Mainfreight USA Partnership v. Marco et al

Filing 130

ORDER granting 82 MOTION to Compel Discovery, denying 83 MOTION for Extension of Time to Identify Experts, granting 89 MOTION to Exclude Expert Witnesses Identified After Deadline, and granting 85 MOTION to Amend 1 Complaint. Signed by Honorable Joseph F Anderson, Jr on 03/17/10. (bshr, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA R O C K HILL DIVISION M a in f re ig h t USA Partnership, f /k / a Target Logistics Services, P l a in tif f , vs. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C / A No.: 0:09-563-JFA

ORDER

J o h n Marco; Richard Brulato; Brumar L o g is tic s, Inc.; ALG Worldwide L o g is tic s , LLC; ALG Logistics, Inc.; a n d Admiral Logistics Group, Inc., D e f e n d a n ts .

T h i s matter comes before the court on a variety of discovery and procedural motions. T h e parties fully briefed the motions and the court heard oral argument on March 17, 2010. T h e motions before the court are as follows: (1) (2 ) A L G Logistic's, Inc.'s ("ALG") motion to compel [dkt. # 82]. M a in f re ig h t USA Partnership's ("Mainfreight") motion for extension of time to identify an expert [dkt. # 83]. M ain f reig h t's motion to amend the complaint [dkt. # 85]. R ic h a rd Brulato ("Brulato"), Brumar Logistics, Inc. ("Brumar"), and John M a rc o 's ("Marco") motion to exclude expert witnesses identified after the e x p e rt witness deadline [dkt. # 89]. M a in f re ig h t's motion to compel directed against Brulato, Brumar, and Marco [d k t. # 121].

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T h e court ruled on several motions at the hearing, and held another under advisement. This

o rd e r serves to memorialize the court's rulings for the reasons contained herein and stated in open court during the hearing. I. F a c tu a l and Procedural Background T h is case concerns allegations by Mainfreight that its former employee, Marco, stole c o n f id e n tia l and proprietary information when he left Mainfreight and is now using that in f o rm a tio n to compete with his former employer. The remaining defendants are participants in Marco's current business venture, which offers services that facilitate the transport of goods. Mainfreight filed suit on March 3, 2009 in United States District Court, invoking this c o u rt's diversity jurisdiction, and asserting state law claim of misappropriate of trade secret, b re a ch of duty of loyalty and fidelity, breach of contract, tortious interference with current a n d prospective clients, tortious interference with contractual relations, unfair trade practices, c iv il conspiracy, conversion, tortious interference with employee relations and m is a p p ro p ria te of trade secrets, and seeking injunctive relief. Mainfreight also filed a motion fo r preliminary injunction [dkt. # 4] contemporaneously with its complaint, which the court d e n ie d by order [dkt. # 48] on April 21, 2009. Pursuant to the court's Third and Final S c h e d u lin g Order Mainfrieght's deadline to designate expert witnesses was August 3, 2009; the discovery deadline expired on January 29, 2010; dispositive motions were due February 1 2 , 2010; and the trial is set to be held during the May/June 2010 term of court.

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II.

D is c u ss io n A. A L G 's Motion to Compel

A L G seeks to compel Mainfreight to answer its First Set of Interrogatories and R e q u e sts for Production. At the hearing in this matter, ALG reiterated its position that it f o u n d the responses by Mainfreight to be overly broad and effectively nonresponsive. M a in f re ig h t indicated that it is now able to more narrowly tailor its responses such that ALG m a y find them more helpful. The court accordingly grants ALG's motion [dkt. # 82] and o rd e rs Mainfreight to supplement its responses pursuant to the court's instructions at the h ea rin g and in this order. B. M a in f re ig h t's Motion for Extension of Time to Identify an Expert and Brulato B ru m a r, and Marco's Motion to Exclude Expert Witnesses Identified after the E x p e rt Witness Deadline

