Nucor Corp. v. Requenez

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation578 F.Supp.3d 873
Docket NumberCivil Action No. 7:20-cv-00345
Parties NUCOR CORPORATION d/b/a Vulcraft – Texas, Plaintiff/Counter-Defendant, v. Amador REQUENEZ d/b/a Valley Welding Service, Defendant/Counter-Plaintiff.
Decision Date04 January 2022

Ernest L. Beaton, IV, McLain & Merritt, PC, Atlanta, GA, Christopher C.Franz, Gil P.Peralez, Peralez Franz LLP, McAllen, TX, for Plaintiff/Counter Defendant.

Gilberto Hinojosa, Law Office of Gilberto Hinojosa & Associates P.C., Brownsville, TX, Daniel Gordon Gurwitz, Susan Renee Sullivan, Atlas Hall Rodriguez LLP, McAllen, TX, for Defendant.


Micaela Alvarez, United States District Judge

The Court now considers nineteen briefs: "Defendant Amador Requenez d/b/a Valley Welding Services's Motion to Exclude Expert Testimony,"1 and Plaintiff's response.2 The Court also considers Plaintiff's motion to exclude the "Opinions, Testimony, and Report of David Day, P.E.,"3 of Roberto Quintero,4 of "Raba Kistner, Inc. and its Employees and Agents,"5 and of Simon Solorio,6 and Defendant's two timely response briefs,7 and Plaintiff's two timely reply briefs.8 The Court also considers "Plaintiff/Counterclaim Defendant Nucor Corporation d/b/a Vulcraft – Texas's Opposed Motion to Strike Sham Affidavit and Errata Sheet of Defendant/Counterclaim Plaintiff Amador Requenez,"9 Defendant's response,10 Plaintiff's reply,11 and Plaintiff's amended reply.12 The Court also considers "Plaintiff/Counterclaim Defendant Nucor Corporation d/b/a Vulcraft – Texas's Opposed Motion for Summary Judgment Pursuant to Rule 56, Federal Rules of Civil Procedure,"13 Defendant's response,14 and Plaintiff's reply.15 Lastly, the Court considers "Defendant Amador Requenez d/b/a Valley Welding Services's Motion to Realign the Parties"16 and Plaintiff's response.17

In short, both sides seek to exclude significant portions of the opposing side's evidence, Plaintiff Nucor Corporation d/b/a Vulcraft – Texas (Vulcraft) asserts that it is entitled to summary judgment on its claims, and Defendant Amador Requenez d/b/a Valley Welding Services (Valley Welding) asserts that it should be designated the plaintiff for trial. In other orders, the Court denied Valley Welding's motion to exclude certain of Plaintiff's evidence18 and dismissed Plaintiff's claims against Defendants D. Wilson Construction Company, Great American Insurance Company, and Great American Insurance Company of New York pursuant to those parties’ stipulation.19

The Court briefly notes that at least two of Defendant's briefs lack numbered paragraphs,20 even though Defendant is well-aware of the Federal Rules of Civil Procedure's requirements to include numbered paragraphs.21 The Court cautions Defendant that all submissions must consistently contain numbered paragraphs. The Court also briefly notes that Plaintiff Nucor Corporation d/b/a Vulcraft – Texas's reply brief concerning David Day and Roberto Quintero does no more than "reiterat[e]" Plaintiff's other briefs.22 The Court admonishes Plaintiff that reply briefs that say "read my other briefs" are unhelpful and crowd the Court's docket.

Additionally, the Court notes that Plaintiff filed its motion to strike on November 8, 2021,23 after the Court's October 14th deadline for pretrial motions.24 Plaintiff's motion to strike seeks to strike an affidavit and deposition errata both signed on November 1st and relied upon in Defendant's November 4th response brief to summary judgment.25 The Court treats the motion as timely under Federal Rule of Civil Procedure 6(b)(1)(B) because it obviously could not have been filed by the October 14th deadline and was filed mere days after Defendant's affidavit and deposition errata first came to Plaintiff's attention. Defendant filed a timely response on November 24th.26 Plaintiff's initial reply was due and timely filed on December 1st.27 Plaintiff's untimely amended December 2nd reply brief was filed to correct Plaintiff's "misstatement" in his original reply regarding Defendant's discovery requests.28 However, Plaintiff neither sought nor obtained the Court's leave to file an untimely amended reply brief, and the Court does not sua sponte find "excusable neglect" under Rule 6(b)(1)(B) to permit Plaintiff's late reply to correct minor details about the parties’ discovery that were misstated because of Plaintiff's counsel's own failures.29 Accordingly, the Court STRIKES Plaintiff's amended reply brief.30

The Court considers the motions, record, and relevant authorities and its holdings are summarized in the conclusion below.


