Walker et al v. Williamson et al
Filing
475
ORDER denying 396 Motion for Partial Summary Judgment; denying 409 Motion for Summary Judgment; granting in part and denying in part 411 Motion for Partial Summary Judgment; denying 414 Motion for Summary Judgment; denying 418 Motion for Summary Judgment; finding as moot 445 Motion to Strike ; finding as moot 446 Motion to Exclude Signed by District Judge Keith Starrett on 3/6/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
SCOTT WALKER, et al.
v.
PLAINTIFFS
CIVIL ACTION NO. 1:14-CV-381-KS-JCG
JIMMY WILLIAMSON, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court the Motion for Partial Summary Judgment [396] filed by
Plaintiff Steve Seymour, individually and d/b/a Diamond Consulting and/or d/b/a Precision
Marketing Group, LLC (“Seymour”); the Motion for Summary Judgment [409] filed by
Defendants Cyndi Rusnak and Cyndi Rusnak, PLLC (collectively “Rusnak”); the Motion for
Partial Summary Judgment [411] and Motion to Strike Summary Judgment Evidence Offered to
Support Precision’s Motion for Summary Judgment (“Motion to Strike Precision’s Evidence”)
[445] filed by Defendant Michael A. Pohl, individually and d/b/a The Law Office of Michael A.
Pohl (“Pohl”); the Motion for Partial Summary Judgment [414] and Motion to Strike Evidence
Submitted by Pohl in Support of his Motion for Summary Judgment (“Motion to Strike Pohl’s
Evidence”) [446] filed by Plaintiff Precision Marketing Group, LLC, (“Precision”); and the
Motion for Summary Judgment [418] filed by Defendant Jimmy Williamson, individually and/or
as Director and President of Jimmy Williamson, P.C. (“Williamson”). After considering the
submissions of the parties, the record, and the applicable law, the Court finds the following:
1.
Seymour’s Motion for Partial Summary Judgment [396] is not well taken and
should be denied;
2.
Rusnak’s Motion for Summary Judgment [409] is not well taken and should be
denied;
3.
Pohl’s Motion for Partial Summary Judgment [411] should be granted in part and
denied in part;
4.
Precision’s Motion for Partial Summary Judgment [414] is not well taken and
should be denied;
5.
Williamson’s Motion for Summary Judgment [418] is not well taken and should be
denied;
6.
Pohl’s Motion to Strike Precision’s Evidence [445] should be denied as moot; and
7.
Precision’s Motion to Strike Pohl’s Evidence [446] should be denied as moot.
I. BACKGROUND
The current action was commenced on October 18, 2014, by Plaintiffs Scott Walker,
individually and d/b/a Maxwell & Walker Consulting Group, LLC, and/or d/b/a Precision
Marketing Group, LLC (“Walker”); Kirk D. Ladner, individually and d/b/a The Ladner Group
and/or d/b/a Precision Marketing Group, LLC (“Ladner”); Seymour; and Precision (collectively
“Plaintiffs”) against Defendants Williamson and Pohl. Plaintiffs claim that Pohl and Williamson
joined together in a joint venture or partnership in order to represent Mississippi clients in their
claims against British Petroleum (“BP”) in connection with the 2010 Deepwater Horizon oil spill.
The two then contracted with Plaintiffs to provide marketing and public relations services for this
joint venture.
Plaintiffs brought suit for breach of contract, conscious or negligent bad faith/breach of
good faith and fair dealing, quantum meruit/unjust enrichment, and fraud/fraudulent inducement/
fraudulent misrepresentation. On May 12, 2015, Precision filed a Notice [75] stating that Walker,
Seymour, and Ladner had assigned their chose of action and/or interests in this action to Precision.
2
Plaintiffs filed amended complaints1 in March 2016, for the first time alleging that Defendant
Rusnak was part of the joint venture between Pohl and Williams as well.
II. MOTIONS FOR SUMMARY JUDGMENT [396][409][411][414][418]
A.
Standard of Review
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the burden of production
at trial ultimately rests on the nonmovant, the movant must merely demonstrate an absence of
evidentiary support in the record for the nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist.,
626 F.3d 808, 812 (5th Cir. 2010) (citation and internal quotation marks omitted). The nonmovant
must then “come forward with specific facts showing that there is a genuine issue for trial.” Id.
