The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LAUREL GARDENS, LLC, et al.,
Plaintiffs,
CIVIL ACTION
v. NO. 17-570
TIMOTHY MCKENNA, et al.,
Defendants.
MEMORANDUM
SCHMEHL, J. /s/ JLS DECEMBER 4, 2019
Following hearsay objections from Saul Ewing Arnstein & Lehr, LLP, John Snyder,
and David Falcone (collectively, the “Saul Defendants”), Plaintiffs submitted to this Court two
Motions in Limine. These Motions seek to admit evidence of Plaintiffs’ allegations that the Saul
Defendants committed mail and wire fraud, conspiring with other defendants (namely, Tim
McKenna) to “divest LG and AWS of their customers. . .” (ECF Docket No. 276, at 10) To
support these claims, Plaintiffs seek to admit into evidence (1) a revised affidavit and the
anticipated trial testimony of Matthew Sibley, a former defendant in this matter; and (2) two
emails from Catharine McKenna to Sharon Simmons. (ECF Docket No. 276-77)
Plaintiffs assert that this evidence is admissible and relevant to the resolution of the
Saul Defendants’ Motion for Summary Judgment. (ECF Docket No. 258) The Saul Defendants
moved for summary judgment on April 8, 2019, contending that Plaintiff’s claims against them
were time-barred and that Plaintiffs failed to establish RICO predicate acts committed by any of
the Saul Defendants. (ECF Docket No. 258, at 1) The Saul Defendants have also opposed the
present motions in limine, arguing that (1) neither hearsay statement presents a dispute of
material fact; and (2) even if the disputed facts are material, Plaintiff’s proffered hearsay
statements are inadmissible under the Federal Rules of Evidence. (ECF Docket No. 278) As
detailed below, we agree with the Saul Defendants. The hearsay evidence Plaintiffs seek to
introduce is inadmissible in the present matter.
I. STANDARD OF REVIEW
Hearsay evidence is inadmissible unless provided for by federal statute, the Federal
Rules of Evidence, or rules prescribed by the Supreme Court. FED. R. EVID. 802. The Federal
Rules of Evidence define hearsay as a statement that (1) a declarant does not make while
testifying at the current trial or hearing and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement. FED. R. EVID. 801(c). Such hearsay statements may be
considered on a motion for summary judgment “if they are capable of being admissible at trial.”
FOP v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016) (citing Stelwagon Mfg. Co. v. Tarmac
Roofing Sys., 63 F.3d 1267, 1275 n.17 (3d Cir. 1995)). However, to admit evidence containing
multiple levels of hearsay, each part of the combined statements must conform with an exception
to the hearsay rules. FED R. EVID. 805.
II. MOTION IN LIMINE NO. 1 TO ADMIT THE REVISED AFFIDAVIT AND
TRIAL TESTIMONY OF MATTHEW SIBLEY
a. Tim McKenna’s Statement to Matthew Sibley is Inadmissible Hearsay
Plaintiffs seek to admit Tim McKenna’s hearsay statement to Matthew Sibley in the
form of Mr. Sibley’s affidavit and anticipated trial testimony. (ECF Docket No. 276) In support
of admission, Plaintiffs argue that the affidavit and anticipated testimony are admissible under
three exceptions to the rule against admitting hearsay evidence. (Id.) None of these exceptions
support admission.
i. Mr. McKenna’s Statements to Mr. Sibley are Inadmissible as Statements
of an Alleged Coconspirator
Plaintiffs first assert that Mr. McKenna’s statements to Mr. Sibley are admissible
because the hearsay statements were “made by the party’s coconspirator during and in
furtherance of [a] conspiracy.” FED. R. EVID. 801(d)(2)(E). To establish evidence as admissible
under this “conspiracy” exception, the proponent “must prove by a preponderance of the
evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the
statement is offered were members of the conspiracy; (3) the statement was made in the course
of the conspiracy; and (4) the statement was made in furtherance of the conspiracy.” United
States v. Turner, 718 F.3d 226, 231 (3d Cir. 2013) (citing United States v. Ellis, 156 F.3d 493,
496 (3d Cir. 1998)). The court may consider the content of such statements; however, the
statements must be “corroborated by independent evidence.” Id. (citing Bourjaily v. United
States, 483 U.S. 171, 181 (1987)); see also FED. R. EVID. 801(d)(2) (“[t]he statement must be
considered but does not by itself establish . . . the existence of the conspiracy or participation in
it under (E).”).
