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United States Bankruptcy Court for the Southern District of Florida, Fort Lauderdale Division
January 28, 2022, Decided
Chapter 11, Case No. 19-17544-SMG, Adv. No. 19-1230-SMG
[*187] MEMORANDUM OPINION
When a plaintiff's case will rely upon an expert witness to prove damages, but the plaintiff fails to timely disclose any expert witness or expert report, the consequences can be devastating. Such is the case here. The plaintiff failed to timely make its expert disclosures required by Federal Rule of Civil Procedure 26(a)(2). Without these disclosures, the plaintiff may not present any expert testimony. And with no expert testimony - and no other competent evidence [**2] of damages in the record - the defendants moved for summary judgment, arguing there is no genuine issue of material fact and they are entitled to judgment as a matter of law. For this and other reasons discussed in detail below, the Court agrees and will grant the defendants' motions for summary judgment.
Plaintiff Seven Stars on the Hudson Corp. ("Seven Stars") operates a trampoline park and "family fun center" inside a larger indoor entertainment complex called Xtreme Action Park. Xtreme Action Park - which is operated by XBK Management, LLC d/b/a Xtreme Action Park ("Xtreme") - also has a go-cart track, bowling alley, roller rink, escape rooms, and arcade games, among other attractions. MDG Powerline Holdings, LLC ("MDG") - which is allegedly owned and controlled by the same principals who own and control Xtreme - owns the facility and leases the space to Seven Stars, Xtreme, and a few other tenants (some of which may also be affiliated with MDG and Xtreme).1 Although MDG is its landlord, [*188] Seven Stars alleges that its co-tenant Xtreme effectively serves as the property manager.2
Jens Berding ("Mr. Berding") and Eddy Manzo-Berding ("Ms. Manzo-Berding") are the principals [**3] and owners of Seven Stars. They claim to have initially capitalized Seven Stars with $1,963,110, consisting of a $553,532 equity investment from their retirement savings, and $1,409,578 in financing from Wells Fargo Bank, N.A. ("Wells Fargo").3 Seven Stars began operating its trampoline park in November 2016,4 as a franchisee of Rockin' Jump, LLC ("Rockin' Jump"). About a year later, the relationship between Seven Stars and its co-tenant Xtreme began to deteriorate.5 Seven Stars alleges that Xtreme and MDG essentially colluded to squeeze out Seven Stars, by taking actions designed to deprive it of revenue and customers, while interfering with Seven Stars' rights under its Lease. And there is certainly some evidence to support these claims, including an email from a representative of Xtreme who stated that Mr. Berding "doesn't want to work with us. He won't listen to reason so it appears we will just need to beat him into default."6
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
637 B.R. 180 *; 2022 Bankr. LEXIS 234 **
In re: Seven Stars on the Hudson Corp., Debtor.Seven Stars on the Hudson Corp., Plaintiff, v. MDG Powerline Holdings, LLC and XBK Management, LLC, Defendants.
Subsequent History: Affirmed by, Appeal dismissed by, Motion denied by, As moot Seven Stars on the Hudson Corp. v. MDG Powerline Holdings, LLC, 2022 U.S. Dist. LEXIS 188537 (S.D. Fla., Oct. 16, 2022)
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