“An issue is material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels v. City of
Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the evidence is
sufficient for a reasonable [fact-finder] to return a verdict for the nonmoving party.” Cuadra, 626
F.3d at 812 (citation omitted). Where the burden of proof at trial rests on the movant, it “must
establish beyond peradventure all of the essential elements of the claim or defense to warrant
judgment in its favor.” Meecorp Capital Mkts. LLC v. Tex-Wave Indus. LP, 265 F.App’x 155, 157
(5th Cir. 2008) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
The Court is not permitted to make credibility determinations or weigh the evidence.
Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v. Baylor Richardson Med.
1
Plaintiffs Walker, Ladner, and Seymour filed their Second Amended Complaint [166] on March 2, 2016, and
Plaintiff Precision filed its Amended Complaint [179] on March 16, 2016.
3
Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding whether a genuine fact issue exists, “the
court must view the facts and the inferences to be drawn therefrom in the light most favorable to
the nonmoving party.” Sierra Club, 627 F.3d at 138. However, “[c]onclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue for trial.”
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is
mandatory “against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at trial.”
Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759, 766 (5th Cir. 2011) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
As discussed at length by this Court in its past orders, Mississippi law is the law that should
properly be applied. (See, e.g., Order [103] at pp. 5-10.)
B.
Seymour’s Motion for Partial Summary Judgment [396]
In his Motion for Partial Summary Judgment [396], Seymour seeks for the Court to hold
invalid the assignment of his contract rights and chose in action to Precision. In effect, Seymour
is asking the Court to enter judgment on a contract dispute that is not currently before it. Seymour
has no pending cross-claim against his co-plaintiff Precision, and it is not clear that the Court
would have subject matter jurisdiction over such a claim.1 Because there is no claim for which the
Court can issue judgment, partial or otherwise, this motion must be denied.
A.
Rusnak’s Motion for Summary Judgment [409]
Rusnak’s arguments in her Motion for Summary Judgment [409] are identical to those
brought by her and her fellow defendants in their previous motions to dismiss. Specifically, she
1
The Court is sitting in diversity, and both Seymour and Precision are domiciled in Mississippi.
4
argues that there is no evidence of a joint venture between herself, Williamson, and Pohl, and that,
in the event that the Court finds sufficient evidence of a joint venture, the purported contract
between Defendants and Plaintiffs is unenforceable as a matter of law.
1.
Joint Venture
Under Mississippi law, a joint venture “exists when two or more persons combine in a joint
business enterprise for their mutual benefit with an understanding that they are to share in profits
or losses and each to have a voice in its management.” Hults v. Tillman, 480, So.2d 1134, 1142
(Miss. 1985). “The three main questions that are considered in [a joint venture] determination are
(1) the intent of the parties, (2) the control question, and (3) profit sharing.” Smith v. Redd, 593
So.2d 989, 994 (Miss. 1991).
a.
Intent
While actual intent is necessary to find that a joint venture existed, this intent can be
implied by the parties’ actions. Hults v. Tillman, 80 So.2d 1134, 1143 (Miss. 1985). Rusnak does
not dispute that her name appeared on the letterhead of the informational folder distributed by
Plaintiffs, nor does she dispute that this folder contained a letter from “The Law Office of Michael
A. Pohl.” Though both Williamson and Rusnak maintain that “Williamson & Rusnak” was a
“trade name” they were using when, in fact, they were not partners, the Mississippi Rules of
Professional Conduct proscribes using names such as this when lawyers are not partners, as they
suggest partnership. See Miss. Rules of Prof’l Conduct R. 7.7 cmt. The Court previously found
that the letterhead on the informational folder in combination with the references to Pohl was
enough to imply a partnership among the three defendants and defeat Rusnak’s motion to dismiss.
Because Plaintiffs have adduced this evidence, the Court must find that there is at least a factual
5
dispute as to Rusnak’s intent to enter a joint venture with Williamson and Pohl, regardless of
testimony from all defendants denying such a venture.
b.
Control
“Partner-like control” may not be exerted by every party of a joint venture because
circumstances will vary with the relationship between the parties. Smith, 593 So.2d at 994. Here,
though, Plaintiffs have brought forward evidence that Rusnak had some control over the joint
venture. Walker states that it was Rusnak that directed the marketing activities of his company.
(See Walker Affidavit [247-1] at ¶ 5.) Plaintiffs have also produced e-mails between Walker and
Rusnak showing that she was involved in Plaintiffs’ efforts to promote the joint venture in
Mississippi.
