United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Strike Plaintiff's Belated Claim on a Promissory Note
[Docket No. 89], Plaintiff's Motion in Limine Regarding
Related Cases [Docket No. 90], and Plaintiff's Motion in
Limine Regarding Unaccepted Offers and Settlement
Communications [Docket No. 91]. This Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
action arises out of a dispute regarding the ownership and
operations of a bowling and recreation center (the
“Center”) in Colorado Springs. Defendant Summit
Entertainment Centers, LLC (“Summit”) is the
owner of the Center. Docket No. 116 at 1. Plaintiff Leiserv,
LLC and its affiliate companies own or operate numerous
family entertainment centers around the country. Id.
at 1-2. Summit and Leiserv, Inc. (plaintiff's predecessor
company) entered into an Operations Services Agreement (the
“Agreement”), whose effective date was April 15,
2011. Id. at 2. The Center opened in April 2012.
Id. at 3.
between Leiserv and Summit arose around the time Leiserv was
purchased by Bowlmor AMF Corp. in the summer of 2014. Docket
No. 91 at 2, ¶ 2. In relation to these disputes, the
parties discussed the possibility of Leiserv purchasing the
Center. Id.; Docket No. 114 at 2. In August 2014,
Summit offered to sell the Center for $17 million, and
Leiserv counteroffered $13 million, which Summit did not
accept. Docket No. 91 at 2, ¶ 2; Docket No. 114 at 2.
the parties reached a partial agreement on some issues, the
dispute between them escalated and, in March 2015, the
parties exchanged notices terminating the Agreement. Docket
No. 114 at 2. In April 2015, Leiserv and Summit each filed
lawsuits in District Court for the City and County of Denver,
Colorado. Docket No. 90 at 2. Leiserv filed a motion seeking
the appointment of a receiver, which was denied. Docket No.
114 at 2. Both parties dismissed their cases. Docket No. 90
April 19, 2015, Summit took over operations of the Center.
Docket No. 116 at 4.
April 21, 2015, Leiserv filed a lawsuit in El Paso County
District Court seeking to enforce non-compete agreements
against its former employees who had gone to work for Summit.
Docket No. 90 at 2-3. The El Paso court administratively closed
the case pending arbitration, but the parties did not proceed
to arbitration. Id.
2015, the parties unsuccessfully participated in non-binding
mediation. Docket No. 114 at 2-3.
17, 2015, Leiserv notified Summit of its intent to exercise a
purchase option in the Agreement based on an alleged
appraised value of $5, 100, 000. Docket No. 43 at 3. On June
18, 2015, Leiserv filed a complaint in this Court alleging,
in part, that Summit breached the Agreement by not
negotiating the fair market value of the Center in good
faith. Docket No. 1 at 5-6. Plaintiff alleges that
Summit's failure to negotiate in good faith is
“delaying its ownership and enjoyment of the profits of
the Center.” Docket No. 1 at 5-6, ¶ 27. On July
10, 2015, defendants filed counterclaims alleging, in part,
that plaintiff breached its obligations of good faith and
fair dealing under the Agreement by “mismanaging the
business affairs of the Center (through personnel and other
maneuverings) to deflate the value of the Center.”
Docket No. 13 at 13, ¶ 31. Defendants also counterclaim
that plaintiff breached the Agreement by failing to pay the
Center's property taxes with funds it accrued for that
purpose. Docket No. 126 at 9.
March 28, 2016, Leiserv filed another lawsuit in the District
Court for the City and County of Denver, Colorado related to
defendant Summit Companies Incorporated's plans to build
a bowling center in Thornton Colorado. Docket No. 90 at
March 31, 2016, the last day of discovery in this case,
Leiserv served supplemental initial disclosures indicating
that it sought damages based on a promissory note dated July
8, 2011 in the amount of $42, 256.00. Docket No. 113 at 2.
According to its terms, the promissory note is due the
earlier of (i) July 8, 2032 or (ii) upon Summit's
transfer of the Center. Docket No. 89-2 at 1. Leiserv did not
produce a copy of the promissory note in discovery, but, on
October 10, 2016, provided it in response to a request from
defendants. Docket No. 113-1, 113-2. In the final pretrial
order, Leiserv stated that “upon termination of the
Agreement and completion of the exercise of the purchase
option, a promissory note came due that Summit failed to
pay.” Docket No. 75 at 3. Defendants objected to the
inclusion of this language as a new claim. Id. at
11. The same language about the promissory note appears in
the amended final pretrial order. Docket No. 126 at 3, 11.
January 13, 2017, the parties filed the present motions.
Defendants seek to strike Leiserv's newly-added claim for
breach of the promissory note. Docket No. 89. Leiserv seeks
to exclude evidence of all the other lawsuits between the
parties, Docket No. 90, and the ...