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Powers v. Emcon Associates, Inc.

United States District Court, D. Colorado

June 23, 2017



          Kathleen M Tafoya, United States Magistrate Judge

         This matter is before the court on Defendants Emcon Associates, Inc., Michael Cocuzza, and Michael Michowski's “Motion to Strike.” (Doc. No. 96 [“Mot.”]). Plaintiffs filed a Response (Doc. No. 104 [“Resp.”]), to which Defendants replied. (Doc. No. 107 [“Reply”]). Additionally, by order of the court, see Doc. No. 117, Plaintiffs filed a Surreply. (Doc. No. 118 [“Surreply”].) Pursuant to Fed.R.Civ.P. 26 and 37, as well as this court's order dated December 2, 2016, Defendants seek to strike two exhibits submitted with Plaintiffs' Motion for Partial Summary Judgment.

         1. Declaration of Plaintiff Powers (Doc. 89-7)

         A central dispute in this case is whether former Defendant FMNow LLC (“FMNow”) was the alter ego of Defendant Emcon, Inc. (“Emcon”). In the Scheduling Order, Plaintiffs indicated they anticipated using expert testimony regarding corporate governance and accounting. (Doc. No. 64 at 8.) The deadline to identify affirmative expert witnesses was October 30, 2016. (Doc. No. 63 at 2.) However, neither Plaintiffs nor Defendants identified affirmative expert witnesses by that date. (Doc. No. 75.) As a result, on December 2, 2016, this court ruled Plaintiffs would “not be allowed to present expert opinion testimony at trial on any topic through any witness since no affirmative experts were disclosed.” (Id.)

         In support of their Motion for Partial Summary Judgment, Plaintiffs submitted a Declaration from Plaintiff William Powers. (Doc. No. 89-7 [“Decl.”].) In the current Motion, Defendants argue portions of Plaintiff Powers' Declaration constitute expert opinion regarding corporate governance and accounting. Based on this, they contend those portions are inadmissible because Plaintiff Powers has not been qualified as an expert under Fed.R.Evid. 702 and because the court previously prohibited expert testimony. (Resp. at 5.) Specifically, Defendants object to the following paragraphs:

2. Beginning in mid-2012, FMNow LLC (“FMNow”) and Emcon Associates, Inc. (“Emcon”) were both involved in recruiting me to come work for the companies. As part of the interview process, I met with Jon Mattie, Executive Vice President of Operations of FMNow, and Michael Cocuzza, Chief Executive Officer of Emcon, at FMNow's office in Colorado.
3. I started working for FMNow/Emcon on a part-time basis in September of 2012, and in October of 2012, I entered into a formal Employment Agreement executed by Patricia Moscarelli on behalf of FMNow. I started working full-time under the Employment Agreement on or about its effective date, October 15, 2012.
5. Throughout my employment by Emcon and FMNow, I performed services for both companies, and no effort was made to differentiate the work I performed for each company.
6. From the beginning of the Employment Agreement, I worked directly with and for Emcon, and received direction from Emcon officials, including Mr. Cocuzza and Michael Michowski, Emcon's Chief Administrative Officer.
10. In early 2013, Mr. Michowski traveled to Colorado to participate in negotiations for a contract with Rich's Foodservice. I was present for those negotiations and worked on this contract on behalf of both companies starting near the beginning of my employment. I communicated regularly with Mr. Michowski on this project for several months starting in approximately February of 2013.
13. While I was employed by FMNow/Emcon, Mr. Cocuzza assigned Emcon software developers to work on FMNow projects. As an example, attached to this Declaration as Attachment A is an email from Patricia Moscarelli discussing the fact that Mr. Cocuzza was freeing up three Emcon developers to work on FMNow projects.
14. Emcon officials directed FMNow employees to perform work on FMNow projects in Colorado, including sending Mr. Mattei and myself to Greeley to perform a site inspection of a pending project in May of 2013.
15. Emcon managed the server on which FMNow's business was operated, and the two companies worked together to develop the FMNow software. The FMNow software was never run with the Emcon server.
16. FMNow did not operate independently of Emcon. In every business transaction, sales meeting, appointment, and board meeting, FMNow proceeded in a direction that was consistent with Emcon's direction and capabilities in the industry. Any business activities outside of Emcon had to be reviewed ...

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