DCHG Investments LLC v. IAC Greenville LLC et al

Filing 115

OPINION AND ORDER denying 77 Motion for Summary Judgment; denying as set out 78 Motion in Limine; denying 79 Motion in Limine; granting in part and denying in part as set out 80 Motion in Limine; granting in part, denying in part, deferred in part as set out 81 Motion in Limine. Signed by Honorable Donald C Coggins, Jr on 5/2/2018.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
DCHG Investments LLC,

)
)
Plaintiff,
)
)
v.
)
)
IAC Greenville LLC and International
)
Automotive Components Group North )
America Inc.,
)
)
Defendants,
)
________________________________ )
)
IAC Greenville LLC,
)
)
Third-Party Plaintiff,
)
)
v.
)
)
John W. Dickens and THD Investments )
LLC,
)
)
Third-Party Defendants, )
________________________________ )
)
IAC Greenville LLC,
)
)
Counter Claimant,
)
)
v.
)
)
DCHC Investments LLC,
)
)
Counter Defendant.
)
________________________________ )

Case No. 6:15-cv-02013-DCC

OPINION AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment.
ECF No. 77. Plaintiff filed a Response in Opposition to the Motion, and Defendants filed
a Reply. ECF Nos. 91, 92. Accordingly, the Motion is ready for review.

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The Court will also address Defendants’ Motion in Limine to exclude the
introduction of certain photographs and testimony about the photographs; Defendants’
Motion to Limine to exclude the testimony and report of Earle Furman; Defendants’ Motion
in Limine to exclude the testimony and report of Richard P. Baxter; and Plaintiff’s Motion
in Limine to exclude the prior bad acts of a consultant, evidence of communications
between Plaintiff and its prior lender, and evidence of the Sale Order. ECF Nos. 78, 79,
80, 81. The parties have responded to the motions, and the issues are fully briefed.
BACKGROUND
Plaintiff brings this action against Defendant IAC Greenville, LLC and International
Automotive Components Group North America, Inc, doing business as IAC Group North
America, Inc., complaining of breach of contract.

Defendants allege counterclaims

against Plaintiff, including breach of contract, breach of contract accompanied by a
fraudulent act, and negligence. The Court has diversity jurisdiction over this matter
pursuant to 28 U.S.C. § 1332.
This case involves a commercial lease dispute. Much of the controversy between
the parties concerns the condition and repair of the roof on the subject facility (“the
Facility”). JPS Automotive, Inc. (“JPS”) entered into a lease with Plaintiff commencing
December 23, 2002, for the Facility. On May 17, 2005, JPS and its parent company,
Collins & Aikman, filed for bankruptcy. Among its various defaults under the lease, JPS
was in breach of the lease because it failed to repair or maintain the Facility as required.
ECF No. 77-5 at 11.
On June 11, 2007, the Bankruptcy Court for the Eastern District of Michigan issued
a Sale Order authorizing the sale and transfer of the lease, among other assets. ECF

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No. 77-4. On October 11, 2007, as authorized by the Sale Order, IAC 199 Blackhawk
Road, LLC1 received JPS’s interest in the lease pursuant to the Assignment and
Assumption of Lease (“Assignment”). ECF No. 77-9. The Assignment was entered into
pursuant to, and is subject to, the Sale Order. ECF No. 77-4 at 7.
APPLICABLE LAW
Summary Judgment Standard
Rule 56 states, as to a party who has moved for summary judgment, “[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). A fact is “material” if proof of its existence or non-existence would affect
disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that
a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining
whether a genuine issue has been raised, the court must construe all inferences and
ambiguities against the movant and in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating
to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the nonmoving party, to survive the motion for summary judgment, may not rest on the allegations
averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate
specific, material facts exist that give rise to a genuine issue. Id. Under this standard,

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IAC 199 Blackhawk Road, LLC subsequently merged with IAC Greenville, LLC.
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the existence of a mere scintilla of evidence in support of the non-movant’s position is
insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or denials, without more, are insufficient to preclude
granting the summary judgment motion. Ross v. Commc’ns Satellite Corp., 759 F.2d
355, 365 (4th Cir.1985), overruled on other grounds, 490 U.S. 228 (1989). “Only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.

