Sabre International Security v. Torres Advanced Enterprise Solutions, LLC , 72 F. Supp. 3d 131 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SABRE INTERNATIONAL SECURITY,
Plaintiff,
v. Civil Action No. 11-806 (GK)
TORRES ADVANCED ENTERPRISE
SOLUTIONS, LLC, et al.,
Defendants. ·
MEMORANDUM OPINION
Pending before the Court are twelve Motions in Limine
filed by Plaintiff Sabre International Security ("Sabre") and
six Motions in Limine filed by Defendant Torres Advanced
Enterprise Solutions ("Torres") . 1 Upon consideration of the
Motions and Responses, and the entire record herein, and for the
reasons stated below, the Court rules as follows.
SABRE'S MOTIONS IN LIMINE
I. Sabre's Motion in Limine to Exclude Torres' Spreadsheet of
Alleged Costs Incurred [Dkt. No. 390] ("Sabre's Motion in
Limine No. 1")
Sabre's Motion in Limine No. 1 seeks to exclude, as
hearsay, four versions of a financial spreadsheet Torres used to
track payments it made to Sabre and expenses it allegedly
1
In accordance with the Pretrial Order entered on August 26,
2014 [Dkt. No. 382], the parties filed their Motions in Limine
on September 9, 2 014 [Dkt. Nos. 3 85-4 03] and their respective
Oppositions on September 23, 2014 [Dkt. Nos. 411-428] .
incurred on Sabre's behalf (the "Tracking Sheet") . 2 Torres
contends that the Tracking Sheet is admissible both as a
business record under Fed. R. Evid. 803(6) and as a summary of
voluminous writings under Fed. R. Evid. 1006.
A. Rule 803{6)
The "business record" rule creates an exception to the
hearsay rule for a "record of an act, event, condition, opinion
or diagnosis" if:
(A) the record was made at or near the time by - or
from information transmitted by someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) the opponent does not show that the source of
information or the method or circumstances of
preparation indicate a lack of trustworthiness.
Fed. R. Evid. 803(6).
2
The four versions of the Tracking Sheet at issue are dated
between October 20, 2010, and January 7, 2011, Pl.'s Mot. at 1,
and contain entries dated from January 1, 2010, to December 31,
2010. See generally id. Exs. 1-4.
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Sabre's primary argument against admission of the Tracking
Sheet is its contention that Torres created the Tracking Sheet
in anticipation of litigation and not as a "regularly conducted
activity." Pl.'s Mot. at 2. 3
Torres claims, however, that it created the Tracking Sheet
before it was on notice of any legal action. Def.'s Opp'n at 1.
It has submitted the Declaration of its former Chief Financial
Officer ( "CFO") , Kathryn Jones, who explains that she created
the Tracking Sheet on or around August 27, 2010, as an "ongoing
accounting of extraordinary expenses that were being incurred
above normal business operating expenses." See Declaration of
Kathryn Jones ("Jones Decl.") 232 F.3d
200, 205 (4th Cir. 2000). Therefore, records created in
anticipation of litigation do not fall within the business
records exception because they are not created "for the
systematic conduct and operations of the enterprise but for the
primary purpose of litigating." Id.; see also United States v.
Feliz, 467 F.3d 227, 234 (2d Cir. 2006) ("We know that because
Rule 803(6) requires business records to be kept in the regular
course of a business activity, records created in anticipation
of litigation do not fall within its definition.").
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Sheet] in order to support variance analysis for the company's
financial statements" and in situations where "performance
issues with a subcontractor arose." Id. <]I 4. Furthermore, she
expressly denies that the Tracking Sheet was prepared "in
anticipation of litigation or for a litigious purpose." Id.
<]I 5.
Based on this Declaration, and because this case was not
filed until April 29, 2011, approximately nine months after
Jones claims to have created the Tracking Sheet, Torres shall
have the opportunity at trial to demonstrate that the Tracking
Sheet was not created in anticipation of litigation and is
admissible as a business record. Sabre's Motion to exclude the
Tracking Sheets under Rule 803(6) shall therefore be denied.
B. Rule 1006
Torres also argues that the Tracking Sheet is admissible
under Rule 1006, which permits the use of a "summary, chart, or
calculation" to prove the content of "voluminous writings
that cannot be conveniently examined in court." Fed. R. Evict.
1006. "For a summary of documents to be admissible, the
documents must be so voluminous as to make comprehension by the
jury difficult and inconvenient; the documents themselves must
be admissible; the documents must be made reasonably available
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for inspection and copying; the summary must be accurate and
nonprejudicial; and the witness who prepared the summary should
introduce it." United States v. Fahnbulleh, 752 F.3d 470, 479
(D.C. Cir. 2014) (citation omitted).
Torres contends that it "has underlying documentation for
amounts reflected in the spreadsheet, including wire transfers,
receipts and invoices." Def. 's Opp~ n at 2; see also Decl. of
Daniel Cotter ("Cotter Decl.") 3 [Dkt. No. 427-6].
Consequently, Torres shall have the opportunity at trial to
demonstrate that the Tracking Sheet is admissible as a summary
of voluminous records pursuant to Fed. R. Evid. 1006. 4
For both of the foregoing reasons, Sabre's Motion in
Limine No. 1 shall be denied. However, the Tracking Sheet shall
not be admitted into evidence unless and until Torres has laid
the proper foundation at trial by establishing, through the
testimony of former CFO Jones, current CFO Cotter, or any other
4
Sabre contends that the Tracking Sheet is inaccurate because it
commingles TWISS I and TWISS II costs. Pl.'s Mot. at 4. The
Tracking Sheet does not, however, purport to be limited to TWISS
II expenses. Thus, the inclusion of TWISS I costs does not
render it inaccurate; it merely reflects that the Tracking Sheet
includes information that may not be relevant to Sabre's claims.
