Arnegard Holdings, LLC et al v. Tri-State Consulting Engineers, Inc. et al

Filing 107

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 84 Motion to Dismiss; denying 88 Motion to Dismiss. (KT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
Arnegard Holdings, LLC, and
Arnegard WW Holdings, LLC,
Plaintiffs,
vs.
Tri-State Consulting Engineers, Inc.,
Steven W. Syrcle, Advanced Wastewater
Engineering, P.C., and George Miles,
Defendants.

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ORDER DENYING
MOTION TO DISMISS OR
IN THE ALTERNATIVE FOR
OTHER RELIEF

Case No. 1:13-cv-124

Before the court is a motion to dismiss or for other relief by Tri-State Consulting Engineers,
Inc. and Steve Syrcle that was later joined in by Advanced Wastewater Engineering, P.C. and
George Miles based on plaintiffs allegedly having failed to fully respond to outstanding discovery
requests that address the issue of damages.
Defendants earlier complained about plaintiffs having failed to provide any information
about their damages in response to their discovery requests. Following an informal telephone
conference with the court, the parties entered into a stipulation that provided for the court entering
an order requiring plaintiffs to respond to certain specified interrogatories and document demands
by a date certain. Plaintiffs did provide some responses within the time period and a supplemental
response shortly after.
At this point, plaintiffs have disclosed the categories of damages that they are seeking, they
have put a number on most of their claimed damages, and they have provided documents that they
claim support their claimed damages. For example, plaintiffs have identified and provided invoices

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for $58,565 paid to Allied Engineering that they claim are primarily related to the cleanup of the
sludge that was removed from the City’s lagoons that plaintiffs claim was made their responsibility
on account of bad advice from one or more of defendants. Plaintiffs have also provided support for
the $15,000 in fines paid to the North Dakota Department of Health and the fact they are exposed
to future fines as a result of the sludge removal. In addition, it appears plaintiffs are claiming
attorney fees as consequential damages for having to deal with the sludge issue and have provided
invoices for those fees, albeit with substantial portions redacted. Consequently, dismissal is not an
appropriate remedy at this point since plaintiffs have provided responsive information for at least
some of their claimed damages.
Defendants request, in the alternative, that the court exclude any claims for lost profits and
claims for construction of a new wastewater treatment plant because of the failure to disclose any
documents supporting these claims. At this point, the court is uncertain whether plaintiffs have any
documents in their possession that may be necessary to support these claims1 and/or how much of
their damage claim will be proved with documents yet to be obtained during discovery from third
parties or by expert testimony and calculations that will yet be forthcoming and must be disclosed
by the dates set forth in the court’s progression order. Consequently, the court will make no ruling
on these items at this point. That being said, the court may not look favorably upon plaintiffs’
reliance later upon documents (both physical and electronic) that have been in their possession or
under their control from the beginning and have not yet been disclosed.2

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Plaintiffs claim that they had a fire in an on-site trailer that destroyed a substantial number of documents.

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The court also makes no ruling now on whether plaintiffs have any argument for recovery of lost profits or
for the costs of a new wastewater disposal facility. If the expansion of the existing city lagoons was never a viable
solution, the court is interested to see what plaintiffs’ arguments are for why they are entitled to the betterment of a new
wastewater facility.

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Based on the foregoing, defendants’ motion to dismiss or, in the alternative, for other relief
(Doc. Nos. 84 & 88) is DENIED
IT IS SO ORDERED.
Dated this 23rd day of June, 2015.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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