1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LEASCO EQUIPMENT SERVICES, INC, : 

and K. MARK HALL, : 

 : 

 Plaintiffs, : Case No. 2:11-CV-965 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

UNITED RENTALS (NORTH : Magistrate Judge King 

AMERICA), INC., : 

 : 

 Defendant. : 

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on Defendant’s Motion for Summary Judgment. (Doc. 

24). For the reasons stated below, Defendant’s Motion is GRANTED. 

II. BACKGROUND 

A. Factual Background 

 Plaintiff, Leasco Equipment Services, Incorporated, (“Leasco”) is an Ohio corporation 

owned by Plaintiff K. Mark Hall (collectively “Plaintiffs”). Leasco is an equipment rental 

company dealing primarily with general construction and industrial equipment. Defendant 

United Rentals (“United”) is also an equipment rental company. On July 21, 2009, Plaintiffs 

entered into an Asset Purchase Agreement (“APA”)1

 with United, through which Leasco sold its 

                                                            

1

 Pursuant to § 8.1 of the APA, the parties’ contract is governed by New York law: “The Agreement and the Related 

Agreements shall be governed by, construed, interpreted, and applied in accordance with the laws of the State of 

New York, without giving effect to any conflict of laws rules that would refer the matter to the laws of another 

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assets to United in exchange for several payments to Leasco totaling $24 million, with potential 

adjustments. The sale included thousands of pieces of equipment, tools, and parts. After the 

sale, United leased Leasco’s former site in Marietta, Ohio and opened the Leasco branch as a 

separate branch of United. 

 Pursuant to § 1.7 of the APA, the final payment to Leasco was to be a “Third Payment” 

earned during the earnout period of August 1, 2009 to July 31, 2010. (See Complaint, Doc. 1 at 

¶ 11). That payment was to be calculated based on the earnings gained from the rental or sale of 

the tools, parts, and equipment that United purchased from Leasco, prior to interest, taxes, 

depreciation, and amortization (“EBITDA”). Section 1.7(a) of the APA states as follows: 

Third Payment Amount. Buyer and Seller acknowledge and agree 

that, upon Closing, the Business as operated from the location 

leased pursuant to the New Lease shall be deemed to be its own, 

separate branch within Buyer with its own profit & loss statements 

(the "Leasco Branch"). The Third Payment is a potential payment 

based on EBITDA (as defined below) from the Leasco Branch, 

calculated and payable as provided herein. Subject to the 

conditions set forth in this Section 1.7 and elsewhere in this 

Agreement (including Section 6.8), the Third Payment will be paid 

in one lump sum upon completion of the EBITDA Report, all in 

the manner contemplated by and further provided in this Section 

1.7. The Third Payment shall be determined in accordance with the 

following schedule: 

Third Payment EBITDA 

$4,000,000 $7,700,000 or more 

$3,920,000 $7,600,000 - $7,699,999 

$3,724,000 $7,500,000 - $7,599,999 

$3,165,400 $7,400,000 - $7,499,999 

$2,374,050 $7,300,000 - $7,399,999 

$1,543,133 $7,200,000 - $7,299,999 

$848,723 $7,100,000-$7,199,999 

$297,053 $7,000,000 - $7,099,999 

$44,558 $6,900,000 - $6,999,999 

$2,228 $6,800,000 - $6,899,999 

                                                                                                                                                                                               

jurisdiction. Each party hereby consents to the jurisdiction of any state or federal court in Ohio, and agrees that 

venue for any proceeding arising from this Agreement shall be proper in such forum.” (APA, Doc. 1-1 at 49). 

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$0 $6,799,999 or less 

(APA, Doc. 1-1, at 10). According to the APA, the Leasco Branch EBITDA needed to reach at 

least $6.8 million in order for Plaintiffs to earn enough for an actual Third Payment. 

Defining the EBITDA, § 1.7 states: 

For purposes of this Section 1.7, "EBITDA" means, subject to 

adjustment as described in Section 1.7(b), the earnings from 

operations by Buyer of the Leasco Branch, before interest, taxes, 

depreciation and amortization, for the twelve calendar months 

commencing on the first calendar month immediately following 

the Closing Date, as determined in accordance with GAAP as 

applied by Buyer generally with respect to its branches, which 

shall include allocations for health and welfare benefits and 

allocations for insurance (provided that the allocation for insurance 

will not exceed $150,000 for such 12 month period), in each case 

with respect to the Leasco Branch, provided that Buyer's overhead 

allocation (allocations from corporate, region/district offices, 

shared service center and distribution center) shall not be assessed 

against the Leasco Branch and shall be consistent with Buyer’s 

standard practices for such allocations. 

