IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DONJA SEAWELL, on behalf of herself 

and all others similarly situated,, 

Plaintiff(s) 

vs. 

UNIVERSAL FIDELITY CORPORATION, 

Defendant(s) 

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Civil Action 

No. 05-CV-479 

DEFENDANT’S MOTION IN LIMINE 

TO EXCLUDE TESTIMONY AND REPORT OF FREDERICK J. CANTZ, JR. 

BASED ON RELEVANCE 

I. BACKGROUND

Plaintiff commenced this class action February 2, 2005, alleging that Universal 

Fidelity violated the Fair Debt Collection Practices Act, 15 U.S.C. §1692, et seq. 

(“FDCPA”). Plaintiff contends that on or about September 24, 2004, Universal Fidelity 

wrote and sent to Plaintiff by United States Mail a collection or “dunning” letter which 

attempted to coerce Plaintiff into paying a debt. The basis of Plaintiff’s claim is that 

the letter was on letterhead that contained the language “Administrative Office – 

Record of Notification,” and also depicted an American Flag in the left-hand corner of 

the letterhead. Plaintiff alleges that the use of this letterhead was a violation of the 

FDCPA, because it supposedly misled Plaintiff into believing that the United States 

Government approved the letter. 

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Plaintiff identified that Frederick J. Cantz, Jr. will testify as to the “net worth” of

Universal Fidelity Corporation. (Witness 2 on Plaintiff’s Pre-Trial Memorandum.) This

individual will apparently offer opinion testimony as to certain transactions made by

Universal Fidelity Corporation. (Exhibit P22 on Plaintiff’s Pre-Trial Memorandum, a 

copy of Mr. Cantz’s report is attached as Exhibit “A”). It is presumed that Plaintiff will

attempt to use this opinion testimony to enlarge Defendants “net worth” beyond the 

statutory provisions set out in the FDCPA.

II. DISCUSSION 

Relevant evidence is defined under Federal Rules of Evidence 104 as, “Evidence

having a tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without

the evidence.” 

If Defendant is found to have violated the FDCPA, the Court will have to 

determine Universal Fidelity Corporation’s “net worth” at the time of 

settlement/resolution of the case, rather than when the violation occurred. See Bonett 

v. Educ. Debt Servs., 2003 WL 21658267 at *7, n.4 (E.D. Pa. 2003), Seawell v.

Universal Fidelity Corporation, Civ. No. 05-479, 2007 WL 1020544 (E.D. Pa. April 2,

2006). The Fair Debt Collection Practices Act provides that “. . .in the case of a class

action the total recovery shall not exceed the lesser of $500,000 or 1 per centum of net

worth of the debt collector . . . .” 15 U.S. C. § 1692k(a)(2)(B). 

The witnesses, and his report, have no relevance to this issue. Plaintiff has

failed to offer evidence that the witness will speak to Universal Fidelity’s current “net

worth”. Additionally, Plaintiff has failed to aver that Universal Fidelity failed to follow 

Generally Accepted Accounting Principles. It is presumed that Mr. Cantz will speak to

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distributions to stock holders or partners going back at least five years. It does not 

appear, however, that Mr. Cantz’s report’s alleges that any distribution was in

violation of Generally Accepted Accounting Principles. Moreover, there is no allegation

that the distributions were made specifically to diminish the Defendant’s net worth. 

In Sanders v. Jackson, the Seventh Circuit Court of Appeals examined the issue 

of “net worth” as to plaintiff’s recovery after liability was found. Sanders v. Jackson, 

209 F.3d 998 (7th Cir. 2000). The Court in Sanders set out the policy behind class 

actions. Specifically, the Court wrote, “the primary motivation for these suits is not 

and should not be the plaintiffs’ belief that the suit will result in a substantial 

windfall. Plaintiffs in FDCPA class actions who are not claiming actual damages

cannot reasonably expect large awards for what are technical and de minimis violation

of the act.” Sanders v. Jackson, 209 F.3d 998 (7th Cir. 2000), citing Mace v. Van Ru

Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997). Moreover the Court wrote, “We agree

with the Fifth Circuit that the primary purpose of the net worth provision is a 

protective one. It ensures that defendants are not forced to liquidate their companies 

in order to satisfy an award of punitive damages. ” Id., citing Boggs v. alto Trailer

Sales, Inc., 511 F.2d 114, 118 (5th Cir. 1975) 

In the instant matter, the opinion testimony presumed to be offered by Mr.

Cantz will not speak as to Defendant’s current “net worth”, nor will it show that

Defendant deviated from Generally Accepted Accounting Principles in establishing the 

“book value” or “net worth” of Universal Fidelity Corporation. His testimony, as to “net

worth” will not have a tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it

would be without the evidence. 

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III. CONCLUSION 

As such, Universal Fidelity Corporation moves that Frederick J. Cantz, Jr.’s 

testimony be barred and his report, (Exhibit P22 on Plaintiff’s Pre-Trial Memorandum

– Exhibit “A”) be excluded from trial. 

 BRIGGS LAW OFFICE, P.C. 

 By: ___/NWB3521/_______________ 

 NORMAN W. BRIGGS

 300 Walnut Street, Suite 2 

 Philadelphia, PA 19106

 Telephone No. 215-925-4632

 Facsimile No. 215-925-1611

 Attorneys for Defendant 

Universal Fidelity Corporation 

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