Blue Tee Corp. v. Xtra Intermodal, Inc. et al

Filing 160

ORDER denying 153 Motion in Limine and denying 154 Motion in Limine. Signed by Judge David R. Herndon on 3/7/16. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BLUE TEE CORP. and GOLD FIELDS
MINING, INC.,
Plaintiffs,
v.

No. 13-0830-DRH

XTRA INTERMODEL, INC.,
X-L-CO, INC., XTRA COMPANIES
INC., XTRA CORPORATION and
XTRA LLC.,
Defendants.
ORDER
HERNDON, District Judge:
Pending before the Court are two motions in limine filed by plaintiffs. As
explained below, the Court denies both motions.
First, plaintiffs move in limine to exclude documents produced by
defendants ten months after close of discovery (Doc. 153). Specifically, plaintiffs
move to exclude a compact disc containing more than 100 pages of documents not
previously produced by defendants, which defendants maintain were obtained from
a document repository at the Western Historical Manuscript Collection located in
Rolla, Missouri. Plaintiffs maintain that defendants were made aware of these
documents during a deposition on June 26, 2014 during plaintiffs’ corporate
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deponent deposition; yet defendants did not produce these documents under
December 2015. Thus, according to plaintiffs, they have been prejudiced by the
late disclosure; this prejudice cannot be cured and defendants have offered no
justification for the late disclosure. Defendants oppose the motion countering that
these documents are a small subset of publically available documents representing
the historical records of plaintiffs’ predecessor and that plaintiffs’ corporate
representative first made defendants aware during the June 26, 2014 deposition.
Defendants contend, despite the public availability of these documents, that their
supplemental initial disclosures served on September 8, 2014 disclosed these
documents to plaintiffs as documents they may use to support their positions by
updating the more general category of publicly available documents.

The

supplemental initial disclosures under Fed. R. Civ. P. 26 provides in part: “3.
Publicly available documents, such as records, and reports generated by the U.S.
EPA and/or the IEPA. The publicly available documents include documents stored
at the public repository in Rolla, Missouri. Plaintiffs identified the documents
stored at the Rolla repository in the course of their 30(b)(6) corporate
representative depositions.”

(Doc. 155-1, ps. 2-3).

The Court agrees with

defendants’ reasoning. These documents are in the public domain and they were
brought up at the Rule 30(b)(6) deposition of plaintiffs’ corporate representative.
Plaintiffs had at least an equal opportunity to discover these documents. Thus, the
Court DENIES this motion in limine.

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Next, plaintiffs move in limine to exclude evidence of defendants’ attorney fee
damages (Doc. 154). In particular, plaintiffs move to exclude and bar defendants
from presenting purported evidence of claimed damages of $501,689.70 for certain
attorney fees and costs paid by defendants to counsel Morgan, Lewis & Bockius for
“costs incurred investigating role of U.S. Government and PRP.”

Plaintiffs

maintain that the documents provided to support the claim of $501,689.70 in
attorney fees and costs failed to provide a basis for any claim beyond $79,401.77,
the total time of the entries and costs of the Logs. Further, plaintiffs maintain that
only limited types of attorney fees and costs, “response costs,” are recoverable
under CERCLA and that defendants’ time entries are not limited to the types of
activities for which fees are awarded.

Defendants acknowledge that not all

attorneys’ fees paid to Morgan, Lewis & Bockius are recoverable under CERCLA
and thus now seek recovery of up to approximately $80,000 fees under CERCLA.
Again, the Court agrees with defendants. Clearly, defendants have trimmed their
request for attorney fees and costs down to $80,000.00 and only those fees and
costs specifically identifying PRPS (almost the same amount, $79,401.77, that
plaintiffs claim defendants have provided basis). Thus, the Court DENIES this
motion in limine.

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Accordingly, the Court DENIES both motions in limine (Docs. 153 & 154).
The Court REMINDS the parties that this matter is set for Final Pretrial Conference
on March 17, 2016 at 1:30 p.m.
IT IS SO ORDERED.

Digitally signed by
Judge David R.
Herndon
Date: 2016.03.07
15:33:15 -06'00'

Signed this 7th day of March, 2016.

United States District Court

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