BARTRAM LLC v. C B CONTRACTORS LLC

Filing 489

ORDER: Discovery due by 3/30/2012. Signed by MAGISTRATE JUDGE GARY R JONES on 2/7/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
THE BARTRAM, LLC,
Plaintiff,
v.

CASE NO. 1:09-cv-254-SPM-GRJ

C.B. CONTRACTORS, LLC, and
CAMBRIDGE BUILDERS
& CONTRACTORS, LLC,
Defendants.
_____________________________/
C.B. CONTRACTORS, LLC,
Third-Party Plaintiff,
v.
DUFFIELD ALUMINUM d/b/a DHI ROOFING,
a Florida corporation, et al.,
Third-Party Defendants.
_____________________________/
ORDER
On February 6, 2012 the Court conducted a status conference pursuant to
Plaintiff’s request, doc. 476, to address the setting of a reasonable discovery cut-off and
a limitation on the number of depositions to be taken during the extended discovery
period. For the reasons discussed by the Court at the hearing, which are fully
incorporated into this order, and as summarized below, the parties shall be permitted to
take the following depositions within the extended discovery period.
Facchina Depositions
Facchina Construction of Florida, LLC (“Facchina”), and its director of
preconstruction, Michael Harstad, were retained by Plaintiff to assist in developing a
detailed cost control estimate with assumptions. Plaintiff intends to utilize Facchina and

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Mr. Harstad at trial to provide testimony regarding the anticipated repair costs and
scope of repair work. Defendant CB Contractors, LLC (“CB”) contends that it needs to
depose Jesus Vasquez, John Lavelle and Joe McGinnis, three employees of Facchina
Construction of Florida, LLC (“Facchina”), who work in Facchina’s Main Office in Ft.
Lauderdale. Additionally, CB contends that it needs to depose four of the
subcontractors whose data and opinions were relied upon by Mr. Harstad in preparing
his report: Jody Brown of Sto, Gerry Brousseau of Wall Systems, Inc. of Southwest
Florida, Vito DePinto, and Todd Kanistras of General Caulking. Lastly, although Mr.
Harstad has already been deposed for two days, some of the parties were unable to
complete his deposition and therefore request an additional day to complete his
deposition.
With regard to CB’s request to depose Jesus Vasquez, John Lavelle and Joe
McGinnis the Court concludes that these depositions are not critical to the case
because none of these three individuals personally participated in the preparation of the
expert report prepared by Mr. Harstad. CB’s request is therefore due to be denied.
However, with respect to CB’s request to depose four of the subcontractors,
whose data and opinions were relied upon by Mr. Harstad in preparing his report, the
request is due to be granted. CB and the other parties shall be permitted to depose
Jody Brown of Sto, Gerry Brousseau of Wall Systems, Inc. of Southwest Florida, Vito
DePinto, and Todd Kanistras of General Caulking.
The roofing subcontractor on the project also requested permission to depose
corporate representatives of each of the three roofing subcontractors Mr. Harstad
contacted for bids to be included in his expert report. These subcontractors were
identified as: Lido Holdings, Inc., Perry Roofing and Advance Roofing and Sheet Metal.
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For the reasons discussed at the hearing, the request to depose the corporate
representatives from Lido Holdings, Inc., Perry Roofing and Advance Roofing and
Sheet Metal is due to be granted.
Lastly, because the parties did not have the opportunity to complete the
deposition of Mr. Harstad, the parties shall be permitted to complete the deposition of
Mr. Harstad for one additional day.
Foram Depositions
CB requests permission to depose several representatives and employees of
Foram Development (“Foram”), the developer of the Bartram project. These individuals
include Jeff Tobin, Pam Brown, Bill Urban, Keith Colgan and Loretta H. Cockrum.
According to CB, the reason it needs to depose these individuals at this late day is
because they only were provided with executed copies of the Development Agreement
and Construction Management Agreement between Plaintiff and Foram in the past
several weeks. Although fully executed copies of the agreements were only provided
recently, the role of Foram has been known, or should have been known, by CB, and
the other parties, during the early stages of discovery. Copies – albeit unexecuted
copies – of the agreements with Foram were produced to the parties early in this case.
The parties have been well aware that Foram was the owner’s representative and
onsite management for the project. Depositions of Foram employees and
representatives could have been completed a long time ago. While Defendants assert
that testimony from Foram representatives could be relevant to the issue of whether
Plaintiff is responsible for performing faulty or improper supervision of the construction
and sequencing of work, there is no reason offered for waiting until after the discovery
deadline to pursue this discovery. Moreover, as an owner’s representative it appears
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that Foram was involved in the development and management of the project and not in
the actual construction so their testimony while possibly relevant to a limited degree is
not critical at this late stage of the case. Accordingly, the Court concludes that CB and
the Defendant’s requests to depose Jeff Tobin, Pam Brown, Bill Urban, Keith Colgan
and Loretta H. Cockrum of Foram is due to be denied.
Testifying Experts
CB also requested permission to depose Jonathan Toppe, Luke Miorelli and Ted
NeSmith, experts retained by Plaintiff, who are expected to testify at trial. For the
reasons discussed on the record Defendants’ request to depose Jonathan Toppe,
Luke Miorelli and Ted NeSmith is due to be granted.
Miscellaneous Depositions
The parties do not object to Defendants deposing Rick Alcala, Donnie Holland
and William Bracken. Accordingly, Defendants shall be permitted to depose Rick
Alcala, Donnie Holland and William Bracken.
With regard to the deposition of Jada Stewart, the principal of Third-Party
Defendant Dai-Cole Waterproofing Company, Inc., her scheduled depositions were
cancelled because of a serious illness. Ms. Stewart’s deposition has been noticed for
February 25, 2012. Because this deposition was not completed within the discovery
period due to no fault of the parties, the parties shall be permitted to depose Ms.
Stewart of Dai-Cole Waterproofing.
The Defendants request the Court to allow them to depose Robert Preston and
Jason Shephard of Third Party Defendant The Preston Partnership, LLC and Brad
Ellinwood of Third Party Defendant Echelon Engineering, LLC. Mr. Preston’s previously
scheduled deposition was canceled because of a personal family medical issue.

