Contract Design Group, Incorporated et al v. Wayne State University et al

Filing 148

ORDER denying 107 Motion to Strike; denying 128 Motion in Limine; denying 129 Motion in Limine; denying 130 Motion in Limine; granting 131 Motion in Limine; denying 132 Motion in Limine; denying 133 Motion in Limine; granting 141 Motion to Amend/Correct. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CONTRACT DESIGN GROUP, INC., and
ROBERT MURRAY,
Plaintiffs,

Case No: 10-14702

v.

Hon. Victoria A. Roberts

WAYNE STATE UNIVERSITY, THE WAYNE
STATE UNIVERSITY BOARD OF GOVERNORS,
JAMES R. SEARS, JOAN M. GOSSMAN, and
JOHN L. DAVIS,

Defendants.
/
ORDER
I.

INTRODUCTION AND BACKGROUND
Before the Court are several motions involving evidence and testimony, including

motions in limine. Oral argument was heard on June 19, 2003.
This is an action for alleged violations under the United States and Michigan
constitutions, and claims based on tort and contractual theories, between a contractor
and a public university and its employees and agents.
Contract Design Group, Inc. (“CDG”) is a flooring contractor; Robert Murray is its
president (collectively, “Plaintiffs”). Wayne State University is a Michigan non-profit
corporation and a state educational institution; James R. Sears, Joan M. Gossman, and
John L. Davis were employed by it during the times relevant to this action. Wayne State
University Board of Governors (“Board”) is a state agency which conducts the affairs of
Wayne.
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CDG provided flooring work for Wayne under lump sum contracts. CDG then
also entered into contracts with Wayne to provide an indefinite amount of floor covering
work (“blanket contracts”). The blanket contracts carried time-and-material and unitpriced components, and included prevailing wage requirements for compensation of
workers in Wayne’s projects. The last blanket contract was entered into in 2008.
The crux of this litigation relates to Wayne’s decision in 2009 to suspend CDG’s
work and terminate its contracts for alleged fraudulent behavior, breach of contract, and
noncompliance with Michigan’s Prevailing Wage and Projects Act, P.A. 166 of 1965
(“PWA”). Whistleblowers informed Wayne of CDG’s alleged noncompliance. In October,
2009, Wayne notified CDG that it was considering debarring it from participation in any
of Wayne’s bid processes or awards, and gave it twenty days to submit information in
opposition to the proposed debarment and a written request for a meeting to discuss it.
A hearing was held on December 7 , 2009. Wayne debarred Plaintiffs for three years.
Plaintiffs say the hearing was a “kangaroo court” proceeding; it was conducted
without proper notice of the allegations against them, it was done without following
Wayne’s debarment policies, it was not recorded, and it did not afford Plaintiffs an
opportunity for argument or presentation of evidence and testimony. They also say that
they were de facto debarred prior to the hearing.
Plaintiffs claim that Wayne has refused to pay them for work they continued to
perform on a lump sum basis up to the time of debarment, outside of the blanket
contracts proceedings.
On July 8, 2011, Plaintiffs filed this lawsuit, claiming that Defendants assumed
the State’s function when prosecuting the prevailing wage law, and violated their
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substantive and procedural due process and equal protection rights protected by the
Fourteenth Amendment to the United States Constitution. Plaintiffs also allege state law
claims; they say that Defendants violated the Michigan Constitution for the same
reasons as the United States Constitution, and intentionally interfered with business
relations and prospective business relations, and that their account with Wayne is
stated and that their lump sum contracts were breached because they were not
compensated.
On May 20, 2013, the Court entered an amended order granting in part and
denying in part Defendants’ motion for summary judgment. The claims headed for trial
are:
(a) Count Two: Procedural Due Process under the U.S. Constitution;
(b) Count Four: Procedural Due Process under the Michigan Constitution;
(c) Count Five: Interference with Business Relations based on defamation;
(d) Count Six: Account Stated; and
(e) Count Seven: Breach of Contract.
II.

STANDARD OF REVIEW
District courts may rule on motions in limine under their authority to manage

trials. The Court exercises its sound discretion when resolving questions of relevancy
and admissibility of evidence at trial. See United States v. Seago, 930 F.2d 482, 494
(6th Cir. 1991).
III.

MOTIONS IN LIMINE
For the reasons stated on the record, the Court:
(A) DENIES Defendants’ Rule 26 and Daubert Motion to Strike Plaintiffs’
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Expert Report and Expert Ted Funke From Testifying (Doc. 107);
(B) DENIES Plaintiffs’ Motion In Limine to Take Judicial Notice of Certain
Facts (Doc. 128);
(C) GRANTS Plaintiffs’ Emergency Motion to Amend/Correct the Parties
Proposed Joint Final Pretrial Order to Add Tara Bride to Plaintiffs' List of
May Call Testifying Witnesses (Doc. 141)
Plaintiffs may add Tara Bride to their witness list; Defendants will
not be unfairly prejudiced; they knew of Tara Bride’s potential testimony
because Plaintiffs previously listed her as a witness. Defendants may add
Jack Finn and Adam Sandoval to their witness list;
(D) DENIES Plaintiffs’ Motion in Limine to Exclude Evidence Regarding
Unpleaded Affirmative Defenses or Counterclaims (Doc. 129);
(E) DENIES Plaintiffs’ Motion in Limine to Exclude Documents Containing
Hearsay Statements of Raymond Williams (Doc. 130)
Plaintiffs may seek a curative instruction that these statements are
not offered for their truth;
(F) GRANTS Plaintiffs’ Motion in Limine to Exclude December 9, 2009
Email of Anthony Vittiglio to Linda Galante (Doc. 131);
(G) DENIES Defendants’ Motion in Limine Regarding Debarment Standards
(Doc. 132);
(H) DENIES Defendants’ Motion in Limine to Exclude Evidence of George
Dorset’s Authority to Contract on Behalf of Wayne State University (Doc.
133).
IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge

Dated: June 20, 2013

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The undersigned certifies
that a copy of this document
was served on the attorneys
of record by electronic
means or U.S. Mail on June
20, 2013.
S/Carol A. Pinegar
Deputy Clerk

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