January 2010

A Joe Friday "just the facts ma’am" kind of affidavit was the subject of the North Carolina Supreme Court’s decision at the end of last week in Bird v. Bird.

The issue? Whether the affidavit, presented in opposition to a motion for summary judgment, complied with Rule 56(e) of the North Carolina Rules of Civil Procedure.

That Rule says that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The affidavit in Bird came from a private investigator who had been tailing the boyfriend of the Plaintiff’s ex- wife. The Plaintiff was trying to show that his ex was cohabitating with her boyfriend. If that were so, it meant that the Plaintiff’s obligation to pay alimony would end.

The ex-wife said she wasn’t cohabitating. She moved for summary judgment. In opposition, the husband presented his investigator’s affidavit. The wife objected to the PI’s testimony, saying that it wasn’t based on personal knowledge.

She had a point. The problem was that the affidavit was written in cop-speak. It said things like:

[The subject] was observed during the months of February and March 2007.

During the investigation, [the subject] was observed at [the wife’s] residence for a minimum of eleven (11) consecutive nights.

[The subject] was observed to park, regularly, in [the wife’s] garage.

[The subject] was regularly observed assisting [the wife] with chores such as walking the dog, taking care of the dog, unloading the vehicle when she returned from trips, and assisting her when she returned from the grocery store.

The ex-wife said the trial court should have refused to consider the affidavit. In her brief, she said that "the deliberate use of the grammatical construction, ‘was observed’, does not affirmatively show that she was the observer." She said that it was reasonable to assume that the investigator "was recounting the observations found in the report of one of her associates, and therefore found it necessary to use the passive voice." Defendant characterized the affidavit as "curiously devoid of pronouns."

The Court of Appeals majority said that notwithstanding the stilted construction of the affidavit it would conclude that the investigator herself was the "observer" and that the affidavit was therefore based on personal knowledge. The Supreme Court affirmed.

Justice Martin said "the trial court’s duty to treat indulgently the Rule 56 materials of the party opposing the motion reasonably encompasses the passive voice averments set forth in the . . . Affidavit." In a footnote, he said "as has been aptly observed, ‘[i]n spite of generations of textbooks, use of the passive [voice] has increased.’"

This doesn’t mean you should assume that this type of phrasing will carry the ball on summary judgment. The basis of both the Court of Appeals decision and the Supreme Court decision was that the affidavit had been offered by the non-moving party. The non-movant gets the benefit of the doubt on summary judgment, but the moving party doesn’t. The Supreme Court said in a 1998 decision that "the evidence forecast by the party against whom summary judgment is contemplated is to be indulgently regarded while that of the party to benefit from summary judgment must be carefully scrutinized." Creech v. Melnik, 495 S.E.2d 907, 911 (N.C. 1998).

The affidavit in Bird probably wouldn’t have passed that "careful scrutiny" if it had been offered by the moving party. That’s my observation. I made it.

Yesterday, the Business Court issued its first published opinion of 2010, Marosi v. M.F. Harris Research, Inc., 2010 NCBC 1 (N.C. Super. Ct. January 28, 2010), and ordered specific performance of a Subscription Agreement for the purchase of stock.

The dispute concerned a purchase by Thomas Marosi, shortly before he died, of stock in the Defendant corporation. The investment was made pursuant to a Subscription Agreement. Dr. Marosi’s executor, the Plaintiff, said that the stock certificate for the shares had never been issued. He had requested that the company issue it, but for some reason not clear from the opinion or the briefs, the company refused.

The Plaintiff moved for specific performance of the Subscription Agreement. Judge Jolly said that the purpose of specific performance was to force a party "to do exactly what he ought to have done without being coerced by the court," and that the remedy was appropriate upon a "showing of (a) the existence of a valid contract, (b) its terms and (c) full performance by the party seeking performance or a demonstration that he is himself ready, willing and able to perform."