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Because the parties have made a good faith effort to depose Robert Preston and Jason
Shephard of Third Party Defendant The Preston Partnership, LLC and Brad Ellinwood
of Third Party Defendant Echelon Engineering, LLC, the request to depose each of
these individuals is due to be granted.
The parties also request the Court to allow them to depose Maurice Guevara, the
corporate representative of Fourth Party Defendant CMG Siding, Inc. (“CMG”). Mr.
Guevara’s deposition previously had been noticed for March 26, 2012. Because the
parties already have scheduled Mr. Guevara’s deposition, the request to depose
Maurice Guevara of CMG is due to be granted.
Lastly, Lowry Construction & Framing, Inc. requests permission to obtain records
from and depose the corporate representatives of each of the fourth party defendants,
who were defaulted in this case. No party opposed this request and, accordingly, it is
due to be granted to the extent that the depositions are taken within the deadline set in
this order.
The parties have demonstrated a need to extend the discovery deadline to
complete the depositions identified in this order. However, as discussed by the Court at
the hearing, this case is set for trial in May 2012, after several continuances. While the
Court recognizes the technical complexity of the case and the volume of documentary
and other discovery necessary to prepare this case for trial the case has been pending
for more than two years. The Court has no doubt that counsel are using their best
efforts to complete discovery. Nonetheless, the case must be resolved. As in every
case there is always another witness to depose and another possible avenue for
discovery. The time has now come to end the process, complete the discovery outlined

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in this order and move forward to trial. The Court, therefore, concludes that extending
the discovery deadline until March 30, 2012 is more than sufficient time to complete the
depositions outlined in this order. Further extensions of the discovery deadline will not
be granted absent exceptional circumstances and a showing of due diligence and
compelling necessity by a party requesting permission to conduct discovery beyond the
March 30, 2012 deadline. Any requests for extending the dispositive motion deadline or
for a continuance of the trial will be addressed by Senior District Judge Stephan Mickle.
DONE AND ORDERED this 7th day of February, 2012.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 1:09-cv-254-SPM-GRJ