Sabre also contends that other entries in the Tracking Sheet are
inaccurate, but in support of this assertion, it misquotes CEO
Jerry Torres' deposition testimony. Jerry Torres did not
testify that the Tracking Sheet was erroneous; he testified that
"I do not know [why certain charges were included] . You have to
ask [CFO] Kathy [Jones]." Pl.'s Mot. Ex. 30 at 314:7-8.
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qualified witness, and any necessary documentary evidence, that
all of the requirements of Rule 803(6) and/or Rule 1006 have
been met.
II. Sabre's Motion in Limine to Exclude Torres from
Introducing Evidence of TWISS II Equipment Purchases or
Sabre's Performance Deficiencies [Dkt. No. 392] ("Sabre's
Motion in Limine No. 2")
Sabre's Motion in Limine No. 2 seeks to exclude Torres
from introducing any evidence that it breached its contractual
obligation to provide adequate equipment for the Team's TWISS II
Task Orders. Sabre argues that Torres is estopped from
challenging the adequacy of such equipment because it invoiced
the Government for the full amount due on each Task Order, thus
representing that all aspects of the Team's performance
including Sabre's provision of equipment was satisfactory.
See Pl.'s Mot. at 2. Sabre also argues that Torres has not
presented evidence of any expenses incurred as a result of any
equipment deficiencies. Id. at 3.
It is well established that "motions in limine are a means
for arguing why 'evidence should or should not, for evidentiary
reasons, be introduced at trial'" and "are not another excuse to
file dispositive motions disguised as motions in limine."
Graves v. D.C., 850 F. Supp. 2d 6, 10-11 (D. D.C. 2011) (emphasis
added) ( citations omitted) . In other words, a Motion in Limine
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is not a "vehicle for a party to ask the Court to weigh the
sufficiency of the evidence [,]" id. at 11, which is precisely
what Sabre asks the Court to do as a basis for categorically
excluding all evidence that it breached its contractual
obligations to provide satisfactory equipment. 5 Therefore,
Sabre's Motion in Limine No. 2 shall be denied.
III. Sabre's Motion in Limine to Exclude Torres from
Introducing Evidence of Alleged Costs for Vehicles or
Sabre's Performance Deficiencies in Providing TWISS II
Vehicles [Dkt. No. 393] ("Sabre's Motion in Limine No. 3")
Sabre's Motion in Limine No. 3 seeks to exclude all
evidence relating to any "offset or defense to Sabre's Count 2
claims, including the defense that Sabre allegedly failed to
perform all of Sabre's contract obligations to Torres relating
to vehicles." Pl.'s Mot. at 1. As with Sabre's Motion in
Limine No. 2, this Motion is directed at the merits of Torres'
claim that Sabre failed to provide satisfactory vehicles, and
the sufficiency of evidence to support that claim, rather than
any specific admissibility issues. Therefore, it is not the
5
Furthermore, contrary to Sabre's contention, Torres has
presented evidence that it purchased equipment after concluding
that Sabre's equipment was inadequate. For example, Torres has
presented documentary and testimonial evidence that Sabre failed
to provide uniforms, boots, body armor, vehicles, and other
equipment it was contractually required to provide under the
Teaming Agreement, and that Torres purchased and provided such
equipment after concluding that Sabre had not satisfactorily
done so. See Def.'s Opp'n Exs. 1-9 [Dkt. No. 413].
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proper subject of a motion in limine. See Graves, 850 F. Supp.
2d at 10-11.
Furthermore, as already noted in footnote 5 supra,
contrary to Sabre's contention, Torres has presented evidence
that Sabre failed to provide serviceable vehicles in accordance
with its obligations under the Teaming Agreement and that, to
make up for Sabre's failures, it was required to purchase and
lease extra vehicles to satisfy the Government. See, e.g.,
Def.'s Opp'n Ex. 1 (Rule 30(b)(6) deposition tr. of Rebekah
Dyer) at 74:21-75:3 ("[W]e bought new vehicles to replace ones
that Sabre tried to pass off as new to the government because
they actually complained about the quality of the vehicles.") ;
id. Ex. 4 (deposition tr. of Jerald Barnes) at 74:9-14 ("Even at
the Victory Base Complex we had to lease vehicles. Sabre gave
us a broke-down truck that wouldn't have passed anybody's
inspection[.]") [Dkt. No. 415]. Finally, Sabre admits that the
record includes evidence of "vehicle deficiencies at some sites
on some days." Mot. at 4.
For these reasons, Sabre's Motion in Limine No. 3 shall be
denied.
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IV. Sabre's Motion in L~ine to Exclude Torres from
Introducing Evidence of Alleged Uniform Purchases or
Sabre's Performance Deficiencies in Providing TWISS II
Uniforms [Dkt. No. 394] ("Sabre's Motion in Limine No. 4")
Sabre's Motion in Limine No. 4 seeks to exclude any
evidence or argument that Sabre's provision of uniforms for
TWISS II Task Orders was deficient. Sabre contends that Torres
has failed to present any evidence to support such a claim.
Mot. at 1. As discussed above, a motion in limine is not the
proper vehicle to address the sufficiency of the evidence in
support of a claim. Moreover, contrary to Sabre's assertions,
Torres has presented evidence that it purchased uniforms Sabre
failed to provide. See supra note 5. Consequently, Sabre's
Motion in Limine No. 4 shall be denied.
V. Sabre's Motion in L~ine to Exclude Torres from
Introducing Evidence of Alleged Payments of Third Country
National Guard Salaries [Dkt. No. 395] ("Sabre's Motion in
L~ine No. 5")
Sabre's Motion in Limine No. 5 seeks to exclude Torres
from introducing evidence that it paid for Third Country
National ("TCN") guard services Sabre was contractually required
to provide. To the extent Sabre seeks to categorically exclude
such evidence, the Motion shall be denied for the same reasons
as Motion Nos. 2-4: first, that a Motion in Limine is not a
proper vehicle to argue the merits of a claim, and second, that
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Torres has produced evidence that, as a result of TCN guard
shortages and other performance issues, it paid for TCN guard
services even though that responsibility was contractually
allocated to Sabre. See Def.'s Opp'n at Exs. 1-8 [Dkt. No.
