Parkcrest Builders, LLC v. Housing Authority of New Orleans

Filing 410

ORDER AND REASONS denying 323 Motion for Leave to File Amended Witness and Exhibit List. Signed by Judge Carl Barbier on 12/21/2017. (Reference: all cases)(cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PARKCREST BUILDERS, LLC

CIVIL ACTION

VERSUS

NO: 15-1533
c/w 16-14118
16-15849

HOUSING AUTHORITY OF NEW
ORLEANS

SECTION: "J"(4)

ORDER AND REASONS
Before the Court is a Motion for Leave to File an Amended
Witness and Exhibit List (Rec. Doc. 323) filed by Housing Authority
of New Orleans (“HANO”). Parkcrest Builders, LLC (“Parkcrest”) and
Liberty

Mutual

Insurance

Co.

(“Liberty

Mutual”)

have

filed

oppositions to the motion. (Rec. Docs. 340, 342.) Having considered
the motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This matter arises out of a construction contract dispute
between Parkcrest, as the original contractor, and HANO, the
property

owner.

Parkcrest

contracted

with

HANO

for

the

construction of the Florida Avenue: New Affordable Housing Units
(“the

Project”),

which

remains

under

construction.

The

relationship between HANO and Parkcrest deteriorated during the
course of the Project and on April 10, 2015, HANO terminated
1

Parkcrest prior to completion.

HANO then called upon Liberty

Mutual to perform its obligations as surety for Parkcrest.

On

June 9, 2015, HANO and Liberty Mutual entered into a Takeover
Agreement to complete the project. Once the Takeover Agreement was
executed, Liberty Mutual retained Parkcrest as its completion
contractor and the parties resumed work.

However, the Project

continued to be plagued by delays and disagreements about their
cause.

On July 1, 2016, Liberty Mutual, contrary to HANO’s

position,

considered

the

Project

substantially

complete

discontinued its insurance and security on the Project.

and
Thus,

HANO obtained its own insurance for the Project and on October 4,
2016,

entered

into

a

contract

with

Colmex

Construction,

LLC

(“Colmex”) to perform all necessary work to complete the Project.
On March 25, 2017, HANO granted a certificate of substantial
completion to Colmex. Parkcrest, Liberty Mutual, and HANO continue
to dispute who is responsible for the various delays in the
construction of the Project. 1
On June 16, 2017, HANO filed a witness and exhibit list in
compliance with this Court’s Scheduling Order deadline. (Rec. Doc.

1

Parkcrest instituted this suit against HANO on May 8, 2015, alleging that HANO
breached the contract by terminating Parkcrest “for convenience.” HANO filed
a counterclaim against Parkcrest alleging that delays in the project were
attributable solely to Parkcrest.
On September 1, 2016, Liberty Mutual
intervened in this lawsuit to allege breach of the Takeover Agreement, bad faith
breach of contract, and wrongful termination claims against HANO. In response,
HANO filed a counterclaim against Liberty Mutual alleging bad faith breach of
the Takeover Agreement and fraudulent misrepresentation.

2

63.)

On August 3, 2017, HANO filed the instant motion requesting

that this Court grant leave to file an amended witness and exhibit
list, so that it may include two additional witnesses and five
additional exhibits. 2
The two witnesses are (1) Representative(s) of Tropical A/C
and

Heat,

LLC

(“Tropical

A/C”),

and

(2)

Chuck

Barbot

from

Billingsley Barbot Woolf Canale (“Barbot”). 3

According to HANO’s

amended

“[t]o

list,

Tropical

A/C

is

included

authenticate

documents produced during discovery and to be used as exhibits for
HANO, re: replacement of water heaters installed by Parkcrest
Builders.” (Rec. Doc. 323-4 at 14.)

Similarly, Barbot is included

“[t]o authenticate documents produced during discovery and to be
used as exhibits for HANO, re: HVAC installations.” Id.

