United States District Court, W.D. Kentucky, Bowling Green Division
SOUTH POINTE WHOLESALE, INC. PLAINTIFF
MARIE T. VILARDI DEFENDANT
MEMORANDUM, OPINION, AND ORDER
Brent Brennenstuhl United States Magistrate Judge.
the Court is the motion of Plaintiff South Pointe Wholesale,
Inc., DN 71, for reconsideration of this Court's earlier
ruling at ¶ 67 on discovery issues. Defendant Marie T.
Vilardi has filed a response in opposition at ¶ 87 and
South Pointe has replied at ¶ 92.
of the Case
to South Pointe's complaint, South Pointe is a Kentucky
Corporation organized in 2001 and operates as a
pharmaceutical distributor. South Pointe purchases inventory
either directly from pharmaceutical manufacturers or from
other distributors. These purchases require price
negotiations conducted by either distributor or vendor
employees or independent brokers working on a commission
basis (DN 1, p. 2).
Pointe hired Vilardi on March 8, 2004, as a pharmaceuticals
purchaser. In 2006, Vilardi purchased a forty-five percent
ownership in South Pointe and was elected to South
Pointe's board of directors. She was later elected as
vice president and chief operating officer (Id. at
p. 4-5). In 2015, South Pointe employees became suspicious
that Vilardi was making purchases that were not in the
company's best interests and South Pointe began
restricting Vilardi's purchasing autonomy. In 2017, South
Pointe obtained information which led it to believe that
Vilardi was performing work for a South Pointe competitor. As
a result, South Pointe terminated Vilardi's employment on
March 14, 2017 (Id. at p. 6-7). Subsequent to her
termination, South Pointe conducted further investigation and
concluded that Vilardi had worked for other competitors and
engaged in self-dealing (Id. at p. 8-11). South
Pointe's complaint against Vilardi alleges violation of
fiduciary duties under Kentucky statutes (Id. at p.
has asserted counterclaims against South Pointe. She contends
she made two loans to South Pointe, one in 2006 in the
principal sum of $300, 000.00 and another in 2007 in the
principal sum of $205, 000.00. These loans were made because
South Pointe “was in desperate financial condition,
” and were both demand notes. She states she made
demands for repayment, along with interest, and South Pointe
is in default on its repayment obligation (DN 10, p. 9-10).
Vilardi further contends that her termination from employment
was wrongful and motivated by age discrimination. As a
shareholder in South Pointe, Vilardi claims that she has been
wrongfully denied access to South Pointe's business and
financial records to which she is entitled under Kentucky law
and demands an accounting (Id. at p. 10-11).
order in question ruled on Vilardi's motion to compel
discovery from South Pointe. In DN 54 Vilardi moved for
documentation between South Pointe and eleven named
pharmaceutical industry-related business entities,
documentation related to communications or business between
South Ponte principal Jarrod Shirley, on behalf of South
Pointe, and L.A.L. Consultants and Peter Peller, and for bank
statements, checkbook ledgers and QuickBook Reports for South
Pointe financial matters from January 1, 2006, to the
ruling on the motion to compel, the undersigned conducted an
evaluation of whether the requested information bore
relevance to any of Vilardi's claims or defenses. The
undersigned concluded that the discovery was not relevant to
Vilardi's claims for wrongful denial of shareholder
access to business records or fraudulent inducement to loan
money. The undersigned agreed, however, with Vilardi's
contention that the information could be relevant to her
defense based on the equitable principal of “unclean
hands” and ordered production of the documents (DN 67).
Pointe's Motion to Reconsider
motion to reconsider is treated as a motion to alter or amend
a judgment under Fed.R.Civ.P. 59(e). Inge v. Rock Fin.
Corp., 281 F.3d 613, 617-18 (6th Cir. 2002). Such a
motion may be granted where there is a clear error of law,
newly discovered evidence, an intervening change of law or to
prevent manifest injustice. GenCorp, Inc. v. Am.
Int'l Underwriters, 178 F.3d. 804, 824 (6th Cir.
1999). A motion under Rule 59(e), however, is not an
opportunity to re-argue a case. Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.
Pointe notes that Vilardi's initial motion to compel was
barren of argument as to the relevance of the discovery she
sought to have compelled. It was in Vilardi's reply that
she first set forth an argument that the unclean hands
doctrine provided a basis upon which to find the discovery
relevant to that defense. South Pointe asserts that, while it
attempted to anticipate her arguments when it made its
response, it did not foresee that she would assert the
unclean hands argument. South Pointe states that the
undersigned considered Vilardi's argument without the
benefit of South Pointe's counter argument. South
Pointe's position is well-taken. In addition to being
heard on the substance of its opposition to Vilardi's
unclean hands contention, South Pointe also argues that
producing the ordered discovery is unduly prejudicial because
the documents contain proprietary and sensitive information.
South Pointe argues that production of the documents will be
unduly burdensome and disproportional to the needs of the
case. South Ponte contends that the responsive documents are
contained in over 530 banker's boxes and it would take
three South Pointe employees a week to review the documents
for production. However the undersigned concludes this
argument could have been advanced during the initial briefing
on the motion to compel, as ...