416] .
Sabre also makes a more specific argument that the
Tracking Sheet in particular must be excluded as evidence of
Torres' TCN guard costs because it includes guard costs for Task
Orders not at issue in this case, specifically TWISS I Task
Orders and the FOB Cruz Morris Task Order, which was a TWISS II
Task Order in which Sabre was not involved. Pl.'s Mot. at 1-4.
Sabre argues that such costs are irrelevant and their inclusion
in the Tracking Sheet renders it "erroneous," "inaccurate," and
likely to be unnecessarily confusing to the jury. Pl.'s Mot. at
1-3.
Torres argues, by contrast, that inclusion of TCN guard
costs incurred at FOB Cruz Morris is appropriate because it "is
entitled to seek these costs given Sabre's anticipatory breach
and repudiation of its obligations under the Teaming Agreement,
causing Torres [] to take over TWISS II operations and bid for
and stand-up [i.e., equip the Task Order site at] Cruz Morris
without Sabre's involvement." Def.'s Opp'n at 4.
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As both sides agree, damages in connection with TWISS I
Task Orders are not at issue in this case. See Def. 's Mot. in
Limine No. 1 at 1-2 [Dkt. No. 385]. Therefore, any expenses
Torres paid for TWISS I TCN guard services are not relevant and
shall not be admitted at trial. See Fed. R. Evid. 402.
However, because Torres has asserted a defense that Sabre
anticipatorily breached the Teaming Agreement by failing to
provide adequate TCN guard force services for TWISS II Task
Orders including at FOB Cruz Morris its TCN guard costs
resulting from the alleged anticipatory breach at Cruz Morris
are relevant. Moreover, the entries for TCN guard costs at
TWISS II sites at which Sabre did participate are also relevant.
Because some of the entries in the Tracking Sheet are
relevant, exclusion of the entire document is only appropriate
if its probative value is "substantially outweighed" by a danger
of unfair prejudice, jury confusion, undue delay, or the
needless presentation of cumulative evidence" resulting from the
inclusion of irrelevant entries. See Fed. R. Evid. 403. This
standard is not met.
First, Sabre has not explained why redaction of the
entries related to the TWISS I costs is not sufficient, rather
than exclusion of the entire document. Second, Sabre has only
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identified a handful of line items in the Tracking Sheet
pertaining to TWISS I TCN costs. See P 1 . ' s Mot . at 2. Even
without redaction, these entries are not so numerous as to be
confusing to the jury. Third, Sabre may, through cross-
examination and the use of demonstrative evidence - highlight
the specific expenses that are not at issue, thereby further
reducing the chance of any jury confusion. Fourth, Sabre may
seek a jury instruction instructing the jury that it may not
consider TWISS I costs as evidence.
In sum, the Tracking Sheet shall not be excluded in its
entirety as evidence of Torres' TCN guard costs; however, the
entries related to Torres' TWISS I TCN guard costs shall be
redacted and excluded.
For the foregoing reasons, Sabre's Motion in Limine No. 5
shall be granted in part and denied in part.
VI. Sabre's Motion in Limine to Exclude Torres from
Introducing Evidence of Medical Costs [Dkt. No. 396]
("Sabre's Motion in Limine No. 6")
Sabre's Motion in Limine No. 6 seeks to exclude Torres
from introducing any evidence that it paid for medical services
Sabre was contractually obligated to provide. Sabre contends
that Torres has not presented evidence to support such a claim.
Pl.'s Mot. at 1.
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As with Motion Nos. 2-5, a motion in limine is not a
proper vehicle to address the sufficiency of evidence underlying
a claim. Furthermore, contrary to Sabre's assertions, Torres
has produced evidence of medical expenses it incurred as a
result of Sabre's allegedly deficient performance on certain
TWISS II Task Orders. See Def.'s Opp'n at Exs. 1-4 [Dkt. No.
418] . Therefore, Sabre's Motion in Limine No. 6 shall be
denied.
VII. Sabre's Motion in L~ine to Exclude Torres from
Introducing Evidence of Alleged Damages Relating to the
FOB Adder, Cruz Morris, Doura, Cobra, Bucca, and Ramadi
Task Order Competitions [Dkt. No. 397] ("Sabre's Motion
in L~ine No. 7")
Sabre's Motion in Limine No. 7 seeks to exclude Torres
from introducing "evidence of any alleged 'breach of contract'
or 'lost profits' relating to its Forward Operating Base ("FOB")
Adder Task Order Counterclaim, or alleged br.eaches relating· to
FOB Cruz Morris, Doura, Cobra, and Ramadi Task Orders." Pl.'s
Mot. at 1.
Sabre's Motion is again directed to the merits of Torres'
claims and the sufficiency of the evidence to prove them, rather
than the admissibility of any specific evidence. See, e.g.,
Pl.'s Mot. at 3 ("Torres has no reasonable basis for claiming
any Sabre 'breach' or loss relating to the FOB Cruz Morris
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competition.") ; id. ("Torres also has not produced or identified
any documentary evidence in support of these breach claims.") .
As explained repeatedly above, a motion in limine is not the
appropriate vehicle to seek dispositive relief based on the
sufficiency of evidence. Moreover, although these Task Orders
are not at issue in Sabre's claim for breach of contract in
Count 2, they are relevant to Torres' counterclaim for breach of
contract.
Consequently, Sabre's Motion in Limine No. 7 shall be
denied.
VIII. Sabre's Motion in Limine to Exclude Torres from
Introducing Evidence of Alleged Termination of the
Parties' Teaming Agreement [Dkt. No. 398] ("Sabre's Motion
in Limine No. 8")
Sabre's Motion in Limine No. 8 seeks to exclude "any
evidence or argument at trial of an alleged termination of the
parties' Teaming Agreement[.]" Pl.'s Mot. at 1. To the extent
this Motion seeks to categorically exclude any and all evidence
supporting Torres' claim that the Teaming Agreement was
terminated, that request shall be denied for the reasons stated
throughout this Memorandum Order: a Motion in Limine is not the
proper vehicle to seek disposal of a substantive claim or
defense.
