained a judgment or
garnishment against Radiant Darkstar; (iv) evidence that Plaintiff was paid money
by Defendant pursuant to a garnishment proceeding; (v) evidence of a settlement
agreement; and (vi) evidence that Plaintiff is entitled to less than the value of
D-Day Dice inventory at the time of transfer.2
1.
Expert Testimony of Holmes and Sexton
Plaintiff seeks to exclude the purported expert testimony of Oliver Holmes,
CPA and Chad Sexton, CPA, arguing Defendant failed to provide expert witness
reports for these individuals as required by Federal Rule of Civil Procedure
26(a)(2). Federal Rule of Civil Procedure 26(a)(2)(B) requires expert witnesses to
provide a written report, prepared and signed by the witness, “if the witness is one
retained or specially employed to provide expert testimony in the case or one
whose duties as the party’s employee regularly involve giving expert testimony.”
Fed. R. Civ. P. 26(a)(2)(B).
2
Defendant, perhaps attempting to skirt the page limitations set forth in Local
Rule 7.1(D), NDGa, filed six separate responses to each ground in Plaintiff’s
Motion. ([60], [61], [62], [63], [64], [65]). Each response contains an identical
two-page boilerplate introduction. The Court notes this briefing method is
duplicative, confusing, and cumbersome.
8
Holmes and Sexton are members of the accounting firm Carr, Riggs &
Ingram, which provides accounting services to Defendant. Defendant represents
Holmes and Sexton are fact witnesses who will testify how Defendant undertakes
its marketing efforts, including the purchase by Defendant of games from
manufacturers and vendors for resale, or alternatively, the undertaking by
Defendant to market and distribute inventory owned by vendor customers and
warehoused at Defendant. Holmes and Sexton also may testify how Defendant
accounted for Valley Games’ inventory warehoused at Defendant, and why
Defendant accounted for the inventory in that manner. ([60] at 3).
Based on the representations made to the Court, it does not appear that
Holmes and Sexton are witnesses “retained or specially employed to provide
expert testimony in the case or one[s] whose duties as the party’s employee[s]
regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2)(B). It
appears, rather, that Holmes and Sexton will testify as to their personal
observations of Defendant’s accounting practices, including as to their accounting
of the D-Day Dice inventory at issue in this action, based on their personal
knowledge gleaned from their ordinary duties at Carr, Riggs & Ingram. This type
of testimony is not impermissible expert testimony. “A company can call its
9
regular accountant or actuary as a fact witness to explain financial records that the
witness prepared or otherwise has personal knowledge of from his or her ordinary
employ.” Georgia Operators Self-Insurers Fund v. PMA Mgm’t Corp., 143 F.
Supp. 3d 1317, 1337 (N.D. Ga. 2015) (citing cases); see also Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1223 (11th
Cir. 2003) (employees or officers of a company may testify as lay witnesses based
on their particularized knowledge gained from their own personal experiences,
because “[s]uch opinion testimony is admitted not because of experience, training
or specialized knowledge within the realm of an expert, but because of the
particularized knowledge that the witness has by virtue of his or her position in the
business”). Holmes and Sexton thus are not expert witnesses who were required to
submit expert reports. Plaintiff’s Motion to exclude Holmes’s and Sexton’s
testimony is denied.3
3
Plaintiff is, of course, entitled to raise appropriate objections if Holmes’s or
Sexton’s testimony strays into expert matters, including the offering of opinions,
that are beyond the scope of their personal knowledge based on their ordinary
employment.
10
2.
Lay Opinion Testimony Regarding Consignment Inventory
Plaintiff next seeks to exclude lay opinion testimony regarding consignment
inventory. Plaintiff argues consignment inventory is a certain type of inventory
defined by Georgia law, and that lay witnesses are prohibited from testifying as to
questions of law or the meaning of terms in a statute. Defendant argues:
Lay witnesses can and should be allowed to testify as to their belief
and opinion, whether based upon the course of dealings between
relevant parties they have observed or internal practices of
[Defendant] about which they are familiar, that the course of dealings
in issue satisfy the requirements of any contract, applicable case law
or statute . . . .
([61] at 5).
