Lentz v. Mason, No. CIV. A. 96-2319.
| Court | U.S. District Court — District of New Jersey |
| Writing for the Court | Orlofsky |
| Citation | 32 F.Supp.2d 733 |
| Parties | Robert LENTZ and Mary Lentz, Plaintiff, v. Carl MASON, Helen Robinson, Cathie Galanti, Fox & Lazo, Inc., Remcor, Inc., M.J. Caparelli, Estate of Wilbur S. Ganary, Abc Corp. I-X, John Does I-X, Defendants. |
| Decision Date | 11 January 1999 |
| Docket Number | No. CIV. A. 96-2319. |
v.
Carl MASON, Helen Robinson, Cathie Galanti, Fox & Lazo, Inc., Remcor, Inc., M.J. Caparelli, Estate of Wilbur S. Ganary, Abc Corp. I-X, John Does I-X, Defendants.
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Jeffrey T. Kampf, Jay & Kampf, Caldwell, NJ, for Plaintiffs, Robert and Mary Lentz.
Michael G. Brennan, Brennan & Bernardin, Collingswood, NJ, John J. Dugan, Kozlov, Seaton, Romanini, Brooks & Greenberg, Cherry Hill, NJ, for Defendants, Remcor, Inc., M.J. Caparelli and the Estate of Wilbur S. Ganary.
Thomas P. Bracaglia, Frank S. Nofer, Kelly, McLaughlin & Foster, Collingswood, NJ, for Defendants, Fox & Lazo, Inc., and Cathie Galanti.
ORLOFSKY, District Judge.
This case involves the efforts of the Plaintiffs, Robert and Mary Lentz (collectively, "the Lentzes"), to obtain monetary damages and reimbursement for clean-up costs resulting from the alleged disposal of remnants, or "end cuts," of torpedo tubes on the Lentzes' Williamstown, New Jersey property (the "Property").1 The Lentzes seek to recover
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these costs from the remaining defendants, namely, Remcor, Inc., the manufacturer of the end cuts, M.J. Caparelli and the Estate of Wilbur S. Ganary, Remcor's former principals, and from Fox & Lazo, Inc., and Cathie Galanti (collectively, "the Defendants"), the real estate brokerage and agent who allegedly arranged for the leasing of the Property by Carl Mason, the man who disposed of the end cuts on the Property.
In the months before trial, in a paroxysm of pretrial motion practice, the remaining parties have filed thirteen pretrial motions, including ten motions in limine to prevent the introduction of certain evidence and three motions to amend the Joint Final Pretrial Order ("JFPO"), one filed by each of the remaining parties. Specifically, Defendants, Fox and Lazo, Inc., and Cathie Galanti (collectively, "the Fox & Lazo Defendants" or "Fox & Lazo"), joined by Defendants, Remcor, Inc., M.J. Caparelli, and the Estate of Wilbur S. Ganary (collectively, "the Remcor Defendants" or "Remcor"), have filed eight motions in limine to preclude: (1) evidence of alleged damages and/or expenses incurred in repairing the Property; (2) testimony of witnesses not timely identified; (3) evidence of alleged physical injury suffered by Robert Lentz; (4) evidence of the alleged market value of the Property; (5) evidence of damages resulting from the lost opportunity to sell the Property; (6) certain testimony of Andrew Havics, an expert witness for the Lentzes; (7) evidence of a claim for future repair or clean-up costs for the Property; and (8) evidence of alleged environmental damages. The Fox & Lazo Defendants alone have filed two motions in limine, seeking to preclude: (1) evidence of damages from a failure on the part of the Fox & Lazo Defendants to perform a credit check of Carl Mason or to monitor his financial status; and (2) evidence of the October 18, 1993, and October 23, 1998, Listing Agreements. Additionally, each of the remaining parties has filed either a motion or a letter application to amend the JFPO, by which the Fox & Lazo Defendants seek to add 22 new exhibits, the Remcor Defendants seek to add an expert report entitled "Review of the Havics Evaluation" prepared by Robert A. Haberlein, Ph. D., QEP, dated October 27, 1998, and the Lentzes seek to include the Stipulation of Dismissal With Prejudice as to the Third-Party Complaint Only against Third-Party Defendant, Pennsylvania National Mutual Casualty Insurance Co., and sample portions of the torpedo tubes found on the Property. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367.