As corroborating proof of the alleged conspiracy and the Saul Defendants’ involvement
therein, Plaintiffs offer three pieces of evidence. First, Plaintiffs claim that Catharine
McKenna’s emails to Sharon Simmons present information “consistent with the fact that Falcone
was working with Tim McKenna in the formation of MAT in April 2014 and beyond.”1 (ECF
Docket No. 279, at 11) The emails between Ms. McKenna and Ms. Simmons, however, are only
1 These emails between Catharine McKenna and Sharon Simmons, dated September 4-5, 2014, are the subject of
Plaintiff’s Motion in Limine No. 2 and are discussed in greater detail below. See infra pp. 6-7.
“consistent” with Plaintiffs’ theory to the extent that they do not directly contradict that theory.
These emails do not affirmatively support the proposition that Mr. Falcone worked with Mr.
McKenna to form MAT. In fact, in her email Ms. Simmons makes clear to Ms. McKenna that
she was “not familiar with any of the persons or documents referenced in [Ms. McKenna’s]
email.” (ECF Docket No. 268, Ex. 11)
Second, Plaintiffs allege a “quid pro quo” in which “Falcone received a significant
volume of landscaping services by LG . . . [and] was not billed for these services because Tim
McKenna was manipulating the billing so that Falcone would not be billed.” (ECF Docket No.
276, at 11, 13) Plaintiffs have not offered any evidence to prove this. Further, this allegation is
directly refuted by Plaintiff Gaudioso’s own deposition. (ECF Docket No. 278, Ex. E)
Third, Plaintiffs claim that Defendant Snyder advised Tim McKenna “not to execute a
consulting agreement with his client, LGH, because it contained a non-compete clause . . . [and
that this] demonstrates that Snyder was part of the conspiracy.”2 (ECF Docket No. 267, at 15)
This allegation alone is insufficient to show the existence of a conspiracy and Mr. Snyder’s
involvement therein. Even if Mr. Snyder advised Mr. McKenna not to sign a non-compete
agreement, that fact alone is clearly not dispositive evidence of Mr. Snyder’s membership in a
conspiracy to defraud Plaintiffs. As such, Plaintiffs fail to independently corroborate the
existence of a conspiracy involving the Saul Defendants. Thus, this hearsay exception does not
apply.
2 Mr. Snyder and Mr. McKenna deny that Mr. Snyder ever provided such advice. (ECF Docket No. 278, Ex. F)
ii. Mr. McKenna’s Statements to Mr. Sibley Are Not Admissible as Evidence
of Mr. McKenna’s Then-Existing Mental, Emotional, or Physical
Condition
Plaintiffs also propose to admit Mr. McKenna’s hearsay statements under the exception
for “statement[s] of the declarant’s then-existing state of mind (such as motive, intent, or plan) . . .”
FED. R. EVID. 803(3). Statements considered under this exception cannot be offered to prove the
truth of the underlying facts asserted. Stelwagon Mfg. Co. v. Tarmac Roofing Sys., Inc., 63 F.3d
1267, 1274 (3d. Cir. 1995). Plaintiffs contend that they are not offering Mr. McKenna’s
statements to prove the truth of the facts asserted, but that they offer the statements to show Mr.
McKenna’s “motive, intent, and plan.” (ECF Docket No. 267, at 20) Specifically, Plaintiffs
claim that “[p]art and parcel of Tim McKenna’s motive, intent, and plan was the fact that he had
Falcone and Saul Ewing behind him and acting with him to start his new venture.” (Id.) This is
a transparently disingenuous argument. Plaintiffs seek to admit Mr. Sibley’s affidavit to show an
alleged conspiracy between and among Mr. McKenna and the Saul Defendants. Thus, this
exception to the rule against hearsay will not allow admission.