However,

2

Specifically, HANO’s proposed amendments include adding the following five
(5) exhibits:
30. Transcripts and Exhibits to all depositions taken in this matter.
31. Answers to Interrogatories and Responses to Requests for Production
in this and all consolidated
matters.
32. Expert Report of J. Brandon English, and addenda.
33. Email from Michael Stewart to Craig Mangnum, Jack Lenhart and
attorneys from Parkcrest and Liberty, sent 5/26/2017, re: “Florida AveWork Complete Review”, with attached “Florida Ave – Brick Stair
and Concrete Step Survey.xlsx”, and any other document reviewed by
any party’s expert witness.
34. Document titled “Pacing – An Excuse for Concurrent Delay” by Thomas
E. Finnegan.
(Rec. Doc. 323-4 at 16.)
3 HANO does not identify Billingsley Barbot Woolf Canale or how the company is
connected with the Project. With regard to Tropical A/C, HANO provides the
limited explanation that it is a provider of emergency repair services that
HANO procured in response to the alleged defects in Parkcrest’s construction.
(Rec. Doc. 323-1 at 2.)

3

in its motion for leave, HANO states an additional purpose that
the witnesses will serve, which is to provide testimony to the
facts

“contained

in

and

relating

to

the

documents”

witnesses would authenticate. (Rec. Doc. 323-1 at 4.)

that

the

HANO refers

to only three such documents: two inspection reports conducted by
Tropical A/C on the Property’s heating, ventilation, and air
conditioning (HVAC) systems 4 and an email exchange in which Barbot
discusses the likely cause of odorous water in the Property’s water
heaters (Rec. Doc. 323-5). According to HANO, this testimony would
admittedly relate to latent defects in the HVAC systems and the
water heaters that were known to HANO before the filing deadline,
but HANO emphasizes that the extent of the defects was not known
to HANO until June 15, 2017 and was not communicated to its counsel
until after the deadline.
Parkcrest and Liberty Mutual object to HANO’s motion, arguing
that

it

is

well

past

the

Court’s

August

1,

2017

discovery

completion deadline as well as the June 2, 2017 expert report
deadline.

In addition, HANO waited well over a month to attempt

to amend its witness and exhibit list.

Thus, Liberty Mutual and

Parkcrest contend that permitting HANO’s amendments would result

4

HANO failed to provide the Court with the documents it claims Tropical A/C
will testify to the facts within and authenticate.
Instead, HANO merely
mentions that the documents were produced to all parties as Bates No. HANO –
087374 through HANO – 087379.
Parkcrest, however, attached a copy of these
documents for the Court’s consideration. See Rec. Docs. 340-1, 340-2.

4

in unfair prejudice to them. (Rec. Docs. 340, 342.) Liberty Mutual
and

Parkcrest

also

claim

that

HANO

is

attempting

to

admit

unreported opinion testimony from these witnesses concealed as
mere fact or authentication testimony.

The motion is now before

the Court on the briefs.
DISCUSSION
Federal Rule of Civil Procedure 16(b)(4) provides that a
scheduling order may be modified “only for good cause and with the
judge’s consent.” The scheduling order in this case states:
Counsel for the parties shall file in the record and
serve upon their opponents a list of all witnesses who
may or will be called to testify on trial, and all
exhibits that may or will be used, not later than June
16, 2017.
The Court will not permit any witness, expert or fact,
to testify or exhibits to be used unless there has been
compliance with this Order as it pertains to the witness.
(Rec. Doc. 63.)

To determine whether good cause exists, the Court

considers: (1) the explanation for the failure to timely act; (2)
the importance of the evidence; (3) the potential prejudice in
allowing the evidence; and (4) the availability of a continuance
to cure such prejudice. S&W Enterprises, L.L.C. v. Southtrust Bank
of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003) (citing Fed. R.

5

Civ. P. 16(b)).

None of the four factors is dispositive; rather,

the focus is on whether the factors collectively favor admission
or exclusion of the evidence.

The Court has broad discretion to

preserve the integrity of its scheduling order when a party has
failed to show good cause for a tardy submission.

Sw. Bell Tel.

Co. v. City of El Paso, 346 F.3d 541, 547 (5th Cir. 2003).
(1)

The Explanation for the Failure to Timely Act

Concerning the first factor, HANO claims that one of its
attorneys, who conducted the vast amount of the discovery in this
matter, had an unexpected family emergency and was unavailable on
June 15, 2017.

According to HANO, this left the rest of the

attorneys representing HANO without the resources to include the
proposed amendments.

While the Court sympathizes with counsel’s

family emergency, it does not explain why the five other attorneys
listed as counsel of record for HANO could not have adequately and
timely provided their client’s witness and exhibit list.
HANO

also

argues

that

“the

extent

of

Tropical

A/C’s

involvement in identifying latent defects was unknown until June
2017.”

