Black Bear Energy Servs., Inc. v. Youngstown Pipe & Steel, LLC
| Decision Date | 29 July 2021 |
| Docket Number | Civil Action No. 15-50 |
| Citation | 551 F.Supp.3d 555 |
| Parties | BLACK BEAR ENERGY SERVICES, INC., Plaintiff, v. YOUNGSTOWN PIPE & STEEL, LLC d/b/a DNV Energy, LLC, Defendant. Youngstown Pipe & Steel, LLC d/b/a DNV Energy, LLC, Counterclaim Plaintiff, v. Black Bear Energy Services, Inc., Joseph E. Kovacic, III, MarkWest Energy Partners, L.P., Ohio Gathering Company, L.L.C., MarkWest Energy Operating Company, L.L.C., MarkWest Utica EMG Condensate, L.L.C., MarkWest Utica EMG L.L.C., and MarkWest Liberty Midstream & Resources, L.L.C., Counterclaim Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Adam S. Ennis, Steptoe & Johnson, PLLC, Canonsburg, PA, David E. White, Marc J. Felezzola, Babst, Calland, Clements & Zomnir, Pittsburgh, PA, for Plaintiff/Counterclaim Defendant Blackbear Energy Services, Inc.
David E. White, Marc J. Felezzola, Babst, Calland, Clements & Zomnir, Pittsburgh, PA, for Counterclaim Defendants Joseph E. Kovacic, III, Markwest Energy Partners, L.P., Markwest Liberty Midstream & Resources, LLC, Markwest Operating Company, LLC, Markwest Utica Emg Condensate, LLC, Markwest Utica EMG, LLC, Ohio Gathering Company, LLC.
Mary C. Grillo, Pro Hac Vice, Grillo Law Offices, LLC, Columbus, OH, John E. Quinn, Quinn Logue LLC, J. Julius Bolock, Goldberg, Kamin & Garvin LLP, Pittsburgh, PA, for Defendant/Counterclaim Plaintiff Youngstown Pipe & Steel, LLC.
This litigious case, which is six and one-half years old, arises out of a contract dispute between counterclaim plaintiff Youngstown Pipe & Steel, LLC, ("YPS") and counterclaim defendant Black Bear Energy Services, Inc. ("Black Bear").1 Pursuant to the contract, YPS was to manufacture skid piping for Black Bear that allegedly complied with the standards set forth by counterclaim defendants MarkWest Energy Partners, L.P., Ohio Gathering Company, L.L.C., MarkWest Energy Operating Company, L.L.C., MarkWest Utica EMG Condensate, L.L.C., MarkWest Utica EMG, L.L.C., and MarkWest Liberty Midstream & Resources, L.L.C., (collectively "MarkWest"). This case is trial ready; indeed, the court resolved the parties’ motions for summary judgment and held a pretrial conference at which it resolved, among other things, the parties’ motions in limine, and objections to exhibits.
During the pretrial conference held on September 24, 2020, the court resolved a motion in limine filed by MarkWest in which it sought to prohibit YPS from introducing evidence that Dennis Loosli ("Loosli"), a former project manager for MarkWest, engaged in unethical conduct. (ECF No. 295.) MarkWest argued the evidence should be excluded because: (1) it is not relevant under Federal Rule of Evidence 401 ; and (2) to the extent it is relevant, its probative value is substantially outweighed by the danger of unfair prejudice and confusing the jury under Federal Rule of Evidence 403. (Id. ) YPS argued in response, among other things, that Loosli requested a "monetary gift" from YPS and YPS’ refusal to pay the monetary gift is the reason that Loosli retaliated against YPS by "switching the Skids’ order of delivery." (ECF No. 298.) As fully set forth on the record, the court granted in part and denied in part MarkWest's motion in limine. It held:
The evidence of Mr. Loosli's conduct that is related directly to this project with respect to YPS, that evidence will be able to come in. And if any of the unethical conduct relates to other projects, other parties, that will be precluded.
(Hearing Transcript ("H.T.") 9/24/2020 (ECF No. 312) at 39.) The court's narrow ruling addressed the issue before the court, i.e., whether Loosli's allegedly unethical conduct is relevant, and, if it is, whether its probative value is substantially outweighed by the danger of unfair prejudice or confusing the jury. The parties did not raise, and the court did not consider, the admissibility of evidence of Loosli's allegedly unethical conduct under any other rule of evidence, e.g., the rule against hearsay set forth in Federal Rule of Evidence 802.