I shall address these motions seriatim. As will become apparent from my analysis and disposition of these motions, many of them need not have been filed. In trial advocacy, as in architecture, less is frequently more.
I. Motions to Amend the JFPO
A. The Fox & Lazo Defendants' Motion to Amend
The Fox & Lazo Defendants have filed a motion to amend the JFPO that seeks to add 22 new exhibits. See Motion of Defendants Fox & Lazo, Inc. and Cathie Galanti to Amend Joint Pre-Trial Order, dated Oct. 21, 1998. The Lentzes oppose this motion, arguing that the documents are not relevant to the issues remaining for trial, since Charles Sprigman, the subject of the documents, is no longer a party to the case. See Letter from Jeffrey T. Kampf, Esq., to the Honorable Stephen M. Orlofsky, dated Dec. 8, 1998. In the alternative, the Lentzes contend that the Fox & Lazo Defendants should not be permitted to amend the JFPO unless they can "show that the documents were unavailable prior to entry of the Pre-Trial order" and that the documents have "significance to the claims still being litigated." Id. In a telephone conversation on January 7, 1999, Michael Brennan, Esq., counsel for the Remcor Defendants, informed this Court that the Remcor Defendants do not oppose the motion.
Federal Rule of Civil Procedure 16(e) provides that "[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice." Fed.R.Civ.P. 16(e); see also Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1194 (3d Cir.1987) (holding that a motion to amend a pretrial order
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"shall be permitted only to prevent injustice"); Leonen v. Johns-Manville Corporation, No. 82-2684, 1989 WL 5819, at *2 (D.N.J. Jan.23, 1989) ("In the case of final pretrial orders, the standard is ... stringent, and final pretrial orders are binding on the parties in the absence of a showing of manifest injustice."). The moving party has the burden to demonstrate that manifest injustice will result without amendment and that the moving party had a "compelling reason why" it did not seek to amend before trial. Petree, 831 F.2d at 1194; see also Leonen, 1989 WL 5819, at *2 ("[T]he burden of showing that manifest injustice would result `falls squarely on the moving party.'") (quoting R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir.1987)).
If the moving party has not demonstrated that manifest injustice will result without amendment, then "[i]t is within the district court's `discretionary power' to allow for amendment of a pretrial order." Daily v. Hyster Co., No. 87-1509, 1990 WL 250528, at *2 (D.N.J. Dec.21, 1990) (Wolin, J.); see also Joy Mfg. Co. v. Sola Basic Indus., Inc., 697 F.2d 104, 109 (3d Cir.1982). In exercising their discretion, the Third Circuit has advised the district courts in this circuit to consider "the prejudice or surprise in fact of the nonmoving party[, and] the ability of that party to cure the prejudice[,]" among other factors. Beissel v. Pittsburgh & Lake Erie Railroad Co., 801 F.2d 143, 150 (3d Cir.1986); Berroyer v. Hertz, 672 F.2d 334, 338 (3d Cir.1982); Joy Mfg. Co., 697 F.2d at 109.
In the present case, the Lentzes, who are the only opposing party, will experience little surprise, because the Fox & Lazo Defendants filed this motion almost three months before the start of trial, providing the Lentzes with ample opportunity to cure any potential prejudice. In addition, these exhibits do not add a new claim or any new factual evidence of which the Lentzes were unaware prior to the submission of this motion to amend. Finally, the Lentzes object primarily on the ground of relevance, and have not claimed that they would suffer any prejudice as a result of the amendment of the JFPO to include these 22 exhibits. The Lentzes will still have the opportunity to voice their objections based on relevance during the course of the trial. Accordingly, I will grant the motion of the Fox & Lazo Defendants to amend the JFPO to include the 22 exhibits listed in their motion, without prejudice to the right of the Lentzes to object to the admission of these documents if the Fox & Lazo Defendants attempt to introduce them.