O.C.G.A. § 11-9-102(21) defines a consignment as follows:
“Consignment” means a transaction, regardless of its form, in which a
person delivers goods to a merchant for the purpose of sale and:
(A) The merchant:
(i) Deals in goods of that kind under a name other than
the name of the person making delivery;
(ii) Is not an auctioneer; and
(iii) Is not generally known by its creditors to be
substantially engaged in selling the goods of others;
(B) With respect to each delivery, the aggregate value of the
goods is $1,000.00 or more at the time of delivery;
11
(C) The goods are not consumer goods immediately before
delivery; and
(D) The transaction does not create a security interest that
secures an obligation.
O.C.G.A. § 11-9-102(21). While witnesses may not state a legal conclusion that a
certain transaction constitutes a consignment under Georgia law, lay witnesses
certainly may testify as to: whether goods were delivered, the aggregate value of
the goods, the type and purpose of the goods, and other factual information under
Section 11-9-102(21). Plaintiff’s Motion to exclude lay opinion testimony
regarding consignment inventory is denied, provided, however, that witnesses are
precluded from offering a lay opinion whether a specific arrangement is or is not a
consignment. This is a determination to be made by the jury.
3.
Judgment or Garnishment
Plaintiff next moves to exclude argument by Defendant that Plaintiff should
have obtained a judgment or garnishment against Radiant Darkstar. Plaintiff
argues that whether it obtained a judgment or garnishment against Radiant
Darkstar is irrelevant to Plaintiff’s claims against Defendant for liability under
Georgia’s UFTA and liability for conspiracy to defraud. Defendant argues a
judgment or garnishment is relevant to whether Plaintiff mitigated his damages,
12
and that evidence of mitigation is appropriate because UFTA claims sound in
contract. Plaintiff claims the duty to mitigate does not apply in cases of positive
and continuous torts.
The Fourth Circuit recently noted that, while most courts “have refused to
recognize violation of the Uniform Fraudulent Transfer Act as torts[,]” a “handful
of courts”—including federal Courts interpreting Georgia’s UFTA—“have
recognized violations of the Uniform Fraudulent Transfer Act as torts.” Sheehan
v. Saoud, –– F. App’x ––, 2016 WL 2990988, at *8-9 (4th Cir. May 24, 2016)
(citing Chepstow, 381 F.3d at 1090 (recognizing cause of action for civil
conspiracy based on Georgia UFTA against non-transferee defendants); Alliant
Tax Credit Fund 31-A, Ltd. v. Murphy, No. 1:11-cv-832-RWS, 2011 WL
3156339, at *8 (N.D. Ga. July 26, 2011) (“Although Plaintiffs’ claim for civil
conspiracy does not furnish an independent cause of action on which to hold
Defendants liable, it can be used to establish some of Defendants’ liability for
fraudulent transfers under the UFTA.”)). In Chepstow, the Eleventh Circuit noted
that, in Georgia, “to recover damages for a civil conspiracy claim, a plaintiff must
show that two or more persons, acting in concert, engaged in conduct that
constitutes a tort.” 381 F.3d at 1090 (quoting Mustaqeem-Graydon v. SunTrust
13
Bank, 573 S.E.2d 455 (Ga. 2002)) (emphasis added). That the Eleventh Circuit
then recognized a cause of action for civil conspiracy based on a violation of
Georgia’s UFTA supports that the Eleventh Circuit implicitly recognizes Georgia’s
UFTA as a tort.
Under Georgia law, “[w]hen a person is injured by the negligence of
another, he must mitigate his damages as far as is practicable by the use of
ordinary care and diligence. However, this duty to mitigate does not apply in cases
of positive and continuous torts.” O.C.G.A. § 51-12-11. Georgia courts have
defined three types of “positive and continuous” torts: (1) fraud; (2) ongoing
violations of property rights; and (3) intentional torts such as assault and battery.
Wachovia Bank of Ga., N.A. v. Namik, 620 S.E.2d 470, 473 (Ga. Ct. App. 2005).
The parties do not provide, and the Court has not found, any authority discussing
whether a violation of Georgia’s UFTA qualifies as a “positive and continuous”
tort. The Court also is unable to find any precedent in Georgia or in other
jurisdictions supporting that a creditor under the UFTA is required to mitigate
damages resulting from a fraudulent transfer. The Court further is unable to find
any support for the proposition that “ordinary care and diligence” in the course of
mitigating damages includes filing suit and engaging in potentially expensive
14
litigation. The Court finds Defendant’s argument that Plaintiff should have
obtained a judgment or garnishment against Radiant Darkstar is irrelevant, and
thus is excluded. See Fed. R. Civ. P. 402. To the extent Defendant could establish
such evidence is relevant, the Court finds it would be more prejudicial than
probative. See Fed. R. Evid. 403. Plaintiff’s Motion to exclude argument he
should have obtained a judgment or garnishment against Radiant Darkstar is
granted.
