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Savy Surfers, Inc. v. Wings of Minot ND LLC

United States District Court, D. North Dakota

January 30, 2019

Savy Surfers, Inc. f/k/a International Audio Visual, Inc., Plaintiff,
v.
Wings of Minot ND LLC d/b/a Wings of Minot, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION IN LIMINE

          Daniel L. Hovland, Chief Judge

         Before the Court is a motion in limine regarding the admissibility of an email filed by the Plaintiff, Savy Surfers, Inc. f/k/a International Audio Visual, Inc. (“Savy Surfers”) on September 7, 2018. See Doc. No. 15. The Defendant, Wings of Minot ND LLC d/b/a Wings of Minot (“Wings”), filed a brief in opposition to the motion in limine on September 28, 2018. See Doc. No. 22. On October 5, 2018, Savy Surfers filed a reply brief. See Doc. No. 23. For the reasons set forth below, the motion in limine is denied.

         I. BACKGROUND

         In 2014, NCP Inc. d/b/a Entertech AVL (“Entertech”) provided Wings with audio visual equipment which Entertech then installed at the Buffalo Wild Wings restaurants in Minot and Dickinson, North Dakota, during the construction of those restaurants. Entertech also provided audio visual equipment to Dani Reichenberger, a principal of Wings, and installed the equipment at his residence. Upon completion of the construction projects, Wings requested invoices from construction vendors in order to pay the vendors and close its construction loan. After closing the construction loan, Wings negotiated new terms of the loan to include payment of the balance over a period of seven (7) years at ¶ 4% interest rate.

         On July 19, 2016, Entertech provided Reichenberger with Invoice No. 22636, showing he owed $86, 633.49 to Entertech. See Doc. No. 1-5. The next day, Entertech provided Wings with Invoice Nos. 22648 and 22649, evidencing Wings owed the amounts of $3, 489.07 and $119, 383.22, respectively, to Entertech. See Doc. Nos. 1-2 and 1-3. Then on July 21, 2016, Entertech provided Wings with another invoice - Invoice No. 22666 - showing Wings owed an additional $1, 165.91 to Entertech. See Doc. No. 1-4. In sum, based upon invoices provided to Wings, Wings and Reichenberger jointly owed to Entertech $210, 671.69. On August 31, 2016, Nita Wagner with Entertech sent a letter to Ken Herslip with Wings demanding payment of the $210, 671.69 owed by Wings to Entertech. See Doc. No. 1-6. In the letter, Wagner requested payment from Wings “in full no later than October 15[, ] 2016.” Id. Wagner further indicated in the letter: “Open balance at that date will be forwarded to third party for collection, and may incur additional fees. In addition, lack of payment may result in notification to Buffalo Wild Wings Corporate office.” Id.

         On September 27, 2016, Herslip sent an email to Briten Gilbertson at Entertech, stating the following:

         Briten:

Thanks for your letter and phone calls….I wish things where [sic] different for you and Entertech…However your misfortune and lack of accounting has put our company in a [sic] extremely bad way…Here is what we are up against.
We just finished a loan adjustment with our lenders as our company was not in compliance with our original loan agreement. We have seen sales drop by 40% to 50% in our business since we completed Dickinson ND. We built Dickinson ND and secured a $5.2 million dollar loan and with in the loan agreement we have a 2 year lock out period (which is coming up shortly) however after that we have a 4% prepayment fee. We also have a limit of $50, 000 cap for any new debit we can obtain with anyone including share holder with out getting written permission from our lenders first.
We had the funds available before we closed on our loan, however we assumed all debits where [sic] paid when we closed with our loan. Entertech has put our company in a very procuress [sic] situation.
I will again offer the $2, 870.45 payment which is the amount owed at 4% interest for 7 years, that's the same terms as we got on our loan. That is all I can offer and the BEST we can do given the circumstance that Entertech has put us in.
The threat of notifying corporate Buffalo Wild Wings does not change what we can and can't do. It just makes matters worse between Entertech and Wings of Minot LLC, meaning once corporate is notified we will be force[d] to notify our attorney and remove our offer of settlement. I hope you find this offer expectable [sic] and we can both move on.
Regards: Ken F. Herslip

See Doc. No. 1-7.


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