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Roemmich v. Eagle Eye Development

July 7, 2009

BRUCE ROEMMICH, PLAINTIFF,
v.
EAGLE EYE DEVELOPMENT, LLC AND LELAND BERTSCH, DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO ALLOW LAY AND EXPERT TESTIMONY

Before the Court is the "Defendants' Motion to Allow Lay and Expert Testimony at Hearing" filed on May 26, 2009. See Docket No. 169. The Plaintiff filed a response in opposition to the motion on June 8, 2009. See Docket No. 170. The Court grants in part and denies in part the motion for the reasons set forth below.

I. BACKGROUND

The plaintiff, Bruce Roemmich, filed an action on April 13, 2004, against Eagle Eye Development, LLC, Leland Bertsch, Jane Bertsch, Janet Scholl, and Jon Wagner. In the complaint, Roemmich alleged four separate causes of action: (1) unfairly prejudicial conduct toward a member of a limited liability company; (2) breach of fiduciary duty to act in good faith toward another member; (3) breach of fiduciary duties to act in good faith by officers of a limited liability company; and (4) dissenters rights. See Docket No. 1. The statutory basis for each cause of action was Chapter 10-32 of the North Dakota Century Code which is commonly referred to as the North Dakota Limited Liability Company Act. A bench trial was conducted before Magistrate Judge Charles S. Miller, Jr. in December 2005.

Judge Miller entered Findings of Fact, Conclusions of Law, and Order on August 16, 2006. See Docket No. 87. On December 29, 2006, judgment was entered against Roemmich. See Docket No. 106. Roemmich's claims for monetary relief and for an accounting were dismissed with prejudice as to all of the defendants and all other claims against defendants Janet Scholl and Jon Wagner were dismissed with prejudice. Eagle Eye Development and Leland Bertsch were awarded a monetary judgment against Roemmich in the amount of $71,188.62. On January 26, 2007, Roemmich appealed the judgment and numerous orders to the Eighth Circuit Court of Appeals. See Docket No. 107.

On February 23, 2007, defendants Eagle Eye Development, Leland Bertsch, Jane Bertsch, and Jon Wagner filed a motion for execution of judgment in which they moved the Court to execute the December 29, 2006, judgment and to order the United States Marshal to satisfy the judgment out of Roemmich's personal property. See Docket No. 110. On February 28, 2007, Judge Miller denied without prejudice the motion for execution of judgment. See Docket No. 113.

On March 5, 2007, defendants Eagle Eye Development, Leland Bertsch, Jane Bertsch, and Jon Wagner filed a second motion for execution of judgment. See Docket No. 114. The Defendants moved for "an order which directs the execution and satisfaction of the judgment against the plaintiff's financial rights held in Eagle Eye Development, LLC." See Docket No. 115. On March 12, 2007, Roemmich filed a motion to stay the judgment pending the appeal. See Docket No. 118. On March 21, 2007, Judge Miller granted the motion to stay and stayed the execution of the judgment pending a further order from the Court. See Docket No. 133.

On May 3, 2007, Judge Miller entered a "Special Charging Order Pending Appeal." See Docket No. 135. The purpose of the charging order was "to give Eagle Eye Development, LLC and Leland Bertsch a lien interest over the referenced financial rights, subject to the limitations imposed by N.D.C.C. § 10-32-34 and the specific terms of this order, to (1) secure payment of the above judgment and accrued interest and (2) to provide security for any additional costs and fees that may [be] taxed by the court as [a] result of the pending appeal." See Docket No. 135. On May 13, 2008, the Eighth Circuit Court of Appeals affirmed the judgment. See Docket No. 136; Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343 (8th Cir. 2008).

On December 29, 2008, defendants Eagle Eye Development and Leland Bertsch filed a third motion for execution of judgment. See Docket No. 143. The Defendants move the Court to execute the judgment and to order the United States Marshal to satisfy the judgment out of Roemmich's personal property. See Docket No. 143. The Defendants "respectfully request that the Court issue an order which directs the execution and satisfaction of the judgment against the plaintiff's financial rights held in Eagle Eye Development, LLC." See Docket No. 144. The Defendants seek foreclosure of Roemmich's membership interest in Eagle Eye Development.

On March 6, 2009, the Defendants requested a hearing on the third motion for execution of judgment. See Docket No. 161. On May 19, 2009, the Court granted the motion and scheduled the hearing for Thursday, July 30, 2009, at 10:00 a.m. The Defendants now move the Court to allow lay and expert testimony at the hearing. See Docket No. 169.

The Defendants request that Leland Bertsch and Eagle Eye Development's accountant, Jon Wagner, "be allowed to testify to lay support for the defendants' claim that, as judgment creditors, the defendants have little likelihood of collecting on their judgment through any Eagle Eye distributions for many years." See Docket No. 167. "The defendants have also asked the Court to allow expert testimony from disclosed testifying expert Carter Bishop. . . . In his capacity as a testifying expert, Professor Bishop will testify that a judicial lien charging order against the plaintiff's Eagle Eye interest will not produce any distributable sums toward satisfaction for at least sixteen years while at the same time accruing interest on the debt, and that a court-ordered foreclosure sale of the charged interest is warranted and permitted by North Dakota statutory law." See Docket No. 167.

Roemmich does not contest the lay testimony of Leland Bertsch and Jon Wagner but contends that Professor Bishop should not be allowed to provide expert testimony. Roemmich contends that if testimony is allowed, it "should only occur AFTER the Court has decided the initial question of whether foreclosure is an available remedy, and, if the Court concludes it is, the Court has provided the legal guidelines for when the remedy is appropriate." See Docket No. 170 (emphasis in original).

II. LEGAL ...


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