(See E-mails [247-2].)
As held in the Court’s previous Order [273], these
communications are enough to establish that Rusnak exercised some control over the actions of
the joint venture.
c.
Profit sharing
Profit sharing is the most important factor in determining whether a joint venture exists.
Century 21 Deep South Props., Ltd. v. Keys, 652 So.2d 707, 715 (Miss. 1995). Under Mississippi
state court precedent, an arrangement to split legal fees is sufficient for a finding of profit sharing
when determining whether a joint venture existed. See Braddock Law Firm, PLLC v. Becnel, 949
So.2d 38, 51 (Miss. Ct. App. 2006). In that case, however, there was a set arrangement under
which plaintiff was owed a sixty percent share in the fees. Id. at 50. However, in this case, though
Williamson admits that he would share profits for BP claims with Rusnak even in those cases
where she did no work,2 he testified that if and what he paid her was “in [his] discretion.”
2
Williamson never uses the word “profits,” which Rusnak emphasizes in her arguments. However, he refers to money
left over after all bills and expenses are paid and after he has ensured that his firm was “financially stable.”
(Williamson Depo. [247-1] at 31:21-25.) It is obvious that this money would be “profits” and not merely “revenue”
as Rusnak contends.
6
(Williamson Depo. [247-1] at 31:21-25.) What share Williamson gave Rusnak was his decision,
even if “in reality, it [ was] a collaborative process,” and was based on the amount of work she put
in on the BP cases, if any, or on other cases, which would free Williamson to pursue the BP cases.
(Id. at 32:6-20.) Though this arrangement is less formal than the one in Braddock, a reasonable
jury could find from this evidence that Rusnak received a share of the profits from the joint venture.
Because Plaintiffs have adduced enough evidence to present a question of fact on each of
the requirements for a joint venture under Mississippi law, Rusnak’s Motion for Summary
Judgment [409] will be denied as to this argument.
2.
Unenforceable contract
Rusnak argues that the original contract between the joint venture and Plaintiffs is
unenforceable as its terms require wrongful conduct on the part of the Plaintiffs to fulfill it. Rusnak
recognizes that the Court already addressed and discarded this argument in its previous Order
[252], finding that there was nothing to suggest that Plaintiffs’ conduct under the contract would
be wrongful as they are not lawyers and would not be committing professional misconduct under
the contract. (See Order [252] at pp. 4-5.) Rusnak contends, though, that Plaintiffs’ depositions
“now show that the Plaintiffs did indeed, ‘give money or some other thing of value to Defendants’
potential clients in order to induce them to commence or continue [sic] the prosecution of any
judicial action,’” in violation of Mississippi law. (Memo. in Support [410] at pp. 14-15.) However,
Rusnak does not point to any specific testimony in these depositions that support this argument,
instead generally referencing the Plaintiffs’ depositions, each of which is over two hundred pages
long. As this is an affirmative defense, it is the burden of Rusnak to point to specific evidence to
show summary judgment is appropriate, and the district court does not bear the burden to sift
through voluminous records to find unspecified evidence. See, e.g., Ragas v. Tenn. Gas Pipeline
7
Co., 136 F.3d 455, 458 (5th Cir. 1998). Rusnak’s Motion for Summary Judgment [409] will
therefore be denied under this argument as well.
D.
Pohl’s Motion for Partial Summary Judgment [411]
1.
Measure of Damages for Breach of Contract/Quantum Meruit
Pohl argues that, under the relevant contracts, he agreed to pay Plaintiffs no more than a
percentage of his attorney’s fees in exchange for their marketing services. Specifically, he claims
that Walker was to receive 12 percent of the fees, Seymour was to receive 12 percent, and Ladner
was to receive 6 percent, for a total of no more than 30 percent under the first agreement. (See
Consulting Agreement [411-1]; May Agreement [411-2].) Then, in July 2012, this was changed
to 7.5 percent to Walker, 7.5 percent to Seymour, and 7.5 to Ladner, for a total of no more than
22.5 percent. (See July Agreement [411-3].)
It is clear from Walker and Seymour’s depositions that this was Plaintiffs’ understanding
of the contract as well. Walker testified that the contract with Defendants “was for 30 percent”
and “that contract was for 22.5 percent lowered by Jimmy [Williamson],” with each Plaintiff to
receive 7.5 percent. (Walker Depo. [411-5] at 205:6-19.) He went on to say that “my belief is that
the first contract was 30 percent of Michael Pohl’s 40 percent. Jimmy and him were split 60/40.
