Northstar Marine, Inc. v. Huffman et al

Filing 95

ORDER granting 94 Motion for Leave to File Surreply; denying 89 Motion in Limine Concerning Text Messages. Signed by Chief Judge William H. Steele on 11/13/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NORTHSTAR MARINE, INC.,
Plaintiff,
v.
MICHAEL HUFFMAN, et al.,
Defendants.

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CIVIL ACTION 13-0037-WS-C

ORDER
This matter comes before the Court on defendant Huffman Construction, Inc.’s Motion in
Limine Concerning Text Messages (doc. 89). The Motion has been briefed and is now ripe.1
This action for breach of contract, unjust enrichment, conversion, and the like arises from
a commercial dispute between plaintiff, Northstar Marine, Inc., and defendant Huffman
Construction, Inc. Northstar maintains that it recommended and facilitated Huffman
Construction’s selection as a direct contractor for National Recovery Corporation (“NRC”) in the
BP oil spill cleanup in June 2010, in exchange for Huffman Construction’s promise to pay
Northstar a finder’s fee of 10% of its gross receipts from NRC. Huffman Construction counters
that Northstar’s account is pure fiction, and that no such promises were ever made. This action
is set for non-jury trial to commence on November 19, 2014.
Defendant’s Motion in Limine relates to a package of 29 photographs of text messages on
a cell phone display screen that Northstar produced to Huffman Construction on October 18,
1

Plaintiff, Northstar Marine, Inc. filed a Motion for Leave to File Surreply (doc.
94), along with a short two-page proposed Surreply. (See doc. 94.) Although sur-replies are
disfavored in this District Court, they are not forbidden. Here, plaintiff offers the sur-reply for
the purposes of (i) responding to new arguments raised by defendant for the first time in its reply
brief (which diverges substantially from the theory of relief espoused in the original Motion),
and (ii) providing new information concerning events that have transpired within the last week.
For cause shown, the Court in its discretion grants the Motion for Leave to File Surreply and
will consider the two-page brief appended thereto as Exhibit A.

2014, barely a month before trial and well after the formal discovery cutoff date of June 30,
2014.2 In its Motion in Limine, Huffman Construction objects that it was prejudiced because the
cell phone belongs to plaintiff’s witness Warren Claybar, whom Huffman Construction had
deposed way back in January 2014. As Huffman Construction puts it, Northstar “should have
produced [the text messages] at or before the Claybar deposition in January, 2014, when
[Huffman Construction] counsel would have had the opportunity to examine Mr. Claybar about
them.” (Doc. 89, at 2.) Huffman Construction further objects that Claybar made no mention of
these text messages during his January 2014 deposition. In response, Northstar counters that the
subject cell phone actually belongs to plaintiff’s witness Rian Glasscock, whose deposition was
never taken by Huffman Construction until November 2014 (by informal agreement of the
parties), well after the discovery deadline and after production of the 29 photographs.3
In its Reply, Huffman Construction shifts gears on the theory animating its Motion in
Limine. Whereas the original Motion was couched in terms of prejudice because defendant
deposed Claybar without the benefit of those text messages, the Reply simply faults Northstar’s
counsel for not producing the text messages earlier and offers a generic observation that
“[d]efendant has been deprived of whatever useful information (if any) is contained in these texts
since January.” (Doc. 93, at 2.) Nowhere does Huffman Construction explain what it would
have done with those text messages had they been produced earlier or how their untimely
2

Northstar asserts that the cell phone in question was available for inspection by
Huffman Construction at a mediation held on October 1, 2014, and that Northstar produced
“photographs of certain text messages” to Huffman Construction at that time. (Doc. 94, Exh. A,
¶ 7.) Be that as it may, the fact remains that these items were produced well after the discovery
deadline fixed by Magistrate Judge Cassady.
3

The backstory is, apparently, that the parties had set Glasscock’s deposition for
January 2014, but that Glasscock was forced to cancel his appearance at the last minute because
of a bona fide family emergency. Northstar maintains that it had intended to produce (or at least
notify opposing counsel about) the phone and texts at that January 2014 deposition of Glasscock,
had it happened. For whatever reason, Huffman Construction did not re-notice Glasscock’s
deposition prior to the close of discovery, and the Glasscock phone sat in a deposition folder in
Northstar’s custody and control until then, without ever being produced. Given this set of facts
and circumstances, the Court has no reason to believe that Northstar acted in bad faith or with an
improper purpose in failing timely to produce the cell phone images; rather, the omission appears
to be the product of an inadvertent oversight in the wake of Glasscock’s canceled (and, until very
recently, never rescheduled) deposition.

