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Segal v. Strausser Enterprises, Inc.

United States District Court, Third Circuit

August 8, 2013

KENNETH SEGAL, et al, Plaintiffs,


HENRY S. PERKIN, Magistrate Judge.

This matter is before the Court following the remand Order of the Honorable James Knoll Gardner dated March 22, 2013. See Docket No. 329. A hearing was conducted before the undersigned on April 11, 2013 for reconsideration of whether the tax returns of Plaintiffs Kenneth Segal and the Karen and Kenneth Segal Descendant's Trusts are discoverable. In conjunction with the Hearing/Argument Scheduling Order, the parties were directed to submit argument briefs concerning the foregoing issue. Defendants Strausser Enterprises, Inc.'s and Gary Strausser's Memorandum of Law in Support of Motion to Compel Production of Tax Returns of Plaintiffs Ken Segal and the Karen and Kenneth Segal Descendants Trust was filed on April 9, 2013. See Docket No. 332. Plaintiffs' Argument Brief in Opposition to the Discoverability of Plaintiffs' Tax Returns was also filed on April 9, 2013. See Docket No. 331. Having conducted the hearing and having considered the contentions of the parties, [1] as well as the remand Order of Judge Gardner, this Court is prepared to rule on this matter.


Plaintiffs, Kenneth Segal ("Segal"), Adam Segal, as trustee for and on behalf of the Karen and Kenneth Segal Descendents Trust ("Trust"), and Segal and Morel, Inc. ("S&M") initiated this action on November 5, 2007 by filing a four-count civil Complaint against Strausser Enterprises, Inc. ("SEI"), Gary Strausser ("Strausser") and SEI's attorney, Leonard Mellon ("Mellon"). The Complaint alleges four state-law claims: tortious interference with contract (Count I), tortious interference with prospective contractual relations (Count II), malicious prosecution under the Dragonetti Act, 42 Pa.C.S.A. ยงยง 8351-8354 (Count III), and abuse of process (Count IV).

According to the Complaint, this action arises from purchase agreements whereby plaintiff S&M contracted to purchase several parcels of land from defendant SEI. SEI retained certain limited rights of first refusal to repurchase some of the parcels under specific contractually defined circumstances.[2]

S&M subsequently assigned all rights and obligations arising under the purchase agreements and subsequent amendments to several limited liability companies (the "S&M LLCs") of which plaintiff Segal and the Trust are the only members. Plaintiffs allege that on December 21, 2005, Segal and the Trust (collectively the "Segal sellers") contracted to sell their interests in the S&M LLCs to K. Hovnanian Pennsylvania Acquisitions, LLC ("Hovnanian"), by way of a sales agreement that took several months to negotiate and finalize ("the Hovnanian agreement").

Plaintiffs allege that the Segal sellers attempted to meet with the Strausser defendants[3] to discuss the sale of memberships in the S&M LLCs to Hovnanian, but that, in an attempt to interfere with the sale to Hovnanian and to gain leverage by which to gain monetary concessions from the Segal sellers, Strausser and other SEI representatives refused to meet with the Segal sellers. The Complaint further alleges that on February 13, 2006, just two days prior to closing on the Hovnanian agreement, SEI, through its attorney, defendant Mellon, filed a lawsuit in the Court of Common Pleas of Northampton County, Pennsylvania to stop the transfer of the properties based on a right of first refusal, as well as a notice of entry of lis pendens against the property.

As a result of the lis pendens , plaintiffs allege that Hovnanian refused to proceed with the closing. Plaintiffs aver that the Strausser defendants refused to withdraw the lis pendens , and Hovnanian terminated the Hovnanian agreement because the Segal sellers were unable to provide good title to the properties.

The Complaint alleges that the filing of the Northampton County lawsuit was frivolous and in bad faith because defendants SEI, Strausser and Mellon all knew that the purchase agreements had binding arbitration clauses; the transaction with Hovnanian did not trigger the right of first refusal clauses; and the Strausser defendants lacked the financial ability to exercise the rights of first refusal, even if properly triggered. In response to these allegations, the Strausser defendants have asserted an "advice of counsel" defense and acknowledge that they have waived any privilege protection that may have existed with respect to documents and information concerning the advice relied upon in filing the Northampton County lawsuit regarding rights of first refusal and the filing of the lis pendens. [4]


On March 28, 2011, the Strausser defendants submitted to the undersigned an informal letter motion to compel discovery of the tax returns of Kenneth Segal and the Trust from 2003 to 2009. By Order dated April 12, 2011, the undersigned denied the Strausser defendants' motion but added "if discovery discloses additional information pertaining to this issue, broader discovery may be permitted in the future." See Docket No. 204.

On December 6, 2011, the Strausser defendants provided this Court with a second informal letter motion to compel discovery, which again requested an order compelling plaintiffs to produce all tax returns of Mr. Segal and the Trust, this time from 2003 to 2010. The Strausser defendants contended that the requested tax returns contain information necessary for them to accurately investigate the extent and veracity of plaintiffs' damages.

On January 3, 2012, after consideration of the issues, the undersigned granted the Strausser defendants' motion to compel discovery and ordered plaintiffs to provide them with the requested tax returns. See Docket No. 257. Plaintiffs sought review of this Order by filing Plaintiffs' Petition to Reconsider the Order of Magistrate Judge Henry S. Perkin Dated January 3, 2012 on January 17, 2012. In so doing, plaintiffs requested that Judge Gardner reverse the undersigned's January 3, 2012 Order, and deny the Strausser defendants' motion to compel discovery.

On March 22, 2013, Judge Gardner granted plaintiffs' petition for reconsideration and remanded this issue to the undersigned for additional consideration concerning the discoverability of plaintiffs' tax returns using the two-prong test articulated in In re Sunrise Securities Litigation , 130 F.R.D. 560, 578 (E.D.Pa. 1989) (O'Neill, J.). See Docket No. 329. Judge Gardner's Order ...

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