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Matthew Focht Enterprises, Inc. v. Lepore

United States District Court, N.D. Georgia, Atlanta Division

July 18, 2014

MATTHEW FOCHT ENTERPRISES, INC., a Georgia corporation, Plaintiff,
v.
MICHAEL LEPORE, an individual, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Plaintiff Matthew Focht Enterprises, Inc.'s ("MFE" or "Plaintiff") Motion in Limine [60] ("MFE Motion"), and Defendant's Motion in Limine [61] ("Lepore Motion").

I. BACKGROUND

A. Procedural Background

On November 21, 2012, Plaintiff filed this action against Defendant Michael Lepore ("Lepore" or "Defendant") in the Superior Court of Cobb County, Georgia. The case arises from Plaintiff's allegations that Defendant, Plaintiff's former sales representative, breached various contractual and fiduciary duties. On December 31, 2012, Defendant removed the action to this Court on the basis of diversity jurisdiction.

In its Amended Complaint [2] ("Complaint"), Plaintiff asserted nine (9) causes of action: breach of contract based on Plaintiff's violation of restrictive covenants (Count I); tortious interference with contractual relations between Plaintiff and Plaintiff's customers (Count II); defamation (Count III); "unfaithful agent" liability under O.C.G.A. § 10-6-1 (Count IV); computer theft (Count V); liability for injunctive relief prohibiting Defendant from violating the restrictive covenants alleged in Count I (Count VI); liability for a declaratory judgment that Defendant is not entitled to additional compensation from Plaintiff (Count VII); liability for punitive damages (Count VIII); and liability for attorney's fees (Count IX).[1]

On January 7, 2013, Defendant filed his Counterclaim, asserting five (5) causes of action against Plaintiff: breach of contract based on Plaintiff's underpayment of commissions (Count I); breach of contract based on Plaintiff's failure to pay post-termination compensation (Count II); liability for an accounting related to the post-termination compensation alleged in Count II (Count III); liability for a declaratory judgment that Defendant is entitled to the post-termination compensation alleged in Count II (Count IV); and liability for attorney's fees and costs (Count V).

On September 9, 2013, the Court entered its Order [43] on Defendant's Motion for Summary Judgment on Counts I, II, and VI of the Amended Complaint. The Court granted summary judgment on these counts.

On March 21, 2014, the Court entered its Order [49] on Plaintiff's Motion for Partial Summary Judgment on Counts I, II, IV, and VII of the Amended Complaint and Defendant's Motion for Summary Judgment as to Plaintiff's liability on Count I of the Counterclaim. The Court granted Plaintiff's Motion for Partial Summary Judgment regarding Count I of the Counterclaim and denied it with respect to Counts I, II, IV, and VII. The Court denied Defendant's Motion for Summary Judgment on Plaintiff's liability as to Count I of the Counterclaim.

On June 3, 2014, the Court set this case for trial on July 28, 2014. In the Order setting trial, the Court set forth a schedule for filing pre-trial motions, including motions in limine.

On June 17, 2014, Plaintiff timely filed its MFE Motion, asserting that 1) Defendant be barred from introducing damages in excess of $10, 000; and 2) Defendant be barred from arguing that he did not owe a fiduciary duty to Plaintiff. On June 17, 2014, Defendant filed his Lepore Motion, asserting, among other arguments, that Plaintiff be barred from arguing that the Agreement limits Defendant's damages to $10, 000. (Lepore Motion at 5-6). On July 1, 2014, Defendant filed his Response [62] to the MFE Motion, and Plaintiff filed its Response [63] to the Lepore Motion. On July 15, 2014, Plaintiff filed its Reply [70] in support of its MFE Motion, and Defendant filed his Reply [69] in support his Lepore Motion. All of the pleadings addressed Plaintiff's limitation of liability argument.

B. Relevant Factual Background

Plaintiff is an "independent sales organization" that sells, on behalf of credit card processing companies, credit card processing services to retail merchants. Plaintiff receives a portion of the processing fees charged by the processing companies to the merchants Plaintiff solicits. Plaintiff contracts with sales agents to solicit merchants on its behalf, for which Plaintiff pays the sales agents a commission.

Defendant was a sales agent for Plaintiff. On March 24, 2009, Plaintiff and Defendant entered into an Independent Contractor Agreement [37-5] ("Agreement") governing, among other things, the parties' relationship and the commissions to be paid by Plaintiff to Defendant. The Agreement was in force for three (3) years.

Section 5.04 of the Agreement contains a limitation of liability provision, which states, in relevant part, that:

UNDER NO CIRCUMSTANCES SHALL [PLAINTIFF'S] TOTAL LIABLITY TO [DEFENDANT] OR ANY THIRD PARY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED TEN THOUSAND DOLLARS ($10, 000) REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE.

(Agreement at § 5.04) (emphasis in original).

Section 4.06 of the Agreement entitles Defendant to receive post-termination ...


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