Factual disputes that are irrelevant or

unnecessary will not be counted.” Anderson, 477 U.S. at 248. Further, Rule 56 provides
in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to
the non-movant, he must produce existence of a factual dispute on every element
essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Upon review of the parties’ submissions, it does not appear that the material facts
in this case are in dispute. Rather, the principal dispute concerns the effect of the
Bankruptcy Court’s Sale Order on Defendants’ duties under the lease and the extent to
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which the Sale Order operates to eliminate Defendants’ liability for any prior or future
breach of the lease terms.
Defendants contend that they were not required to return the Facility to the same
condition it was in on December 23, 2002, the date that Plaintiff and JPS entered into the
lease. ECF No. 77-1 at 7. Defendants assert that their interest in the Facility is subject
to and pursuant to the Sale Order and Assignment. Id. Defendants argue that the Sale
Order expressly prohibits JPS’s liabilities from being transferred to Defendants. Id. at 10.
Defendants assert that the Facility is not in the same condition that it was in 2002 because
JSP breached its duty to maintain the premises. Id. Accordingly, Defendants contend
that requiring them to return the Facility in its 2002 condition would be to hold Defendants
liable for JPS’s breach. Id. The Court disagrees.
Defendants’ argument is premised on the theory that JPS breached its duty to
maintain the premises under the lease. Under the Sale Order, Defendants are not liable
for JPS’s failure to maintain the Facility. However, as Plaintiff explains in its Response in
Opposition to the Motion for Summary Judgment, it does not appear that JPS was
necessarily in breach of the applicable lease provision. Section 9.B of the lease provides
the tenant’s obligations to maintain the Facility and states that,
Tenant shall, at its sole expense, keep and maintain
[the Facility] and appurtenances in good and sanitary
condition and repair during the term of this Lease, including,
without limitation, the exterior of [the Facility] (including the
roof, walls, foundation, gutters, downspouts, doors and
windows, and structural portions thereof), as well as the
heating, gas, electrical, plumbing, and other similar units and
systems within and serving [the Facility].
Tenant agrees to return [the Facility] in as good a
condition and repair as when possession was first taken,
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normal wear and tear, and damage caused by casualty
excepted.
ECF No. 77-3 at 6–7 (emphasis added).
JPS may have breached its duty to maintain the Facility; however, the duty to
return the Facility in as good a condition and repair as when possession was first taken
could not arise until the Facility was surrendered to Plaintiff upon expiration of the lease.
See Ross Dress for Less, Inc. v. Makarios-Oregon, LLC, 191 F. Supp. 3d 1189, 1219 (D.
Or. 2016) (“[A] lessor can enforce an obligation to surrender the leased premises in good
order, condition, and repair only when the obligation becomes due, which is at the end of
the lease term.”).2
Significantly, here Defendants assumed the lease in the Assignment and expressly
covenanted to perform the obligations that arose after October 11, 2007. ECF No. 77-9
at 3 (“Assignee . . . does hereby assume and agrees to comply with and perform all of the
covenants, agreements, conditions, terms and obligation . . . to be complied with and
performed under the Lease accruing from and after the Effective Date.”); see also
Johnson v. Bank of Am., N.A., No. CA 3:09-1600-JFA, 2010 WL 1542560, at *3 (D.S.C.
Apr. 16, 2010) (holding that an assignee or delegate stands in the shoes of the assignor
“with respect to the rights and duties created by the Agreement”).
As quoted by Defendants in their Motion for Summary Judgment, the Sale Order
did not extinguish any future duties owed to Plaintiff in the lease. See, e.g., ECF No. 91-

The Court notes that Defendants attempt to distinguish the facts in Ross from the facts
in this case. Defendants argue that in Ross there was no preclusive order cutting off
liability and that the assignee agreed to be the successor. As explained in this Order, the
Court does not read the Sale Order to preclude liability for future obligations and the fact
that the assignee in Ross agreed to be the successor does not alter the Court’s conclusion
about the arguments presented in this Motion.
2

