Basf Corp. v. Sublime Restorations, Inc.

• Decision Date: 26 July 2012
• Docket Number: Civil Action No. 10–11160–MBB.
• Parties: BASF CORPORATION, Plaintiff, v. SUBLIME RESTORATIONS, INC. and Julian John Miller, Defendants.
• Court: U.S. District Court — District of Massachusetts

880 F.Supp.2d 205

BASF CORPORATION, Plaintiff,

v.SUBLIME RESTORATIONS, INC. and Julian John Miller, Defendants.

Civil Action No. 10–11160–MBB.

United States District Court,

D. Massachusetts.

July 26, 2012.

Timothy R. Scannell, Mark William Shaughnessy, Boyle, Shaughnessy & Campo, P.C., Boston, MA, for Plaintiff.

Zaheer A. Samee, Frisoli Associates, P.C., Cambridge, MA, for Defendants.

MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 19); PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S PROPOSED EXPERT TESTIMONY (DOCKET ENTRY # 23)

MARIANNE B. BOWLER, United States Magistrate Judge.

Pending before this court is a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. (“Rule 56”), filed by plaintiff BASF Corporation (“plaintiff”). (Docket Entry # 19). Also pending is plaintiff's motion to strike the proposed expert testimony of defendant Julian John Miller (“Miller”). Miller and defendant Sublime Restorations, Inc. (“Sublime”) (collectively “defendants”) oppose both motions. (Docket Entry 21 & 26).

On March 22, 2012, this court held a hearing and took the summary judgment motion (Docket Entry # 19) under advisement. At the hearing, this court advised the parties it would take the motion to strike (Docket Entry # 23) on the papers once fully briefed.

PROCEDURAL BACKGROUND

The complaint filed against defendants contains six claims. (Docket Entry # 1). Counts one and two assert breach of contract claims against Sublime and Miller, respectively. Counts three and four assert unjust enrichment claims against Sublime and Miller, respectively. Count Five asserts a claim of money had and received against defendants and Count Six asserts a claim of breach of the implied covenant of good faith and fair dealing against defendants.

Although plaintiff “moves for summary judgment on its complaint against the defendant Sublime Restoration, Inc.” (Docket Entry # 19), the memorandum only addresses the breach of contract claim and seeks summary judgment against Sublime.¹ (Docket Entry # 19, pp. 1 & 8). Given the lack of argument or mention of the unjust enrichment, money had and received and the breach of the implied covenant of good faith claims, the motion is confined to the breach of contract claim against Sublime. SeeL.R. 7.1(b)(1); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir.1999) (“district court is free to disregard arguments that are not adequately developed”); see also United States v. Dyer, 589 F.3d 520, 527 (1st Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 2422, 176 L.Ed.2d 936 (2010) (before “district court, Dyer never used the term ‘specific intent’ to set forth legal requirements for applying § 2G2.4(c)(2), and has waived the argument”).

Defendants first identified Miller as a fact witness in their initial disclosure on December 30, 2010. (Docket Entry # 15). Defendants stated that they did not “anticipate retaining an expert at [that] time, but reserve[d] their right to do so, and [would] notify plaintiff prior to trial.” (Docket Entry # 15). When asked in plaintiff's interrogatory to identify all persons whom defendants expected to call at trial as expert witnesses, defendants' May 11, 2011 response was “None at this time.” (Docket Entry # 19–5).

At a scheduling conference on January 3, 2011, this court set a discovery schedule in accordance with Rule 16(b), Fed.R.Civ.P. (Docket Entry # 16). Therein, this court established the following deadlines: (1) amendments to the pleadings by July 15, 2011; (2) service of written discovery requests by March 31, 2011; (3) close of fact discovery by June 30, 2011; (4) designation of expert witnesses by August 15, 2011; (5) close of expert discovery by September 15, 2011; and (6) deadline for filing dispositive motions by September 30, 2011. (Docket Entry # 16).

On July 25, 2011, this court allowed the parties' motion to amend the scheduling order so that defendants could produce additional documents referenced during Miller's first deposition on July 21, 2011, and to allow plaintiff an additional opportunity to depose Miller regarding certain supplementary documents. This court established the following modified deadlines: (1) close of fact discovery by September 15, 2011; (2) designation of expert witnesses by October 15, 2011; (3) close of expert discovery by November 15, 2011; and (4) deadline for filing dispositive motions by November 30, 2011. (Docket Entry # 17). At a November 9, 2011 status conference, this court extended the deadline for filing dispositive motions to December 29, 2011.

On December 28, 2011, plaintiff filed the summary judgment motion. (Docket Entry # 19). Defendants acknowledge that it was not until January 31, 2012, after the close of expert discovery and as part of their opposition to plaintiff's summary judgment motion (Docket Entry # 21) that defendants designated Miller as an expert to testify about his “observations, experience, and conclusions concerning the [plaintiff's] paint products which are at issue in this case.” (Docket Entry # 26–1).