And then the second contract was for 22-and-a-half.” (Id. at 206:21-25.) Seymour testified that
the agreement between Plaintiffs and Pohl was for “percentages.” (Seymour Depo. [411-6] at
170:8-14.) Furthermore, in their responses to Pohl’s motion, Plaintiffs do not argue that these
percentages are not the correct measure of damages should the Court find that the contracts
between them and Pohl are enforceable. Therefore, the Court will grant Pohl’s Motion for Partial
Summary Judgment [411] with respect to the breach of contract claims against him, and the
damages for these claims shall be capped at the percentages in the respective contracts.
8
Plaintiffs contend, though, that the correct method of recovery in this case is through their
quantum meruit claim. They argue that there was no meeting of the minds to form a valid contract
because Pohl believed they were contracting for an hourly rate that was never determined and
Plaintiffs believed they were contracting for a percentage of attorney’s fees. Curiously, Plaintiffs
go on to argue that, because there is no valid contract, they should receive not the percentage
amounts they expected to receive, but rather an hourly rate that is fair and reasonable under the
circumstances. Even if the Court were to accept that there are no enforceable contracts, Plaintiffs’
damages would still be capped at the percentages they expected to receive.
Under Mississippi law, quantum meruit recovery is “a contract remedy which may be
premised on [an] express or implied contract” and is premised on “the claimant’s reasonable
expectation of compensation.” Tupelo Redev. Agency v. Gray Corp., Inc., 972 So.2d 495, 514
(Miss. 2007) (quoting In Re Estate of Fitzner, 881 So.2d 164, 173 (Miss. 2003)) (emphasis
omitted). Even where the agreement between parties has been found to be unenforceable,
Mississippi courts have found it proper to reference these agreements and the claimant’s
expectations in what they were to be compensated when applying the theory of quantum meruit.
See Williams v. Ellis, 176 So.3d 133, 140-41 (Miss. Ct. App. 2015). Plaintiffs performed their
work under the contracts, which they assumed were enforceable, under the belief that they would
receive the specified percentages of Pohl’s attorney’s fees. The Court finds that the percentages,
then, are the proper measure of damages under Plaintiffs’ quantum meruit theory and will therefore
grant Pohl’s motion with respect to the quantum meruit claims as well.
2.
Measure of Damages for Breach of Good Faith
Pohl also argues that the same percentage cap on damages applies to Plaintiffs’ claim for
breach of the covenant of good faith and fair dealing. Under Mississippi law, “the appropriate
9
remedy for the breach of the covenant of good faith is the measure of expectancy type damages.”
Cenac v. Murry, 609 So.2d 1257, 1273 (Miss. 1992). Plaintiffs offer no argument that damages
should not be capped by the percentages of the contracts for this claim.3 Accordingly, the Court
finds that the compensatory damages for Plaintiffs’ breach of the covenant of good faith and fair
dealing claim should be capped by the percentages contained in the contracts,4 and Pohl’s motion
will be granted in this respect.
3.
Assignment to Precision
Pohl contends that Walker, Ladner, and Seymour’s assignment of the claims and causes in
this action to Precision is invalid because it is a champertous assignment. A champertous
assignment is defined as a “bargain between a stranger and a party to a lawsuit by which the
stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds.”
Sneed v. Ford Motor Co., 735 So.2d 306 (Miss. 1999) (quoting BLACK’S LAW DICTIONARY 157
(6th ed. 1990)). These types of assignments are prohibited under Mississippi law. See Miss. Code
Ann. § 97-9-11. Pohl argues that because Scott Favre (“Favre”), who is currently the sole member
of Precision, is a stranger to this action, the assignment to Precision is champertous and prohibited.
Precision, however, is a Mississippi limited liability company whose only members at the
time of filing this lawsuit were Walker, Seymour, and Ladner, and the LLC entity was a properly
joined plaintiff in this action. (See Complaint [1].) It is clear then that, at the onset of this action,
Precision was not a stranger to this suit. Pohl has given the Court no reason to pierce the corporate
veil of Precision and find any assignments of claims to Precision as invalid champertous
assignments because the membership of the LLC has changed. Without further evidence showing
3
Plaintiffs argue that no contract exists. A contract is necessary for a claim for the breach of the covenant of good
faith and fair dealing to succeed.