HANO vaguely explains that “the extent of the defects” was

realized when it was discovered that “undersized HVAC ductwork
[was] installed by Parkcrest in every building.”

HANO admits that

it knew the identity of the witnesses and the existence of the
defects prior to the deadline for witness and exhibit lists.

6

However, HANO provides little to no explanation as to why the
“extent of the defects” was not known until after the deadline.
The emails and inspection reports are all dated prior to the
deadline. 5

HANO does not clearly state how and when its counsel

eventually came to realize “the extent of the defects,” 6

and no

explanation has been given as to why these documents or “the extent
of the defects” were not timely “communicated” to HANO’s counsel.
The Court finds HANO’s explanations unpersuasive and fail to
explain why HANO made no attempt to supplement its list during the
entire month of July when it admittedly knew about “the extent of
the defects” in June 2017. Furthermore, with respect to the latent
defects of the water heaters, HANO fails to articulate any new
information it obtained that revealed a previously unknown “extent
of the defect.”

Therefore, the Court finds that the first factor

weighs against HANO.
(2)

The Importance of the Evidence

HANO contends that the additional witnesses are necessary to
authenticate the documents that were produced during discovery and
to testify to facts relating to those documents.

As to the

5

The Barbot email exchange regarding the water heaters was forwarded to a
HANO representative on March 9, 2017. (Rec. Doc. 323-5.) The first Tropical
A/C inspection report is dated May 11, 2017. (Rec. Doc. 340-1.) The second
Tropical A/C inspection report is dated June 1, 2017. (Rec. Doc. 340-2.)
6

HANO merely states in a footnote that “the extent of the defects was not
communicated to counsel until recently.” (Rec. Doc. 323-2 at 2 n.4).

7

authentication argument, HANO ignores the fact that Barbot is not
necessary to authenticate the email exchange. 7

“With respect to

[the authentication of] e-mails, courts consider the testimony of
the sender or recipients of e-mail, the e-mail addresses, the
context

and

content

of

the

nicknames used in an e-mail.”

e-mail,

and

signature

blocks

or

Streat v. Hammond, 07- 1882, 2009

WL 10678838, at *3 (N.D. Tex. Oct. 26, 2009) (citing United States
v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000)).

The Barbot email

was originally sent to a Colmex representative before it was
forwarded to HANO representatives.

(Rec. Doc. 323-5.)

HANO had

previously listed representatives from Colmex and HANO in its
original witness and exhibit list. (Rec. Doc. 220). As recipients
of

the

document

in

question,

these

representatives

could

authenticate the email without the need of an additional witness.

7

Under Federal Rule of Evidence 901(a), documents must be properly authenticated
as a condition precedent to their admissibility “by evidence sufficient to
support a finding that the matter in question is what its proponent claims.”
The standard for authentication is not a burdensome one. Int'l Marine, L.L.C.
v. Delta Towing, L.L.C., 10-0044, 2011 WL 890680, at *4 (E.D. La. Mar. 11,
2011).
A document may be authenticated by “testimony of a witness with
knowledge” that “a matter is what it is claimed to be,” or through “[a]ppearance,
contents, substance, internal patterns, or other distinctive characteristics,
taken in conjunction with circumstances.” Fed. R. Evid. 901(b)(1) and (4). The
Fifth Circuit “does not require conclusive proof of authenticity before allowing
the admission of disputed evidence . . . . Rule 901 does not limit the type of
evidence allowed to authenticate a document. It merely requires some evidence
which is sufficient to support a finding that the evidence in question is what
its proponent claims it to be.” Id. (quoting United States v. Jimenez Lopez,
873 F.2d 769, 772 (5th Cir. 1989)).

8

Thus, the testimony of Barbot is unimportant for authenticity
purposes.
For the same reason, Tropical A/C representatives are not
necessary to authenticate the June 1, 2017 inspection report
because it was received by multiple Colmex representatives.
Doc. 340-2.)

(Rec.

However, the May 11, 2017 Tropical A/C inspection

report is not addressed to anyone in particular and does not appear
on its face to be able to be authenticated by anyone other than
the Tropical A/C representative who created it.

(Rec. Doc. 340-

1.) 8
HANO’s second argument for adding Barbot and Tropical A/C
representative(s) is that their testimony to the facts relating to
the documents is so important that without it, “HANO may not be
able to prove the extent of damages it suffered due to latent
defects from Parkcrest’s work, specifically relating to HVAC and
water heaters.” (Rec. Doc. 323-1 at 4.)

