Getzler v. River Run Foods

THE SUPERIOR COURT OF THE STATE OF DELAWARE
)
JOEL GETZLER, DANIEL GETZLER, )
DANIEL GINDEA, NEIL MARKS & )
STEVEN SALES, TRUSTEE OF THE )
STEVEN SALES RETIREMENT PLAN, )
Plaintiffs, )
)
v. ) C.A. NO. N23C-02-086 DJB
)
RIVER RUN FOODS (DE), LLC, a )
Delaware limited liability company, and )
FRED LANGER, )
Defendants, )
)
Argued: March 13, 2024
Decided: July 1, 2024
Upon Defendant’s Motion for Summary Judgment – GRANTED
Upon Plaintiffs’ Cross-Motion for Summary Judgment and Defendant’s Motion to
Strike Plaintiffs’ Cross-Motion – DENIED
MEMORANDUM OPINION
Andrew L. Cole, Esquire, Stacy L. Newman, Esquire, Michael E. Fitzpatrick,
Esquire, and Nathaniel J. Klepser, Esquire of COLE SCHOTZ PC, Wilmington,
Delaware, and J. Michael Pardoe, Esquire, admitted pro hac vice, of COLE
SCHOTZ PC, Baltimore, Maryland, Attorneys for Plaintiffs.
Marc Casarino, Esquire, and Katie Barksdale, Esquire, of KENNEDYS CMK LLP,
Wilmington, Delaware, Attorneys for Defendants.
BRENNAN, J.
1
I. INTRODUCTION
This civil action alleges one count of fraud by Plaintiffs following a four
hundred thousand dollar ($400,000.00) investment (“the investment”) in Defendant
River Run Foods, LLC (“River Run”) in October of 2021. This Complaint was filed
on February 10, 2023. Plaintiffs’ complaint is against both River Run and Defendant
Fred Langer (“Langer,” collectively “Defendants”), the Chief Operating Officer of
River Run.1 Defendant River Run is a company that provides food manufacturing
and packaging services.2 Langer worked for Plaintiff Joel Getzler (“Getzler”), who
owns a consulting firm which provides guidance to financially troubled businesses.
River Run was a former client of Getzler’s firm prior to the investment.
II. PROCEDURAL HISTORY
Following the close of discovery, Defendants moved for summary judgment
(“Defendants’ Motion”) on January 5, 2024, in accordance with the Trial Scheduling
Order set for this case.3 On February 5, 2024, Plaintiffs filed their opposition to
Defendants’ Motion and simultaneously filed a Cross-Motion for Summary
Judgment (“Cross-Motion”).4 Defendants moved to strike, as untimely, the Cross-
Motion on February 7, 2024.5 That same day, Plaintiffs filed their opposition to the
1
Complaint, D.I. 1.
2
D.I. 1, at ¶ 17.
3
Defendants’ Motion for Summary Judgment. D.I. 42.
4
D.I. 44-46.
5
D.I. 48.
2
Motion to Strike.6 On February 12, 2024, Defendants replied to the motions filed
by Plaintiffs.7 Oral argument was held March 13, 2024.8 Following review of the
filings, arguments of counsel, the entire record in the case, and the applicable legal
authority, for the reasons stated below, Defendants’ Motion to Strike and the
Plaintiffs’ Cross-Motion for Summary Judgment are DENIED; Defendants’ Motion
for Summary Judgment is GRANTED.
III. FACTUAL BACKGROUND
Getzler’s consulting firm, non-party Getzler Henrich & Associates, works
with financially troubled companies; Getzler is the co-chairman of his firm.9 River
Run was a client of Getzler Henrich until March 2018.10 In 2019, Langer, who
previously worked at Getzler Henrich, and a group of investors, purchased 80% of
River Run.11 Langer is currently the Chief Operating Officer of River Run. 12
Seeking investors, Langer, on behalf of River Run, sent Getzler a written
document offering Series A Preferred Stock in River Run (“Prospectus”) on August
31, 2021. Getzler forwarded the document to Plaintiffs Daniel Getzler, Daniel
6
D.I. 48, 49.
7
D.I. 52.
8
D.I. 53.
9
D.I. 42, at 3.
10
Id. at 4
11
Id. Langer and Getzler have known each other for forty years.
12
Id.
