The Pike Company, Inc. v. Universal Concrete Products, Corp.

Filing 144

DECISION AND ORDER granting in part 126 Motion in Limine. Signed by Hon. Elizabeth A. Wolford on 06/27/2022. (MGB)

Case 6:17-cv-06365-EAW Document 144 Filed 06/27/22 Page 1 of 7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
THE PIKE COMPANY, INC.,
Plaintiff,
DECISION AND ORDER
v.
6:17-CV-06365 EAW
UNIVERSAL CONCRETE PRODUCTS,
INC.,
Defendant.
___________________________________
MARIST COLLEGE,
Plaintiff-Intervenor,
v.
UNIVERSAL CONCRETE PRODUCTS,
INC.,
Defendant.
___________________________________
INTRODUCTION
A jury trial is scheduled to commence in this matter on July 11, 2022. As part of
the pretrial filings, defendant Universal Concrete Products, Inc. (“UCP”) filed a motion in
limine to preclude plaintiff The Pike Company, Inc. (“Pike”) from seeking recovery for a
previously undisclosed category of damages (and amending its exhibit list to include
previously undisclosed documents). (Dkt. 126). At an appearance held on June 17, 2022,
the Court indicated that UCP’s motion was granted to the extent it sought to preclude Pike

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from seeking recovery of the previously undisclosed damages of “Fees Associated with
Lien Bonds” and to the extent it sought to preclude Pike from amending its exhibit list to
include documents related to this category of damages.1

This Decision and Order

memorializes the Court’s reasoning.
BACKGROUND
Pike commenced this action against UCP based upon disputes relating to the
construction of dormitory buildings on the campus of Plaintiff-Intervenor Marist College
(“Marist”). The action was commenced in New York State Supreme Court on May 4,
2017, and the action was removed to this Court on the basis of diversity jurisdiction on
June 9, 2017. (Dkt. 1). Discovery proceeded pursuant to various scheduling orders
between March 2018 and October 2019. (Dkt. 40; Dkt. 44; Dkt. 46; Dkt. 47; Dkt. 52; Dkt.
53; Dkt. 54; Dkt. 63). A jury trial is scheduled to commence on July 11, 2022, having been
adjourned from the originally scheduled date of May 16, 2022, due to a conflict with the
Court’s criminal calendar. (Dkt. 136).
In anticipation of the trial, the Court issued a Pretrial Order on August 31, 2021,
setting forth various deadlines for pretrial filings, including a March 11, 2022, deadline for

1

At the appearance on June 17, 2022, the Court further indicated that it was generally
not inclined to preclude Pike from amending its exhibit list to include documents that had
been previously produced in discovery notwithstanding the untimeliness of the amended
exhibit list, primarily due to the lack of prejudice to UCP. However, the Court also
indicated that Pike needed to amend its exhibit list to comply with the numbering format
required by the Court’s Pretrial Order, and that UCP could then file any objections to that
amended list and those objections would be addressed at the further pretrial conference
scheduled for June 27, 2022. Accordingly, portions of UCP’s motion in limine filed at
Docket 126 remain unresolved.
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each party to file an itemized statement of the damages sought. (Dkt. 100). Pike filed its
itemized list of damages by that deadline and included a category of damages as “Unpaid
UCP Vendors” in the amount of $580,855.00, broken down as follows:
PRSUS
Deiner Brick
Herb Speck Masonry
FRRT10- Trucking
Total

$ 250,874.00
$ 83,156.00
$ 143,719.00
$ 103,106.00
$ 580,855.00

(Dkt. 108-3). Subsequent to that filing, counsel for UCP informed Pike’s counsel that the
above-referenced category of damages was not recoverable because some or all of the liens
had lapsed. (See Dkt. 126-2 at ¶¶ 11-12). Instead of simply withdrawing this category of
unrecoverable damages, on April 14, 2022, without leave of Court, Pike filed an amended
statement of damages containing an entirely new category of damages—“Fees Associated
with Lien Bonds” in the total amount of $182,478.00, broken down as follows:
UCP
PRSUS
Herb Speck Masonry
American Iron
Total

$ 135,702.00
$ 22,076.00
$ 18,972.00
$ 5,728.00
$ 182,478.00

(Dkt. 125-3). Contemporaneously with the filing of this newly disclosed category of
damages, Pike filed an amended exhibit list identifying 83 additional exhibits, many of
which appeared to be related to this new category of damages. (Dkt. 125-2; see Dkt. 1262 at ¶ 19). Pike’s counsel conceded during the appearance before the undersigned on June
17, 2022, that these changes were made in response to the objections by UCP’s counsel to
Pike seeking damages in the form of “Unpaid UCP Vendors” based on the expired liens.

