Talmer Bank and Trust v. Kausmeyer
Filing
98
Memorandum of Opinion and Order for the reasons set forth herein Plaintiff's 69 Motion in Limine to Exclude Evidence of Other Claims Asserted Against Talmer is granted. Plaintiff's 70 Motion in Limine to Exclude Evidence Regardin g the Validity of the CICS Agreement is granted. Plaintiff's 71 Motion in Limine to Limit Admission of Evidence Regarding Alleged Fraud is denied. Plaintiff's 75 Motion in Limine to Exclude Evidence Relating to Expense Reimbursement i s denied. Plaintiff's 76 Motion in Limine Regarding References to Plaintiff's Name at Trial is granted. Defendant's 88 Motion in Limine to Exclude Evidence Relating to Defendant's Job Performance is denied. Judge Benita Y. Pearson on 12/9/2016. (E,CK)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHEMICAL BANK,
Plaintiff,
v.
GARY KAUSMEYER,
Defendant.
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CASE NO. 4:15CV1850
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER
[Resolving ECF Nos. 69, 70, 71, 75, 76,
and 88]
The following motions are pending in the above-entitled action:
Plaintiff’s Motion in Limine to Exclude Evidence of Other Claims Asserted Against
Talmer (ECF No. 69);
Plaintiff’s Motion in Limine to Exclude Evidence Regarding the Validity of the CICS
Agreement (ECF No. 70);
Plaintiff’s Motion in Limine to Limit Admission of Evidence Regarding Alleged Fraud
(ECF No. 71);
Plaintiff’s Motion in Limine to Exclude Evidence Relating to Expense Reimbursement
(ECF No. 75);
Plaintiff’s Motion in Limine Regarding References to Plaintiff’s Name at Trial (ECF No.
76); and,
Defendant’s Motion in Limine to Exclude Evidence Relating to Defendant’s Job
Performance (ECF No. 88).
The Court has been advised, having reviewed the record, the parties’ briefs, and the applicable
law.
I. ECF No. 69
In its Motion in Limine to Exclude Evidence of Other Claims Asserted Against Talmer
(ECF No. 69), Plaintiff seeks an order from the Court to prohibit Defendant from making direct
(4:15CV1850)
and/or indirect references, through witnesses, exhibits or arguments, to claims asserted against
Talmer, including any resolution or outcome of those claims, by employees other than
Kausmeyer who were parties to Change in Control Severance (“CICS”) Agreements similar to
the CICS Agreement executed by Defendant.
For good cause shown, the motion is granted. Reference to those claims would be
misleading, confusing and unfairly prejudicial, and presentation of evidence concerning those
claims would be a waste of time. The Court is also concerned that mini-trials over the claims of
William Chernock and Jeffrey Miller would confuse the issues and potentially mislead the jury.
Accordingly, the evidence is excluded pursuant to Rules 401 and 403 of the Federal Rules of
Evidence until further order of the Court.
II. ECF No. 70
Plaintiff moves the Court for an order to prohibit Defendant from introducing evidence
directed to the validity of Kausmeyer’s arbitrable claim against Talmer under the Change in
Control Severance Agreement (the “CICS Agreement”) (ECF No. 46-2) executed by Defendant
and First Place Bank (“FPB”) on June 13, 2011.
For good cause shown, the motion is granted. Whether Defendant’s claim under the
CICS Agreement is valid or whether the CICS Agreement is an enforceable contract, are not
relevant to the issues in the case at bar; and the admission of evidence relating to those matters
would be unfairly prejudicial and mislead and confuse the jury, as well as waste the Court’s and
the jury’s time at trial. Accordingly, the evidence is excluded pursuant to Rules 401 and 403 of
the Federal Rules of Evidence until further order of the Court.
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(4:15CV1850)
III. ECF No. 71
In its Motion in Limine to Limit Admission of Evidence Regarding Alleged Fraud (ECF
No. 71), Plaintiff moves the Court to prohibit Defendant from introducing any evidence of fraud
unrelated to the alleged isolated statement by David J. Wolfe, Jr., Esq. that Kausmeyer’s
execution of the Project Completion Agreement (“PCA”) was only needed “for regulatory
purposes.” Deposition of Defendant (ECF No. 45-1) at PageID #: 405-409.