3
Ginger, Neil Marks and Steven Sales (collectively “Plaintiffs”).13 On September 3,
2021, Langer provided Getzler with projected River Run financials (“Projections”)
forecasting 2021 sales of $23,620,601.00 and Earnings Before Interest, Taxes, and
Amortization (“EBITA”) of -$590,747.00.14 River Run’s actual 2021 sales were
$10,751,749.00,15 and EBITA was -$5,360,633.00.16 The Projections forecasted
sales for September 2021 as $4,289,165.00, however, actual sales were
$947,208.00.17
In October 2021, Plaintiffs invested $400,000.00, at $200.00 per unit, in River
Run.18 Per Plaintiffs, Defendants’ assertions that River Run had exclusive rights to
the Tetra Pak Recart packaging system,19 and River Run’s proposed new facility with
eight (8) Tetra Pak lines were the impetus to the investment.20 However, during an
13
D.I. 1, at ¶ 20.
14
D.I. 42, Ex. B, at 24:11-25:12, see also Ex. E; Plaintiff’s Complaint
erroneously alleges the EBITA figures in the positive and makes arguments
of fraud on its face based upon the positive EBITA. However, it is clarified
in the depositions taken, specifically of Langer, that the EBITA figures are to
be negative. See D.I. 42, p. 19, fn. 73.
15
D.I. 1, at ¶ 28; D.I. 7, at ¶ 28.
16
Id. at ¶ 29.
17
Id. at ¶ 30.
18
Joel Getzler invested $250,000.00; Daniel Getzler invested $10,000.00;
Daniel Ginda invested $25,000.00; Neil Marks invested $15,000.00; Steven
Sales, for Sales Retirement Plan invested $100,000.00. D.I. 1, at ¶¶ 36-40.
19
D.I. 1, at ¶ 22.
20
Id. at ¶ 32. Tetra Pak is a “food packaging company that has developed a
proprietary carton packaging technology for food products that is touted as
superior in many ways to traditional food packaging using cans, bottles and
the like.” Id. at ¶ 18.
4
investor call on December 19, 2022, it was revealed that River Run and Tetra Pak
did not have a formal exclusivity agreement, but rather River Run was attempting to
obtain a two-year exclusivity agreement.21 Additionally, Plaintiffs state that River
Run’s “most recent capital raise” has a price of just $5.00 per unit, a vast difference
from the $200.00 per unit price paid by Plaintiffs. 22
IV. ARGUMENT
Defendants moved for summary judgment arguing the record does not support
Plaintiffs’ allegations that false statements were made.23 Alternatively, Defendants
claim any alleged misrepresentations cannot form the basis for a fraud claim, as
Plaintiffs failed to do their due diligence before investing in River Run, barring
recovery.24 Defendants argue the Tetra Pak exclusivity representation included on
the Prospectus was true, as River Run was the only co-packer in the Northeast.25
Defendants argue the onus is upon Plaintiff for having failed to inquire as to the
duration of “ongoing” and the scope of “Northeast” as stated in the Prospectus.26
21
Id. at ¶ 24.
22
D.I. 1 at ¶ 43, D.I. 7 at ¶ 43.
23
D.I. 42, at 7.
24
Id.
25
Id. at 11-12.
26
Id. at 13. Plaintiffs did not ask to see a contract or ask for details regarding
the River Run and Tetra Pak relationship. Id. at 14.
5
Defendants argue that River Run had every intention of meeting the numbers
in the Projections when it was drafted and presented to Plaintiffs.27 According to
Defendants, the Projections “[p]repared on June 8, 2021” were “based on reasonable
assumptions regarding River Run’s future performance and anticipated new
customers and contracts.” 28 However, two unforeseen and unexpected obstacles
prevented River Run from reaching the anticipated sales figures: 1) a projected
million dollar sales contract with B&G Foods fell through in September 2021, when
union negotiations disrupted the B&G’s facility and; 2) mechanical issues with the
Tetra Pak line in August and September 2021 prevented River Run from having met
its expected sales for a “Mizkan Double Cheddar” deal, as it could not produce the
requested amount of product. 29 With respect to each unexpected incident,
Defendants claim discussions with B&G Foods continued after September 2021, and
that Tetra Pak technicians worked on the mechanical issues to attempt to correct the
ongoing failures.30
Finally, Defendants argue River Run intended to build a new facility complete
with the eight (8) Tetra Pak lines, as represented in the Prospectus.31 In support,
Defendants produced documents in the record showing that River Run had
27
Id
28
Id. at 18.
