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Kelly Jorgensen v. United Communications Group Limited Partnership et al

April 19, 2013


The opinion of the court was delivered by: Alexander Williams, Jr. United States District Judge


The instant case sounds in breach of contract. Pending before the Court are the following Motions: (1) Plaintiff's Motion in Limine; and (2) Plaintiff's Motion for Leave. The Court has carefully reviewed the record and deems a hearing unnecessary. For the following reasons, the Court GRANTS IN PART Plaintiff's Motion in Limine and GRANTS Plaintiff's Motion for Leave.


This case involves a contract dispute between Mr. Kelly Jorgensen ("Plaintiff") and the following Defendants: United Communications Group Limited Partnership ("UCG") and CCB II, LLC ("CCB") ("Defendants"). According to Defendants, CCB is a wholly owned subsidiary of DecisionHealth, LLC ("DecisionHealth"), and UCG is the parent company of DecisionHealth. Plaintiff, for his part, was a principal of Custom Coding Books, LLC (Custom Coding). Custom Coding was sold to CCB on August 31, 2007. On the same day, and as part of the same transaction, CCB and Plaintiff entered into a Consulting Agreement ("Agreement") under which CCB retained Plaintiff to provide professional services to CCB.

Generally, the Agreement entitled Plaintiff to a salary of $12,000-$14,000 a month, annual bonuses, a term bonus, and compensation upon termination. The Agreement was for a term of five years and generally provided that it could be terminated without cause upon 30 days' notice or for cause.

Defendants terminated Plaintiff for what, in their estimation, amounted to cause. Specifically, Defendants contended that (1) Plaintiff possessed, used, or planned to use confidential, proprietary information contained in "lead sheets"; (2) Plaintiff improperly booked orders; and (3) Plaintiff created a hostile work environment. This Court has already found that the allegation that Plaintiff created a hostile work environment was likely curable and, hence, held that this allegation did not constitute cause sufficient to justify Plaintiff's termination. The Court clarified in a later Memorandum Opinion that genuine factual disputes precluded summary judgment on whether allegations (1) and (2) constituted cause.

As discussed in the second Memorandum Opinion, Plaintiff argued that he was entitled to an adverse inference instruction based on Defendants' undisputed destruction of the lead sheets referenced above. The Court ruled that Plaintiff had not adequately briefed this question and stated that it would be more properly addressed through a motion in limine.

Correspondingly, on February 18, 2013, Plaintiff filed a Motion in Limine. Doc. No. 69. In this Motion, Plaintiff argues that Defendants willfully destroyed the lead sheets despite a duty to preserve them, thereby prejudicing his case and giving Defendants an unfair advantage. Based on his allegations of spoliation of evidence, Plaintiff requests the following relief:

1. The entry of judgment in his favor on whether the allegation regarding the lead sheets constitutes cause; or

2. The issuance of an Order precluding Defendants from offering evidence on issues related to the Plaintiff's alleged misuse of the lead sheets or from arguing that there was confidential information in the lead sheets; and/or

3. The issuance of an adverse inference instruction permitting the Court to assume that the lead sheets would have been unfavorable to Defendants' theory of the case; and

4. An award to Plaintiff of the attorney's fees and costs incurred in connection with his Motion in Limine.

A brief discussion of how Defendants came to the conclusion that Plaintiff possessed, used, or planned to use the lead sheets in an improper manner is necessary to understand the issues that Plaintiff's Motion in Limine presents. UCG purchased CodeCorrect in 2004 and subsequently sold CodeCorrect and all of its proprietary leads to Accuro Healthcare Solutions ("Accuro") in 2006. As a part of this transaction, CCB received a list of CodeCorrect customers with whom CCB could not do business. Gene Kraemer possessed the lead sheets. Kraemer is a one-time CCB employee who had earlier worked for CodeCorrect. The lead sheets consisted of twenty-two sheets containing potential customers for CodeCorrect. Kraemer alleges that the lead sheets were created no later than 2000 when he worked for CodeCorrect.

According to his affidavit, Kraemer found the lead sheets in his garage sometime after he became an employee of CCB. Kraemer further declares that he took the lead sheets to the office and asked Korey Jorgensen, Plaintiff's brother, what Jorgensen thought Kraemer should do with the lead sheets. According to Kraemer, Jorgensen responded that he would look into the possibility of loading the information into a sales database referred to as "Sales ...

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