PWS Environmental Inc. v. All Clear Restoration & Remediation, LLC et al

Filing 95

ORDER denying as moot 84 Plaintiff's Motion to Strike Defendant's Untimely and Improper Expert Disclosures. Signed by Magistrate Judge Carol Mirando on 12/12/2018. (APH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PWS ENVIRONMENTAL INC., a
privately-held Illinois corporation
Plaintiff,
v.

Case No: 2:18-cv-109-FtM-PAM-CM

BORGHESE AT HAMMOCK BAY
CONDOMINIUM ASSOCIATION,
INC.,
Defendant.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion to Strike
Defendant’s Untimely and Improper Expert Disclosures filed on October 19, 2018.
Doc. 84. Defendant has not filed a response in opposition, and the time for doing so
has passed. For the reasons stated below, the motion is denied as moot.
On February 16, 2018, Plaintiff filed this case against six Defendants including
Defendant Borghese at Hammock Bay Condominium Association, Inc. (“Borghese”),
alleging separate claims for breach of contract against each individual Defendant.

See generally Doc. 1. In summary, the Complaint alleges that following Hurricane
Irma, All Clear Restoration & Remediation, LLC (“All Clear”) contacted Plaintiff to
provide services for fourteen residential properties in Naples and Marco Island. Id.
¶¶ 23-24. The agreement provided Plaintiff would assist All Clear by performing
pressure washing services on the properties, including Borghese, and Plaintiff alleges
All Clear and Borghese (in addition to the other Defendants) failed to pay for the

services upon completion.

See id. ¶¶ 34-43.

Each of the original Defendants,

except Borghese, previously settled their claims with Plaintiff and are no longer
parties to the case. See Docs. 66, 67, 76, 77. The sole remaining viable cause of
action in the Complaint alleges that Borghese breached an implied contract with
Plaintiff by failing to pay $241,532.21 for pressure washing services and $16,317.22
for associated costs. Id. ¶¶ 77-82.
On June 13, 2018, the Court entered a Case Management and Scheduling
Order (“CMSO”) setting the deadline for disclosure of expert reports for both parties
for September 14, 2018; the discovery deadline for October 15, 2018; the dispositive
motions deadline for November 15, 2018; and a trial term beginning April 1, 2019.
Doc. 59 at 1-2. On September 17, 2018, the Court granted Borghese’s Unopposed
Motion to Extend the Date of Expert Disclosure, extending Borghese’s deadline to
disclose its experts to September 24, 2018. Doc. 70 at 1-2. Borghese later filed a
notice advising the Court that it served its expert disclosures on September 24, 2018.
Doc. 79.

Plaintiff filed the present motion, after the discovery deadline passed,

requesting that the Court strike Borghese’s expert disclosures as inadequate and
untimely because Borghese failed to include sufficient information, including the
required written expert reports, by the extended deadline. Doc. 84 at 1. Plaintiff
attached Borghese’s expert disclosures to the motion, which disclosed two experts:
1.

Representative of Venture Construction Group of Florida, Inc.
1100 5th Avenue S, Suite 201, Naples, FL 34102
[phone]
Testimony will be as to the fair value and/or necessity of power
washing services at Defendant’s property following Hurricane
Irma, based on personal observation and experience.

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2.

Bart Drake
Alpha Omega Inspections
960 Chalmer Drive, #101, Marco Island, FL 34145
[phone]
Mr. Drake is a Certified General Contractor who will testify as to
the lack of necessity for power washing services to Defendant’s
property following Hurricane Irma.

Doc. 84-1 at 2. In the motion, Plaintiff states it sent a letter to Borghese’s counsel
requesting copies of the required expert reports by October 1, 2018, but Borghese
never responded.

Doc. 84 at 3.

Thus, Plaintiff filed the motion requesting the

Court strike the expert disclosures of “Representative of Venture” and Bart Drake.

Id. at 1. As noted, Borghese did not file a response to the motion.
On November 1, 2018, this case was reassigned to the visiting judge, the
Honorable Paul A. Magnuson, Senior United States District Judge for the District of
Minnesota.

Doc. 87 at 1.

On November 15, 2018, the date of the dispositive

motions deadline, Plaintiff filed an Opposed Daubert Motion for Exclusion of Expert
Testimony of Defendant’s Expert Witness Stephen Shanton and Motion to Strike His
Expert Report (“Daubert motion”).

Doc. 88.

In the Daubert motion, Plaintiff

requests that the Court exclude the expert testimony of Stephen Shanton and strike
his expert report as untimely. Id. at 1. Plaintiff explains that on November 12,
2018, its counsel conferred with Borghese’s counsel to ask whether Borghese would
agree to voluntarily withdraw its experts. Id. at 2. In response, on November 13,
2018, Borghese served Plaintiff with its amended expert disclosures. See Doc. 90 at
2; Doc. 91 at 2. In the amended expert disclosures, Borghese withdrew Bart Drake

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as a proposed expert and for the first time identified Stephen Shanton as a proposed
expert and included his expert report. Doc. 88 at 2; Doc. 91 at 2.
The Daubert motion requests that the Court exclude Mr. Shanton’s testimony
based on the Daubert factors and also requests that Mr. Shanton’s testimony and
report be “stricken on the basis of its untimely and inadequate disclosure” under Rule
26 of the Federal Rules of Civil Procedure. Id. at 9. Plaintiff asserts that because
Borghese disclosed Mr. Shanton’s identity and opinions in amended expert
disclosures on November 13, 2018, when the extended expert disclosures deadline
passed on September 24, 2018, Mr. Shanton’s expert testimony and report should be
stricken. Id. On December 10, 2018, Judge Magnuson set the Daubert motion for
a hearing on January 9, 2019 at the federal courthouse in Fort Myers, Florida, with
a final pretrial conference to follow the motion hearing. Doc. 93.
Thus, the original expert disclosure Borghese served on September 24, 2018,
listing “Representative of Venture” and Bart Drake as Borghese’s experts are
replaced by the amended expert disclosure served on November 13, 2018, listing
Stephen Shanton as Borghese’s sole expert witness. See Doc. 84 at 2; Doc. 88 at 2.
Further, Plaintiff is requesting that the amended expert disclosure of Mr. Shanton,
including the expert report, be stricken in the motion pending before Judge
Magnuson and set for hearing on January 9, 2019. See Docs. 88, 93. Accordingly,
the motion to strike the original disclosures will be denied as moot.

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ACCORDINGLY, it is
ORDERED:
Plaintiff’s Motion to Strike Defendant’s Untimely and Improper Expert
Disclosures (Doc. 84) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida on this 12th day of December,
2018.

Copies:
Counsel of record

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