United States District Court, D. Colorado
WILLIAM POWERS, MAP MANAGEMENT LLC, and BLACK WIDOW LLC, Plaintiffs,
EMCON ASSOCIATES, INC., MICHAEL COCUZZA, and MICHAEL MICHOWSKI, Defendants.
Kathleen M Tafoya, United States Magistrate Judge
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
Declaration of Plaintiff Powers (Doc. 89-7)
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.”
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
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
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
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