M a in f re ig h t moved to name certain expert witnesses on January 21, 2010, nearly six m o n th s after the plaintiff's deadline to identify experts [dkt. # 83]. Mainfreight argues that it could not have known that it needed to identify Austin Troxell and Kurt Stake until after ce rtain defendants' testimony in November 2009. However, the record before the court ind icates that these experts were known to Mainfreight on September 28, 2009, at the very la te st. Moreover, Mainfreight's additional delay of two months in naming them after the e x p e rt's alleged relevance became known to Mainfreight militates against making an e x c e p tio n to the scheduling order. The rationale behind requiring disclosure of experts early on in the discovery process

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is to allow opposing counsel to designate rebuttal experts and thoroughly assess the witnesses sign ifica n c e to the case. Should the court grant Mainfreight's motion, Brulato, Brumar, M a rc o , and ALG will not be afforded adequate time to respond and designate rebuttal experts in light of the dispositive motions deadline and pending trial. Brulato, Brumar, Marco, and A L G will accordingly suffer prejudice to the extent that they cannot timely develop defenses an d find their own experts to assess the import of Austin Troxell's and Kurt Stake's te stim o n y. The court takes this opportunity to remind counsel that a scheduling order "is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel w ith o u t peril." Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987). Mainfreight's m o tio n to identify experts out of time is hereby denied, and Marco, Brulato, and Brumar's m o tio n to exclude certain expert witnesses is granted. Austin Troxell and Kurt Stake may n o t testify at trial as experts; however the court will entertain argument that they should be a llo w e d to testify as lay witnesses at a later date. Should Mainfreight press to offer Messrs. T ro x e ll and Stake as lay witnesses, the court instructs Mainfreight to assess their proposed te stim o n y in light of Rule 701 of the Federal Rules of Evidence. C. M a in f re ig h t's Motion to Amend the Complaint

M a in f re ig h t seeks to amend its complaint to assert a negligence claim and to amend its tortious interference with contractual relations claim to assert tortious interference with p r o s p e c tiv e client relations. Pursuant to Rule 15(a), a court should freely grant leave to a m e n d the complaint when justice so requires. Fed. R. Civ. P. 15. For reasons stated at the

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h e a rin g and herein, the court finds that Mainfreight's motion to amend the complaint should b e granted to conform to the evidence and because Brulato, Brumar, Marco, and ALG have n o t made an adequate showing of prejudice. Accordingly, Mainfreight's motion to amend its complaint is granted; Mainfreight shall file such amended complaint by March 29, 2010. M a rc o , Brulato, Brumar, and ALG shall filed their answers, jointly or severally, by April 12, 2010. D. M a in f re ig h t's Motion to Compel Directed Against Brulato, Brumar, and M a rc o

Mainfreight seeks to compel Marco, Brulato, and Brumar to fully answer and respond to Plaintiff's Standard and Supplemental Interrogatories and Requests for Production and P la in tif f 's First Set of Supplemental Interrogatories and Requests for Production. M a in f re ig h t advised the court at the hearing that Brulato, Brumar, and Marco have submitted d is c o v e ry that may satisfy Mainfreight's motion to compel. Accordingly, Mainfreight a d v ise d that the it would review the discovery and determine if it rendered the motion moot. T h e court shall hold Mainfreight's motion to compel [dkt. # 121] under advisement and re v is it the matter at a later hearing should it not earlier hear from the parties that the motion h a s been resolved. III. C o n c lu s io n B a se d on the reasons set forth at the hearing and in this motion, the court grants A L G 's motion to compel [dkt. # 82]; denies Mainfreight's motion to identify experts out of tim e [dkt. # 83]; grants Brulato, Brumar, and Marco's motion to exclude certain experts [dkt. 5

# 89]; and grants Mainfreight's motion to amend its complaint [dkt. # 85]. Mainfreight's m o tio n to compel [dkt. # 121] will be held under advisement until such time as the parties in f o rm the court that the motion has been resolved; failing that, the court will address the m o tio n at a future hearing. T h e re are presently three motions for summary judgment in this case pending on the c o u rt's docket. To the extent that the parties wish to address allegations made in the a m e n d e d complaint in their motions for summary judgment, the court instructs the parties to f ile amended motions for summary judgment by April 26, 2010. In light of these

d ev elop m en ts, the court hereby continues the trial of this case to the July/August 2010 term o f court. IT IS SO ORDERED.

M arc h 17, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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