Ruppel v. Basmajian et al
Filing
187
MEMORANDUM DECISION AND ORDER: Basmajian's Motion in Limine Re: Plaintiffs Damages 139 is hereby GRANTED. Because Ruppel is prohibited from introducing evidence of his potential damage claims, the court finds that he cannot es tablish the essential element of damages to the remaining claims in his Complaint. Accordingly, Ruppel's Complaint is hereby DISMISSED with prejudice. With no remaining claims to be presented before a jury, this action is also DISMISSED. Basmajian's remaining motions in limine Dkt. Nos. 140 , 142 , 144 are DISMISSED for mootness. Signed by Judge Dee Benson on 10/14/20. (dla)
Case 2:14-cv-00728-DB Document 187 Filed 10/14/20 PageID.3695 Page 1 of 8
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MATT J. RUPPEL,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
THOMAS D. BASMAJIAN,
Case No. 2:14-cv-728-DB
Defendant.
District Judge Dee Benson
This matter is before the court on the following four motions in limine filed by Defendant
Thomas D. Basmajian: (1) Motion in Limine Re: Plaintiff’s Damages (Dkt. No. 139); (2) Motion
in Limine Re: Second, Eighth and Eleventh Causes of Action and Certain Paragraphs of First
Amended Complaint (Dkt. No. 140); (3) Motion in Limine Re: Daniel W. Jackson, Esq. (Dkt.
No. 142); and (4) Motion in Limine Re: Jeff Jonas. (Dkt. No. 144.)
The court held a hearing on the motions on October 1, 2020. At the hearing, Plaintiff
Matt Ruppel was represented by Robert E. Mansfield and Megan E. Garrett. Defendant Thomas
Basmajian was represented by Thomas W. Seiler. At the conclusion of the hearing, the court
took the motions under advisement. Now being fully advised, the court renders the following
Memorandum Decision and Order.
PROCEDURAL BACKGROUND1
Plaintiff initiated this lawsuit in late 2014. Since that time, this court has, on multiple
occasions, dealt with the question of whether Ruppel and Basmajian formed a general
partnership. On May 11, 2016, Plaintiff moved for summary judgment regarding whether a
1
The background facts relating to these parties and this action have been set forth in detail in the
court’s prior decisions. (See Dkt. Nos. 60, 87, 108.)
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general partnership existed between the parties. (Dkt. No. 34.) The court denied that motion.
(Dkt. No. 60.) On February 10, 2017, Defendant moved for a ruling that a general partnership
did not exist as a matter of law. (Dkt. No. 67.) The court also denied that motion. (Dkt. No. 87.)
More recently, on June 21, 2018, Defendant again moved for summary judgment on the claims
relating to the general partnership, arguing that Plaintiff did not have enough evidence to allow a
reasonable jury to find that a general partnership was ever formed between Ruppel and
Basmajian. (Dkt. No. 116.) The court denied this motion as well (Dkt. No. 124), resting its
decision primarily on Ruppel’s continued insistence that a general partnership was orally agreed
to at the beginning of his and Basmajian’s relationship.
A five-day jury trial was set for February 3, 2020. Between December 30, 2019 and
January 3, 2020, Defendant filed the four Motions in Limine now before the court. (Dkt. Nos.
139, 140, 142, 144.) On January 10, 2020, finding good cause, the court vacated the trial and
ordered the parties to participate in a settlement conference. (Dkt. Nos. 147, 151.) The parties
agreed to an extension of time to file responses to Defendant’s Motions in Limine. (See Dkt. No.
163.) The settlement conference was held on July 31, 2020, but the parties were unable to reach a
settlement. (Dkt. No. 162.) The parties then fully briefed Defendant’s Motions in Limine.
In Defendant’s Motion in Limine Re: Plaintiff’s Damages (Dkt. No. 139), Defendant
challenges Plaintiff’s evidence of damages, claiming that Plaintiff has failed to sufficiently
provide the required computation of his alleged damages in his Initial Disclosures. The parties
served their Initial Disclosures in February 2015. (Dkt. Nos. 15, 16.) Plaintiff Ruppel’s Initial
Disclosures included the following computation of damages:
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Category of Damages
1.
One-Half of Rents Not Paid to
1415 South Main Street, LLC by
Black Square Real Estate, LLC
2.
One Half of the 2007 “Advance”
Secretly Taken by Basmajian
and Not Repaid
One Half of All Brighton Money
Paid to Basmajian by Jonas
under the Term Sheet and Not
Disclosed To Or Shared with
Ruppel
Rents collected, not applied to
mortgage loan obligations, and
retained by Basmajian
Greenwich Street rent payments
in the 515 Building not paid as a
result of Basmajian’s
mismanagement and/or breach
of fiduciary duty
Indemnification for all
partnership liability incurred as a
result of Basmajian’s
mismanagement and breaches of
fiduciary duty
Damages incurred as a result of
Basmajian’s intentional and
deliberate default of mortgage
loan obligations (although there
are sufficient funds to make the
payments) and any resulting
personal liability incurred by
Ruppel prematurely called
Reimbursement to the
partnership for all fees or other
compensation paid to Utah
Eviction Law
Economic Loss, Liability on the
Remaining Personal Guarantee
and other costs and damages
relating to Mr. Basmajian’s
mismanagement of the building
3.