The Court determined that those elements were met, as there was a contract, its terms were clear, and the Defendant did not dispute that there had been full performance by Dr. Marosi in the form of payment for the stock.  Judge Jolly ordered that stock certificates be issued to Dr. Marosi’s estate by February 8, 2010, subject to the same restrictions applicable to any other shares held by shareholders in the corporation.

Does it make any sense to make a motion in limine before a bench trial? No, not according to Judge Diaz, who ruled as follows in a short Order in Hilb Rogal & Hobbs Co. v. Sellars:

"In a jury trial, motions in limine serve the useful purpose of giving counsel advance notice of the scope of evidence that will be considered by the jury. In a bench trial, however, a pretrial ruling on the admissibility of evidence would be superfluous because the trial judge must (in any event) consider the evidence before ruling."

The Court ruled that it would not rule on motions in limine before trial, but that it would "instead allow all evidence to be tendered to the Court, subject to any objections timely raised."


If this blog were a dartboard, cases involving corporate and LLC governance issues would be at the bullseye. A bankruptcy case would be pretty far from the center, sometimes maybe even off the board.

With that perspective in mind, coupled with a dearth of bullseye type cases lately, this post is about the Fourth Circuit’s decision last Friday in United Rentals, Inc. v. Angell, affirming a decision from the Eastern District of North Carolina.

The decision concerned a bankruptcy trustee’s action to recover a preference paid to an equipment supplier (United) by the Debtor on a construction project. The Debtor had a surety bond, on which United had not made a claim, but which nevertheless formed the basis for its arguments that payments received by it during the ninety days preceding the Debtor’s bankruptcy petition were not a preference.

United had two main arguments. It said that the Trustee could not show that the transfer enabled it to receive more than it would have received in the Chapter 7 case if the transfer had not been made. That’s an essential element of a preference, per 11 U.S.C. § 547(b)(5). United also said that the transfer was a "contemporaneous exchange for new value" under 11 U.S.C. § 547(c)(1), a preference exception.

United said that if the transfer hadn’t been made, it would have made a claim against the Debtor’s surety bond and that it would have been paid in full by the surety. It argued that it therefore hadn’t received more than it would have it the transfer hadn’t been made, and that the Trustee therefore couldn’t satisfy the requirement of Section 547(b)(5).

Judge Traxler made short work of this argument. He said that the inquiry was whether the creditor would have been paid the money in question out of the bankruptcy, not whether it would have been received from a third party. He held that "the Sec. 547(b)(5) inquiry focuses ‘not on whether a creditor may have recovered all of the monies owed by the debtor from any source whatsoever, but instead upon whether the creditor would have received less than a 100% payout’ from the bankruptcy estate."

The second argument — that the payments were a contemporaneous exchange for new value — was more complicated. United said (1) it had the right to a materialman’s lien against the project, (2) the surety for the Debtor would have satisfied that lien it it had been asserted, (3) the surety then would have been equitably subordinated to the Debtor’s right to be paid by the general contractor, and (4) there was "new value" because United had not pursued its lien and bond rights and the Debtor therefore had eventually been paid by the general contractor instead of having that money go to reimbursement of the surety.

United’s argument was that the new value was the money the Debtor received later from the general contractor as a result of United foregoing pursuit of its lien claim. The Court said that even if this were so, United had not shown when this "new value" was received by the Debtor. It held "regardless of whether the transfers set in motion a chain of events that resulted in the Debtor’s recoupment of the amounts paid, United did not show that such new value was ‘given to the debtor’ . . . as part of a "contemporaneous exchange.’" 

The Court found the argument regarding the possible payment by the surety and the anticipated following events to fall outside the purpose of the contemporaneous exchange exception, which it said was "to accommodate the need of financially unsteady companies to use checks to pay for new transactions."