29
Id. at 22.
30
Id. at 23-24.
31
Id.
6
completed detailed designs for a new facility and argue that the delay in construction
was due to the developer’s – and not River Run’s – lack of performance.32
Plaintiffs do not raise any independent claims in support of their Cross-Motion
for Summary Judgment. Rather, in response to Defendants’ motion, Plaintiffs argue
the only reasonable meaning of “ongoing exclusivity” from the Prospectus is “that
River Run would be the only co-packer with authorization to use Tetra Pak in the
Northeast, to the exclusion of all other co-packers (i.e., pursuant to an agreement).”33
In support of their argument, Plaintiffs point to a “slide deck” Langer presented to
future investors in November 2021, which represented that River Run had an
“exclusive Tetra Pak relationship.”34 Plaintiffs, acknowledging this was after the
investment, argue the fact that Langer continued to state there was an exclusive Tetra
Pak relationship shows the representation made to them earlier in the year was false,
or in the least, was made with “reckless indifference to the truth.” Plaintiffs argue
the “exclusivity” representation induced them to invest in River Run. 35 Moreover,
Plaintiffs argue Langer and Getzler have known each other for over 40 years and
Getzler “absolutely trusted [Langer],” which justified Plaintiffs’ reliance on the
32
Id. at 25. D.I. 42, Ex. M.
33
D.I. 44 at 17.
34
Id. at 18-19.
35
Id. at 20.
7
“exclusivity” representation without further research into River Run.36 Plaintiffs
seek recission for the alleged fraudulent inducement. 37
Next, Plaintiffs argue the “sheer difference between the numbers projected,
and [River Run’s] actual [sales] numbers achieved” evidences a lack of good faith
in the numbers listed in the Projections.38 Plaintiffs contend the potential increase
in sales from B&G Foods and Mizkan Better Cheddar was based upon conversations
and not actual contracts or purchase orders. 39 As such, Plaintiffs argue Defendants
represented “unrealistic financial achievements” in its Projections, which
fraudulently induced Plaintiffs to invest.40
Last, Plaintiffs claim Defendants fraudulently represented that River Run was
to begin construction on a new facility in 2021, with expected completion by 2023.41
In support, Plaintiffs point to the fact that at the time of the investment: 1) the design
plans were not completed, and 2) Defendants were aware that the developer had not
36
Id. at 22.
37
Id. at 24.
38
Id. at 27. The difference between projected and actual sales was
approximately $16.5 million in 2021; and in 2022 the difference was
approximately $40 million.
39
Id. at 28.
40
Id.
41
Id. at 29.
8
yet secured financing for the project.42 In conjunction with this and the above claims,
Plaintiffs argue they are entitled to summary judgment and recission of investment.43
V. STANDARD OF REVIEW
When reviewing a motion for summary judgment under Rule 56, the Court
must determine whether any genuine issues of material fact exist. 44 The moving
party bears the burden of showing that there are no genuine issues of material fact
to be entitled to judgment as a matter of law. 45 The Court will not grant summary
judgment if it appears that there is a material fact in dispute or that further inquiry
into the facts would be appropriate.46 In determining whether a genuine issue of
material fact exists, the Court must view the facts in the light most favorable to the
non-moving party.47
The standard for summary judgment is not altered when the parties have filed
cross-motions for summary judgment.48 Cross-motions for summary judgment are
42
Id.
43
The Court may grant summary judgment sua sponte. See Stroud v. Grace,
606 A.2d 75 (Del. 1992). Essentially, there is no prejudice to Defendants, as
the Court and may grant summary judgment in favor of Plaintiffs based on
Plaintiff’s opposition, without Plaintiffs’ filing a cross-motion.
44
Radulski v. Liberty Mut. Fire Ins. Co., 2020 WL 8676027, at *3 (Del. Super.
Ct. Oct. 28, 2020).
45
Id.46
Legion Partners Asset Mgmt., LLC v. Underwriters at Lloyds London, 2021
WL 6621168, at *6 (Del. Super. Ct. Sept. 30, 2021).