During the pretrial conference, MarkWest argued to the court that YPS in its response to the motion in limine, which was filed on August 20, 2020, asserted for the first time that it had evidence that Joe Greco ("Greco"), vice president of business development for Black Bear, requested a $40,000.00 "gift" for Loosli from Vincent Pelini ("Pelini") and Mark Canter ("Canter"), both of YPS. YPS intends to rely upon that evidence to argue to the jury that Loosli wrongfully rejected and destroyed YPS’ skids to retaliate against YPS for not providing him with the $40,000.00 "gift." (ECF No. 322 at 4.) The court in response to MarkWest's argument about this "newly" asserted evidence permitted MarkWest and YPS to conduct limited depositions of Greco and Pelini to address "any potential bribes being undertaken." (H.T. 9/24/2020 (ECF No. 312) at 38.)
The depositions were taken on or about October 8, 2020. On November 2, 2020, MarkWest filed the pending "motion for leave of court to file motion in limine/motion for reconsideration of court's ruling on motion in limine" ("MarkWest's motion" or the "pending motion"). (ECF No. 313.) MarkWest argues that Pelini's testimony that Greco requested a $40,000.00 gift from YPS for Loosli should be excluded under Federal Rule of Evidence 403 because its probative value is substantially outweighed by the danger of unfair prejudice to MarkWest and would confuse the jury because YPS’ retaliation theory is based upon speculation. MarkWest also argues that the testimony by Pelini and Canter is double hearsay, which is inadmissible at trial. YPS argues in opposition to MarkWest's motion that MarkWest did not provide the court a proper basis upon which to reconsider its decision that evidence about Loosli's unethical conduct relating to the project at issue in this case is admissible, and, in any event, the evidence that Greco requested a $40,000.00 bribe from YPS for Loosli is relevant and is not hearsay because Greco's statements constitute an admission by a party opponent.
For the reasons set forth in this opinion, MarkWest's motion, which this court construes as a motion in limine and has been fully briefed by the parties, will be granted and evidence of statements made by Pelini and Canter about Greco requesting a $40,000.00 gift from YPS for Loosli will be excluded from evidence at trial. Even assuming the evidence is relevant, it constitutes inadmissible double hearsay.
A. Good cause exists to modify the pretrial case management order to permit MarkWest to file a motion in limine to address the admissibility of Pelini's and Canter's testimony that Greco stated Loosli requested a $40,000.00 bribe under the rule against hearsay.
This court ruled at the pretrial conference that evidence about Loosli's unethical conduct is relevant under Rule 401, and, therefore, admissible if the conduct is related directly to the project giving rise to this litigation. The court explained that if the evidence about Loosli's allegedly unethical conduct concerned the project at issue in this case, its probative value would not be substantially outweighed by the danger of unfair prejudice or confusing the jury under Rule 403. The court's ruling applied to evidence that Greco requested a $40,000.00 bribe for Loosli from YPS. In other words, this court held that, among other things, evidence that Greco requested a $40,000.00 bribe from YPS is relevant and would not be excluded from evidence under Rule 403. At the time this court issued that ruling, the depositions of Pelini and Canter about that matter had not occurred and neither MarkWest nor YPS raised any argument about the admissibility of statements made by Pelini and Canter under the rule against hearsay. After MarkWest filed the pending motion, the court sua sponte ordered the parties to address whether the evidence relied upon by YPS to show that Greco requested $40,000.00 from YPS for Loosli constituted inadmissible hearsay.
MarkWest in its pending motion and reply brief argues that the evidence is inadmissible because: (1) the probative value of that evidence is substantially outweighed by the danger of unfair prejudice to MarkWest; and (2) Greco's statements to Pelini and Canter are hearsay and any statements made by Loosli to Greco about the alleged requests for a bribe are also hearsay. YPS argues that MarkWest did not provide the court a proper basis to reconsider its ruling about the admissibility of the evidence, and, in any event, the evidence is admissible.
MarkWest's argument that the evidence is inadmissible hearsay is in essence a new motion in limine because the court did not address that issue at the pretrial conference. As YPS argues, this court issued a pretrial case management order providing that motions in limine were due on or before August 10, 2020. MarkWest seeks to file this new motion in limine to address the inadmissibility of Pelini's and Canter's testimony beyond that deadline.
Pursuant to Federal Rule of Civil Procedure 16(b)(4), a scheduling order "may be modified only for good cause and with the judge's consent." "[T]he existence of ‘good cause’ turns on a variety of factors ..." Trask v. Olin Corp., 298 F.R.D. 244, 267 (W.D. Pa. 2014). The Third Circuit Court of Appeals has recognized that the court should consider a party's "diligence" to determine whether good cause exists to modify a scheduling order. Premier Comp Sols., LLC v. UPMC, 970 F.3d 316, 319 (3d Cir. 2020). One authority has also explained:
In general, if the party seeking relief can show that the deadlines cannot reasonably be met despite the party's diligence, relief may be given.... Similarly, relief may be granted if the court finds that the movant has not unduly delayed the action and that the opponent will not be prejudiced by the modification.... When the modification is necessitated by acts of the opposing party or by the opponent's failure to act, relief also...
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