4.
Payment to Plaintiff Pursuant to Garnishment
Plaintiff next seeks to exclude evidence that Plaintiff was paid money by
Defendant pursuant to a garnishment proceeding. Defendant contends this
evidence is relevant to Plaintiff’s civil conspiracy claim. It intends to argue that
Defendant paid proceeds from the sale of Valley Games’ inventory into the
registry of the State Court of Gwinnett County pursuant to the garnishment in
issue, but that Defendant understood the D-Day Dice inventory was owned by
Radiant Darkstar—not Valley Games—and thus did not pay D-Day Dice sale
proceeds into the court registry. Defendant argues this evidence shows Defendant
acted in good faith and did not conspire with Valley Games to cause fraudulent
transfers to be made. The Court agrees that evidence that Defendant paid Plaintiff
15
pursuant to a garnishment proceeding may be relevant to whether Defendant
intended to conspire with Valley Games to facilitate fraudulent transfers.
Plaintiff’s Motion is denied on this ground.
5.
Evidence of a Settlement Agreement
Plaintiff next seeks to exclude evidence of a settlement agreement between
Plaintiff and Valley Games, Valley Games’s principals, Radiant Darkstar, and
Radiant Darkstar’s principals. On January 12, 2015, Plaintiff entered into a
settlement agreement (the “Texas Settlement Agreement”) with Valley Games,
Radiant Darkstar, Torben Sherwood, Rik Falch, and Byron Kevin McKenzie
(“Texas Action Defendants”) in an action filed by Plaintiff in Texas. According to
Plaintiff, the claims in the Texas action were different from the claims asserted
here, and the action related to intellectual property and inventory of twenty-three
board games owned by Valley Games, one of which was D-Day Dice. Defendant
was not a party to the Texas Action. Plaintiff argues that, if the Court determines
that the Texas Action Defendants should be listed on the verdict form in this action
pursuant to O.C.G.A. § 51-12-33, the Texas Settlement Agreement should be
excluded from evidence pursuant to Federal Rule of Evidence 408. Defendant
argues that, even if Rule 408 applied here to bar the Texas Settlement Agreement,
16
Defendant offers the agreement for purposes other than proving or disproving the
validity or amount of the claims at issue, or for impeachment or contradiction.
O.C.G.A. § 51-12-33 (the “Apportionment Statute”) provides for
apportionment of damages amongst joint tortfeasors. The Apportionment Statute
provides that, “[i]n assessing percentages of fault, the trier of fact shall consider the
fault of all persons or entities who contributed to the alleged injury or damages,
regardless of whether the person or entity was, or could have been, named as a
party to the suit.” O.C.G.A. § 51-12-33(c). The statute also provides:
“Negligence or fault of a nonparty shall be considered if the plaintiff entered into a
settlement agreement with the nonparty . . . .” O.C.G.A. § 51-12-33(d)(1).
Defendant concedes that the claims at issue in the Texas case and the
resulting Texas Settlement Agreement are different from the claims in this case.
([64] at 6 (“the settlement agreement and related documents sought to be admitted
by Defendant do not represent settlement of the ‘same claim’ at issue in this
litigation.”)). Plaintiff represents that the Texas Action involved claims and
property that are not at issue in this action. Based on the representations of the
parties, the Apportionment Statute does not appear to apply here because the
alleged injury or damages at issue in this case are different from those addressed
17
by the Texas Settlement Agreement. 4 The Texas Settlement Agreement thus is not
relevant, and is otherwise inadmissible under Rule 403 of the Federal Rules of
Evidence because it would mislead the jury and prejudice Plaintiff.
Defendant presents alternative theories of admissibility. It argues that
affidavits from the settlement agreement are admissible to show that D-Day Dice
was owned by Valley Games and transferred to Radiant Darkstar. Plaintiff
contends the affidavits are hearsay. Because Defendant has not had an opportunity
to argue whether the affidavits may be admissible under an exception to hearsay or
are non-hearsay, the Court defers ruling on Plaintiff’s Motion with respect to this
theory of admissibility.