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Sabre also seeks to exclude a specific letter terminating
the Teaming Agreement, which Torres claims to have sent to Sabre
on or around September 30, 2010 (the "Termination Letter").
Sabre claims that the Termination Letter is inadmissible because
Torres has not presented any evidence that it was ever sent.
See Pl.'s Mot. at 1-3. Contrary to this assertion, there is
evidence that the Termination Letter was sent: Torres' former
Vice President Rebekah Dyer testified that she sent the letter
via Federal Express. Pl.'s Mot. at 2 & Ex. 5 (Dyer R. 30(b)(6)
deposition tr. at 194:5-7) . 6 Moreover, even if the Termination
Letter was not sent, Sabre has not identified any evidentiary
principal requiring its exclusion on that basis alone.
Sabre also contends that the Termination Letter must be
excluded because it is hearsay. The hearsay rule applies to
statements that "a party offers in evidence to prove the truth
of the matter asserted in the statement." Fed. R. Evid.
801(c)(2). It does not apply to evidence that is not offered
for its truth but for another purpose, such as to prove a
party's state of mind. See Whitbeck v. Vital Signs, Inc., 159
F.3d 1369, 1374 (D.C. Cir. 1998) (holding that "[w]e have no
6
Sabre argues that Dyer's testimony lacks "credibility" due to
the absence of any Federal Express records establishing that the
letter was mailed. Dyer's credibility is an issue for the jury.
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doubt that the magistrate judge erred in excluding" out of court
statement that "would have explained [plaintiff's] state of mind
[and] was relevant for this non-hearsay purpose") .
In addition, it is well-established that the hearsay rule
does not apply to "verbal acts" or out-of-court statements that
have "independent legal significance." See United States v.
Stover, 329 F.3d 859, 870 (D.C. Cir. 2003) (noting that "verbal
acts" and "statements that have independent legal significance"
are not hearsay) (citation omitted); see also Echo Acceptance
Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1087
(lOth Cir~ 2001) (holding that hearsay rule is inapplicable
"where the out-of-court statement actually 'affects the legal
rights of the parties, or where legal consequences flow from the
fact that the words were said'") (citation omitted).
To the extent the Termination Letter is offered for a non-
hearsay purpose, it need not be excluded under Rule 802. For
example, Torres may attempt to demonstrate that the Termination
Letter terminated the parties' contractual relationship, thereby
having independent legal significance. See Remington
Investments, Inc. v. Berg Prod. Design, Inc., 172 F.3d 876 (9th
Cir. 1999) (holding that hearsay rule was "not implicated" by
"contractual documents"). Moreover, Torres has asserted a
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defense of accord and satisfaction, which requires it to
establish the existence of a bona fide dispute as to amounts due
under the Teaming Agreement. The fact that Torres wrote a
letter purporting to terminate the Teaming Agreement is evidence
that it believed there was a dispute, separate and apart from
whether any of the specific factual assertions made in the
Termination Letter are true. Therefore, Sabre's Motion in
Limine No. 8 to exclude the Termination Letter shall be denied
to the extent Torres seeks to admit the Termination Letter for
any non-hearsay purposes. 7
Torres also argues that the Termination Letter is
admissible for hearsay purposes, i.e., as evidence of the truth
of the statements made therein. It advances two arguments:
first, that the Termination Letter is admissible as a "business
record" under Rule 803(6), and second, that it is admissible as
a prior consistent statement under Rule 801(d) (1) (B).
As discussed, to satisfy the business record exception,
Torres must establish that the Termination Letter "was kept in
the course of a regularly conducted activity" and that "making
[such a] record was a regular practice[.]" Fed. R. Evict.
803(6) (B)-(C). Furthermore, to be admissible, the record must
7
The Court emphasizes, however, that all evidence is subject to
the authenticity requirements of Rule 901(a).
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be "typical of entries made systematically or as a matter of
routine to record events or occurrences, to reflect transactions
with others, or to provide internal controls." Palmer v.
Hoffman, 318 U.S. 109, 113 (1943).
Torres has presented the Declaration of its current Chief
Financial Officer, Daniel P. Cotter, who states that "[i]t is a
regular business practice of Torres [] to conclude business
relationships with others when appropriate." See Def.'s Opp'n
Ex. 3 (Decl. of Daniel P. Cotter) Palmer, 318 U.S. at 113.
Consequently, Torres has not demonstrated that Rule 803 ( 6) (B)
and (C) are satisfied.
Second, Torres argues that the Termination Letter is
admissible as a prior consistent statement. Rule 801 (d) (1) (B)
permits the introduction of such statements if the "declarant
testifies and is subject to cross-examination about [the] prior
statement, and the statement" is "offered to rebut an express or
implied charge that the declarant recently fabricated it or
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acted from a recent improper influence or motive in so
testifying [.]" Fed. R. Evid. 801 (d) (1) (B).
Torres is correct that Sabre has accused "Ms. Dyer of
'recently fabricating' that a Termination Letter was sent."
De f . ' s Opp' n at 1-2. However, the "declarant" of the
Termination Letter is Torres CEO Jerry Torres, not Ms. Dyer, as
it is his signature that appears at the bottom. See Pl.'s Mot.
Ex. 2 at 5. Rule 801 (d) (1) (B) does not authorize the use of a
prior consistent statement of one witness to rebut a charge that
a different witness is fabricating her testimony. See Fed. R.
Evid. 801 (d) (1) (B) (requiring prior consistent statement to have
been made by the same "declarant" accused of fabricating her
testimony) .
Moreover, the only part of the Termination Letter that is
"consistent" with Dyer's testimony is a line at the top of one
of the earlier versions of the Termination Letter stating that
it was sent "VIA FEDERAL EXPRESS AND E-MAIL." This line was
deleted in the version of the Termination Letter attached to
Torres' Opposition, which is the version Dyer claims to have
sent. Thus, the Termination Letter on which Torres relies does
not include any reference to the method of transmission and is
not, therefore, consistent with Dyer's testimony that she sent
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the Termination Letter by Federal Express. See Torres' Opp' n
Ex. 1 [Dkt. No. 426-1].