This case is a contract dispute. Plaintiff Vulcraft "is a manufacturer of steel joists and deck with an office and manufacturing plant located in Grapeland, Texas."31 Defendant Valley Welding "operates a steel joist fabrication and erection sole proprietorship doing business as Valley Welding Service."32 On an unknown date, the City of Pharr, Texas, and former Defendant D. Wilson Construction Company (D. Wilson) "entered a prime contract for the construction of the Pharr Aquatic Facility."33 D. Wilson then subcontracted with Defendant Valley Welding "for the supply of certain steel joists and deck" to the Pharr Aquatic Facility construction project.34 In November 2019, Valley Welding and Vulcraft communicated and agreed upon a "Purchase Order and Quote Confirmation" whereby Vulcraft fabricated "steel joists and deck" to be used in the construction of the Pharr Aquatic Facility.35 In January 2020, D. Wilson and Valley Welding contracted for Valley Welding "to install and construct joists and a deck" for the Pharr Aquatic Facility.36 In March 2020, D. Wilson "promised to pay for material supply by Vulcraft to the [construction project] by joint check made payable to Valley Welding and Vulcraft."37 In July 2020, Vulcraft finished fabricating the steel joists and deck and made its final delivery to the construction location.38 After an inspection in early July, the project structural engineer ascertained that the delivered steel joists and deck were riddled with "welding defects and deficiencies" and did not meet the construction project specifications.39 On July 16, 2020, D. Wilson transmitted a letter to Valley Welding that asserted that Valley Welding had delivered nonconforming materials and demanded Valley Welding's cure.40 On July 17th, a representative of Vulcraft transmitted a letter to Valley Welding that disagreed with Valley Welding's assertion that Vulcraft had delivered nonconforming materials and asserted that Vulcraft did comply with the terms of its November 2019 Purchase Order.41 Subsequently, Valley Welding "incurred a total of $316,000 in rewarding [rewelding] the [Vulcraft-]manufactured steel joists."42

Between August and October 2020, D. Wilson paid Vulcraft $277,005.44, but Vulcraft asserted at the time of its October 29, 2020 complaint that it is owed "a past due amount remaining ... of $594,957.56."43 Plaintiff Vulcraft initially asserted numerous causes of action against various Defendants, but subsequently dismissed all of its claims against all Defendants except Valley Welding44 and new information indicates that Vulcraft has been paid all of the principal balance it sought and now seeks only late fees and attorney fees.45

After service of process,46 Valley Welding timely47 answered and counterclaimed.48 Twenty days later, pursuant to Federal Rule of Civil Procedure 15(a)(1)(A), Valley Welding filed his "First Amended Answer and Counter-Claim."49 While this document remains Valley Welding's "live answer to Vulcraft's complaint,"50 the Court subsequently granted Valley Welding leave to file his live "Corrected ... Second Amended Counter-Claim."51 Therein, Counter-Plaintiff Valley Welding asserts a breach of contract claim against Vulcraft for its allegedly nonconforming steel joists,52 and claims that Vulcraft breached its contract and express warranty in failing to construct steel joists according to Steel Joist Institute weld standards.53

The parties filed their joint discovery/case management plan on January 4, 2021,54 and the Court issued its current scheduling order on January 7th.55 The scheduling order provided an October 14th deadline to file pretrial motions.56 On October 14th, the parties filed nine motions,57 and Plaintiff filed its aforementioned motion to strike on November 8th.58 The Court turns to their analysis, beginning with Plaintiff's motions to exclude evidence because they were filed earlier, then Defendant's motion to exclude evidence, then Plaintiff's motion to strike Defendant's affidavit and errata sheet because it is necessary to resolving issues in Plaintiff's motion for summary judgment,59 then Plaintiff's motion for summary judgment considering the available evidence, and finally Defendant's motion to realign the parties.

a. Legal Standard

"[T]he Federal Rules of Evidence control the admission of expert testimony."60 The Rules and judicial scrutiny extend to all experts, whether scientific or otherwise.61 When an expert's "factual basis, data, principles, methods, or their application" are sufficiently called into question,62 the Court must undertake a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."63 The Court must first determine, under Federal Rules of Evidence 104(a) and 402, that the expert's proposed testimony is relevant and would assist with determining a fact at issue.64 Evidence that is not both is not admissible.65 "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful. Similarly, low probative value, or a total lack of it, will render proposed expert testimony unhelpful and, therefore, inadmissible under Federal Rule of Evidence 702."66 The Court...

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