United States District Court, D. North Dakota
Savy Surfers, Inc. f/k/a International Audio Visual, Inc., Plaintiff,
Wings of Minot ND LLC d/b/a Wings of Minot, Defendant.
ORDER DENYING PLAINTIFF'S MOTION IN
L. Hovland, Chief Judge
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.
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%
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
September 27, 2016, Herslip sent an email to Briten
Gilbertson at Entertech, stating the following:
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
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.