4.
5.
6.
7.
8.
9.
Amount Calculated at
This Time
Fair Market Value of
Square Footage Occupied
for Number of Months of
Tenancy
$100,000 plus interest
adjustments
$997,000 plus interest
Reference
First Amended
Complaint, ¶61, Ninth
Cause of Action
First Amended
Complaint, ¶47, First
Cause of Action
First Amended
Complaint, ¶31-33,
First Cause of Action
Yet Unknown
First Amended
Complaint, ¶60
Yet Unknown
First Amended
Complaint, ¶77
Yet Unknown
First Amended
Complaint, ¶65
Yet Unknown
First Amended
Complaint, ¶67(e)
Yet Unknown
Yet Unknown
First Amended
Complaint, Sixth Cause
of Action
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10.
11.
and mistreatment of occupants of
1415 South Main Street
One Half of all Profits and Cash Yet Unknown
on Hand from all partnership
ventures
Treble Damages, Attorneys
Yet Unknown
Fees, Costs and Punitive
Damages relating to the
Communications Fraud Cause of
Action
First Amended
Complaint, First Cause
of Action
First Amended
Complaint, Second
Cause of Action
(Dkt. No. 139, Ex. A ¶ 3.) In his Opposition filed August 17, 2020, Plaintiff concedes that he
“seeks only his portion of the Partnership Payments as damages” at trial, identified as the third
category in Plaintiff’s Initial Disclosures (Dkt. No. 165 at 2 n.1) as follows:
Category of Damages
Amount Calculated at
This Time
One Half of All Brighton Money
$997,000 plus interest
Paid to Basmajian by Jonas under
the Term Sheet and Not Disclosed
To Or Shared with Ruppel
Reference
First Amended Complaint,
¶31-33, First Cause of Action
Accordingly, only the damages computation for the “$997,000 plus interest” amount is
considered by the court in its decision here.
As part of his Initial Disclosures, Plaintiff provided “[a] copy of a CD, containing
documents marked RUP0001-RUP1506”2 that “may be used to support his claims.” (Dkt. No.
139, Ex. A ¶ 2.) The only witness identified in Plaintiff’s Initial Disclosures able to provide
information supporting these alleged damages is Jeff Jonas, who Plaintiff disclosed “will testify
to all payments made to Basmajian under the 2008 Term Sheet and has personal knowledge of
Basmajian’s relationship with Ruppel and their course of dealing.” (Id. ¶ 1(d).) During Jeff
2
RUP944-947 and RUP985-1020 were not produced by Plaintiff under the work product
doctrine. (Dkt. No. 139, Ex. A ¶ 2.)
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Jonas’ deposition in February 2019, he did not provide additional information supporting this
$997,000 damages computation. Indeed, Mr. Jonas was unable to testify as to what payments
were made by Brighton Real Estate Services to Basmajian. (See Dkt. No. 167, Ex. 3.)
Plaintiff has never supplemented his 2015 Initial Disclosures. Fact discovery and expert
discovery has been closed since 2018. (Dkt. No. 120.) The deadline for supplementation of
discovery under Rule 26(e) was December 2, 2019, and Plaintiff’s deadline for Rule 26(a)(3)
pretrial disclosures was December 6, 2019. (Dkt. No. 133.)
ARGUMENT
Defendant Basmajian seeks to exclude “all evidence related to potential damage claims of
the Plaintiff” because Plaintiff failed to provide the necessary computation of his damages in his
Initial Disclosures. (See Dkt. No. 139 at 4.) Rule 26(a)(1) of the Federal Rules of Civil Procedure
outlines what a party is required to include in his Initial Disclosures. Under this rule, “a party
must, without awaiting a discovery request, provide to the other parties … a computation of each
category of damages claimed by the disclosing party—who must also make available for
inspection and copying … the documents or other evidentiary material, unless privileged or
protected from disclosure, on which each computation is based.” Fed. R. Civ. P. 26(a)(1)(A).
These initial disclosures must be based on all reasonably available information, and “[a] party is
not excused from making its disclosures because it has not fully investigated the case.” Fed. R.
Civ. P. 26(a)(1)(E).
Based upon the record, Ruppel has not satisfied the requirements of Rule 26. Ruppel
claims that his Initial Disclosures were sufficient because he disclosed the ultimate number
claimed as damages, $997,000, and disclosed that such number is equivalent to “a 50/50 split” of
payments made from Brighton Real Estate Services to Basmajian. (Dkt. No. 165 at 3.) However,
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Rule 26 “requires a party to affirmatively disclose ‘a computation of any category of damages’
and the specific ‘documents or other evidentiary material … on which such computation is
based.” Hertz v. Luzenac Am., Inc., 2006 WL 994431, at *18 (D. Colo. Apr. 13, 2006) (emphasis
in original). In his Initial Disclosures, Plaintiff does not point to any particular payment records
or documentary evidence to support his damages calculation. Plaintiff instead represents that a
CD containing nearly 1,500 pages of documents “may be used to support his claims.” (Dkt. No.