47
Capano v. Lockwood, 2013 WL 2724634, at *2 (Del. Super. Ct. Feb. 20,
2013).
48
Legion, 2021 WL 6622168, at *6.
9
not “per se” concessions that no genuine issue of material fact exists. 49 “But, where
cross-motions for summary judgment are filed and neither party argues the existence
of a genuine issue of material fact, the Court shall deem the motions to be the
equivalent of a stipulation for decision on the merits based on the [submitted
record].”50 That is the case here.
VI. DISCUSSION
“Delaware law does not distinguish between a claim for fraudulent
inducement and a claim for common law fraud.”51 Common law fraud requires: 1) a
false representation, usually one of fact, made by the defendant; 2) the defendant's
knowledge or belief that the representation was false, or was made with reckless
indifference to the truth; 3) an intent to induce the plaintiff to act or to refrain from
acting; 4) the plaintiff's action or inaction taken in justifiable reliance upon the
representation; and 5) damage to the plaintiff as a result of such reliance.52
49
United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del.
1997).
50
Radulski, 2020 WL 8676027, at *4 (internal quotation marks omitted).
51
In re P3 Health Grp. Holdings, LLC, 2022 WL 15035833 (Del. Ch. Oct. 26,
2022), as corrected (Oct. 28, 2022).
52
Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983).
10
A. PLAINTIFFS FAIL TO SHOW MISREPRESENTATION
Under the first prong of this analysis, a defendant must be shown to have had
a culpable state of mind, intended to induce reliance.53 A “culpable state of mind” is
beyond mere negligence. In a fraud action, a culpable state of mind requires some
affirmative evil nature, evidence of dishonestly, or the intent to cheat or deceive one
party to a transaction. 54 “Generally, there is no duty to disclose a material fact or
opinion.”55 “However, where one actively conceals a material fact, such person is
liable for damages caused by such conduct.”56
1. “Ongoing Exclusivity” with Tetra Pak
The Prospectus Langer provided Getzler described River Run’s business,
opportunities, financial projections, and terms of the Series A Preferred Units. 57 The
Prospectus included the following language:
RRF is a northeast USA food co-manufacturer, with an
established reputation producing premium pasta sauces
and related products. RRF is executing on the strategy to
be the co-manufacturing source for the way consumers are
buying sauces, soups, vegetables and toppings in the 21st
century. In partnership with Tetra Pak (the largest
privately held packaging company in the world with
manufacturing and co-packing sites around the globe)
the Company is deploying Tetra Pak’s cost-effective
53
Arwood, 2022 WL 705841, at *20, The misrepresentation must be made
knowingly, intentionally, or with reckless indifference to the truth. Id.54
37 Am. Jur. 2d Fraud and Deceit § 3 (Feb. 2022 Update).
55
Nicolet, Inc. v. Nutt, 525 A.2d 146, 149 (Del. 1987).
56
Id.57
Id.11
and environmentally-friendlier Recart® packaging
technology (shelf-stable cartons that replace cans) with
ongoing exclusivity as the only copacker in the
Northeast. The Tetra Pak Recart® technology allows for
shelf stable foods to be packaged in the most
environmentally sustainable package available. The Tetra
Pak package has the added appeal of being the best option
for E-Commerce (Amazon and WalMart E-Commerce as
an example) as it is significantly more shipper friendly
than glass, cans or pouches. The partnership driven by
RRF’s unique experience and capabilities and Tetra Pak’s
global reach have already enabled RRF to capture: Ragu,
Bertolli, Green Giant, Cento, Zenb, Kettle & Fire, among
other National and International brands.58
Plaintiffs allege the words “ongoing exclusivity” is a misrepresentation that
induced them to invest in River Run. Further, Plaintiffs allege Langer orally
informed Getzler that River Run and Tetra Pak had a contract regarding their
exclusivity. 59 In response, Defendants assert River Run was the only Tetra Pak co-
packer in the Northeast when stated and remains so this day.60 In support, Defendants
provided two letters from Tetra Pak employees that state:
Provided that an order is placed and confirmed for a TPR
1 within sixty (60) days of the date of this letter, Tetra Pak
Inc confirms that it will not commission any new Tetra
Recart® TPR 1 lines in the Northeastern1 region of the
United States, with new contract manufacturing
companies, for the shelf stable sauce category in Tetra
Recart®, for a period of two years from the date of this
letter.61
58
Id. (emphasis added).