The motion is denied. However, the evidence of fraud is limited to Defendant. For
example, that Defendant declined to sign the “Receipt and Acknowledgment” portion of the
“Notice re/ Change in Control Severance Agreement” (ECF No. 46-4) because he did not agree
that the CICS Agreement had been terminated provides context and background regarding his
claim for common law fraud and affirmative defense of fraudulent inducement.
IV. ECF No. 75
Plaintiff also moves the Court for a ruling pursuant to Rules 401, 402, and 403 of the
Federal Rules of Evidence preventing Defendant from introducing evidence related to
reimbursement of his expenses by FPB (including business expenses as well as housing, travel or
relocation expenses).
The Bank offered to reimburse Defendant for expenses for temporary housing and travel
expenses, and move-related and housing-related costs incurred within two years of his start date.
Declaration of Defendant (ECF No. 46-1) at PageID #: 592, ¶ 16; Deposition of Defendant (ECF
No. 45-1) at PageID #: 317-18. In April 2013, Defendant submitted an expense reimbursement
form with expenses totaling $16,362.66 to Kim Wadman, assistant to FPB’s Chief Executive
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Officer, Tom Shafer. ECF No. 45-1 at PageID #: 321-23; ECF No. 46-1 at PageID #: 592, ¶ 17.
Defendant had not been reimbursed for these expenses as of November 8, 2013. ECF No. 46-1
at PageID #: 593, ¶ 18. On November 15, 2016, Defendant received a payment of $19,079.52
from FPB by way of direct deposit into his bank account. According to Plaintiff, it deposited the
Project Completion Bonus amount of $26,666, which after applicable tax withholdings resulted
in a net deposit into Defendant’s bank account of $19,079.52. Declaration of Sandy Kuohn (ECF
No. 45-3) at PageID #: 475, ¶ 8. Defendant believed that the $19,079.52 was reimbursement for
expenses owed to him by the Bank. ECF No. 46-1 at PageID #: 593-94, ¶¶ 21-22.
The motion is denied until further order of the Court.
V. ECF No. 76
In its Motion in Limine Regarding References to Plaintiff’s Name at Trial (ECF No. 76),
Plaintiff requests that the Court and counsel for the parties refer to the plaintiff in this case as
“Talmer” at trial. Plaintiff makes this request to avoid confusion of the jury and for the
parties’ convenience.
For good cause shown, the motion is granted.
VI. ECF No. 88
Finally, in his Motion in Limine to Exclude Evidence Relating to Defendant’s Job
Performance (ECF No. 88), Defendant moves the Court for a ruling pursuant to Rules 401 and
402 of the Federal Rules of Evidence preventing Plaintiff from presenting evidence of or relating
to Defendant’s job performance because his performance while employed by Talmer is entirely
irrelevant to the issues in this case.
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If Defendant opens the door, as indicated by Plaintiff in its memorandum in opposition
(ECF No. 93), evidence of Defendant’s job performance would be relevant to the process that led
to the termination of Defendant’s employment by Talmer. Accordingly, the motion is denied
until further order of the Court.
VII.
For all the foregoing reasons,
Plaintiff’s Motion in Limine to Exclude Evidence of Other Claims Asserted Against
Talmer (ECF No. 69) is granted.
Plaintiff’s Motion in Limine to Exclude Evidence Regarding the Validity of the CICS
Agreement (ECF No. 70) is granted.
Plaintiff’s Motion in Limine to Limit Admission of Evidence Regarding Alleged Fraud
(ECF No. 71) is denied.
Plaintiff’s Motion in Limine to Exclude Evidence Relating to Expense Reimbursement
(ECF No. 75) is denied.
Plaintiff’s Motion in Limine Regarding References to Plaintiff’s Name at Trial (ECF No.
76) is granted.
Defendant’s Motion in Limine to Exclude Evidence Relating to Defendant’s Job
Performance (ECF No. 88) is denied.
IT IS SO ORDERED.
December 9, 2016
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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