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3 at 13 (“Unless otherwise agreed to all defaults or other obligations of the Debtors under
any Assumed Contract arising or accruing prior to the date of this Order . . shall be
deemed cured by the Debtors upon payment of the Debtors . . . .”); id. (“[E]ach nondebtor
party to an Assumed Contract hereby is forever barred, estopped, or permanently
enjoined from asserting against the Debtor or the Purchaser . . . any default existing as
of the date of this Order . . . .” (emphasis added)).
Accordingly, the Sale Order does not operate to extinguish obligations that were
not yet due under the lease, including the duty to return the Facility in as good a condition,
less normal wear and tear, as it was in when JPS took possession of the Facility. Thus,
summary judgment is denied.
Defendants assert several other arguments in support of their contention that they
are not responsible for the return of the Facility in its 2002 condition. The Court will
address each of these in turn.
Defendants argue that the term “possession” indicates that Defendants are only
responsible for any damage that occurred since they took possession of the Facility.
Defendants contend that other lease provisions use the language “at the time of the
lease”; therefore, it is significant that this provision uses the word “possession.” The Court
does not find this argument persuasive. It would appear that the lease only anticipated
JPS taking possession of the Facility. Nothing in the lease would lead this Court to
assume that Plaintiff and JPS anticipated another tenant taking over the lease through a
bankruptcy sale and, therefore, intended to limit the liability of the new tenant by using
the word “possession.” Accordingly, summary judgment is not appropriate on the basis
of this claim.

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Defendants also argue that allowing Plaintiff to assert claims against Defendants
subsequent to the sale of the Facility runs “counter to a core aim of the Bankruptcy Code,
which is to maximize the value of the assets and thereby maximize potential recovery to
the creditors.” ECF No. 77-1 at 12 (quoting Douglas v. Stamco, 363 F.App’x. 100, 102
(2nd Cir. 2010)).

As discussed above, the Bankruptcy Court’s Sale Order did not

eliminate future obligations in the lease. Accordingly, Defendants’ Motion for Summary
Judgment is denied with respect to this claim. 3
Defendants further argue that § 9.B of the lease should be read as one provision;
therefore, because JPS breached its duty to maintain, it also breached its duty to return
the Facility in the required condition. “[T]he paramount rule of construction is to ascertain
and give effect to the intent of the parties as determined from the whole document.”
Taylor v. Lindsey, 498 S.E.2d 862, 863–64 (S.C. 1998) (citations and quotation marks
omitted). “It is not the function of the court to rewrite contracts for parties.” Lewis v.
Premium Inv. Corp., 568 S.E.2d 361, 363 (S.C. 2002). Here, there is no clear indication
that the parties to the lease intended that these provisions be read as one. The first
provision deals with a recurring obligation to maintain the Facility. The second provision
discusses a future obligation to return the Facility in the future. The provisions are set out
in two separate paragraphs. Accordingly, the Court declines to grant summary judgment
on the basis of this argument.4

Defendants also assert that they are not successors to JPS’s liabilities. As the Court
has explained above, it does not consider them successors to a previous obligation of
JPS. Instead, Defendants’ assumption of lease made them liable for the provisions that
were not yet due at the time of the Sale Order and Assignment.
3

Finally, Defendants assert that Plaintiff cannot prove the condition of the Facility on
October 11, 2007, the date Defendants assumed the lease. Thus, there is no way to
4

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MOTIONS IN LIMINE
Photographs
Defendants move to exclude all photographs of the Facility taken by Plaintiff or a
representative of Plaintiff after Defendants vacated the Facility and that were taken during
or after its substantial alterations to the Facility. ECF No. 78. Defendants contend that
Plaintiff engaged in substantial demolition after Defendants vacated the Facility;
accordingly, photographs taken during or after this demolition would be misleading and
unfairly prejudicial. Id. Defendants further move to exclude all testimony by Plaintiff or
Plaintiff’s representative that any photograph was taken on any date other than the date
captured in metadata or the date of the document to which the photograph was first
attached. Id.
Plaintiff argues that Defendants’ motion is overbroad and mischaracterizes the
relevant law governing the admission of evidence, including photographic evidence. ECF
No. 88. Plaintiff contends that any photographs that are not kept electronically will not
have any metadata.