59
D.I. 44, at 22.
60
D.I. 42, at 12.
61
D.I. 42, Ex. J (emphasis added).
12
…
Provided that an order is placed and confirmed for the first
TPR 1 within sixty (60) days of the date of this letter, Tetra
Pak Inc confirms that it will not enable another
contract manufacturer for the shelf stable sauce
category in the Tetra Recart® as long as River Run
Foods continues to keep up with demand.62
Plaintiffs allege Langer orally informed Getzler that there was a written
exclusivity agreement between River Run and Tetra Pak. 63 Even if the record
supported this allegation, Getzler, a sophisticated businessperson, could have
inquired about the agreement. It is not lost on the Court that Getzler’s area of
expertise is financial consulting for companies in peril. Under this analysis, and in
this scenario, it is insufficient for a plaintiff to rely upon blanket trust of a known
associate when engaging in such transactions.64
The record does reflect Defendants effectively had, and still have, exclusive
Tetra Pak rights at the time the Prospectus was presented to Plaintiffs. The emails
document an offer of exclusive rights to River Run for Tetra Pak. Therefore, the
record does not support a finding of the required culpability with this statement.
2. Representation of River Run’s New Facility Construction
The Prospectus also included River Run’s new facility goal:
62
D.I. 42, Ex. K (emphasis added).
63
D.I. 1, ¶ 22.
64
C.f. Esso Standard Oil Co. v. Cunningham, A.2d 380, 383, (Del. Ch.
1955), aff'd, 118 A.2d 611 (Del. 1955).
13
In 2023, it is RRF's goal to move into a new 280,000
square-foot manufacturing plant in Allenwood, PA. The
expansion will allow RRF to increase its Tetra Pak
Recart® packaging capacity to over 400 million units per
year. RRF already has customer requirements that will
exceed future capacity. RRF intends to raise additional
capital to finance the expansion.65
Plaintiffs contend the above language was a misrepresentation which induced
them to invest in River Run. Without support, Plaintiffs assert that “the evidence
shows that River Run knew or should have known that it was not going to construct
its new facility when promised.”66 The record shows the contrary. Defendants
presented six different documents to establish the representation regarding the new
plant was true, when stated.67 The documents include “CAD” drawings, preliminary
construction schedule, a purchase agreement, and detailed design proposal. 68 The
record indicates River Run was actively engaged in discussions and efforts to build
a new facility and does not support Plaintiffs claim of misrepresentation. The
language in the Prospectus states, “it is [River Run’s] goal to move into a new . . .
manufacturing plant…”. The only evidence in the record on this area reflect
Defendants’ actions were in line with their representation.
65
D.I. 42, Ex. D (emphasis added).
66
D.I. 44, at 29.
67
See D.I. 42, Exs. M, N, O, P, Q, R.
68
Id.14
3. Fraud Allegations in The Projections
Plaintiffs allege the Projections given to them by Defendants were fraudulent
given the difference between the projected numbers and actual numbers. 69 In defense
of this claim, Langer provided testimony explaining why there was a significant
difference between the two sets of numbers: River Run expected significant sales
growth from B&G Foods and Mizkan Double Cheddar. 70
Sales projections are forecasts of future business and those “predictions about
the future cannot give rise to actionable common law fraud.” 71 “Opinions and
statements as to probable future results are not generally fraudulent even though they
relate to material matters. . .”72 Plaintiffs argue Langer could not have relied on the
above expectations because there was no written agreement with either company.73
Yet Plaintiffs offer no separate evidence, nor does the record, as presented, show the
numbers were either fraudulently created or that the Projections amount to fraud.
69
D.I. 44, at 27.
70
D.I. 42, Ex. B, pg. 27-35.
71
Great Lakes Chem. Corp. v. Pharmacia Corp., 788 A.2d 544, 554 (Del. Ch.
2001).
72
Esso Standard Oil Co. v. Cunningham, A.2d 380, 383, (Del. Ch. 1955), aff'd, 118
A.2d 611 (Del. 1955). See also WyPie Invs., LLC v. Homschek, 2018 WL 1581981(Del. Super. Ct. Mar. 28, 2018) (stating that it is well settled in Delaware that
predictions about the future and expressions of opinion cannot give rise to
actionable common law fraud.).