Defendant also argues the Texas Settlement Agreement is admissible to
show that Plaintiff already settled with the real parties in interest in the Texas
litigation. This argument is unpersuasive, because whether the Texas Action
4
For this same reason, however, the Court finds Federal Rule of Evidence
408 does not bar the admission of the Texas Settlement Agreement, because Rule
408 “unambiguously requires that the claim as to which the settlement offer was
made and the claim at issue in the litigation in which the offer is proffered as
evidence must be the same claim.” Armstrong v. HRB Royalty, Inc., 392 F. Supp.
2d 1302, 1304-1305 (S.D. Ala. 2005); see also Ostrow v. GlobeCast Am. Inc., 825
F. Supp. 2d 1267, 1272-73 (S.D. Fla. 2011) (citing cases).
18
Parties were previously released does not have any bearing on whether Defendant
is liable here. See Posey v. Medical Center-West, Inc., 354 S.E.2d 417, 419-20
(Ga. 1987) (“A valid release of one tortfeasor from liability for a harm, given by
the injured person, does not discharge others for the same harm, unless it is agreed
that it will discharge them.”). Defendant’s argument also contradicts its previous
argument that the claims at issue in this action are different than those at issue in
the Texas Action.
Finally, Defendant argues the Texas Settlement Agreement is relevant to
Defendant’s affirmative defenses of “apportionment, payment/satisfaction, and
mitigation of damages.” ([64] at 9-10). Again, this argument contradicts
Defendant’s previous assertion that the claims at issue in this action are different
than those at issue in the Texas Action. It also contradicts Plaintiff’s
representation that the Texas Action involved claims and property that are not at
issue in this action.
Accordingly, Plaintiff’s Motion is granted in part as to the Texas Settlement
Agreement. The Texas Settlement Agreement is excluded, except that Defendant
may present argument that the affidavits in the agreement are admissible under an
19
exception to hearsay or are non-hearsay for the limited purpose of showing that
D-Day Dice was owned by Valley Games and transferred to Radiant Darkstar.
6.
Evidence that Plaintiff is Entitled to Less than the Value of
D-Day Dice Inventory at the Time of Transfer
Finally, Plaintiff moves to exclude evidence that Plaintiff is entitled to less
than the value of D-Day Dice inventory at the time the transfer occurred. The
UFTA provides: “the creditor may recover judgment for the value of the asset
transferred, as adjusted under subsection (c) of this Code section, or the amount
necessary to satisfy the creditor's claim, whichever is less.” O.C.G.A. § 18-278(b)(1). Subsection (c) states: “If the judgment under subsection (b) . . . is based
upon the value of the asset transferred, the judgment must be for an amount equal
to the value of the asset at the time of the transfer, subject to adjustment as the
equities may require.” O.C.G.A. § 18-2-78(c). Plaintiff contends that, under the
UFTA, the value of Plaintiff’s claim is the value of the assets transferred—
$139,984.80. Subsection (c), however, provides that the value of the assets
transferred is “subject to adjustment as the equities may require.” Id. Those
20
equities may be considered by the jury at trial.5 The Court denies Plaintiff’s
Motion on this ground.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Publisher Services, Inc.’s
Motion in Limine to Exclude Evidence of Purported Aiding and Abetting of a
Fraudulent Transfer is DEFERRED.
IT IS FURTHER ORDERED that Defendant’s Motion in Limine
Regarding Fraud [57] is DENIED.
IT IS FURTHER ORDERED that Plaintiff Philip B. Sauer’s Motions in
Limine [56] are GRANTED IN PART and DENIED IN PART. Plaintiff’s
Motion is GRANTED, and Defendant is precluded from (i) offering argument that
Plaintiff should have obtained a judgment or garnishment against Radiant
Darkstar; and (ii) offering the Texas Settlement Agreement, except that Defendant
may present argument to the Court that the affidavits in the agreement are
admissible under an exception to hearsay or are non-hearsay, for the limited
5
It is unclear whether the damages provision in O.C.G.A. § 18-2-78 applies to
Plaintiff’s civil conspiracy claim.
21
purpose of showing that D-Day Dice was owned by Valley Games and transferred
to Radiant Darkstar. Plaintiff’s Motion is DENIED, in accordance with this
Opinion and Order, on the other grounds asserted in his Motion.
SO ORDERED this 19th day of August, 2016.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?