138, Ex. A.) This broad and undefined evidentiary production does not sufficiently put
Defendant on notice of what evidence Plaintiff will use to support his alleged damages claim
amounting to $997,000 at trial.
Instead of identifying and producing the documents or materials upon which the damages
computation is based in his Initial Disclosures, Plaintiff designates one witness, Jeff Jonas, to
testify to “all payments made to Basmajian under the 2008 Term Sheet.” (Dkt. No. 139, Ex. A.)
However, when Mr. Jonas was given the opportunity during his depositions to testify about the
alleged payments to Basmajian, he failed to provide any specific information to support this
$997,000 damages computation. While Mr. Jonas has stated that he “believes” the payments
from Brighton Real Estate Services to Basmajian under the Term Sheet “exceeded $2 million
dollars” (Dkt. No. 52), this vague statement of mere belief is insufficient to put Defendant on
notice at trial as to what will be used to prove Plaintiff’s damages.
Ruppel argues that he did not have the necessary financial documents to support his
damages computation at the time that he made his Initial Disclosures. However, “[w]hile a party
may not have all of the information necessary to provide a computation of damages early in the
case, it has a duty to diligently obtain the necessary information and prepare and provide its
damages computation within the discovery period.” Jackson v. United Artists Theatre Circuit,
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Inc., 278 F.R.D. 586, 593 (D. Nev. 2011). Plaintiff provided his Initial Disclosures in early 2015.
Rule 26 requires that a party “supplement or correct its disclosure upon learning that it is
materially incomplete or incorrect.” Morrison Knudsen Corp. v. Fireman's Fund Ins. Co., 175
F.3d 1221, 1229 n.2 (10th Cir. 1999); see also Campbell v. CSAA Fire & Cas. Ins. Co., No. CV19-739-R, 2020 WL 3244010, at *1 (W.D. Okla. June 15, 2020) (“When a party receives
additional documents that it intends to use to prove its damages, or when its previous damages
computation becomes otherwise inadequate, a party must supplement its Rule 26(a)(1)(A)(iii)
computation.”). Plaintiff has not made any efforts to supplement or correct the lack of support
for his damages computation, despite having had ample time to do so. Even upon briefing for
this motion, Plaintiff did not point to a single document to support his computation for damages.3
Ruppel contends that, even if he has failed to satisfy Rule 26, the insufficiencies in his
damages computation are harmless. “The determination of whether a Rule 26(a) violation is
justified or harmless is entrusted to the broad discretion of the district court.” Woodworker's
Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In its discretion,
the court finds that the lack of information supporting Ruppel’s computation for damages, as
well as Ruppel’s failure to supplement and correct this deficiency, impermissibly prejudiced
Basmajian’s ability to make intelligent decisions regarding the discovery process and trial
preparation. This case is set for trial on December 7, 2020. Given the lengthy timeline and
advanced posture of this case, as well as the proximity to trial, Plaintiff’s continued failures to
provide the required support for his damages computation are neither justified nor harmless.
3
At the October 1, 2020 hearing, counsel for Plaintiff mentioned (for the first time) two exhibits
that allegedly support Ruppel’s damages theory for trial. However, the contents of these exhibits
were not disclosed to the court. Ruppel’s attempts to proffer 149 pages of evidence a week after
the hearing (Dkt. No. 186) are not timely and do not correct Ruppel’s failure to satisfy Rule 26.
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Ruppel further argues that any deficiencies in his Initial Disclosures are harmless because
evidence of the partnership payments is allegedly already in Basmajian’s possession. However, it
is Ruppel’s obligation alone to provide a computation of damages with supporting evidence. See
Jackson, 278 F.R.D. at 593 (“The plaintiff cannot shift to the defendant the burden of attempting
to determine the amount of the plaintiff’s alleged damages.”).
The court finds that Plaintiff has failed to comply with the mandatory disclosure
requirements under Rule 26(a). If a party fails to provide the information required by Rule 26(a),
“the party is not allowed to use that information … to supply evidence on a motion, at a hearing,
or at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Accordingly, the court grants Defendant’s motion concerning Plaintiff’s damages.
CONCLUSION
For the foregoing reasons, Basmajian’s Motion in Limine Re: Plaintiff’s Damages (Dkt.
No. 139) is hereby GRANTED. Because Ruppel is prohibited from introducing evidence of his
potential damage claims, the court finds that he cannot establish the essential element of
damages to the remaining claims in his Complaint. Accordingly, Ruppel’s Complaint is hereby
DISMISSED with prejudice. With no remaining claims to be presented before a jury, this action
is also DISMISSED. Basmajian’s remaining motions in limine (Dkt. Nos. 140, 142, 144) are
DISMISSED for mootness.
DATED this 14th day of October, 2020.
BY THE COURT:
Dee Benson
United States District Judge
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