73
D.I. 44, at 28.
15
B. PLAINTIFFS FAIL TO SHOW JUSTIFIABLE RELIANCE ON ALLEGED
MISREPRESENTATIONS
Justifiable reliance is measured by the plaintiff’s knowledge and experience
and the relationship between the parties.74 “A plaintiff's sophistication may affect a
court's judgments about what dangers were fairly considered obvious.” However, “a
plaintiff’s diligence efforts can be evidence that her reliance on a false representation
was reasonable because she made efforts to verify the representation and discovered
no reason to doubt its truth.”75
1. Justifiable Reliance in Connection With The Prospectus
The Prospectus included the following disclaimer:
This presentation is provided to you on the understanding
that, as a sophisticated investor, you will understand
and accept its inherent limitations, will not rely on it in
making any decision to invest with [River Run] and will
use it only for the purpose of preliminary discussions with
[River Run]. In making any investment decision, you
should conduct, and must rely on, your own
investigation and analysis of the data and descriptions
set forth in this presentation, including the merits and
risks involved.76
The record does not provide any insight into what, if any, due diligence
Plaintiffs conducted. As noted above, Getzler was a sophisticated investor in the
74
Arwood v. AW Site Servs., LLC., 2022 WL 705841, at *23 (Del. Ch. Mar. 9,
2022).
75
Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2018
WL 6311829, at *33 (Del. Ch. Dec. 3, 2018).
76
D.I. 42, Ex. D, pg. 4 (emphasis added).
16
field of financially troubled companies. In addition, Getzler had personal experience
with River Run, as a former financially troubled client of his company. Getzler has
been working with financially distressed companies since 1990 and prior to that he
“look[ed] at deals” for Midland Ventures to make investments. 77 Getzler cannot
claim, nor does the record reflect, that Plaintiffs were wholly unaware of or incapable
of inquiring into River Run’s financial situation and business operations.
With this fact set, Plaintiffs cannot secure redress for fraud. The record
reflects that Plaintiffs relied on Getzler’s information and expertise, but provides no
insight to any due diligence conducted by any Plaintiff.78
2. Justifiable Reliance in Connection with the Projections
Plaintiffs fail to show justifiable reliance when Defendants prepared and
presented the Prospectus or Projections. In September 2021, Plaintiffs received the
Projections prepared on June 8, 2021. Plaintiffs point to the significant difference
in the projected versus actual numbers for September, 2021, yet their investment
wasn’t until October, 2021. Therefore, Plaintiffs had could have requested and
reviewed updated financials. The record does not reflect that any Plaintiff asked for
or made any inquiry with respect to the updated, actual financials. An experienced
77
D.I. 42, Ex. C, pg. 14-15.
78
Only Getzler and Marks had conversations with Langer and Langer provided
the documents to Getzler. D.I. 42, Ex. E at 14:16-15:1; Ex. I, at 16:19-
17:19, Ex. G, at 13:4-18.
17
businessman with personal knowledge of a company’s troubled financial past,
cannot establish fraudulent inducement where no due diligence was performed.
Langer provided detailed testimony regarding the Projections and the
difference in numbers. Langer’s testimony does not show the scienter required to
bring a successful fraud claim. To the contrary, the record indicates unforeseen
Union issues at B&G Foods and the Tetra Pak mechanical issues that affected
production of Mizkan Double Cheddar, which prevented River Run from meeting
its projection. The evidence regarding the Projections supports Defendants claims
and fails to show the Projections were fraudulently created to induce investors.
While River Run may have either been poorly run or the victim of circumstance, the
record does not establish, even when looking at it in the light most favorable to
Plaintiffs, a claim for fraud.
VII. CONCLUSION
Plaintiffs made an investment that did not provide the returns they expected,
but the law cannot provide the redress sought. Plaintiffs cannot establish false
representations were made, and even if made, Plaintiffs cannot show justifiable
reliance on any alleged misrepresentation.
18
Therefore, Defendants’ Motion for Summary Judgment is GRANTED, and
Plaintiffs’ Cross-Motion for Summary Judgment is DENIED. In the interests of
justice, the Motion to Strike Plaintiff’s Cross-Motion is DENIED.
__________________________
Danielle J. Brennan, Judge
19