R&O Construction Company v. New Creation Masonry, Inc. et al

Filing 114

ORDER Granting 83 Plaintiff's Motion to Strike Exhibit 1 and the declaration of Robert S. Larsen attached as exhibit 2 to 73 Defendant's Motion for Summary Judgment. Signed by Judge Larry R. Hicks on 9/14/11. (Copies have been distributed pursuant to the NEF - EDS)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** ) ) ) ) ) ) ) ) ) ) ) ) ) 9 R&O CONSTRUCTION COMPANY, 10 Plaintiff, 11 v. 12 13 ROX PRO INTERNATIONAL GROUP, LTD.; et al., 14 Defendants. 2:09-cv-01749-LRH-LRL ORDER 15 16 Before the court is plaintiff R&O Construction Company’s (“R&O”) motion to strike the 17 declarations of Christopher Collins (“Collins”) and Robert S. Larsen (“Larsen”) submitted in 18 support of defendant WD Partners, Inc. (“WD Partners”) motion for summary judgment (Doc. #73, 19 Exhibit 1; Exhibit 21). Doc. #83. WD Partners filed an opposition (Doc. #97) to which R&O replied 20 (Doc. #99). 21 I. Facts and Background 22 This is a construction defect action. R&O was the general contractor for a Home Depot 23 store in Las Vegas, Nevada. R&O subcontracted the construction of the required stone veneer, 24 manufactured by defendant Rox Pro International Groups, Ltd. (“Rox Pro”), to non-party 25 26 1 Refers to the court’s docket number. 1 New Creation Masonry Inc. (“New Creation”). New Creation purchased the stone veneer from 2 defendant Arizona Stone and Architectural Products NV, LLC (“Arizona Stone”). Allegedly, the 3 stone veneer failed and R&O was forced to make substantial structural repairs to the Home Depot 4 store. 5 On September 3, 2009, R&O filed its initial complaint against defendants Rox Pro; Real 6 Stone Source, LLC (“Real Stone”), the distributor for Rox Pro; Arizona Stone; and WD Partners. 7 Doc. #1. R&O filed a first amended complaint on February 5, 2010 (Doc. #22) and a second 8 amended complaint on June 29, 2010 (Doc. #48). The second amended complaint alleges ten 9 causes of action: (1) implied warranty of merchantability - Arizona Stone; (2) implied warranty of 10 fitness for a particular purpose - Arizona Stone; (3) implied warranty of merchantability - Real 11 Stone; (4) implied warranty of fitness for a particular purpose - Real Stone; (5) implied warranty of 12 merchantability - Rox Pro; (6) implied warranty of fitness for a particular purpose - Rox Pro; (7) 13 express warranty - Real Stone and Rox Pro; (8) express warranty - Arizona Stone, Real Stone, and 14 Rox Pro; (9) negligent misrepresentation - WD Partners and Real Stone; and (10) breach of 15 contract - WD Partners. Doc. #48. 16 On March 22, 2011, defendant WD Partners filed a motion for summary judgment. 17 Doc. #73. In support of its motion, WD Partners attached the declarations of Christopher Collins 18 (Doc. #73, Exhibit 1) and Robert S. Larsen (Doc. #73, Exhibit 2). Thereafter, R&O filed the 19 present motion to strike the declarations for failure to disclose Collins and Larsen as witnesses 20 pursuant to Rule 37 of the Federal Rules of Civil Procedure. Doc. #83. 21 II. Discussion 22 Federal Rule of Civil Procedure 37 states in pertinent part that “if a party fails to provide 23 information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use 24 that information or witness to supply evidence on a motion . . ., unless the failure was substantially 25 justified or is harmless.” FED . R. CIV . P. 37(c)(1). This sanction is “self-executing” and 26 2 1 2 “automatic.” Yeti by Molly Ltd. v. Deckers Outdoor Co., 259 F.3d 1101, 1106 (9th Cir. 2001). Here, it is undisputed that Collins and Larsen were not disclosed as witnesses in this action 3 in accordance with Rule 26. Therefore, the court finds that their declarations are properly 4 excludable under Rule 37(c)(1). 5 In opposition, WD Partners argues that the late disclosures of Collins and Larsen were 6 harmless because Collins was indirectly identified as a witness in relation to the design contract and 7 Larsen’s declaration contains information that is cumulative of other evidence already provided to 8 the court. See Doc. #97. However, the court finds that WD Partners’ arguments are without merit. 9 First, the court finds that Larsen’s declaration contains additional non-cumulative statements for 10 which there is no other identified source. Second, as to Collins, the court notes that he was never 11 actually identified as a possible witness in this action. His name was only briefly mentioned in 12 another witness’s deposition as a person somewhat connected to the design contract. Therefore, the 13 court finds that WD Partners has not made a sufficient showing that its failure to identify Collins 14 and Larsen was harmless. See Yeti by Molly Ltd., 259 F.3d at 1107 (“Implicit in Rule 37(c)(1) is 15 that the burden is on the party facing sanctions to prove harmlessness.”). Accordingly, the court 16 shall grant R&O’s motion to strike. 17 18 IT IS THEREFORE ORDERED that plaintiff’s motion to strike (Doc. #83) is GRANTED. 19 The clerk of court shall STRIKE the declaration of Christopher Collins attached as Exhibit 1 and 20 the declaration of Robert S. Larsen attached as Exhibit 2 to defendant’s motion for summary 21 judgment (Doc. #73). 22 IT IS SO ORDERED. 23 DATED this 14th day of September, 2011. __________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 24 25 26 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?