Finally, even if Torres sought to introduce the earlier
version of the Termination Letter stating that it has been sent
"VIA FEDERAL EXPRESS AND E-MAIL," Dyer testified that she only
sent the Termination Letter by Federal Express, not email. See
Pl.'s Mot. Ex. 5 (Dyer R. 30 (b) (6) deposition tr. at 194:2-4).
Therefore, the earlier version of the Termination Letter is not,
in fact, entirely consistent with Dyer's testimony. For all of
these reasons, the Termination Letter is not admissible under
Rule 801 (d) (1) (B).
Sabre's Motion in Limine No. 8 shall be granted insofar as
it seeks to exclude the Termination Letter for the truth of the
statements made therein and otherwise shall be denied.
IX. Sabre's Motion in Limine to Exclude Torres from
Introducing Evidence or Argument of any Alleged
Impropriety of Sabre's Proposed Pricing for TWISS II Task
Orders [Dkt. No. 399] ("Sabre's Motion in Limine No. 9")
Sabre's Motion in Limine No. 9 seeks to exclude any
"evidence or argument at trial of any alleged impropriety
relating to Sabre's pricing proposals for TWISS II Task Orders"
on the basis that "[s]uch claims are unsubstantiated and
irrelevant" and should be excluded under Rule 403.
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Contrary to Sabre's contention, Torres has presented both
documentary and testimonial evidence that Sabre's pricing
proposals were uncompetitive. Such evidence includes deposition
testimony and emails complaining that Sabre's prices were too
high. See Pl.'s Mot. at 1 & Exs. 2-3; Def.'s Opp'n at 2.
This evidence is highly relevant to several issues at the
heart of this case. First, it is relevant to explain why Torres
objected to Sabre's prices and ultimately reduced such prices in
the Team's proposals to the Government. Second, it is relevant
to Torres' claim that Sabre breached its contractual obligation
to provide Torres with "most favored customer" pricing under
Section 5.2(A) (3) of the Teaming Agreement. Third, it is
relevant to whether a bona fide dispute existed between the
parties for purposes of Torres' defense of accord and
satisfaction. In sum, evidence that Torres believed Sabre's
pricing proposals were too high or not competitive is highly
relevant and not unfairly prejudicial, and therefore shall not
be excluded under Rules 402 or 403.
Sabre also contends, however, that Torres will seek to
introduce testimony that Government officials complained about
Sabre's pricing as "fraudulent" and "unethical." It is not
clear from Torres' Opposition whether it will, in fact, seek to
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introduce such testimony or, if so, what the basis of such
testimony will be. Consequently, if Torres seeks to introduce
such testimony, it shall be required to lay a foundation for the
admissibility of such evidence and overcome any hearsay
objections. Moreover, because such testimony, even if otherwise
admissible, may be unfairly prejudicial (or, alternatively, may
be highly probative), Sabre may renew its Rule 403 objection at
that time.
For the foregoing reasons, Sabre's Motion in Limine No. 9
shall be denied without prejudice as to any testimony about
Government officials' view of Sabre's prices as "fraudulent" or
"unethical" and shall otherwise be denied.
X. Sabre's Motion in Limine to Exclude Torres from
Introducing Evidence, Representations of Counsel or
Argument of Investigations or A2leged Criminal Misconduct
of Sabre or Members of the Sabre Executive Group [Dkt. No.
400] ("Sabre's Motion in Limine No. 10")
Sabre's Motion in Limine No. 10 seeks to exclude evidence
relating to: (1) an audit by the Defense Contract Audit Agency
( "DCAA") of another Government contract involving Sabre that is
unrelated to this case (the "IRD Audit"); (2) a DCAA audit of
Sabre's invoices for the TWISS program, which is referred to in
an August 30, 2010, letter from Torres CEO Jerry Torres to Sabre
CEO Frank McDonald (the "DCAA TWISS Audit"); and (3) any
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evidence that either Sabre or members of its executive
management team were investigated for civil or criminal
misconduct. Sabre seeks to exclude this evidence as hearsay,
lacking in foundation, and unfairly prejudicial under Rule 403.
The Court has already ruled that the IRD Audit is not
relevant, and Torres has stated that it ~will of course abide by
[that] ruling." Def.'s Opp'n at 1 [Dkt. No. 419]. Therefore,
Sabre's Motion is granted insofar as it seeks exclusion of the
IRD Audit.
As to the DCAA TWISS Audit, Torres admits that no such
audit was conducted. Def. 's Opp'n at 1 & Ex. 1. Therefore,
Sabre's Motion shall be denied as moot.
Torres has, however, presented evi'dence of audits by the
Defense Contract Management Agency (~DCMA") regarding the Team's
performance of TWISS Task Orders, which led to the issuance of
several ~Letters of Concern" and ~corrective Action Requests."
See Def.'s Opp'n Exs. 2-5. These audits and the related actions
by the Government are directly relevant to whether Sabre
adequately performed its TWISS obligations. Furthermore, they
are potentially admissible under Rule 803(8) (A) (iii), which
permits the introduction of public records if they set out
~matter [s] observed while under a legal duty to report" and
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"factual findings from a legally authorized investigation" and
"neither the source of information nor other circumstances
indicate a lack of trustworthiness." Fed. R. Evid.
803 (8) (A) (ii)- (iii), (B). Therefore, to the extent Sabre seeks
to exclude evidence of the DCMA TWISS audits, that request is
denied without prejudice.
Finally, neither party has presented any evidence of civil
or criminal misconduct. Consequently, to the extent Sabre seeks
to exclude evidence of criminal or civil misconduct, that
request is also denied without prejudice.
For the foregoing reasons, Sabre's Motion in Limine No. 10
shall be granted in part and denied in part.