B. The Remcor Defendants' Motion to Amend
The Remcor Defendants have moved to amend the JFPO to add the expert report entitled "Review of the Havics Evaluation" prepared by Robert A. Haberlein, Ph.D., QEP, dated October 27, 1998. See Notice of Motion of Defendants Remcor, Inc., M.J. Caparelli and Estate of Wilbur S. Ganary's Motion to Amend Joint Pretrial Order, dated Oct. 29, 1998. The Lentzes have not opposed the Remcor Defendants' motion to amend. Since this motion is unopposed and was filed months before the commencement of trial, I will grant it.
C. The Lentzes' Motion to Amend
The Lentzes, by letter dated December 24, 1998, have requested this Court's permission to amend the JFPO to include "the Stipulation of Dismissal With Prejudice as to the Third-Party Complaint Only, which was entered into between defendants/third-party plaintiffs, Remcor, Inc., [M.J.] Caparelli, and Estate of Wilbur S. Ganary[,] and third-party defendant, Pennsylvania National Mutual Casualty Insurance Company" (the "Stipulation of Dismissal"), and "sample portions of the torpedo tubes that existed on the plaintiffs' premises." Letter from Jeffrey T. Kampf, Esq., to the Honorable Stephen M. Orlofsky, dated Dec. 24, 1998. In a telephone conversation on January 7, 1999, Frank Nofer, Esq., counsel for the Fox & Lazo Defendants, informed this Court that the Fox & Lazo Defendants do not oppose the Lentzes' motion to amend the JFPO. By contrast, in a telephone conversation on the same day, Michael Brennan, Esq., counsel for the Remcor Defendants, informed this Court that the
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Remcor Defendants oppose the motion with respect to the Stipulation of Dismissal.
I have already set forth the legal standard for the consideration of a motion to amend the JFPO above and, therefore, I will not repeat it. I note, however, that the same reasons exist for granting this motion as do for the one filed by the Fox & Lazo Defendants. Specifically, the motion...
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...316 N.J. Super. at 281, 720 A.2d 369. Gale & Kitson Fredon Golf, L.L.C. v. Twp. of Fredon, 26 N.J. Tax at 287-88. See Lentz v. Mason, 32 F.Supp.2d 733, 743 (D.N.J. 1999) (holding that even failed sale contracts constitute admissible evidence of fair market value); Merck Sharp & Dohme Corp. ......
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Tyler v. O'Neill, No. Civ.A. 99-CV-0136.
...African International Page 475 Bank v. Epstein, 10 F.3d 168, 171 (3rd Cir.1993); Lubrizol v. Exxon, 929 F.2d at 963; Lentz v. Mason, 32 F.Supp.2d 733, 746 (D.N.J.1999). In this manner, the doctrine of claim preclusion prevents a party from prevailing not only on issues that were actually li......
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Mill Creek Group, Inc. v. F.D.I.C., No. 3:95 CV 1498 (TPS).
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A.K. Stamping Co. v. Instrument Specialties Co., No. Civ.A.98-5576(JAG).
...believes the Judge has overlooked." L. Civ. R. 7.1(g). "The word `overlooked' is the operative term in the Rule." Lentz v. Mason, 32 F.Supp.2d 733, 751 (D.N.J.1999) (citation omitted). "Only dispositive factual matters and controlling decisions of law" that were raised but not considered by......
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GGI Props., LLC v. City of Millville (In re GGI Props., LLC), Case No.: 16-14328-ABA
...316 N.J. Super. at 281, 720 A.2d 369. Gale & Kitson Fredon Golf, L.L.C. v. Twp. of Fredon, 26 N.J. Tax at 287-88. See Lentz v. Mason, 32 F.Supp.2d 733, 743 (D.N.J. 1999) (holding that even failed sale contracts constitute admissible evidence of fair market value); Merck Sharp & Dohme Corp. ......
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Tyler v. O'Neill, No. Civ.A. 99-CV-0136.
...African International Page 475 Bank v. Epstein, 10 F.3d 168, 171 (3rd Cir.1993); Lubrizol v. Exxon, 929 F.2d at 963; Lentz v. Mason, 32 F.Supp.2d 733, 746 (D.N.J.1999). In this manner, the doctrine of claim preclusion prevents a party from prevailing not only on issues that were actually li......