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production has been to Huffman Construction’s detriment. In a Surreply (doc. 94), Northstar
points out that defendant took the deposition of Glasscock (the owner of the phone) last week,
during which time he was questioned about those text messages. Essentially, then, Northstar
posits that the Motion should be denied on a “no harm, no foul” rationale.
Although neither side’s briefs recite the governing legal standard, the Motion in Limine is
properly evaluated under Rule 37(c)(1), Fed.R.Civ.P. That rule provides, in relevant part, as
follows: “If a party fails to provide information … as required by Rule 26(a) or (e), the party is
not allowed to use that information … at a trial, unless the failure was substantially justified or
is harmless.” Rule 37(c)(1) (emphasis added). “The burden of establishing that a failure to
disclose was substantially justified or harmless rests with the nondisclosing party.” Mitchell v.
Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir. Mar. 9, 2009) (citation omitted). Northstar
unquestionably possessed and should have produced the cell phone / text messages to Huffman
Construction back in January. While that omission appears to have been unintentional or the
product of confusion resulting from the eleventh-hour cancellation of Glasscock’s original
deposition setting, thereby refuting any inference of bad faith on Northstar’s part, these
circumstances do not constitute substantial justification. Accordingly, the Motion in Limine
turns on an analysis of whether the untimely production was harmless for purposes of Rule
37(c)(1).
Northstar has made a substantial showing of harmlessness with regard to the challenged
text messages. After all, Huffman Construction received those materials a month before trial
(such that defendant has had sufficient time to tailor its trial strategy and trial presentation to
account for same). Moreover, Huffman Construction had a full and fair opportunity to depose
the owner of the cell phone from which the messages were drawn (Glasscock) after the
production occurred, and presumably was able to ask Glasscock anything it wanted to know
about those text messages. There is no indication in the record – and certainly, Huffman
Construction has never suggested – that defendant could or would have proceeded any
differently had the text messages been produced in January 2014 rather than October 2014.4
4

On this point, it is also relevant to observe that nothing in those 29 pages of text
messages appears to be earth shattering or game changing. On their face, most of those text
messages appear to relate not to any deal or contract arrangement between Northstar and
Huffman Construction, but rather to the desire of Glasscock, Claybar and Moor to be paid by
(Continued)
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Simply put, no perceptible prejudice or unfair surprise accrued to Huffman Construction
by virtue of Northstar’s untimely production of the Glasscock phone and text messages.
Huffman Construction was able to depose Glasscock fully about those materials, and there is no
indication and no reason to believe that Huffman Construction’s trial preparations were
compromised or impaired by the belated disclosure.
For all of the foregoing reasons, it is ordered as follows:
1.

Plaintiff’s Motion for Leave to File Surreply (doc. 94) is granted, and the
Surreply appended to that Motion as Exhibit A is considered in evaluating
defendant’s Motion in Limine; and

2.

Defendant’s Motion in Limine Concerning Text Messages (doc. 89) is denied
because the untimely production of information concerning the subject text
messages retrieved from Rian Glasscock’s cell phone was harmless, such that
exclusion is not warranted under Rule 37(c)(1), Fed.R.Civ.P.

Huffman Construction. Of course, the existence (or lack thereof) of any contractual relationship
between Glasscock/Claybar/Moor and Huffman Construction to split profits from the BP oil spill
is a question distinct from (and potentially irrelevant to) the principal factual question animating
this lawsuit, to-wit: whether Huffman Construction agreed to pay 10% of its NRC gross receipts
to Northstar as a finder’s fee for Northstar’s assistance in procuring its direct contract with NRC.
For example, there are messages purportedly from Glasscock to Michael Huffman
bearing contents like “Any chance you have done anything with our BP s**t” and “Whats the
update.” There are messages purportedly from Claybar to Glasscock saying “Texted him
monday. Have not heard anything” and “Reply from huffman … ‘still waiting on payments.’”
There is a message purportedly from Michael Huffman reading, “Your understanding is wrong
NRC has mysteriously lost alot of my invoices. When I get this resolved I will let everyone
know what the f**ks going on.” There are messages, apparently between Claybar and
Glasscock, in which they appear to speculate as to what settlement amount per person would be
fair or likely. (See doc. 89, Exh. A.) Again, the most logical interpretation of these messages is
that they relate to contractual arrangements (or lack thereof) between Glasscock/ Claybar/ Moor
and Huffman Construction, rather than any arrangements between Northstar and Huffman
Construction. If that construction is correct, then most of these messages may not even be
relevant to the Northstar litigation, much less harmful to Huffman Construction’s position at
trial. The only message that appears to reference Northstar is cryptic. It is from Claybar and
reads, “Did phil ever talk to huff about how to collect balance???” Even assuming that “phil” is
Phil Risko of Northstar, this message hardly appears to be a smoking gun for either side. The
point is that these exhibits do not appear to contain the sort of explosive information whose
delayed disclosure would result in unfair ambush to the opposing party; therefore, any risk of
harm to Huffman Construction resulting from such delay is attenuated here.

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DONE and ORDERED this 13th day of November, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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