THE BARTRAM LLC v. LANDMARK AMERICAN INSURANCE COMPANY et al

Filing 142

ORDER granting 126 MOTION to Supplement Disclosures filed by THE BARTRAM LLC - Discovery is extended to 12/30/2011; Response to 132 Cross Motion for Partial Summary Judgment due by 10/28/2011) and Replies due by 11/11/2011; signed by MAGISTRATE JUDGE GARY R JONES on 10/4/11. (tss)

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THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
THE BARTRAM, LLC,
a Delaware limited liability company,
Plaintiff,
v.

CASE NO. 1:10-cv-28-SPM-GRJ

LANDMARK AMERICAN INSURANCE
COMPANY, an Oklahoma corporation,
ROCKHILL INSURANCE COMPANY,
an Arizona corporation, and WESTCHESTER
SURPLUS LINES INSURANCE COMPANY,
a Georgia corporation,
Defendants.
_____________________________ _________/
ORDER
On October 4, 2011 the Court held a status conference to address outstanding
matters. During the hearing the Court considered Plaintiff’s Motion To Supplement
Expert Disclosure To Allow Testimony On Anticipated Repairs Costs From Facchina
Construction of Florida, LLC. (Doc. 126.)
In the Motion to Supplement Plaintiff requests leave to supplement its expert
disclosures by adding Facchina Construction of Florida, LLC and its director of
preconstruction, Michael Harstad, as an expert witness in this case. Defendants filed a
response in opposition to the motion. (Doc. 139.)
Pursuant to the scheduling order in this case, Rule 26(a)(2) expert witness
disclosures were due by June 13, 2011. (Doc. 70.) On September 15, 2011 Plaintiff’s
counsel notified all counsel in the Contractor Action, as well as counsel in this action,
that it utilized the services of the general contractor, Facchina Construction and its

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director of preconstruction, to assist in developing a detailed cost control estimate with
assumptions on costs to perform the repairs to the apartment complex that is the
subject of this case. Although Plaintiff believes Facchina is a fact witness as it relates to
the generation of the cost control estimate and assumptions, testimony regarding the
anticipated repair costs and scope of work assumptions may involve some measure of
expert testimony. Consequently, Plaintiff filed the instant motion. Defendants object on
the grounds that the disclosure is being made months after the expert witness
disclosure deadline.
For the reasons stated on the record at the hearing and as summarized below
the Court concludes that Plaintiff’s Motion to Supplement is due to be granted. Because
Plaintiff is not requesting permission to supplement a previously disclosed expert
opinion, but rather to modify the deadline in the scheduling order for disclosure of
expert witness, Plaintiff must demonstrate good cause and that Plaintiff acted
diligently. The Court concludes that Plaintiff has demonstrated good cause and there is
no question that the request is being made at the earliest opportunity. The request to
supplement could not have been filed earlier for the simple reason that the Plaintiff had
not yet commenced the process of estimating and preparing for the repairs. The cost
control estimate and assumptions were only generated as part of the preconstruction
process for the repairs to the apartment complex. In addition, the information provided
by Facchina is not relevant to any of the issues pending before the Court on the parties’
respective motions for summary judgment and as such there will be no prejudice to the
Defendants if the motion is granted. Lastly, to the extent there would be any prejudice
to the Defendants because the late filing would impact the discovery deadline the Court
Case No: 1:10-cv-28-SPM-GRJ

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can ameliorate any prejudice by granting Defendants an extension of time to depose
Mr. Harstad and an extension of time to designate supplemental rebuttal expert
testimony.
Accordingly, for all of these reasons the Motion to Supplement is due to be
granted. In order to provide the Defendants with sufficient time to depose Mr. Harstad
the discovery deadline shall be extended to December 30, 2011 for the sole purpose of
allowing Defendants to take the deposition of Mr. Harstad. Defendants also shall be
permitted to designate supplemental expert rebuttal testimony within thirty days of
taking Mr. Harstad’s deposition, if Defendants wish to do so.
Additionally, at the hearing, Defendants also made an ore tenus motion for an
extension of time within which to respond to Plaintiff’s Cross-Motion For Partial
Summary Judgment On Liability. (Doc. 132.) For the reasons recited on the record,
Defendant’s ore tenus motion for an extension of time is due to be granted. Defendants
shall file their response to Plaintiff’s Cross-Motion For Partial Summary Judgment On
Liability by October 28, 2011. Further, so that Plaintiff will have an opportunity, if
necessary, to respond to any new evidence filed by Defendants with their response,
Plaintiff may file a reply limited solely to any new evidence filed by Defendants with their
response. Plaintiff shall file any reply by November 11, 2011. The Court will thereafter
take the motions for summary judgment under advisement and no further briefing will
be permitted.
Accordingly, upon due consideration, it is ORDERED:
1.

Plaintiff’s Motion To Supplement Expert Disclosure To Allow Testimony
On Anticipated Repairs Costs From Facchina Construction of Florida, LLC
(Doc. 126) is GRANTED.

Case No: 1:10-cv-28-SPM-GRJ

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2.

The discovery deadline in this case is extended until December 30, 2011
for the sole purpose of allowing Defendants to depose Michael Harstad of
Facchina Construction of Florida, LLC. To the extent Defendants wish to
identify a rebuttal expert or supplement their existing expert’s report as a
result of this deposition, then Defendants shall do so by January 27,
2011.

3.

Defendants shall respond to Plaintiff’s Cross-Motion For Partial Summary
Judgment On Liability (Doc. 132) on or before October 28, 2011. To the
extent Defendants file new evidence in support of their response, Plaintiff
may file a reply directed solely to such new evidence on or before
November 11, 2011.

DONE AND ORDERED this 4th day of October, 2011.

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

Case No: 1:10-cv-28-SPM-GRJ