4
This ruling does not affect whatever punitive damages Plaintiffs may seek to establish under this claim.
10
that such a piercing is proper, the Court will deny Pohl’s Motion for Partial Summary Judgment
[411] with respect to the assignment to Precision.
E.
Precision’s Motion for Partial Summary Judgment [414]
In its Motion for Partial Summary Judgment [414],5 Precision asks that the Court enter
summary judgment on its quantum meruit claim for its marketing work related to the BP claims.
“Quantum meruit recovery is a contract remedy which may be premised either on express or
‘implied’ contract, and a prerequisite to establishing grounds for quantum meruit recovery is
claimant’s reasonable expectation of compensation.” Tupelo Redev. Agency v. Gray Corp., Inc.,
972 So.2d 495, 514 (Miss. 2007) (quoting In Re Estate of Fitzner, 881 So.2d 164, 173 (Miss.
2003)) (emphasis omitted). As the party with the burden of proof at trial, to receive summary
judgment on this claim, Precision must adduce undisputed evidence that establishes each of the
following elements:
(1) valuable services were rendered or materials furnished; (2) for the person sought
to be charged; (3) which services and materials were accepted by the person sought
to be charged, used and enjoyed by him; and (4) under such circumstances as
reasonably notified person sought to be charged that plaintiff, in performing such
services, was expected to be paid by person sought to be charged.
Id. at 514-15 (citations omitted).
Precision only briefly addresses these elements of their quantum meruit claim by stating:
In this case, it is undisputed that the Plaintiffs rendered valuable services to Pohl.
It is undisputed that Pohl used and enjoyed the Plaintiffs services, to the tune of
approximately 12,000 potential clients. It is undisputed that Pohl expected to pay
Plaintiffs for their services. Quantum meruit is the proper measure of damages in
this case.
(Precision Memo. in Support [415] at p. 5.) At no point, however, does Precision point to any
specific evidence to support these statements. At the summary judgment stage, the Court is not
5
Walker and Ladner have joined in this motion. (See Joinder [424].)
11
permitted to accept conclusional allegations, see Oliver, 276 F.3d at 744, and Precision, as the
party with the burden at trial, “must establish beyond peradventure all of the essential elements”
of its quantum meruit claim to receive summary judgment. See Meecorp, 265 F.App’x at 157
(quoting Fontenot, 780 F.2d at 1194). If, as Precision argues, these elements of its claim are
undisputed, it is Precision’s responsibility at the summary judgment stage to point to specific
evidence in the record demonstrating this. The Court does not bear the burden to sift through
voluminous records to find unspecified evidence. See, e.g., Ragas, 136 F.3d at 458.
Because Precision has failed to adduce evidence to establish the essential elements of its
quantum meruit claim, the Court will deny its Motion for Partial Summary Judgment [414].
F.
Williamson’s Motion for Summary Judgment [418]
Williamson’s Motion for Summary Judgment [418] is rooted in Texas law, which he
contends is in conflict with Mississippi law on the issue of whether a joint venture existed. This
argument is based in his belief that Mississippi law equates lost revenue with lost profits. This is
an incorrect statement of the law of Mississippi. See Braddock Law Firm, PLLC v. Becnel, 949
So.2d 38, 51 (Miss. 2006) (stating that there is a distinction “between sharing in the profits and
sharing in gross receipts” under Mississippi law). Because there is no such conflict, the Court’s
conflict of law analysis in its previous Order [103] was correct and will not be disturbed.
Williamson’s motion will therefore be evaluated under Mississippi law.
Under Mississippi law, a joint venture “exists when two or more persons combine in a joint
business enterprise for their mutual benefit with an understanding that they are to share in profits
or losses and each to have a voice in its management.” Hults v. Tillman, 480, So.2d 1134, 1142
(Miss. 1985). “The three main questions that are considered in [a joint venture] determination are
12
(1) the intent of the parties, (2) the control question, and (3) profit sharing.” Smith v. Redd, 593
So.2d 989, 994 (Miss. 1991).
1.