Not responding to Requests for Admissions is dangerous. Rule 36 of the North Carolina Rules of Civil Procedure say that a request is admitted if not answered, and that “any matter admitted under [Rule 36] is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

Two different panels of the North Carolina Court of Appeals in unpublished decisions yesterday dealt with defendants who hadn’t responded to Requests for Admission.

In one case, the Court affirmed a grant of summary judgment against the Defendant based on the ignored Requests. In the other, the Court went in a different direction and didn’t hold the Defendant to an admission as to the amount of damages suffered by the Plaintiff.

Summary Judgment Based On Failure To Respond To Requests For Admission

In the first case, Kluttz v. Next Safety, Inc., the Plaintiff sued for breach of an employment contract. The Defendant denied the breach in its Answer, challenging the validity of the contract and whether it was supported by consideration. But the Defendant didn’t respond to later Requests for Admission which asked it to admit the validity of the contract and its breach.

The trial court entered summary judgment against the Defendant based upon the facts established by the admissions, and the Court of Appeals as affirmed. Judge Wynn said that “facts admitted under Rule 36(a) as a result of a party’s failure to respond timely to a request for admissions are sufficient to support a grant of summary judgment."

The Kluttz decision relied on an NC Supreme Court case, Goins v. Puleo, 350 N.C. 277, 512 S.E.2d 748 (1999), which holds that "an admitted matter, even if dispositive of the case, is conclusively established when admitted through failure to respond to a Rule 36 request for admissions."

Failure To Respond To Request For Admission Not Determinative Of Damages

The other case, Garner v. Cheek, noted the Goins decision, but relieved the Defendant from an admission as to the amount of damages. The Plaintiff had sent a series of Requests looking for admissions about Defendant’s fault in an auto accident and Plaintiff’s damages. One request asked the Defendant to admit that “[Plaintiff] has been damaged by the negligence of [Defendant] in the amount of thirty thousand dollars.”

Plaintiff sought and obtained a default judgment for $30,000. Defendant moved for a new trial on damages, arguing that he wasn’t bound by the admission as to damages. The trial court granted the motion and entered a new judgment for only $7,500. The Court of Appeals affirmed.

There was conflicting evidence in the Garner case – from the same set of unanswered Requests for Admission – that warranted a much lower damage award. The Court of Appeals observed that  “plaintiff’s own evidence contradicted the amount of damages requested,” and it held that “it was within the trial court’s discretion to determine the amount of damages based on the Plaintiff’s medical expenses and pain suffered as a result of the collision."

The Garner case makes a couple of points about the nature of a Rule 36 admission from an earlier Court of Appeals decision, Eury v. N.C. Employment Security Comm., 115 N.C. App. 590, 446 S.E.2d 383 (1994):

A rule 36 admission is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial, rather than to an evidentiary admission of a party.

A judicial admission . . . is not evidence, but it, instead, serves to remove the admitted fact from the trial by formally conceding its existence.

If you understand either of those statements, please let me know. Apart from the riddle of how "judicial" admissions are different than "evidentiary" admissions, it’s hard to square those statements from Eury with the explicit statement in the Supreme Court’s Goins decision that an admitted matter is "conclusively established" by a failure to respond.

The Fourth Circuit’s ruling last Friday in Galustian v. Peter reinstated a Iraq-based defamation case which had been dismissed by the District Court on the grounds of forum non conveniens. The opinion also contains some significant points on amendments as of right under the Rules of Civil Procedure.

The lawsuit was brought in the Eastern District of Virginia by Galustian, a resident of the United Arab Emirates. Peter, the Defendant, was a resident of Virginia. Galustian contended that Peter had defamed him to a trade association of contractors working in Iraq. The statements in question were made by Peter in Iraq, where he lived and worked. Peter moved to dismiss on grounds of forum non conveniens, and the District Court granted the Motion.

