Arrow Enterprise Computing Solutions, Inc. v. BlueAlly, LLC, et al
ORDER granting 150 Motion in Limine re: Financing Statements - Signed by District Judge Louise Wood Flanagan on 6/12/2018. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
ARROW ENTERPRISE COMPUTING
SOLUTIONS, INC., a Delaware
BLUEALLY LLC, a Delaware limited
liability company; BLUEALLY
DIRECT, LLC, a Virginia limited
liability company; NET DIRECT
SYSTEMS, LLC, a North Carolina
limited liability company; PHILIP
ALBERT SANTONI, an individual; and
CRISTA MARIE SANTONI, an
This matter comes before the court on plaintiff’s motion in limine regarding financing
statements (DE 150). Defendants BlueAlly, LLC and BlueAlly Direct, LLC (the “BlueAlly
defendants”) responded, and the court heard argument at pretrial conference on June 11, 2018. In
this posture, the issues raised are ripe for ruling. For the following reasons, plaintiff’s motion is
June 11, 2018, jury trial commenced on plaintiff’s breach of contract claims against the
BlueAlly defendants. The court incorporates herein by reference the statement of the case and
statement of undisputed facts from its November 30, 2017, order on plaintiff’s motion for summary
judgment. (See Sum. J. Order (DE 118) at 1-13; Arrow Enter. Computing Sols., Inc. v. BlueAlly
LLC, No. 5:15-CV-37-FL, 2017 WL 5924246, at *1-6 (E.D.N.C. Nov. 30, 2017)).
Plaintiff seeks to exclude from evidence at trial certain Uniform Commercial Code (UCC)
financing statement continuations filed by plaintiff in September 2015, after commencement of the
instant action, pertaining to collateral of defendant Net Direct Systems, LLC (hereinafter, the
“financing statements”). (See BlueAlly Defendants’ Trial Ex. 402; Trial Brief, Ex. A (DE 154-1).
Plaintiff also seeks to prevent the BlueAlly defendants from offering or introducing any other
evidence or making any argument at trial that plaintiff did not file a release of the financing
statements. Plaintiff asserts that the financing statements are irrelevant and will confuse the jury.
In response, defendants assert that the financing statements are relevant to whether the parties
intended the Consent to Asset Purchase Agreement (the “Consent”) to be consideration for the Letter
Agreement. Defendants also refer to arguments in their trial brief wherein they assert the Consent
is not legally sufficient consideration because it is illusory.
Federal Rule of Evidence 402 provides that “[r]elevant evidence is admissible,” and
“[i]rrelevant evidence is not admissible.” Evidence is relevant if “(a) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Fed. R. Evid. 401. Thus, “[r]elevancy . . . exists only as a relationship
between an item of evidence and a matter properly provable in the case.” Id. Advisory Committee
Note. In addition, “[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, [or] wasting time.” Fed. R. Evid. 403.
Here, the financing statements are irrelevant because they are not probative to any fact that
is of consequence in determining the action. This court previously determined as a matter of law
that “[p]laintiff’s execution of the Consent constitutes forebearance [sic] of legal rights sufficient
to qualify as consideration for a contract under law.” (Sum. J. Order (DE 118) at 17). The court
reasoned that “[t]he only reasonable interpretation of the Consent is that it did provide for some
forebearance [sic] on the part of plaintiff of certain of its rights and remedies under the Security
Agreement and Financing Statement(s) based upon execution of the Asset Purchase Agreement.”
(Id. at 18). “Having so determined, however,” the court noted, “an issue remains whether the parties
in fact intended for the Consent to be consideration for the Letter Agreement.” (Id.).
The financing statements are not of any consequence in determining whether the parties in
fact intended for the Consent to be consideration for the Letter Agreement. The BlueAlly
defendants describe the purpose of introducing the financing statements at trial as follows: “[T]he
evidence will show that what Arrow discussed doing in exchange for the Letter Agreement was
releasing its security interests in Net Direct; however, the continuation shows that Arrow did not
intend to release – and did not release – those interests by signing the Consent.” (Resp. (DE 166)
at 2). Even accepting this is what the evidence will show, this fact is not of consequence to the
remaining issue of consideration. As the court recognized in its summary judgment order, the
Consent constitutes forbearance not because plaintiff agreed to file a “release” of security interests
in Net Direct, but rather because plaintiff refrained from exercising “all rights and remedies of a
secured creditor under the Uniform Commercial Code,” such as the “ability to declare default of the
Security Agreement.” (See Sum. J. Order (DE 118) at 17-18 (citing Security Agrement (DE 94-21)
at 3, as providing for events of default upon dissolution of Net Direct)). The filing of the financing
statements in 2015, after commencement of the instant lawsuit, is not relevant to plaintiff’s intent
in forbearing as it agreed to do in 2013.
