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Macsherry v. Sparrows Point, LLC

United States District Court, D. Maryland

March 1, 2018

JOHN H. MACSHERRY, JR., Plaintiff,
v.
SPARROWS POINT, LLC, et al., Defendants.

          MEMORANDUM

          Ellen L. Hollander, United States District Judge.

         This case has a long history, arising from a dispute as to a commission allegedly due and owing to plaintiff John Macsherry, Jr., occasioned by the sale of commercial property. Defendants Michael Roberts; Sparrows Point, LLC (“SPLLC”); and Commercial Development Company, Inc. (“CDC”) dispute plaintiff's entitlement to a commission.[1]

         Two motions in limine are now pending. “A motion in limine is a request for guidance by the court regarding an evidentiary question.” United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983), aff'd, 469 U.S. 38 (1984). Motions in limine help to streamline a case, because such motions “enable[] a court to rule in advance on the admissibility of documentary or testimonial evidence and thus expedite and render efficient a subsequent trial.'” INSLAW, Inc. v. United States, 35 Fed. Ct. 63, 65-66 (1996) (citation omitted). To be sure, rulings on such motions assist counsel in preparation for trial. However, such rulings are preliminary, and are made in the discretion of the court. Luce, 713 F.2d at 1239-40. When the evidence is actually offered at trial, the trial court may opt to change its ruling. Id. at 1239.

         Plaintiff has filed a motion in limine (ECF 90), seeking an order designating that “the terms of Macsherry's employment concerning his start date, vacation, holidays and expense reimbursement as set forth in the Term Sheet . . . are established for purposes of this action.” Id. at 1. The motion is supported by exhibits. Defendants oppose the motion (ECF 92), and the opposition is also supported by exhibits. No. reply was filed.

         Defendants have filed a motion in limine to exclude “compromise” statements of Mr. Roberts, pursuant to Fed.R.Evid. 408. ECF 91. The motion is supported by exhibits. Plaintiff opposes the motion (ECF 93), supported by exhibits. Defendants have replied (ECF 96) and have submitted an additional exhibit.

         No hearing is necessary to resolve these motions. Local Rule 105.6. I shall discuss each motion, in turn.

         I. Plaintiff's Motion

         A.

         Defendant Michael Roberts was deposed on behalf of himself and as the Rule 30(b)(6) corporate designee of defendants. At his deposition on December 2, 2015, Roberts was unable to testify to certain items that had been identified in the Rule 30(b)(6) notice. See ECF 90-3.

         In particular, Item 5 of the Rule 30(b)(6) notice provided, ECF 90-3 at 11:

The employment of Plaintiff, including but not limited to position, full or part time, start date, duties, employment agreement . . . salary, commission and how it was to be calculated and paid, health benefits, vacation time, holidays, expense reimbursements, company cell phone, and the marketing and sale of the Property . . . .

         Despite the notice, Mr. Roberts was unable to answer rather basic employment information concerning Mr. Macsherry, such as his “start date”; his vacation time; his paid holidays; and his entitlement to reimbursement for expenses. See ECF 90 at 3-5[2]; ECF 90-4. However, after the deposition, plaintiff never requested another corporate designee, nor did he file a motion to compel testimony. Discovery closed on January 29, 2016. ECF 36.

         On April 21, 2016, plaintiff's counsel sent a detailed and lengthy letter to defense counsel regarding “an apparent discovery dispute . . . .” See ECF 92-1. The letter concerned defendants' responses to plaintiff's request for admissions. Id.; see ECF 92-9. According to plaintiff, the responses did not comply with Fed.R.Civ.P. 36. Plaintiff's attorney pointed out in the letter that, if the parties did not resolve the disputed issues, he “will have no choice but to seek relief from the Court.” ECF 92-1 at 11. Counsel agreed to meet in an attempt to resolve the disputes. See ECF 92-7.

         In a letter from defense counsel to plaintiff's counsel dated April 29, 2016, defense counsel claimed that plaintiff had “waived any right to challenge the deficiency of Defendants' corporate designee testimony by failing to request that either SPLLC or CDC (or both) make a second corporate designee available to address the topics [that plaintiff] now contend[s] was not fully answered.” ECF 92-6 at 2. Defense counsel pointed out that plaintiff failed to file a motion to compel any allegedly inadequate testimony, ” as required by the Local Rules and Fed.R.Civ.P. 30 and 37. Id. at 3.

         B.

         A designee who is not responsive to a notice of deposition, claiming lack of knowledge or only limited knowledge, may be subject to sanctions. Wilson v. Lanker, 228 F.R.D. 524, 529-30 (D. Md. 2005). Moreover, Rule 30(b)(6) requires a good faith effort “‘to collect information, review documents, and interview employees with personal knowledge.'” Dorsey v. TGT Consulting, LLC, 888 F.Supp.2d 670, 685 (D. Md. 2012) (citation omitted). And, depending on the “nature and extent of the obfuscation, the testimony given by [a] nonresponsive deponent (e.g., ‘I don't ...


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