Sheedy et al v. BSB Properties et al

Filing 375

ORDER re 366 Motion in Limine re Fraud and Negligent Misrepresentation Claims. Signed by Judge Jill N. Parrish on 3/8/16. (wh)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

NICKOLAS SHEEDY, CHELSEA
SHEEDY, ROSEANNA HODGES, and
KENNETH HODGES,

ORDER RE DEFENDANTS’ MOTION IN
LIMINE RE FRAUD AND NEGLIGENT
MISREPRESENTATION CLAIMS

Plaintiffs,
Case No. 2:13-CV-00290-JNP

v.
BSB PROPERTIES, LC, d/b/a MIDVALE
STORAGE CENTER; PEAK
DEVELOPMENT PROVO; FIDELITY
SELF STORAGE, LLC, d/b/a AIRPORT
SELF STORAGE, and BRIAN K.
SNELSON,

Judge Jill N. Parrish

Defendants.

Before the court is “Defendants’ Motion in Limine and Memorandum in support of
Restricting Plaintiffs From Arguing or Submitting Evidence of Alleged Fraud or
Misrepresentations not Contained in Plaintiffs’ Amended Complaint.” (Docket 366). Defendants
assert that fraud and negligent misrepresentation must be plead with particularity and that the
sole allegation of fraudulent or negligent misrepresentation in Plaintiffs’ Amended Complaint is
that Defendants misrepresented that they would pay each Plaintiff $20,000 per year for two years
if they moved to Utah to respectively manage Midvale and Airport Storage.
Plaintiffs respond that other allegations of their complaint were incorporated by reference
into their fraud and negligent misrepresentation claims and that, in any event, the parties’ joint
stipulated pretrial order contained the following description of their claims:
Based thereon they relied upon Defendants’ representations and moved to Utah to
accept employment. Both couples were promised moving expenses and $ 20,000

a year, to be paid to each spouse, with a performance-based bonus up to $ 10,000
a year.
Plaintiffs further assert that even if the fraud and negligent representation claims are limited to
the specific representations contained in Second Amended Complaint, plaintiffs can still discuss
the understanding they had regarding their contract with Defendants and that all statements
should be taken into consideration by the jury in determining their lost income damages.
While the general allegations of the Second Amended Complaint contain a reference to a
potential bonus based upon performance and the fact that plaintiffs would also receive an on-site
apartment, utilities and DSL internet, the only apparent material difference between the general
allegations and the misrepresentation alleged in the fraud and negligent misrepresentation claims
appears to relate to the potential of a bonus based on performance. 1 While that alleged
misrepresentation was alleged as a background fact in Plaintiffs’ Second Amended Complaint, it
was not plead as part of plaintiffs’ claims for fraud and negligent misrepresentation.
Because claims of fraud and negligent misrepresentation must be plead with particularity,
the only misrepresentations on which plaintiffs may base those claims are the ones specifically
identified in their Second Amended Complaint--that defendants fraudulently misrepresented that
they would pay each Plaintiff $ 20,000 per year for two years if they moved to Utah to manage
Midvale and Airport Storage. 2
This does not mean, however, that plaintiffs’ testimony as to the other promises that
defendants allegedly made to them is inadmissible. Indeed, such testimony is relevant to

1

There appears to be no dispute that plaintiffs were in fact provided with on-site apartments and
utilities.
2

Accordingly, in closing arguments, plaintiffs will be limited to those particular representations
when discussing their fraud and negligent misrepresentation claims and any damages awarded on
those claims will be similarly limited.

2

plaintiffs’ claims for damages on their Tenth Cause of Action for wrongful termination in
violation of Utah public policy. It is also relevant as part of the general background narrative of
plaintiffs’ story.
Dated March 8, 2016.
BY THE COURT:

___________________________________
Judge Jill N. Parrish
United States District Court

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