The Fourth Circuit reversed. The case turned partly on whether Iraqi law provided a remedy in defamation to Galustian and whether Peter was immune from suit in Iraq, but I’ll leave those esoteric points to those of you who specialize in defamation law in Iraq. Here’s what business litigators might find significant in Galustian: 

The Obligation To Prove That There Is An Adequate Alternative Forum

First, a main focus of the case was whether Iraq was an "alternate, adequate, and available forum."  The Fourth Circuit said that an alternative forum is adequate when "(1) all parties can come within that forum’s jurisdiction, and (2) the parties will not be deprived of all remedies or treated unfairly, even though they may not enjoy all the same benefits as they might receive in an American court."

Whether Iraq provided a remedy for defamation, and whether an additional defendant who was added to the case after the motion to dismiss was filed could be subject to suit in Iraq, were both matters the Fourth Circuit said should be considered more fully by the District Court after remand.

The Role Of Defendant’s Residence On A Forum Non Conveniens Motion

Second, Peter’s residence in Virginia was an important factor. The Court observed that while it was not required to give much deference to the choice of forum by a foreign plaintiff, "this lack of deference is muted . . . when the defendant is a resident and citizen of the forum he seeks to have declared inconvenient for litigation."

Peter’s residence in Virginia wasn’t dispositive, said the Court, but that factor needed to be examined more closely by the District Court on remand. 

Amendments As Of Right

Third, the Fourth Circuit said that reversal was appropriate because the trial judge had refused to allow Galustian to amend to add the additional defendant after the motion to dismiss had been filed. The Court stated that "it is this Circuit’s policy to liberally allow amendment in keeping with the spirit of Federal Rule of Civil Procedure 15(a)."

The appellate court pointed out that the motion to amend had been made before the filing of a responsive pleading, and that Galustian therefore had an absolute right to amend his pleading. That was true even though the trial court had determined that the amendment would be futile.

On this point, Judge Gregory said "the doctrine of futility only applies when the plaintiff seeks leave of court to amend and does not have a right to amend. The plaintiff’s right to amend once is absolute." That absolute right extends to amendments seeking to add parties, as Galustian’s motion did.  (There’s a split in Circuits on the point whether Rule 15(a) applies to amendments adding parties). The District Court’s refusal to allow the amendment was an abuse of discretion.

Last, the Court reminded lawyers that Rule 15, which governs amendments to pleadings, changed on December 1, 2009. Formerly, a party could amend as of right literally up until the Court ruled on a motion to dismiss, because a motion to dismiss is not a responsive pleading. The changed rule says that amendments as of right must be made within 21 days after service of a 12(b) motion. The revised rule setting the new time limit didn’t apply to Galustian’s case, but the result might have been different if it had. 

The circumstances under which an individual can be personally liable for an employer’s failure to pay payroll taxes was the subject of Erwin v. United States, decided yesterday by the Fourth Circuit.

The Court affirmed a grant of summary judgment by Judge Beatty of the Middle District of North Carolina imposing personal liability on the Defendant, a shareholder who held various executive positions with the Company. This was a 2-1 decision, with a majority opinion from Judge Motz and a dissent by Judge Hamilton.

Individual Liability For Payroll Tax Withholding

The Court provided a quick primer on how an individual can become personally liable for payroll taxes:

  • Employers are required to withhold social security and federal excise taxes from employee wages.
  • Those withheld funds are held in trust for the United States, and are often referred to as "trust fund taxes."
  • Once in the hands of the employer, those funds are held for the exclusive use of the government, not the employer.
  • Even if the employer needs the withheld tax money to pay suppliers and vendors to keep the business operating as a going concern, it can’t, because "the government cannot be made an unwilling partner in a floundering business."
  • The Internal Revenue Code imposes personal liability for payroll tax on the officers and agents of an employer who are (1) responsible for "the employer’s decisions regarding withholding and payment of the taxes" and (2) who willfully fail to see that the taxes are paid. 