Id.

With respect to Defendants’ argument that some of the

photographs show the Facility after substantial alteration by Plaintiff, Plaintiff asserts that
this is a question for the jury. Id.
“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

differentiate what damage was caused by Defendants since 2007 and what damage was
caused by JPS from 2002 through 2007. Therefore, Defendants cannot be liable for any
damage to the Facility that occurred from 2007 until the time they surrendered the Facility.
Even if the Court agreed that Defendants were not liable for any damage to the Facility
between 2002 and 2007, whether Plaintiff can establish the condition of the Facility in
2007 presents a genuine issue of material fact that is not appropriate for summary
judgment.
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the action.” Fed. R. Evid. 401. “The 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, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Subject to proper foundation and authentication, the Court concludes that any
photographs purporting to reflect the condition of the Facility as it existed at the time
Defendants vacated, regardless of when they were taken, may be relevant. Further, if
their relevance is not substantially outweighed by some other factor, they may be
admitted into evidence. Any photographs that reflect conditions after any substantial
alterations by Plaintiff will be considered on a case by case basis when proffered;
however, these photographs may be excluded based on relevance, lack of sufficient
foundation, or pursuant to Federal Rule of Evidence 403.
Earle Furman
Defendants contend that Plaintiff intends to call Earle Furman as an expert to
testify regarding the tenant’s obligations under the lease, the tenant’s maintenance of the
Facility and the actual condition of the building, and any lost rental income or diminished
value to the property. ECF No. 79. Defendants argue that Furman’s testimony and report
should be excluded because his opinion regards an issue of law, attempts to interpret an
unambiguous contract, expresses legal conclusions, falls outside the scope of expertise,
and is unreliable. Id. Defendants assert that Furman lacks experience regarding building
maintenance because he engages in the leasing and sale of commercial real estate. Id.
Plaintiff responds that Furman’s report covers areas well within his expertise as a
commercial real estate broker and that Defendants misstate his opinions. ECF No. 90.

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Further, Plaintiff argues that Furman’s calculation regarding lost rental income is reliable.
Id.
The admission of expert testimony in federal courts is governed by Federal Rule
of Evidence 702, which permits the court to allow testimony from a witness qualified as
an expert if: “(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony
is based on sufficient facts or data; (c) the testimony is the product of reliable principles
and methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.” “In Daubert, the [Supreme] Court announced five factors that may be
used in assessing the relevancy and reliability of expert testimony: (1) whether the
particular scientific theory ‘can be (and has been) tested’; (2) whether the theory ‘has
been subjected to peer review and publication’; (3) the ‘known or potential rate of error’;
(4) the ‘existence and maintenance of standards controlling the technique’s operation’;
and (5) whether the technique has achieved ‘general acceptance’ in the relevant scientific
or expert community.” United States v. Crisp, 324 F.3d 261, 266–67 (4th Cir. 2003)
(quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 579, 593–94 (1993)).
The inquiry envisioned by Rule 702 is a flexible one, and “[i]ts overarching subject
is the scientific validity and thus the evidentiary relevance and reliability—of the principles
that underlie a proposed submission.” Daubert, 509 U.S. at 594–95. “In making its initial
determination of whether proffered testimony is sufficiently reliable, the court has broad
latitude to consider whatever factors bearing on validity that the court finds to be useful;
the particular factors will depend upon the unique circumstances of the expert testimony
involved.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (1999) (citing Kumho

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Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149–52 (1999)). “The court, however, should
be conscious of two guiding, and sometimes competing, principles.” Id. “On the one
hand, the court should be mindful that Rule 702 was intended to liberalize the introduction
of relevant expert evidence.” Id. (citing Cavallo v. Star Enter., 100 F.3d 1150, 1158–59
(4th Cir. 1996)). “On the other hand, the court must recognize that due to the difficulty of
evaluating their testimony, expert witnesses have the potential to ‘be both powerful and
quite misleading.’”