iii. Mr. McKenna’s Statement is Not Admissible Under the Residual Hearsay
Exception
Lastly, Plaintiffs invoke the residual hearsay exception to admit the affidavit containing
Mr. McKenna’s hearsay statement. (ECF Docket No. 276, at 20-24) In arguing for admission
under this exception, Plaintiffs correctly recognize that “Rule 807 is ‘to be used only rarely, and
in exceptional circumstances’ and ‘applies only when certain exceptional guarantees of
trustworthiness exist and when high degrees of probativeness and necessity are present.’” United
States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004) (citing United States v. Bailey, 581 F.2d 341,
347 (3d Cir. 1978)). In their Motion, Plaintiffs do not offer any affirmative argument to show
such “exceptional guarantees of trustworthiness” here. Id. Instead, they propose that “there is no
evidence undermining” those unsupported guarantees. (ECF Docket No. 276, at 22)
This Court does not recognize any rare, exceptional circumstances or exceptional
guarantees of trustworthiness in support of the evidence at issue. The proffered affidavit was
submitted by a former defendant in this matter whom Plaintiffs have accused of fraud. It was
also executed shortly after Plaintiffs stipulated to dismiss claims against that defendant.
Moreover, it purports to contain a hearsay statement of an individual Plaintiffs have described as
“a pathological liar and a thief.” (ECF Docket No. 43, at 31-34; ECF Docket No. 258, Ex. B)
As such, no exceptional guarantees of trustworthiness exist, and this evidence is inadmissible
under the residual hearsay exception.3
III. MOTION IN LIMINE NO. 2 TO ADMIT TWO EMAILS FROM CATHARINE
McKENNA TO SHARON SIMMONS
Plaintiffs also seek to admit two emails between Catharine McKenna and Sharon
Simmons.4 To admit these emails, Plaintiffs must overcome “three levels of hearsay: (1) a
statement from Falcone to Tim McKenna that he had forwarded the LLC information to Walter
Weir; (2) a statement from Tim McKenna to Catharine McKenna on or before September 3,
2014, telling her that Falcone had forwarded the MAT paperwork to Weir; and (3) Catharine
3 In United States v. Wilson, the Third Circuit enumerated seven factors to consider when assessing evidence for
trustworthiness under the residual hearsay exception: “(1) the declarant was known and named; (2) the statement
was made under oath; (3) the declarant knew his assertions were subject to cross-examination; (4) the statement was
based on personal knowledge; (5) the declarant had motivation to lie; (6) the statement was corroborated; and (7) the
declarant was qualified to make the assertion.” United States v. Wilson, 281 F. App’x 96, 99 (3d Cir. 2008). Here,
only two of seven factors weigh clearly in favor of admission: that the declarant was known and named and that the
statement was based on personal knowledge. The other five factors either weigh against admission or are neutral.
As such, even considering the Wilson factors, the proffered statements are inadmissible under Fed. R. Evid. 807.
4 Ms. McKenna is the wife of Defendant Timothy McKenna. Ms. Simmons is purportedly an assistant to Walter
Weir, the attorney who filed the Certificate of Formation for MAT with the Delaware Secretary of State. (ECF
Docket No. 268, Ex. 12)
McKenna’s emails to Weir’s assistant based on what her husband had told her.” (ECF Docket
No. 277, at 5).
These emails are inadmissible because the existence of the first hearsay statement,
allegedly made by Mr. Falcone to Mr. McKenna, is unsupported by any evidence. First, the
emails that Plaintiffs intend to admit do not reference such a statement. (ECF Docket No. 277,
Ex. 3) Second, Plaintiffs do not offer any additional evidence or citations to the record
supporting the fact that this statement was made. Third, and most importantly, Plaintiffs concede
their doubts as to the existence of this foundational statement in their Motion. (ECF Docket No.
277, at 5-6 (“Falcone apparently told Tim McKenna that he had forwarded the MAT paperwork
to Walter Weir . . . [i]t is not clear how Falcone communicated to Tim McKenna that he had sent
the LLC information for MAT to Walter Weir.”)) The foundation of this multi-layered hearsay
is not supported by either the current record or the evidence Plaintiffs seek to admit. As such,
the emails between Ms. McKenna and Ms. Simmons are inadmissible in this matter.
IV. CONCLUSION
In the accompanying order, this Court denies Plaintiffs’ Motions in Limine No. 1 and
Motion in Limine No. 2. (ECF Docket No. 276-77). The evidence Plaintiffs have proffered in
both motions is inadmissible in this action.