The Test For Determining A "Responsible Person"

In Plett v. United States, 185 F.3d 216 (4th Cir. 1999), the Fourth Circuit set out a variety of factors it would consider in determining whether an individual was a "responsible person" who should have personal liability for unpaid payroll taxes.  They are:

whether the employee (1) served as an officer or director of the company; (2) controlled the company’s payroll; (3) determined which creditors to pay and when to pay them; (4) participated in the corporation’s day-to-day management; (5) had the ability to hire and fire employees; and (6) possessed the power to write checks. 

Responsibility and Willfulness Established As A Matter Of Law

In the Erwin case, the Court discussed each factor, and summarized their application as follows in deciding that the Defendant was a responsible person and therefore personally liable:

Erwin admitted that at all times he owned at least one third of the stock of this closely-held corporation and served as its secretary, treasurer, vice president, and director. Erwin admitted that he signed loan documents and leases on behalf of the corporation, thus evidencing that he shared responsibility for establishing the corporation’s financial policy. Erwin admitted that he approved restaurant site selection and regularly reviewed sales data. Erwin admitted holding quarterly meetings with his partners and weekly telephone calls with the general manager to discuss the restaurants. Erwin admitted that he directed or negotiated payments to certain favored creditors to reduce [the company] debt, which he had personally guaranteed. Erwin admitted that he hired and fired upper-management employees, including [the company’s] accountants. Finally, although Erwin delegated many of the day-to-day financial responsibilities of the corporation to others, he admitted that he infused capital into [the company and admonished the [company’s accountants], over whom he had significant control, to stay current with the company’s tax obligations.

The Court then turned to the issue whether the Defendant had willfully failed to collect, account for, or pay the taxes in question. Judge Motz ruled that the Defendant’s conduct after he learned of the tax deficiencies established willfulness as a matter of law. He hadn’t taken steps to remedy the known deficiencies and had instead directed payment to other creditors.

She held that "we adopt the rule that when a  responsible person learns that withholding taxes have gone unpaid in past quarters for which he was responsible, he has a duty to use all current and future unencumbered funds available to the corporation to pay those back taxes."

What do you get when you mix together a luxury automobile, a tiger, and a wind tunnel?

It sounds like something out of the movie The Hangover, but it’s the case of BCD LLC v. BMW Manufacturing Co. LLC, an unpublished decision from the Fourth Circuit Court of Appeals.

BMW and Clemson University were developing a new Graduate Engineering Center. Plaintiffs wanted to build a wind tunnel facility — catering to the racing industry — as a part of the Center. They claimed that BMW and Clemson had tortiously interfered with their efforts.

The threshold issue addressed by the decision was whether the Plaintiffs had a valid and enforceable contract with which the Defendants could have interfered. The Court found that they had at best an "agreement to agree" which had never risen to the level of an enforceable agreement. In the absence of a contract, Plaintiffs couldn’t pursue a tortious interference claim.

The Court also found the conduct by BMW which Plaintiffs said constituted tortious interference to have been competitively justified.  It said that "at all times, BMW acted in pursuit of its legitimate interests in founding an educational partnership with Clemson," and held as follows:

The only harm that BMW may have intended to cause [the Plaintiffs] was the incidental harm to a competitor that is necessarily part of all business competition. That increased benefits for one entity may come at the expense of a competing entity is merely a fact of life in a market economy. Consequently, although a party cannot interfere with a contract because of malice or spite, it is altogether legitimate for BMW to engage in business competition with [Plaintif’s] entities.

That’s a quote that may prove useful if you are defending against a tortious interference claim.

Diversity is determined differently for corporations and limited liability companies. Corporations are citizens of the states in which they are incorporated and the state where they have their principal place of business, but an LLC is a citizen of each state in which its members reside.  See, e.g., General Technology Applications, Inc. v. Exro Ltda, 388 F.3d 114 (4th Cir. 2004).