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Pike’s counsel also conceded that damages in the form of “Fees Associated with Lien
Bonds” had never been disclosed or identified prior to the filing on April 14, 2022.
Pike’s amended filing prompted UCP to file a motion in limine to preclude Pike
from seeking recovery for this previously undisclosed category of damages (and amending
its exhibit list to include previously undisclosed documents). (Dkt. 126). Pike filed papers
in opposition to the motion (Dkt. 129), and UCP filed a reply (Dkt. 134). Oral argument
was held before the undersigned on June 17, 2022, at which time the Court indicated that
UCP’s motion was granted to the extent it sought to preclude Pike from seeking recovery
of the previously undisclosed damages of “Fees Associated with Lien Bonds” and to the
extent it sought to preclude Pike from amending its exhibit list to include documents related
to this category of damages.
DISCUSSION
There is no dispute that during the discovery process and prior to the deadlines set
in the Court’s Pretrial Order, Pike never disclosed that it was seeking damages for “Fees
Associated with Lien Bonds.” It was only when it became aware that it could not recover
damages for “Unpaid UCP Vendors” because some or all of the liens had expired, that Pike
changed course and sought to recover a new category of damages not previously disclosed.
Likewise, there is no dispute that the amounts previously listed as comprising the “Unpaid
UCP Vendors” did not include as a component the “Fees Associated with Lien Bonds” that
Pike now seeks to recover. In other words, the “Fees Associated with Lien Bonds” were
not included as a subset or lesser included amount of the original damages sought. Instead,

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they represent an entirely new category of damages that was never explored during
discovery.
In assessing whether to exclude evidence for failure to timely comply with
discovery obligations, a court must consider “(1) the party’s explanation for the failure to
comply with the disclosure requirement; (2) the importance of the [evidence]; (3) the
prejudice suffered by the opposing party as a result of having to prepare to meet the new
[evidence]; and (4) the possibility of a continuance.” Design Strategy, Inc. v. Davis, 469
F.3d 284, 296 (2d Cir. 2006). Here, Pike has no adequate explanation for its failure to
previously disclose this category of damages (and associated documents). Rather, when it
became obvious to Pike that some of the damages it was seeking were not legally viable,
it scrambled to attempt to maintain the value of its alleged financial losses by substituting
an entirely new category of damages. Thus, consideration of the first factor weighs heavily
in favor of preclusion.
The Court recognizes that the evidence is important—it represents a category of
damages that Pike claims it is entitled to recover. On the other hand, it could not have been
that important if it was not until almost five years into the litigation that Pike identified the
damages category for the first time.
The prejudice to UCP in having to defend against a category of damages that it was
never able to explore in discovery is self-evident. For instance, UCP contends that had it
known Pike intended to pursue this claim, it would have engaged in discovery designed to
inquire whether the liens had lapsed and if Pike was incurring lien bond premiums that may
have been unnecessary.
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Finally, in light of the age of this case and general scheduling conflicts,2 any further
continuances of this trial to permit reopening of discovery is not an option. See Fleisig v.
ED&F Man Cap. Markets, Inc., No. 19CV8217 (DLC), 2021 WL 2494889, at *2
(S.D.N.Y. June 18, 2021) (granting pretrial motion in limine where “Plaintiffs have not
provided a reasonable explanation for the delay in identifying the damages theory they now
intend to pursue”); Kodak Graphic Can. Co. v. E.I. Du Pont de Nemours & Co., No. 08CV-6553-FPG, 2013 WL 5739041, at *5-6 (W.D.N.Y. Oct. 22, 2013) (precluding
defendant from pursuing additional damages where defendant “provided little to no
explanation for their failure to comply with the disclosure requirement,” and “investigating
. . . additional damages would result in further substantial delays in the resolution of this
case. . . .”).
CONCLUSION
For the foregoing reasons and for the reasons identified on the record at the
appearance on June 17, 2022, UCP’s motion in limine (Dkt. 126) is granted to the extent it
seeks to preclude Pike from pursuing recovery of the previously undisclosed damages of
“Fees Associated with Lien Bonds” and to the extent it seeks to preclude Pike from
amending its exhibit list to include documents related to this category of damages.

2

The Court has already had to adjourn the trial once due to its criminal calendar, and
given its trial calendar (which has become even more congested because of a backlog
caused by the COVID-19 pandemic), any rescheduled date would not occur until well into
2023.
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Case 6:17-cv-06365-EAW Document 144 Filed 06/27/22 Page 7 of 7

SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: June 27, 2022
Rochester, New York

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