XI.
. \
Sabre's Mot1on in Limine to Exclude Torres' Proposed
Trial Exhibit No. 412 (Declaration of Baryamujuru
("Moses") Matsiko) [Dkt. No. 401] ("Sabre's Motion in
Limine No. 11")
Sabre's Motion in Limine No. 11 seeks to exclude a
Declaration allegedly executed by Baryamujuru ("Moses") Matsiko
on January 27, 2014 (the "Torres Matsiko Declaration"), and an
accompanying letter of the same date (the "Watertight Letter"),
stating that "[a]ll monies relating to TWISS I and TWISS II have
been paid in full to Watertight Services." Watertight Services,
an affiliate of Pinnacle Security/Pinnacle Group, is a guard
-24-
force company located in Uganda, which supplied TCN guards for
the TWISS program. Matsiko is its Chief Executive Officer.
Although Sabre has not directly challenged the
authenticity of the Torres Matsiko Declaration as a basis for
exclusion, it has submitted a different Declaration, also
purportedly signed by Moses Matsiko, which states that the
Watertight Letter ·and the Torres Matsiko Declaration are "false"
and a "forgery" and that "both Torres [] and Sabre owes [sic] us
money and its extremely shocking and bizarre that I would say,
write, swear or even think otherwise." Pl.'s Mot. Ex. 2 (Decl.
of Baryamujuru Matsiko, dated Mar. 17, 2014) ~~ 4-6. 8
Sabre contends that the Torres Matsiko Declaration and the
Watertight Letter must be excluded as hearsay. Torres has made
clear, however, that it does not seek to admit the Torres
Matsiko Declaration as evidence. Rather, the sole purpose of
the Declaration is to lay a foundation for admitting the
Watertight Letter under Rule 803(6). Def.'s Opp'n at 1.
8
To distinguish Sabre's Declaration from the one submitted by
Torres, the Court shall refer to it as the "Sabre Matsiko
Declaration."
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Consequently, the Court need not consider whether the
Declaration is independently admissible. 9
As to the Watertight Letter, Torres seeks to admit that
Letter under the business records exception. As discussed, a
business record is only admissible if, among other things,
"neither the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness." Fed. R. Evid. 803(6) (E).
Sabre has shown that the circumstances surrounding the
preparation of the Watertight Letter indicate a lack of
trustworthiness. In particular, it has produced the Sabre
Matsiko Declaration, which states that the Watertight Letter
proffered by Torres "is not authentic" and that the signature on
the letter appears to be forged. See Pl.'s Mot. Ex. 2 (Sabre
Matsiko Decl.) ~~ A(4) & B(4) [Dkt. No. 401-2]. Moreover,
although Torres contends that the Watertight Letter was sent in
response to a January 8, 2014, letter of its current CFO, Daniel
Cotter, Torres has not presented any sworn declaration of its
own officers to that effect. See Def.'s Opp'n Exs. 1-4. In
fact, Torres has not proffered any sworn testimony of its own
9
Preliminary questions regarding the admissibility of evidence
are not governed by evidentiary rules, except those of
privilege. See Fed. R. Evid. 104(a).
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witnesses regarding the authenticity of the Watertight Letter.
Thus, the Court concludes that the Watertight Letter is not
trustworthy, and, therefore, is inadmissible under Rule 803(6) . 10
Sabre's Motion in Limine No. 11 shall therefore be
granted.
XII. Sabre's Motion in Limine to Exclude Torres from Calling
Daniel P. Cotter as a Witness [Dkt. No. 402] ("Sabre's
Motion in Limine No. 12")
Sabre's Motion in Limine No. 12 seeks to prevent Torres
from calling CFO Cotter as a witness at trial. Sabre contends
that CFO Cotter was not employed by Torres until after the
events at issue in the case and, therefore, that he is
incompetent to testify as a lay witness because he "has no
personal knowledge of the matters at issue." Pl.'s Mot. at 1.
Torres does not deny that CFO Cotter lacks personal
knowledge. It claims, however, that his testimony is admissible
because he was Torres' corporate designee for purposes of Fed.
R. Civ. P .. 30 (b) (6). Rule 30(b) (6) pertains to corporate
depositions for purposes of discovery. See, e.g., McKesson
Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 79 (D.D.C.
1999) ("Rule 30(b) (6) is intended to streamline the discovery
10
Having so concluded, the Court need not decide whether the
other elements of the business-record exception are satisfied.
-27-
process."). It does not govern the admissibility of testimonial
evidence at trial. 11
Moreover, Rule 602 of the Federal Rules of Evidence, which
does govern the admissibility of testimonial evidence at trial,
clearly states that "[a] witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter." Fed. R. Evid.
602; see also L-3 Commc'ns Corp. v. OSI Sys., Inc., No. 02-9144,
I
I
I
2006 WL 988143, at *2 (S.D.N.Y. Apr. 13, 2006) (holding that, at
a jury trial, a non-adverse party "may only offer testimony from
[its own Rule 30(b) (6) witness] as a fact witness based on his
personal knowledge and in compliance with [the] Federal Rule[s]
of Evidence ] , ) . Consequently, Torres may not offer the live
testimony of CFO Cotter on any matter for which he lacks
personal knowledge.
As to the use of Cotter's recorded deposition testimony at
trial, that issue is governed by Rule 32 of the Federal Rules of
Civil Procedure, which states that deposition testimony is
11
Torres cites a number of cases recognizing that, at a
deposition conducted pursuant to Rule 30 (b) ( 6) of the Federal
Rules of Civil Procedure, the corporate designee need not have
personal knowledge of the matters on which he or she testifies.
However, each of these cases involved testimony given at a
deposition; none pertained to the introduction of live testimony
at a jury trial.
-28-
admissible at trial only "to the extent it would be admissible
under the Federal Rules of Evidence if the deponent were present
and testifying[.]" Fed. R. Civ. P. 32 (a) (1) (B). As discussed,
CFO Cotter's testimony is inadmissible under Fed. R. Evict. 602
because he lacks personal knowledge. Therefore, his deposition
testimony is also inadmissible and Sabre's Motion in Limine No.