(Id.). As set forth by the APA, on July 31, 2010, United delivered Plaintiffs a written report with 

the profit and loss statement for the Leasco Branch. The statement also included United’s 

calculation of the EBITDA, which United alleges was calculated according to the APA. 

United’s report is the basis of the parties’ dispute. 

 According to United, the actual EBITDA was $4.445 million—$2.355 million short of 

what is required for United to make the Third Payment to Plaintiffs. United hired Eric 

Mulchaey, a CPA and Certified Fraud Examiner, to compile a report on United’s EBITDA 

calculation. (See Doc. 25-3). Mulchaey concluded that United had neither underreported 

revenue for its Leasco Branch, nor mistated the EBITDA Report. 

 

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B. Procedural Background 

 Plaintiffs filed their Complaint on October 28, 2011, alleging Breach of Contract. (Doc. 

1). On November 4, 2013, Defendant filed its Motion for Summary Judgment. (Doc. 25). On 

August 20, 2014, this Court held oral argument on the Defendant’s Motion for Summary 

Judgment, and counsel for both parties participated. This matter is, therefore, ripe for review. 

III. STANDARD OF REVIEW 

 Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). 

 A movant for summary judgment meets its initial burden “by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts 

showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to 

“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess 

the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 

230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir. 

1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and 

reasonable inferences must be viewed in the light most favorable to the party opposing the 

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motion. Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 759 (6th Cir. 2010) (citing Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 

IV. LAW & ANALYSIS 

 The crux of Defendant’s motion is Plaintiffs’ failure to obtain a properly appointed expert 

required to calculate the EBITDA. Rather than responding directly to Defendant’s assertion, 

Plaintiffs argue that Defendant violated the implied covenant of good faith and fair dealing. The 

Court, thus, shall address each of the parties’ arguments in turn. 

A. Expert Testimony 

 Defendant makes three arguments under the umbrella of burden of proof. First, 

Defendant asserts that the accounting analysis relating to the EBITDA calculation is expert 

testimony. Grounding its argument in the requirements of Federal Rules of Evidence 7012

 and 

7023

, Defendant insists that the accounting analysis necessary to support Plaintiffs’ claims 

regarding the EBITDA cannot be performed without specialized knowledge. Defendant argues 

that an average layperson would be unable to make sense of the different calculations that factor 

into the EBITDA determination, which requires an understanding of earnings before interest, 

taxes, depreciation, and amortization, pursuant to § 1.7 of the APA. Additionally, Defendant 

                                                            

2

 Fed. R. Evid. 701 provides: If a witness is not testifying as an expert, testimony in the form of an opinion is limited 

to one that is: 

(a) rationally based on the witness's perception; 

(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and 

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 

3

 Fed. R. Evid. 702 states: A witness who is qualified as an expert by knowledge, skill, experience, training, or 

education may testify in the form of an opinion or otherwise if: 

(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; 

(b) the testimony is based on sufficient facts or data; 

(c) the testimony is the product of reliable principles and methods; and 

(d) the expert has reliably applied the principles and methods to the facts of the case. 

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contends that an evaluation of the EBITDA cannot be done properly barring some specialized 

knowledge of accounting practices, including familiarity with GAAP.4

 Defendant maintains that 

the volume and complexity of data that Plaintiffs requested merely bolsters its claim that the 

EBITDA is a complex calculation. 

 Next, Defendant claims that the testimony of John Medeiros, a CPA retained by Plaintiffs 

for this litigation, is lay testimony that cannot be used to support Plaintiffs’ contentions regarding 

the EBITDA calculations. Defendant argues that, because Medeiros was not involved in the 

instant case until he was retained for the purposes of this litigation, he cannot testify as a fact 

witness as to the proper EBITDA calculations. Defendant further asserts that any of Medeiros’ 

admissible testimony must be limited, thereby staying within the confines of the Sixth Circuit’s 

decision in JGR Inc. v. Thomasville Furniture Indust., Inc., 370 F.3d 519, 526 (6th Cir. 2004). 

