Damark Marine Towing, LLC v. Molinaro et al

Filing 55

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR RECONSIDERATION 52 . Signed by District Judge Laurie J. Michelson. (TDam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAMARK MARINE TOWING, LLC,
Plaintiff,
v.

Case No. 23-12293
Honorable Laurie J. Michelson

RALPH MOLINARO et al.,
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR RECONSIDERATION [52]
On February 7, 2025, the Court held a hearing on the parties’ cross motions to
exclude expert testimony. Both motions were denied, but the Court imposed other
sanctions on Defendants for their late-disclosed expert. (ECF No. 51.) The Court
ordered Defendants to pay Plaintiff’s “expert and attorney’s fees incurred for . . . (1)
filing the motion in limine and reply brief to exclude Captain Lowe’s testimony, (2)
preparing for and deposing Captain Lowe, (3) preparing any rebuttal report by Jeffrey
Pidcock, and (4) if necessary, revising the motion for summary judgment and reply
brief.” (Id. at PageID.1902.) And the Court set deadlines for the deposition, reports,
and revised summary judgment briefing. (Id.)
After the hearing, Defendants filed a timely motion for reconsideration based
on new evidence. (ECF No. 52.) That new evidence was that they decided to withdraw
Captain Lowe as an expert. (Id.) As a result, Defendants ask the Court to “vacate
these deadlines and related sanctions [as moot] and proceed with Plaintiff’s fully

briefed motion for summary judgment.” (ECF No. 52, PageID.1906.) Damark agrees
that “if Defendants will not offer testimony of Captain Lowe then Plaintiff’s Motion
for Summary Judgment is ripe for decision.” (ECF No. 54, PageID.1913.) It is equally
clear that with Captain Lowe withdrawn as an expert, there is no need to depose him
and no need for Plaintiff’s expert to prepare a rebuttal report. Thus, Defendants are
correct that the last three categories of sanctions—“preparing for and deposing
Captain Lowe,” “preparing any rebuttal report by Jeffrey Pidcock,” and “revising the
motion for summary judgment and reply brief” (ECF No. 51, PageID.1902)—are moot.
In other words, Plaintiff will no longer incur any expense for these now unnecessary
tasks. The Court will, as requested by the parties, simply rule on the motion as
currently briefed and will vacate the deadlines for these other events.
But Damark is still entitled to sanctions for the first category—the costs
incurred in filing the motion in limine and reply brief to exclude Captain Lowe’s
testimony. (ECF No. 54, PageID.1913.) Defendants make no mention of these
sanctions and there is no basis to find them moot. (See ECF No. 52.)
In its response to the motion for reconsideration, Damark seeks to recover
attorney’s fees incurred in appearing for argument on the motion in limine and
responding to this motion for reconsideration (ECF No. 54, PageID.1913.) But these
were not included in the Court’s original order of sanctions and the Court is not
expanding its ruling, especially when only the Defendants have filed a motion for
reconsideration.

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Accordingly, Defendants’ motion for reconsideration is GRANTED IN PART,
such that the last three categories of sanctions imposed in the Court’s order—that is,
attorney’s and expert fees incurred in preparing for and deposing Captain Lowe,
preparing any rebuttal report by Jeffrey Pidcock, and revising the motion for
summary judgment and reply brief in support—are no longer required, and the
deadlines for deposing Captain Lowe, providing a rebuttal report for Captain Pidcock,
and amending summary judgment briefing are vacated. The Court will decide the
motion for summary judgment (ECF No. 45) as currently briefed. But Defendants’
motion for reconsideration is DENIED IN PART to the extent it seeks to vacate the
first category of sanctions. Defendants will still be required to pay Damark’s
attorney’s fees incurred in filing the motion in limine and reply brief to exclude
Captain Lowe’s testimony. The Court trusts that these fees will be reasonable. These
fees shall be paid within 14 days of receiving an itemized invoice from Damark’s
counsel. Failure to make timely payment or any unreasonable withholding of
payment will result in the imposition of additional sanctions.
SO ORDERED.
Dated: March 6, 2025

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

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