The witness and exhibit

list deadline was June 16, 2017, yet HANO failed to move to amend
its list until August 3, 2017.

A delay of over a month in amending

its list is extensive and suggests that the testimony is not as

8

It is worth noting that at the pretrial conference held before this Court on
August 17, 2017, the Court rejected the proposed pretrial order and strongly
suggested that the parties cut down the excessive number of witnesses,
especially those named merely for the authentication of documents when many of
the same witnesses could satisfy that objective and the parties could stipulate
to authenticity. (Rec. Doc. 361.).

9

important as HANO claims.

Even assuming that the testimony is

significant to HANO’s case, it exemplifies why compliance with the
Court’s deadlines is necessary.

Furthermore, although not ideal,

HANO’s inability to prove the full extent of damages relating to
two of its many alleged defects is hardly fatal to HANO’s entire
case.
(3)

The Court finds the second factor weighs against HANO.
Potential Prejudice In Allowing the Late Filing

Parkcrest and Liberty Mutual contend that the authentication
argument is a pretext to introduce unreported expert testimony at
trial which would be highly prejudicial to them.

Under Federal

Rule of Evidence 701, a lay witness may not testify to an opinion
based on “scientific, technical, or other specialized knowledge.”
HANO has not identified Barbot or any Tropical A/C representative
as an expert witness.

Therefore, these witnesses may only testify

to an opinion that is “(a) rationally based on the witness's
perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701.

The Court agrees that the

documents identified by HANO contain a fair amount of opinion and
recommendations with respect to technical or specialized knowledge
concerning HVAC installations and water heaters.

As such, unfair

prejudice would result if these witnesses were allowed to offer

10

their opinion testimony at trial when the other parties had no
opportunity to procure opposing expert opinions.
However, even if the Court were to limit the witnesses to
factual observations, the parties would still be prejudiced.

The

discovery deadlines have long since passed and the new trial date
is imminently approaching.

In Cruz v. City of Hammond, a court in

this district stated:
Deadlines are in place to provide the parties and the
Court with some measure of predictability. It would have
been reasonable for the defendant to focus its discovery
efforts on only those witnesses it intended to call and
for those it had been notified that the plaintiff would
call.

To

witnesses

now
who

allow
were

the
only

plaintiff

to

identified

call

at

well-after

trial
the

deadline to issue written discovery requests and only
days leading up to the actual discovery and deposition
deadline would be unfair, prejudicial, and not in the
interests of justice.
09-6304, 2015 WL 1467952, at *3 (E.D. La. Mar. 30, 2015).

Here,

with the manner in which the parties aggressively pursued discovery
in mind, the Court finds that permitting these witnesses to testify
at trial at this late stage would be prejudicial and weighs heavily
against good cause.

11

(4)

Opportunity for Continuance

Although trial has since been continued to February 18, 2018,
the Court expressly ordered that no other pretrial deadlines would
be extended.

See Rec. Doc. 361.

As such, the discovery deadline

of August 1, 2017, inter alia, remains in place and the continuance
does not adequately cure the prejudice.

In conclusion, the Court

finds that HANO has not shown good cause for allowing these
untimely witnesses to testify.
Furthermore, HANO’s proposed remedial amendments such as a
change of address for a witness and the addition of names of
representatives

for

corporate

witnesses

that

were

previously

identified in HANO’s original witness list can all easily be
accomplished

in

the

Pretrial

Order.

Therefore,

they

do

not

necessitate an amendment to HANO’s witness list.
Additionally, HANO argues that the five proposed exhibits
contain documents that were reviewed by “the expert witnesses to
write their reports.”

HANO provides no other details or analysis

to show good cause as to why these exhibits should be included.
Parkcrest has no objection to the inclusion of these exhibits,
however,

Liberty

Mutual

argues

that

their

inclusion

would

prejudice the parties because they expended extensive effort to
complete discovery by August 1, 2017, without any indication from
HANO that these documents would be added as exhibits for trial.

12

The Court finds that HANO has not shown good cause for amending
their exhibit list, therefore, they are excluded.
Accordingly,
IT IS HEREBY ORDERED that HANO’s Motion for Leave to File
Amended Witness and Exhibit List (Rec. Doc. 323) is DENIED.
New Orleans, Louisiana, this 21st day of December, 2017.

__________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

13