12 shall be granted.
XIII. Conclusion as to Sabre's Motions in Limine
For all of the foregoing reasons, Sabre's Motions in
Limine Nos. 1-12 shall be granted in part and denied in part as
set forth above. An Omnibus Order shall accompany this
Memorandum Opinion.
TORRES' MOTIONS IN LIMINE
I. Torres' Motion in Limine to Exclude Evidence of Portions
of the First Amended Complaint that Have Been Rendered
Irrelevant by the Court's Summary Judgment Rulings [Dkt.
No. 385] ("Torres' Motion in Limine No. 1")
Torres' Motion in Limine No. 1 seeks to exclude evidence
pertaining to claims that are no longer pending, having been
dismissed either pursuant to Fed. R. Civ. P. 12 (b) (6) or on
summary judgment. In particular, Torres seeks to exclude
evidence relating to Id. at 1 n.2.
Second, even if Torres' alleged breaches relating to any
TWISS I Task Orders were marginally relevant, the minimal
probative value of that evidence is substantially outweighed by
the significant risk of juror confusion and undue delay that
would result from its introduction. Even without any TWISS I
evidence, this case will require the jury to pay close attention
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to - and distinguish among - a substantial number of technically
complex contracts, Task Orders, Proposals, Requests for
Proposals, pricing sheets, invoices, and other paperwork. In so
doing, the jury will be required to navigate substantial
industry-specific terminology and familiarize itself with more
than five pages of acronyms. See Joint List of Acronyms and
Contracts, dated Sept. 22, 2014 [Dkt. No. 410-1]. There is no
reason whatsoever to overwhelm the jury and confuse the issues
by introducing evidence relating to TWISS I Task Orders that are
not at issue in the case.
Consequently, Torres' Motion shall be granted to the
extent it seeks exclusion of evidence pertaining to specific
TWISS I Task Orders or any claim of breach related thereto, as
alleged in paragraphs 47-56 and 143-145 of the FAC. 12
12
The parties may, however, briefly address their relationship
under the TWISS I MATOC in order to provide a factual background
for the events related to the TWISS II MATOC. Moreover, matters
that are otherwise relevant to the parties' claims under TWISS
II MATOC, are not rendered inadmissible simply because they
touch on or are intertwined with issues relating to the TWISS I
MATOC. However, to the extent either party seeks to introduce
evidence touching on the TWISS I MATOC, they should inform the
Court beforehand in order to discuss protocols for minimizing
jury confusion.
-31-
B. Paragraphs 99-102 of the FAC 13
Paragraphs 99-102 of the FAC pertain to Sabre's now-
dismissed claims that Torres unjustly enriched itself by bidding
on and performing Task Orders at FOB Cruz Morris and COS Garry
Owen without Sabre's involvement. 14 See FAC 357 F.3d 62, 69 (D.C. Cir. 2004)).
-32-
it to "stand up Cruz Morris without Sabre's involvement." See
Def.'s Opp'n to Pl.'s Mot. in Limine No. 5, at 4 [Dkt. No. 416].
Consequently, facts relating to the Task Order at FOB Cruz
Morris are relevant to Torres' defense.
Relatedly, Torres' undisputed decision to submit
unilateral bids for the Task Orders at FOB Cruz Morris and COS
Garry Owen reflects its response to the parties' ongoing
disagreement over pricing, which extended to the Task Orders at
issue in Count 2. Torres' alleged failure to convene a
Management Committee meeting (and otherwise coordinate with
Sabre regarding TWISS II Task Order Proposals) also reflects the
degree to which it attempted to resolve these pricing disputes,
which is a central point of contention in this case. Therefore,
Torres Motion to exclude evidence pertaining to paragraphs 99-
102 shall be denied.
C. Paragraphs 117-128 and 222(b)-(c) of the FAC
Paragraphs 117-128 also refer to Torres' unilateral
submission of Task Order Proposals for FOB Cruz Morris and COS
Garry Owen. As discussed above, these issues are generally
relevant to the parties' ongoing disagreement on prices.
However, paragraphs 222 (b) and (c) assert that Sabre is
entitled to "full payment of the revenue received by Torres" in
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connection with the Cruz Morris and Garry Owen Task Orders.
Sabre has not brought a claim for breach of contract related to
these Task Orders, and its previously-asserted claims for unjust
enrichment relating to such Task Orders have been dismissed.
Accordingly, Sabre may not introduce evidence related to the
amount of revenue Torres received for work performed at Cruz
Morris and Garry Owen, nor may it argue that it is entitled to
such revenue.
Therefore, Torres' Motion shall be granted insofar as it
seeks to exclude evidence of the amount of revenue Torres earned
from work at FOB Cruz Morris and Garry Owen and shall otherwise
be denied.
D. Paragraph 137 of the FAC
Paragraph 137 of the FAC alleges that "Torres concealed
from Sabre the fact that Torres had applied for and was in the
process of receiving" its own PSC license. FAC Id.
Rule 608 provides that a "witness's credibility may be
attacked . . by testimony about the witness's reputation for
having a character for truthfulness or untruthfulness, or by
-42-
testimony in the form of an opinion about that character." Fed.
R. Evid. 608 (a). Extrinsic evidence, however, other than a
criminal conviction under Rule 60 9, is not admissible to prove
specific instances of a witness's conduct in order to attack or
support the witness's character for truthfulness. Fed. R. Evid.
608 (b) .
As a preliminary matter, three of these four exhibits on
which Sabre relies do not even refer to Jerry Torres' alcohol
consumption at all. See Pl.'s Opp'n at 2 & Exs. 3-5.
