United States of America v. Dawn Properties, Inc. et al

Filing 579

ORDER denying 567 Motion in Limine Signed by Chief District Judge Louis Guirola, Jr on 12/13/2016 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
UNITED STATES OF AMERICA
v.

PLAINTIFF
CAUSE NO. 1:14CV224-LG-JCG

DAWN PROPERTIES, INC.;
SOUTHERN CROSS CONSTRUCTION
COMPANY, INC.; RIDGELAND
CONSTRUCTION ONE, LLC;
THE BEACH CLUB, LLC;
THE BEACH CLUB II, LLC;
THE BELMONT OF LAMAR, LLC;
GRAND BISCAYNE APTS., LLC;
SEAINN, LLC

DEFENDANTS

AND
SUMMER MISS, LLC;
14510 LEMOYNE BOULEVARD, LLC;
LEXINGTON MILL MISSISSIPPI OWNER,
LLC; INN BY THE SEA HOME OWNERS
ASSOCIATION, INC.
14510 LEMOYNE BOULEVARD, LLC

RULE 19 DEFENDANTS
CROSSCLAIM PLAINTIFF

v.
GRAND BISCAYNE APTS., LLC

CROSSCLAIM DEFENDANT

AND
IKE THRASH

DEFENDANT TO CROSSCLAIM

ORDER ON MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY ON
DEFENDANT’S ALLEGED FHA VIOLATIONS BY LAY WITNESSES
BEFORE THE COURT is the [567] Motion In Limine To Exclude Expert
Testimony On Defendants’ Alleged FHA Violations By Lay Witnesses filed by
Crossclaim Defendants Grand Biscayne Apts., LLC, and Ike Thrash (sometimes

collectively referred to as “Defendants”). Having considered the Motion, the
Response of the Crossclaim Plaintiff 14510 Lemoyne Boulevard, LLC, and the
applicable law, the Court is of the opinion that the Motion should be denied.
Lemoyne has represented that it “does not intend to present expert testimony
via lay witnesses.” (Lemoyne Resp. 4, ECF No. 573). Therefore, to the extent
Defendants’ Motion seeks exclusion of lay witnesses, it is denied as moot.1
Additionally, for the reasons discussed below, the Court will allow the testimony of
expert witnesses that were previously identified in this action, albeit not by
Lemoyne.
Federal Rule of Civil Procedure 26(a) states in pertinent part that a party
“must disclose to the other parties the identity of any witness it may use at trial to
present” expert testimony. Under Rule 26(e), a party has a continuing obligation to
supplement its disclosures and discovery responses “in a timely manner if the party
learns that in some material respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information has not otherwise been
made known to the other parties during the discovery process or in writing . . . .”
Rule 37 provides that “[i]f a party fails to provide information . . . as required
by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply

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Lemoyne states that it “may rely upon lay witnesses to establish the facts
underlying the alleged FHA violations (e.g., that there was no sidewalk or that
doors were of a certain width).” (Lemoyne Resp. 4, ECF No. 573). To the extent
Defendants believes that such testimony encroaches into expert witness territory
under Federal Rule of Evidence 702, they may make an contemporaneous objection
at trial.
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evidence . . . at trial, unless the failure to was substantially justified or is
harmless.” Under this Rule, Defendants request that the Court exclude “any expert
testimony at trial regarding alleged FHA violations because Lemoyne failed to
designate any experts . . . .” (Mot. 2, ECF No. 567).
In determining whether a violation of Rule 26 was harmless, the Court
examines four factors: (1) “[Lemoyne’s] explanation for its failure to disclose the
evidence, (2) the importance of the evidence, (3) the potential prejudice to
[Defendants] in allowing the evidence, and (4) the availability of a continuance.”
See CQ, Inc. v. TXU Mining Co., L.P., 565 F.3d 268, 280 (5th Cir. 2009). Lemoyne
does not deny that it did not designate its own expert witness in this action.
However, it states that it “intends to introduce expert testimony from Ms. Gina
Hillberry, AIA, who was initially retained by the United States in this matter, and
Mr. Larry Fleming, who was retained by Defendants, regarding the FHA violations
detailed in their respective reports.” (Lemoyne Resp. 4, ECF No. 573). Both experts
provided opinions regarding the Grand Biscayne property at issue, and their reports
were circulated among the parties. Furthermore, both experts were deposed in this
action.
The Court is of the opinion that these experts and their reports were
otherwise “made known . . . during the discovery process . . . .” See Fed. R. Civ. P.
26(e). In any event, analyzing the factors above, the Court finds that any failure by
Lemoyne to specifically designate these experts is harmless. See, e.g., Pearson v. AlMaha Enters. Co., No. 1:10-CV-2799-CAP, 2012 WL 12872906, at *3 (N.D. Ga. Dec.
3

11, 2012) (concluding that a defendant “should not be precluded from using the
testimony of experts previously identified by other parties despite its failure to
cross-identify these experts”); see also generally In re Compl. Of C.F. Bean L.L.C.,
841 F.3d 365 (5th Cir. 2016) (discussing potential exclusion of expert testimony).2
IT IS THEREFORE ORDERED AND ADJUDGED that the [567] Motion
In Limine is DENIED.
SO ORDERED AND ADJUDGED this the 13th day of December, 2016.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

2

This opinion does not change the Court’s previous analysis that the question
of whether the Government could prove that Grand Biscayne and Thrash are liable
pursuant to the FHA is moot. Rather, the Court is simply holding that Lemoyne
may call as experts witnesses those witnesses that were previously disclosed in this
action in its effort to now meet its own burden to prove FHA liability.
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