United States District Court, W.D. Arkansas, Harrison Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
before the Court are:
• Defendants John R. Atkinson's and Katherine Graham
Atkinson's (collectively, "Atkinson
Defendants") Motion for Summary Judgment (Doc. 50),
Statement of Supporting Factual Positions (Doc. 51), and
Brief in Support (Doc. 55); Plaintiff Butterball LLC's
("Butterball") Response in Opposition (Doc. 64) and
Response to the Atkinson Defendants' Statement of
Undisputed Facts (Doc. 65); and the Atkinson Defendants'
Reply (Doc. 73) and Brief in Support (Doc. 74);
• Defendant Bobby Hall's Motion for Summary Judgment
(Doc. 47), Amended Statement of Undisputed Material Facts in
Support (Doc. 52), and Amended Brief in Support (Doc. 53);
Butterball's Response in Opposition (Doc. 58) and
Response to Mr. Hall's Statement of Undisputed Material
Facts (Doc. 59); and Mr. Hall's Reply (Doc. 69); and
• Defendants Criterion Energy, LLC's
("Criterion"), Jourdan Anderson's, and Heather
Anderson's (collectively, "Criterion
Defendants") Motion for Summary Judgment (Doc. 44),
Brief in Support (Doc. 46), Statement of Undisputed Material
Facts (Doc. 45), and Supplemental Statement of Undisputed
Material Facts (Doc. 54); Butterball's Response in
Opposition (Doc. 62) and Response to the Criterion
Defendants' Statement of Undisputed Facts (Doc. 63); the
Criterion Defendants' Reply (Doc. 70), Brief in Support
(Doc. 71), and Reply to Butterball's Response to Their
Statement of Undisputed Facts (Doc. 72); and the Criterion
Defendants' First Amended and Restated Reply (Doc. 79)
and Brief in Support (Doc. 80);
• Butterball's Motion to Strike (Doc. 75) and Brief
in Support (Doc. 76); and the Criterion Defendants'
Response in Opposition (Doc. 78);
• The Criterion Defendants' Motion to Extend Page
Limit (Doc. 77); and
• Butterball's Second Motion to Strike (Doc. 82) and
Brief in Support (Doc. 83); and the Criterion Defendants'
Response in Opposition (Doc. 87).
reasons given below, both of Butterball's Motions to
Strike are GRANTED; the Criterion Defendants' Motion to
Extend Page Limit is DENIED; and all three Motions for
Summary Judgment are DENIED.
is a turkey-producing business that is organized as a limited
liability company under the laws of North Carolina, where it
is also headquartered. Butterball also has facilities in at
least four other states, one of which is a feed mill facility
in Green Forest, Arkansas. That facility, referred to
throughout this Opinion and Order as "the GF Facility,
" forms the setting for the events that gave rise to
Atkinson was employed by Butterball as the Feed Mill Manager
at the GF Facility from May 2012 through September 2014,
during which time he was responsible for the GF
Facility's entire operation. Butterball alleges that
while he was employed as the GF Facility's Feed Mill
Manager, Mr. Atkinson defrauded Butterball by causing it to
pay invoices to the other Defendants for electrical services
at the GF Facility that he knew had not actually been
performed. Butterball contracted with a couple of companies
called "Currently Electric, Inc."
("Currently") and "Powerhouse Electric,
Inc." ("Powerhouse") for electrical services
to be performed at the GF Facility. These two entities
subcontracted these services out to another entity called
"Haybird Specialties" ("Haybird"),
which Butterball alleges is a sham entity. Haybird then
submitted the allegedly fraudulent invoices to Currently and
Powerhouse, who innocently passed the bills along to
Butterball, who unwittingly paid them. Butterball also
contracted with Criterion for electrical services, which
utilized Haybird in the same manner as Currently and
Powerhouse-except that unlike those latter two entities,
Butterball contends that Criterion was aware of the scam and
deliberately participated in it.
alleges that Mr. Hall, the Andersons, and Ms. Atkinson all
conspired with Mr. Atkinson to carry out this scheme. Mr.
Hall worked in sales at Currently, and then at Powerhouse,
while the scam allegedly transpired. Mr. Anderson also worked
at Currently for a while during these events before founding
Criterion, which was (and still is) owned and operated by him
and his wife. Butterball's Second Amended Complaint (Doc.
26) asserts four counts: fraud, conversion, and civil
conspiracy against all Defendants, and breach of fiduciary
duties against Mr. Atkinson alone.
Defendants have moved for summary judgment on all counts
against them. In total, three such motions have been filed:
one by the Atkinsons, one by Mr. Hall, and one by the
Criterion Defendants. Additional motion practice has ensued
over the contents and length of the Criterion Defendants'
reply in support of summary judgment. Specifically,
Butterball has twice moved to strike replies that were filed
by the Criterion Defendants, and the Criterion Defendants
have moved to extend the page limit for such replies. All six