The primary issue in JGR was the admissibility of the testimony a witness who was a certified 

public accountant and attorney, and had testified about JGR’s lost profits and loss of business 

value suffered due to Thomasville’s alleged breach of contract. Id. The court found that the 

witness at issue had “never been an owner, officer or director of JGR.” Id. Moreover, “the 

information upon which [the witness] relied in making his calculations of lost profits and loss of 

business value came primarily from [JGR’s main principal],” most of which the witness 

admittedly did not verify independently. Id. Thus, the Court determined that the witness “had 

no basis upon which to offer lay opinion testimony about JGR’s lost profits or loss of business 

value.” Id. Defendant maintains that Medeiros’ role as a contracted witness retained to provide 

                                                            

4

 “‘GAAP’ shall mean those generally accepted accounting principles and practices which are used in the United 

States and recognized as such by the American Institute of Certified Public Accountants acting through its 

Accounting Principles Board or by the Financial Accounting Standards Board or through other appropriate boards or 

committees thereof and which are consistently applied for all periods so as to properly reflect the financial position, 

results of operations and operating cash flow, except that any accounting principle or practice required to be 

changed by the Accounting Principles Board or Financial Accounting Standards Board (or other appropriate board 

or committee) in order to continue as a generally accepted accounting principle or practice may be so changed.” 

(APA, at 18). 

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services based on his knowledge, and the assumption that Medeiros needs to rely solely on 

information provided by Leasco and United, prevents him from testifying as either a lay person 

under Rule 701, or an expert witness pursuant to Rule 702. 

 Third, Defendant contends that Plaintiffs did not, and cannot, present expert testimony by 

any witness, including Medeiros. Specifically, Defendant argues that Plaintiffs did not comply 

with Federal Rule of Civil Procedure 26(a)(2), which states that a party must disclose to the other 

parties the identity of any expert witness Plaintiffs intends to use at trial, as well as a written 

report prepared and signed by the expert witness, “if the witness is one retained or specifically 

employed to provide expert testimony in the case.” As Defendant notes, if a party fails to make 

the necessary disclosure pursuant to Rule 26(a), “the party is not allowed to use that information 

or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was justified 

or harmless.” Fed. R. Civ. P. 37(c)(1). Defendants emphasize that Plaintiffs failed to designate 

Medeiros as an expert; thus, he cannot present expert testimony, and his lay testimony must be 

limited according to Rule 701. Defendant asserts that Medeiros cannot be proffered as an expert 

in “lay witness clothing.” See Fed. R. Evid. 701 advisory committee notes to the 2000 

Amendments (“Rule 701 has been amended to eliminate the risk that the reliability requirements 

set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay 

witness clothing.”). 

 Plaintiffs offer no response to Defendant’s various arguments regarding the admissibility 

of Mederios’ testimony under Rules 701 and 702. Thus, it does not appear that those matters 

concern any disputed issues of material fact. Defendant has set forth various legal precedents 

and rules to support its contention that Medeiros’ testimony is inadmissible in this matter. The 

Court, however, will not grant summary judgment on that alone; rather, it must consider the 

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more fully briefed argument of Defendant’s alleged violation of the implied covenant of good 

faith and fair dealing. 

 

B. Implied Covenant of Good Faith and Fair Dealing 

1. Alleged Violation of Implied Covenant of Good Faith and Fair Dealing 

 Plaintiffs argue that Defendant’s Motion must be denied for two reasons. First, Plaintiffs 

assert that Defendant violated the implied covenant of good faith and fair dealing. Plaintiffs 

insist that Defendant’s business actions denied Plaintiffs the benefits of the earn-out provision set 

forth in § 1.7 of the APA. Those supposed actions include: failure to take physical inventories; 

failure to keep records of bulk equipment rentals or sales; failure to create spreadsheets for one 

and a half months of the earn-out period; failure to apply fair market value to the equipment, 

tool, and parts transfers from the former Leasco facility to other United branches; and not giving 

the former Leasco facility 30 percent of the revenue from the rental or sale of its equipment, 

tools, and parts assigned to other United branches. (See Plaintiff’s Response, Doc. 28 at 6). 

Plaintiffs contend that United’s actions made it impossible for Plaintiffs or Defendant to 

determine the earnings derived from the assets during the earn-out period. As such, Plaintiffs 

maintain that United violated the implied covenant of good faith and fair dealing. 