Intent
While actual intent is necessary to find that a joint venture existed, this intent can be
implied by the parties’ actions. Hults v. Tillman, 80 So.2d 1134, 1143 (Miss. 1985). As previously
stated in the Court’s analysis of Rusnak’s motion, see supra, II.C.1.a, Williamson’s name appeared
on the letterhead of letter inside the binder given to potential BP claimants, along with his resume,
business card, and an employment contract bearing both Williamson’s and Pohl’s names. (See
Binder [19-5].) In fact, Williamson’s name appeared throughout this binder, and as the Court
previously found, this is enough to imply an intent to be seen as partners. The Court therefore
finds that Plaintiffs have adduced enough evidence to survive summary judgment on the intent
element of the joint venture analysis.
2.
Control
“Partner-like control” may not be exerted by every party of a joint venture because
circumstances will vary with the relationship between the parties. Smith, 593 So.2d at 994. Here,
though, there is evidence that Williamson directed the efforts of Plaintiffs’ employees. (See
Santana Affidavit [447-2] at ¶ 13.) This is enough for Plaintiffs to survive summary judgment on
the control element of their claim.
3.
Profit sharing
Profit sharing is the most important factor in determining whether a joint venture exists.
Century 21 Deep South Props., Ltd. v. Keys, 652 So.2d 707, 715 (Miss. 1995). Under Mississippi
state court precedent, an arrangement to split legal fees is sufficient for a finding of profit sharing
when determining whether a joint venture existed. See Braddock Law Firm, PLLC v. Becnel, 949
13
So.2d 38, 51 (Miss. Ct. App. 2006). In that case, there was a set arrangement under which plaintiff
was owed a sixty percent share in the fees. Id. at 50. Similarly, in this case, Pohl was to receive
40 percent of the attorney’s fees generated by the BP claims, and Williamson was to receive 60
percent. (See Williamson Depo. [447-1] at 199:24-200:6.) This is enough for the Court to find
the profit sharing element of the joint venture claim to have been met.
Finding that evidence has been brought forward on all three elements of a joint venture,
the Court will deny Williamson’s Motion for Summary Judgment [418].
III. MOTIONS TO STRIKE [445][446]
A.
Motion to Strike Precision’s Evidence [445]
In his Motion to Strike Precision’s Evidence [445], Pohl argues that the affidavits of
Walker and Ladner should be stricken from consideration under Precision’s Motion for Partial
Summary Judgment [414]. As the Court finds that Precision’s motion should be denied regardless
of this evidence, Pohl’s Motion to Strike Precision’s Evidence [445] will be denied as moot.
B.
Motion to Strike Pohl’s Evidence [446]
In its Motion to Strike Pohl’s Evidence [446], Precision argues that the deposition excerpts
of Pohl should be stricken from consideration under Pohl’s Motion for Partial Summary Judgment
[411] because the certification page of the deposition is not signed by the court reporter. The Court
would first note that Plaintiffs attach the same deposition of Pohl in its entirety to their response
to the motion for partial summary judgment, leading the Court to the conclusion that Precision has
no objection to the excerpts authenticity. Rather, Precision seems to want these excerpts struck
based only on a technicality. The Court need not decide whether this is a proper basis for these
excerpts to be stricken because they played no role in its analysis of Pohl’s Motion for Partial
Summary Judgment [411]. Instead, the Court relied on Plaintiffs’ own depositions in finding that
14
parts of the motion should be granted. Therefore, Precision’s Motion to Strike Pohl’s Evidence
[446] will be denied as moot.
V. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Seymour’s Motion for Summary
Judgment [396] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that Rusnak’s Motion for Summary
Judgment [409] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that Pohl’s Motion for Partial Summary
Judmgnet [411] is granted in part and denied in part.
It is granted in that compensatory damages for Plaintiffs’ claims of breach of contract,
quantum meruit, and breach of the covenant of good faith and fair dealing will be capped at the
percentages of attorney’s fees outlined in the contracts.
It is denied in that the assignment to Precision is not found to be an invalid champertous
assignment.
IT IS FURTHER ORDERED AND ADJUDGED that Precision’s Motion for Partial
Summary Judgment [414] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that Williamson’s Motion for Summary
Judgment [418] is denied.
IT IS FURTHER ORDERED AND ADJUDGED that Pohl’s Motion to Strike Precision’s
Evidence [445] is denied as moot.
IT IS FURTHER ORDERED AND ADJUDGED that Precision’s Motion to Strike Pohl’s
Evidence [446] is denied as moot.
SO ORDERED AND ADJUDGED on this the
15
6th
day of March, 2017.
s/Keith Starrett_________________
KEITH STARRETT
UNITED STATES DISTRICT JUDGE
16
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