The BlueAlly defendants suggest in their trial brief that the Consent is not legally sufficient
consideration because it is illusory. They contend, for example, that plaintiff’s “conduct after
signing the Consent,” in the form of the financing statement continuations, “shows that it did not
intend to give up any legal right by signing the Consent.” (Trial Br. (DE 154) at 23). This argument
misses the mark for two reasons. First, court already has held the Consent is legally sufficient as a
matter of law to constitute forbearance of a legal right. As a general rule, a partial summary
judgment ruling can be revised any time before final judgment pursuant to Federal Rule of Civil
Procedure 54(b). However, “courts have cabined revision pursuant to Rule 54(b) by treating
interlocutory rulings as law of the case,” subject to revision upon: “(1) a subsequent trial producing
substantially different evidence; (2) a change in applicable law; or (3) clear error causing manifest
injustice.” Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017). The BlueAlly
defendants have not demonstrated that any such circumstance applies here.
Second, the argument is without merit. The court reiterates its prior holding now in light of
North Carolina law. “[T]here is a consideration if the promisee, in return for the promise, does
anything legal which he is not bound to do, or refrains from doing anything which he has a right to
do, whether there is any actual loss or detriment to him or actual benefit to the promisor or not.”
Stonestreet v. S. Oil Co., 226 N.C. 261, 263 (1946) (quotations omitted). “Consideration for a
promise is defined . . . as an act or a forbearance, or the creation, modification or destruction of a
legal relation, or a return promise, bargained for and given in exchange for the promise.” Byerly v.
Duke Power Co., 217 F.2d 803, 806 (4th Cir. 1954) (citing Restatement of Contracts § 75) (applying
North Carolina law); see also In re Biondo, 180 F.3d 126, 132 n. 3 (4th Cir. 1999) (noting that
“[f]orbearance” is defined as “[g]iving of further time for repayment of obligation or agreement not
to enforce claim at its due date”) (citing Black’s Law Dictionary 644 (6th ed. 1990)); Noblet v.
Green, 13 N.C. 517, 518–19 (1830) (recognizing that where parties “deal together upon [certain]
rights, and ascertain their value, and in consideration of the possessor of them yielding them up
entirely, or refraining to enforce them, another promise to pay that value, or do some other act, it is
a good promise”) (emphasis added).
As noted above, plaintiff’s forbearance in this instance is based upon the undisputed fact that
plaintiff, at the time of the Asset Purchase Agreement, refrained from exercising certain legal rights
under the Security Agreement. For example, it did not object to the sale of Net Direct assets under
the Asset Purchase Agreement and it did not foreclose upon its security interest in Net Direct’s
assets in response to the sale. Rather, as the Consent states in plain terms, plaintiff “consent[ed] to
the Asset Purchase Agreement,” despite the “terms and conditions contained” in the Security
Agreement. (Consent (DE 30-3) at 2). Although this forbearance is limited, it is sufficient conduct
refraining from exercising a legal right to immediately enforce Net Direct’s debt obligations to
constitute consideration under law. Stonestreet, 226 N.C. at 263; Byerly, 217 F.2d at 806; Noblet,
13 N.C. at 518-19.
In addition, assuming the financing statements have some conceivable relevance to the
parties’ intent in entering into the Consent, introduction of the financing statements for the purpose
stated by the BlueAlly defendants risks unfair prejudice, confusing the issues, misleading the jury,
and wasting time at trial. The financing statements, and the BlueAlly defendants’ argument related
thereto, risk inviting the jury to consider issues already decided by the court as a matter of law.
Defendants have not provided a clear, consistent articulation of the purpose for introducing the
financing statements, where they at one point suggest they are pertinent only to the parties’ intent,
and at another point pertinent also to showing the Consent is illusory. (Compare Resp. (DE 166) at
2 with Trial Brief (DE 154) at 23). The financing statements are not contemporaneous to the
execution of the Consent, and they illustrate plaintiff’s conduct with respect to defendant Net Direct
only after the commencement of this lawsuit. Under these circumstances, the probative value of the
financing statements, if any, is outweighed by danger for undue prejudice to plaintiff if they are
introduced into evidence.
Based on the foregoing, plaintiff’s motion in limine regarding financing statements (DE 150)
is GRANTED. The BlueAlly Defendants are precluded from offering into evidence at trial the
financing statements, or from offering or introducing any other evidence or making any argument
at trial that plaintiff did not file a release of the financing statements.
SO ORDERED, this the 12th day of June, 2018.
LOUISE W. FLANAGAN
United States District Judge
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