Pinnacle Agriculture Distribution, Inc v. Northwest Ag Supply LLC

Filing 88

MEMORANDUM Opinion and Order re 74 Order. The court awards Simplot an award of $2,000 in attorneys fees for preparing the motion to exclude, to be paid by counsel for North Liberty (North Liberty and Vogt shall not pay any part of the attorneys fee award). Signed by Chief Magistrate Judge Kelly K.E. Mahoney on 10/19/2020. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SIMPLOT AB RETAIL SUB, INC.,
Plaintiff/Counter-Defendant,
vs.
NORTH LIBERTY LAND, LLC, and
JAMES VOGT,

No. 18-CV-4047-KEM
MEMORANDUM OPINION
AND ORDER

Defendants/Counter-Claimants.
__________________________
I previously granted in part and denied in part a motion to exclude evidence filed
by Plaintiff/Counter-Defendant Simplot Ab Retail Sub, Inc. Doc. 74. In that order, I
found that Defendants/Counter-Claimants North Liberty Land, LLC, and James Vogt
had violated the court’s expert-disclosure deadlines and that the “addendum” to their
expert-witness report, in which the expert proffered an entirely different opinion from
his previous report, had to be excluded. Id. But, I denied Simplot’s request to exclude
167 pages of documents, noting that discovery had not closed at the time of the disclosure
and that Simplot stated the documents should be excluded without analyzing the issue
separately from the expert-disclosure issue. Id. Because the expert “addendum” seemed
clearly violative of the rules, I suggested an award of attorney’s fees might be
appropriate, giving North Liberty a chance to brief the issue and ordering Simplot to
submit an itemized list of attorney’s fees incurred in bringing the motion to exclude. Id.
North Liberty argues (as it did in its resistance to the motion to exclude) that
Simplot produced additional discovery in May 2020, including invoices and signed bills
of lading, that led to its expert’s new approach. But, as I noted in the order on the motion
to exclude, nothing would have prevented North Liberty from asking its expert to
compare Simplot’s account statement to the bills of lading and signed invoices in North

Liberty’s possession in March 2020, when the initial expert report was due, to determine
the amount owed. As North Liberty recognizes, a portion of the documents the expert
relied on were in North Liberty’s possession at the time of the initial expert-disclosure
deadline. North Liberty argues that had it asked its expert to perform such work in
March 2020, he would have concluded North Liberty owed much more money than he
has now determined. But additional documentation (bills of lading and signed invoices)
from Simplot in May 2020 should have led only to a greater number of confirmed
charges, rather than less, as no additional sideways transactions have been identified by
the parties since June 2019. I do not find that North Liberty has provided any justification
for failing to ask its expert earlier in time to calculate the amount owed by looking only
at transactions supported by bills of lading or signed invoices.
North Liberty’s late disclosure clearly violated the rules, was not substantially
justified, and was not harmless. This is not the first time that North Liberty disclosed
information to Simplot that it could have disclosed earlier in time (see Doc. 36), and it
appears that counsel for North Liberty waited until the summary-judgment deadline
loomed to perform work on the case that could have been (and should have been)
performed much earlier in time. I find that in addition to exclusion of the expert report,
Simplot should be awarded a portion of its attorney’s fees incurred in bringing the motion
to exclude. See Fed. R. Civ. P. 37(c).
As North Liberty notes, however, I did not grant the entirety of Simplot’s motion
to exclude. North Liberty also notes that Simplot included arguments in its motion to
exclude based on facts contradicted by the parties’ meet-and-confer conference. In
addition, Simplot has requested what is, in the court’s opinion, an exorbitant amount of
fees, and Simplot includes items the court does not find it should be entitled to recover,
such as preparing the fee statement and meeting and conferring with opposing counsel
about the dispute. See Doc. 80. The relevant issue was straightforward, and Simplot
cited only the rule and three cases in the motion to exclude. The court finds that an award
of $2,000 in attorney’s fees is reasonable.
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Accordingly, the court awards Simplot an award of $2,000 in attorney’s fees for
preparing the motion to exclude, to be paid by counsel for North Liberty (North Liberty
and Vogt shall not pay any part of the attorney’s fee award).
IT IS SO ORDERED this 19th day of October, 2020.

Kelly K.E. Mahoney
Chief United States Magistrate Judge
Northern District of Iowa

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