But when the Class Action Fairness Act is involved, things are different. Last Friday, the Fourth Circuit ruled in Ferrell v. Express Check Advance of SC LLC that a limited liability company is an "unincorporated association" for CAFA purposes, and that the determination of the "principal place of business" of an LLC should be determined using the same test applied to a corporation. In other words, the citizenship of the members of an LLC isn’t necessarily determinative of diversity in a CAFA case, and it wasn’t in Express Check.


The LLC defendant conducted its operations in South Carolina, but its sole member was a corporation incorporated in Missouri with a principal place of business in Kansas. It had been sued by a Plaintiff who was an individual resident of South Carolina.

The Defendant, relying on the Missouri and Kansas citizenship of its sole member, removed the case to federal court based on diversity jurisdiction, and the Plaintiff moved for a remand.

If CAFA hadn’t been at issue, the general rule for determining the citizenship of an "unincorporated association" would have applied. That rule looks to the citizenship of each member of the entity, so an LLC would be a citizen of each state in which its members resided. There would have been diversity under that test because the Defendant was either a Missouri entity or a Kansas entity. 

An LLC Is An Unincorporated Association Under The Class Action Fairness Act 

But under CAFA, Congress changed the traditional rule, and said that an "unincorporated association" should be treated like a corporation, and deemed a citizen of the State "under whose laws it is organized" and also where it has its principal place of business. 28 U.S.C. Sec. 1332(d)(1).

Express Check, concerned that its principal place of business might be found to be diversity-defeating South Carolina, sought to get out from under the CAFA rule. It said that an LLC wasn’t intended by Congress to be included in the definition of an "unincorporated association." The Fourth Circuit cut through that argument quickly, calling it "linguistic," and held that an LLC’s "citizenship for purposes of CAFA is that of the State under whose laws it is organized and the State where it has its principal place of business."

The decision sweeps beyond LLCs, as Judge Niemeyer ruled that the term "unincorporated association," under CAFA, "refers to all non-corporate business entities."

The Court then turned to the issue of where the LLC had its principal place of business.

Continue Reading Fourth Circuit Rules On Determining The “Principal Place Of Business” Of A Limited Liability Company Under The Class Action Fairness Act

I had no idea that utility companies trim trees with saws hanging from helicopters. That’s going to make me all the more certain to look up when I hear a helicopter.

I learned this interesting tidbit from one of the new cases (with a plaintiff aptly named "Aerial Solutions") of the six designated to the North Carolina Business Court in December 2009. Those are listed below.

The total for new cases designated to the Business Court during 2009, by my count, was one hundred and eleven.

Allen Smith Investment Poperties, LLC v. Barbarry Properties, LLC (Mecklenburg)(Diaz): dispute among partners in limited partnership. Claims for breach of fiduciary duty, misappropriation of funds, and fraud.

Aerial Solutions, Inc. v. Lail (Columbus)(Jolly): unfair competition claims against former helicopter pilot for an aerial tree-trimming business, including breach of non-competition agreement and providing co-defendant with confidential information regarding Plaintiff’s "patented Aerial Power Saw."

Arky v. Variable Annuity Life Ins. Co. (Durham)(Jolly): enforceability of non-solicitation provision in registered representative agreement, including claim that customer identities and account information are trade secrets.

Mark v. Wachovia Bank, N.A. (McDowell)(Tennille): claims against real estate developers and banks asserting false and misleading sales tactics and that the parties "conspired with each other to artificially inflate the value of the subject lots through knowingly overstated appraisals."

NRC Golf Course, L.L.C. v. JMR Golf L.L.C. (Carteret)(Jolly): Dispute between the parties over terms of a lease and option to purchase a golf course.

Yodle v. WebVisible, Inc. (Mecklenburg)(Diaz):plaintiff, which says that it is "an industry leader in providing local online advertising services to business around the country," makes claims of unfair competition against a competitor including raiding of employees, theft of trade secrets, and false statements to plaintiff’s customers.