Id. (quoting Daubert, 509 U.S. at 595).

“[G]iven the potential

persuasiveness of expert testimony, proffered evidence that has a greater potential to
mislead than to enlighten should be excluded.” Id. (citing United States v. Dorsey, 45
F.3d 809, 815–16 (4th Cir. 1995)).
The Court finds that Furman’s expert testimony is relevant and reliable. While
Furman will not be allowed to offer opinions on questions of law for the Court to decide,
he is well qualified in the field of commercial leasing, including custom and usage
regarding existing lease terms, quality of a facility with respect to its lease value, and the
likely rent to be expected for a comparable building in good condition in the local area.
Moreover, an expert may rely on information from others, even hearsay, if it is of a type
normally relied upon by such experts. Fed. R. Evid. 703. Accordingly, Defendants’
arguments primarily go to the weight to be given to the expert’s opinion, not its
admissibility. Thus, Defendants’ Motion is denied.
Richard Baxter
Defendants move to exclude the expert report and testimony of Richard Baxter in
their entirety because they are unreliable and scientifically unsound in that they fail to
consider all necessary and relevant information; demonstrate irregular, unorthodox, and

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careless preparation and methodology; and offer conclusory statements. ECF No. 80.
Defendants also contend that Baxter’s report does not comply with Federal Rule of Civil
Procedure 26(a) because it fails to provide any disclosure or information on the alleged
age of the roof section. In the event that the Court declines to exclude his entire report
and testimony, Defendants assert that his opinions should be excluded to the extent that
they discuss the parties’ obligations under the lease, any maintenance, or the age of the
roofs because these opinions are improper, inadmissible, and unreliable. Id. Moreover,
Defendants assert that any probative value is outweighed by the dangers of unfair
prejudice and confusion to the jury.
Plaintiff responds that Baxter is a commercial roofer with over 45 years of
experience; accordingly, he is qualified to provide an expert opinion regarding whether
the roof shows signs of preventive maintenance and the cost to put the roof in good order
and repair. ECF. No. 89. Plaintiff asserts that Baxter’s opinions are highly reliable based
on his experience and observations of the roof. Id. Plaintiff further argues that Baxter’s
opinion with respect to the age of the roof was elicited by Defendants’ counsel and
represents a statement of fact based on his experience and observations.
The Court finds that any evidence of a failure to perform “preventive maintenance,”
which is not required by the lease, is irrelevant to the duties to maintain the Facility and
to return the Facility in as good a condition and repair as when possession was first taken,
normal wear and tear excepted. Moreover, Baxter’s opinion is unreliable because he did
not review any materials to establish a baseline regarding the condition of the roof at the
time of the lease, or anytime thereafter, until he performed his inspection in March 2015.
While Baxter is well qualified to assess the condition and the cost to repair or replace the

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roof at the time of his inspection, he has no factual basis to opine with respect to the
condition of the roof at any earlier time. He acknowledges evidence of efforts to repair
the roof over time; however, he cannot say who performed the repairs or when.
Accordingly, Baxter’s opinion(s) regarding lack of maintenance is excluded and
Defendants’ Motion is granted. Defendants’ Motion is denied in all other regards as to
Baxter.
Plaintiff’s Motion
Plaintiff seeks to exclude the twenty-six-year-old criminal conviction of a
consultant, John Geiser, who worked with Plaintiff. ECF No. 81-1. In 1991, Geiser pled
guilty to mail fraud relating to the misappropriation of funds of his then employer. Plaintiff
asserts that the introduction of Geiser’s prior bad acts would be unfairly prejudicial.
Defendants contend that Geiser has engaged in deceitful conduct as recently as 2014
and argue that the Federal Rules of Evidence allow some or all of Geiser’s prior bad acts
to come in. ECF No. 87. Moreover, Defendants argue that Geiser’s prior bad acts
demonstrate prolonged dishonesty.
Under Rule 609, in the civil action context, evidence of a conviction of crime that
is “punishable by death or by imprisonment for more than one year” must be admitted,
subject to Rule 403. Fed. R. Evid. 609(a)(1)(A). As to any crime, regardless of the
applicable punishment, “the evidence must be admitted if the court can readily determine
that establishing the elements of the crime required proving—or the witness’s admitting—
a dishonest act or false statement.” Id. at (a)(2). However, admission under Rule 609
remains subject to Rule 403, which excludes evidence when its potential for unfair