On March 22, 2012, defendants supplemented the aforementioned expert interrogatory detailing Miller's background. (Docket Entry # 26–1). Miller has worked in the automobile restoration industry for over 25 years, obtained certification through plaintiff as a certified painter in 1994 and has worked extensively with plaintiff's paints. (Docket Entry # 26–1). In 2006, Harvard scientists recruited Miller to recreate and match the paint in a piece of artwork. Two publications then credited him as an author regarding the work. (Docket Entry # 26–1).

As a remedy for defendants' disregard of their obligation to designate Miller as an expert witness by the court ordered deadline, plaintiff moves to strike Miller's proposed expert testimony. (Docket Entry # 25). Plaintiff also argues that Miller is not qualified as an expert because he offers no reliable methodology or technique to test the allegedly defective products. (Docket Entry # 25).

I. MOTION TO STRIKE (DOCKET ENTRY # 23)A. Untimeliness

Plaintiff argues that defendants' untimely disclosure of Miller as an expert requires precluding his expert opinion testimony at trial. Defendants did not designate Miller as an expert nor did they provide Rule 26(a), Fed.R.Civ.P. (“Rule 26(a)”), expert disclosures prior to the October 15, 2011 deadline. (Docket Entry # 17). Defendants did not anticipate retaining an expert in their initial disclosure but identified Miller as a fact witness for trial. (Docket Entry # 15). When asked in plaintiff's first set of interrogatories to identify all persons defendants expected to call at trial as expert witnesses, defendants responded, “None at this time.” (Docket Entry # 19–5). In fact, defendants only designated Miller as an expert after plaintiff asserted in its summary judgment motion that defendants could not prove the defectiveness of plaintiff's paint equipment and products without expert testimony.

“Rule 37(c)(1), Fed.R.Civ.P. (“Rule 37(c)(1)”), provides a self executing sanction which enforces the disclosures required under Rule 26(a)(2).” Acadia Ins. Co. v. Cunningham, 771 F.Supp.2d 172, 175 (D.Mass.2011); see Poulis–Minott v. Smith, 388 F.3d 354, 358 (1st Cir.2004). “Unless the failure to disclose is substantially justified or harmless, the failure to disclose triggers the imposition of sanctions under Rule 37(c)(1).” Coons v. A.F. Chapman Corp., 2007 WL 4707653, at *3 (D.Mass. April 25, 2007), aff'd,620 F.3d 38 (1st Cir.2010); Rule 37(c)(1), Fed.R.Civ.P.; see Pena–Crespo v. Commonwealth of Puerto Rico, 408 F.3d 10, 13 (1st Cir.2005).

“A substantial justification is one that could satisfy a reasonable person, not a justification of a high degree.” Charter Envtl., Inc. v. Shaw Envtl., Inc., 2009 WL 2982772, at *15 (D.Mass. Sept. 14, 2009) (internal quotations omitted). In opposition to plaintiff's motion to strike, defendants offer no substantial justification for the untimely designation of Miller as an expert. See Macaulay v. Anas, 321 F.3d 45, 52 (1st Cir.2003) (district court's preclusion of expert evidence appropriate where no real justification for untimely submission advanced). Defendants only offer as justification their belief that no expert evidence is necessary to support their asserted defense.

Defendants also assert that their late designation of Miller as an expert in no way prejudiced plaintiff, in other words, that the late designation was harmless. The Advisory Committee Notes to the 1993 Amendments to Rule 37(c) “suggest a fairly limited concept of ‘harmless.’ ” Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 197 (1st Cir.2006). Because defendants listed Miller as a fact witness for trial as part of their initial disclosure on December 30, 2010 (Docket Entry # 15) the circumstances in the case at bar “fall squarely within the reach of at least one of the illustrative examples, to wit, ‘a potential witness known to all parties.’ ” Acadia Ins. Co. v. Cunningham, 771 F.Supp.2d 172, 177 (D.Mass.2011); accord Gagnon, 437 F.3d at 197 (listing examples of harmlessness including “late disclosures of a potential witness known to all parties” and “a trial witness already listed by the adverse party”).

While defendants failed to identify Miller as an expert until their response to plaintiff's summary judgment motion, plaintiff had the opportunity to depose Miller once on July 21, 2011, and again on November 9, 2011, as represented by defendants. (Docket Entry # 26). During the July 21, 2011 deposition, plaintiff questioned Miller's qualifications (Docket Entry # 19–2, pp. 16–20) as well as the methodology and techniques used to determine that the mixed paint did not match the samples. (Docket Entry # 19–2, pp. 84–88). As a result, plaintiff's approach to the deposition would likely have been no different had Miller been designated as an expert from the beginning. Accordingly, it can claim little prejudice as a result of the late...