Therefore, the only evidence Sabre has identified that refers to
Jerry Torres' alleged alcohol abuse is a portion of former
Torres employee Christopher Herman's deposition testimony in
which he referred to a particular affidavit in a matter which
appears to have no relevance to this case. Herman testified
that he believed this affidavit contained false allegations
because "you could just tell by the text and the wording that it
was written by Jerry Torres when he was intoxicated, which was
often. And that is a fact." Pl.'s Opp'n, Ex. 6 {Herman tr. at
642:21-643:1).
Given that it is unclear how this affidavit is r-elevant to
the case, or whether it will be introduced by either party,
Sabre shall be permitted to use such evidence for only the
-43-
following narrow impeachment purpose: If Torres presents Jerry
Torres as a witness, Sabre may impeach his credibility by cross-
examining him about the truthfulness of his statements in the
affidavit and whether he was intoxicated when he wrote them.
See Fed. R. Evict. 608(b) ("[E]xtrinsic evidence is not
admissible to prove specific instances of a witness's conduct in
order to attack or support the witness's character for
truthfulness. But the court may, on cross-examination, allow
them to be inquired into if they are probative of the
[witness's] character for truthfulness or untruthfulness.").
Herman's testimony regarding Jerry Torres' drinking habits, and
any other such evidence, shall otherwise be excluded.
Torres' Motion in Limine No. 6 shall therefore be granted
in part and denied in part, consistent with the foregoing.
B. Evidence of Bonuses
Torres also seeks to exclude, as irrelevant, any evidence
of the bonuses paid to its former Vice President Rebekah Dyer
and former CFO Kathryn Jones in 2010 and 2011.
Sabre claims that these bonuses "are relevant to Ms.
Dyer's and Ms. Jones' motivation for taking improper actions to
conceal Torres' price reductions and Torres' breaches under
Count 2[.]" Pl.'s Opp'n at 3. Count 2, however, is a claim for
-44-
breach of contract. It is well-established that motive is
irrelevant to a claim for breach of contract. See, e.g.,
Athridge v. Aetna Cas. & Sur. Co., No. 96-2708, 2001 WL 214212,
at *3 (D.D.C. Mar. 2, 2001) ("[M]otive is irrelevant to a breach
of contract action[.]"), aff'd, 351 F.3d 1166 (D.C. Cir. 2003);
Thyssenkrupp Materials, Inc. v. W. Bulk Carriers A/S, No. 13-
1248, 2014 WL 335595, at *1 (S.D.N.Y. Jan. 22, 2014) ("[M]otive
is 'generally irrelevant in breach of contract actions.'")
(citations omitted) . Therefore, the bonuses are not relevant to
Sabre's breach of contract claim in Count 2.
Sabre also argues that the bonuses are relevant to its
claims for conversion of property in Count 18. The record
establishes that, sometime after March 31, 2012, Torres
converted $150,000-worth of equipment belonging to Sabre by
selling it to a third party. See Mem. Op., dated Aug. 20, 2014,
at 6 7 [ Dkt . No . 3 7 3] . Sabre contends that Dyer and Jones were
directly involved in these activities, and were thereafter
"handsomely rewarded with substantial annual bonuses for 2010 of
$1,773,139 for Ms. Dyer and $79,077 for Ms. Jones." Pl.'s Opp'n
at 4.
The Court recently granted summary judgment for Sabre
insofar as it seeks to hold Torres liable for conversion of
-45-
property in Count 18 but denied summary judgment on Sabre's
claim for punitive damages. See Mem. Op., dated Aug. 20, 2014,
at 67 [Dkt. No. 373]. In a Memorandum Opinion dated October 30,
2014, issued concurrently with this Memorandum Opinion, the
Court granted summary judgment for Jones on Count 18 and denied
summary judgment with respect to the claims against Dyer and
Jerry Torres. Consequently, the only conversion claims that
remain pending are the claims against Dyer and Jerry Torres and
the claim for punitive damages. 17
Even assuming that motive is relevant to these claims, the
conversion of equipment at issue did not occur until after the
completion of the JSS Shield Task Order on March 31, 2012. See
Mem. Op., dated Aug. 20, 2014, at 61 [Dkt. No. 373]. Sabre
fails to establish how bonuses paid in December 2010 and 2011
are relevant to a tort that did not occur until after March 31,
17
Under District of Columbia law, " [p] unitive damages may be
awarded 'only if it is shown by clear and convincing evidence
that the tort committed by the defendant was aggravated by
egregious conduct and a state of mind that justifies punitive
damages[]' . such as maliciousness, wantonness, gross fraud,
recklessness and willful disregard of another's rights.'"
Chatman v. Lawlor, 831 A.2d 395, 400 (D.C. 2003) (citations
omitted) .
-46-
2012. Based on this timeline, the Court concludes that the
bonuses are not relevant to the outstanding conversion claims. 18
In sum, the bonuses are not relevant. Consequently,
Torres' Motion in Limine No. 6 shall be granted insofar as it
seeks to exclude evidence of bonuses received by Dyer and Jones
for the years 2010 and 2011.
For the foregoing reasons, Torres' Motion in Limine No. 6
shall be denied to the limited extent Sabre seeks to use
Herman's testimony regarding Jerry Torres' intoxication for the
limited impeachment purpose identified by the Court, and shall
otherwise be granted.
18
Sabre points to a series of emails dated November 28, 2010, in
which Torres personnel, including Dyer, discussed the equipment
at issue in light of the Government's recent decision to extend
the Task Order at JSS Shield by an additional six months. See
Pl.'s Opp'n, Ex. 16. In particular, Sabre relies on statements
by Dyer and Jerry Torres opining that the equipment could not be
removed from the Task Order site until it was closed. See
- --id.
-
at 2. These statements do not suggest that Dyer was then
planning to convert Sabre's property much less that such a plan
had anything to do with her annual bonus.
-47-
VII. Conclusion as to Torres' Motions in Limine
For all of the foregoing reasons, Torres' Motions in
Limine Nos. 1-6 shall be granted in part and denied in part as
set forth above. An Omnibus Order shall accompany this
Memorandum Opinion.
October 30, 2014
Gla~s~r~
United States District Judge
Copies to: attorneys on record via ECF
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