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prejudice substantially outweighs its probative value. As the court in United States v.
Estrada stated:
[Rule 609(a)(1)] requires district courts to admit the name of a
conviction, its date, and the sentence imposed unless the
district court determines that the probative value of that
evidence ‘is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.’ This determination is
left to the sound discretion of the district court.
430 F.3d 606, 621 (2d Cir. 2005) (internal citation omitted).
Further, evidence of a conviction of a crime is usually not admissible if more than
ten years have passed “since the date of the conviction or of the release of the witness
from the confinement imposed for that conviction, whichever is the later date.” Ghant v.
Brown, 930 F.2d 633, 638 n.10 (8th Cir. 1991) (quoting Fed. R. Evid. 609(b)). If more
than ten years have passed, then a court may admit evidence of that conviction “only if
(1) its probative value . . . substantially outweighs its prejudicial effect; and (2) the
proponent gives an adverse party reasonable written notice of the intent to use it so that
the party has a fair opportunity to contest its use.” Fed. R. Evid. 609(b)(1–2). If a court
decides to admit evidence of a prior conviction for impeachment, “the impeaching party
‘is generally limited to establishing the bare facts of the conviction: usually the name of
the offense, the date of the conviction, and the sentence.’” Somerville v. Saunders, 2014
WL 272415, at *3 (N.D.N.Y. Jan. 24, 2014) (quoting United States v. Brown, 606 F. Supp.
2d 306, 319 n.8 (E.D.N.Y. 2009) (quoting 4 Weinstein’s Federal Evidence § 609.20[2] (2d
ed. 2008))).

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Here, the Court agrees that Geiser’s 1991 conviction should be excluded as
remote because it is more than 10 years old. Further, Defendants have not demonstrated
that its probative value would substantially outweigh its prejudicial effect. With respect to
any other bad acts that Geiser is alleged to have engaged in, the Court reserves ruling
on this issue pending Defendants’ proffer at trial.
Plaintiff also seeks to exclude evidence regarding Plaintiff’s communications with
its prior lender as prejudicial to Plaintiff. Defendants assert that the communications
between Plaintiff and its prior lender are relevant to this case because these
communications show the extent of damage to the Facility and Plaintiff’s efforts to
maintain or repair the Facility; Defendants argue that the prior communications also
establish elements of Defendant IAC Greenville’s counterclaims to pierce Plaintiff’s
corporate veil and for breach of contract and negligence. The Court will defer ruling at
this time so that it may consider how Defendants intend to use this evidence at trial.
Finally, Plaintiff seeks to exclude evidence regarding the Sale Order in the JPS
bankruptcy because it is irrelevant to any claim being made against Defendants.
Defendants contend that any discussion of the Sale Order is a legal issue, not a factual
issue. Further, Defendants assert that the Sale Order is relevant and is not an untimely
defense. The Court finds that evidence with respect to the Sale Order is relevant to the
present action; further, its relevance is not substantially outweighed by any other factor.
See Fed. R. Evid. 401, 403. Accordingly, Plaintiff’s Motion is denied with respect to this
issue.

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CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is DENIED.
With respect to the Motions in Limine, Defendants’ Motion [78] is DENIED as set out,
Defendants’ Motion [79] is DENIED, Defendants’ Motion [80] is GRANTED in part and
DENIED in part as set out, and Plaintiff’s Motion [81] is GRANTED in part, DENIED in
part, and DEFERRED in part as set out.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
United States District Judge
May 2, 2018
Spartanburg, South Carolina

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