 Defendant first claims that Plaintiffs’ argument that neither party was able to calculate 

the EBITDA based on Defendant’s actions is negated by Defendant’s ability to use the materials 

it compiled, and shared with Plaintiffs, to calculate the EBITDA. Defendant’s expert stated that 

United’s EBITDA figure was not materially misstated and was calculated in compliance with § 

1.7 of the APA and GAAP. (See Doc. 25-2, ¶ 14). In a similar vein, Defendant claims that 

Plaintiffs’ argument that Defendant failed to perform physical inventories of equipment is 

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invalidated by the exhibits Plaintiffs use to support their argument, which indicate that Plaintiffs 

were given documents detailing the physical inventory on-site at the Leasco branch. 

 Next, Defendant contends that, pursuant to the APA, Defendant reserved the right to 

operate the Leasco branch as it saw fit, and to allocate earnings to the Leasco branch in the same 

manner in which it would allocate earnings to other United branches. Defendant asserts that 

equipment sharing among branches is a standard practice within United. Moreover, the revenue 

derived from the inter-branch sharing is broken down by allotting 70 percent to the branch to 

which the equipment is assigned, and 30 percent to the renting branch (“70/30 split”). The 70/30 

split applied to all inter-branch rentals during the relevant earn-out period. Thus, Defendant 

claims that crediting the Leasco branch with 100 percent of the revenue from inter-branch rentals 

would have been a deviation from standard procedure. Because the APA does not require the 

Leasco branch to be credited with 100 percent of the revenue from inter-branch rentals, 

Defendant argues it was not obligated to do so. (See APA § 1.7, Doc. 1-1 at 10-13). 

Additionally, Defendant maintains that its adherence to the 70/30 split cannot be used to show a 

breach of the covenant of good faith. 

 Defendant further asserts that Plaintiffs mischaracterized Defendant’s method of 

calculating bulk equipment. While Plaintiffs claim that the bulk equipment was not factored into 

Defendant’s calculation of the EBITDA, Defendant contends that the revenue from bulk items is 

represented by a dollar amount on a rental contract, not listed on an item-by-item basis. 

Defendant’s method of tracking bulk items, however, does not mean that it did not include the 

revenue from those bulk items in its calculation of the EBITDA. Moreover, United was not 

obligated under the APA to track individual items factored into bulk equipment dollar amounts 

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in an alternative method. Defendant argues that its practice with bulk items was in keeping with 

the 70/30 split and the requirements of the APA. 

 Finally, Defendant contends that, even if Plaintiff could demonstrate that United had 

failed to create and maintain proper records, Plaintiffs have failed to present evidence to show 

that United breached its duty of good faith and fair dealing. According to Defendant, Plaintiffs 

have neglected to identify the EBITDA amount they believe is correct. Defendant argues that 

Plaintiffs have not proffered facts and evidence that would support that to-be-determined 

EBITDA amount. Defendant insists that, through discovery, it has turned over all of the 

necessary data that concerns the EBITDA to Plaintiffs, yet Plaintiffs have failed to argue what 

they believe to be the correct EBITDA amount or how they calculated that amount. Defendant 

claims that both of those pieces of information are crucial to Plaintiffs’ breach of contract claim. 

Relying on the Supreme Court’s decision in Celotex, Defendant maintains that Plaintiff has 

failed to set forth an essential element of their breach of contract claim, thereby warranting 

summary judgment in Defendant’s favor. See 477 U.S. 317, 322 (“the plain language of Rule 

56(c) mandates the entry of summary judgment, after adequate time for discovery and upon 

motion, against a party who fails to make a showing sufficient to establish the existence of an 

element essential to that party’s case, and on which that party will bear the burden of proof at 

trial.”). 

 Under § 8.1 of the APA, the APA is governed by New York law. (See APA, Doc. 1-1 at 

49). To establish a claim for breach of contract under New York law, a party must prove: “(1) a 

contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) 

damages.” Command Cinema Corp. v. VCA Labs, Inc., 464 F. Supp. 2d 191, 198 (S.D.N.Y. 

2006) (quoting Terwilliger v. Terwilliger, 206 F.3d 240, 245-46 (2d Cir. 2000)). Every contract 

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under New York law has an implied covenant of good faith and fair dealing. Popovich v. Sony 

Music Entm't, Inc., 508 F.3d 348, 365-66 (6th Cir. 2007) (citing Dalton v. Educ. Testing Serv.,

663 N.E.2d 289 (1995)). The “covenant of good faith and fair dealing is limited to performance 

under a contract.” GBJ Corp. v. E. Ohio Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998) 

(emphasis removed) (citing Bank of New York v. Sasson, 786 F.Supp. 349, 354 (S.D.N.Y.1992)). 

As the PepsiCo, Inc. v. Cent. Inv. Corp., Inc. court stated: 

Th[e] [implied covenant of good faith and fair dealing] means that 

one party to the contract will not intentionally and purposely do 

anything to prevent the other party from carrying out his part of the 

agreement.... The covenant [] is also violated when a party acts in 

a manner which would deprive the other party of the right to 

receive the benefits of their agreement.... This covenant does not 

create new rights nor does it impose any obligation which would 

be inconsistent with the other terms of the contract. 

PepsiCo, Inc. v. Cent. Inv. Corp., Inc., 268 F. Supp. 2d 962, 967 (S.D. Ohio 2001) (citing Carvel 

Corp. v. Diversified Management Group, Inc., 930 F.2d 228, 230 (2d Cir.1991); Don King 

Productions, Inc. v. Douglas, 742 F. Supp. 741, 767 (S.D.N.Y.1990)). 

 Plaintiffs urge this Court to find that Defendant has violated the implied covenant of good 

faith and fair dealing, yet offer a dearth of law or evidence on which this Court can hang its hat. 

Despite their efforts to use the case law as their primary support, Plaintiffs fail to show how a 

reasonable jury could find that Defendant breached the APA. Plaintiffs do not present evidence 

that Defendant acted in a manner that would have deprived them of the benefit of their 

agreement. Despite Plaintiffs’ assertion that Defendant conducted its business in a way that 

violated the APA, Plaintiffs fail to demonstrate that there are disputed issues of material fact that 

preclude summary judgment. 

 

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2. Remedy for Breach 

 Plaintiff next alleges that the proper remedy for Defendant’s purported breach is the 

entire amount of the earn-out period. Plaintiffs claim that the consequence of United’s breach is 

Plaintiffs inability to calculate the EBITDA under § 1.7 of the APA and according to GAAP, 

thus resulting in Leasco’s loss of the earn-out payment. According to Plaintiffs, Defendant’s 

alleged breach is analogous to a litigant intentionally destroying or losing evidence, because it 

has made it impossible for Plaintiffs to prosecute or defend its case. 

 Defendant responds that Plaintiffs have failed to allege, let alone demonstrate, that United 

destroyed any evidence. Rather, Defendant argues that it has produced all of the information 

necessary for Plaintiffs to check United’s calculation of the Leasco branch EBITDA, and 

perform their own EBITDA calculation. Thus, Defendant contends that Plaintiffs have neglected 

to meet their burden. 

 This Court may sanction a litigant for spoliation of evidence if three conditions are met: 

(1) the party with control over the evidence had an obligation to preserve that evidence at the 

time it was destroyed; (2) the accused party destroyed the evidence with a culpable state of mind; 

and (3) the destroyed evidence would support the opposing party’s claim. Byrd v. Alpha 

Alliance Ins. Corp., 518 F. App’x 380, 384 (6th Cir. 2013) (citing Beaven v. U.S. Dep’t of 

Justice, 622 F.3d 540, 553-54 (6th Cir. 2010)). Though Plaintiffs set forth allegations that they 

could not calculate the EBITDA because of Defendant’s alleged improper handling or potential 

destruction of evidence, they offer no additional material to support that contention. Insofar as 

Plaintiffs offer this argument as a basis for denial of summary judgment, or for a full recovery of 

the possible revenue generated during the earn-out period, there are no disputed issues of 

material fact, because Plaintiffs have failed to proffer supporting evidence. Thus, Plaintiffs’ 

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argument that Defendant’s alleged mishandling of records or neglect to disclose certain 

evidence, does not rise to the level of spoliation, and cannot, therefore, provide a basis for this 

Court’s denial of summary judgment. 

V. CONCLUSION

 For the foregoing reasons, Defendants’ Motion is GRANTED. Accordingly, 

Defendant’s Motion to Strike (Doc. 34) is MOOT. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE

Dated: September 4, 2014

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